Migrants at Work: Immigration and Vulnerability in Labour Law 9780198714101, 9780191782657, 0191782653, 9780191023514, 0191023515

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MIGRANTS AT WORK

Migrants at Work Immigration and Vulnerability in Labour Law

Edited by

C A T H R YN CO S T E L L O Andrew W Mellon Associate Professor in International Human Rights and Refugee Law, University of Oxford

and

M A R K F R E E D L A N D Q C (H O N ), F B A Emeritus Research Fellow, St John’s College, Oxford

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries # The several contributors 2014 The moral rights of the authors have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014940444 ISBN 978–0–19–871410–1 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface We hope that the many contributors to this symposium volume who are not affiliated to the University of Oxford will nevertheless agree with us, or at least not think us presumptuous, if we locate the origins and in many ways the home of this work in that university and more particularly in its Law Faculty. Our main reason for doing so, though there are several others, is that it was our teaching for Oxford’s graduate taught course seminars in International and European Employment Law which first provided us with the occasion and the stimulus to think about the expanding and deepening intersection between labour or employment law and migration law, which is the subject of this book. From that starting point, we came to realize what a fertile garden the University offered for the cultivation of this shared interest. Our teaching of and reflection upon this topic was taking place within a law faculty essentially supportive of inter-disciplinary studies both within and beyond the legal curriculum. Those reflections could find a larger institutional context in the University’s Centre on Migration, Policy and Society (COMPAS), and its Refugee Studies Centre (RSC) to a post in which the former of us moved in 2013, both of those institutions themselves being locations for interaction between many of the contributors to this volume, whether as staff or visitors. Operating in this essentially supportive environment, we felt encouraged to organize in July 2012 a colloquium of which this symposium is the ultimate product. Neither the colloquium nor the symposium could have been fruitful enterprises without the participation and support of a number of key actors, both personal and institutional. For their institutional support, we have to thank in particular the Oxford Law Faculty, in particular Dean Timothy Endicott and Karen Eveleigh, who managed the grant application and administration process throughout. We also thank our respective colleges. The inaugural conference dinner was held at Worcester College, and we acknowledge the College’s support for that event. At St John’s College, we thank in particular Professor Linda McDowell and colleagues at the St John’s College Research Centre and Ms Jackie Couling for assistance with conference organization and accommodation. Reflective of the University of Oxford’s pre-eminence in migration studies, we thank COMPAS for its support for this project, in particular Sarah Spencer for her unwavering support and enthusiasm. In addition, COMPAS colleagues Professors Bridget Anderson and Martin Ruhs not only contributed to the volume, but also provided intellectual inspiration and support throughout. Although they are not represented in this volume, many other scholars contributed to its intellectual content in different ways, in particular Linda Bosniak, Nicola Countouris, Catherine Dauvergne, Dora Kostakopoulou, Ronan McCrea, and Sarah Van Walsum. At Oxford University Press, we are greatly indebted to our patient and meticulous editors, Natasha Flemming, Alex Flach, and Elissa Hansen. The John Fell Fund provided generous financial support. We also acknowledge the support of the Society

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of Legal Scholars. Liam Dempsey of LBD Design created the project website, while Tom Szustek provided the stunning photographic imagery used there. The conference would not have been possible without the assistance of our energetic doctoral student Mimi Zou, colleague Jeremias Prassl, and a number of other students who contributed in different ways, in particular Froilan Malit (MSc Migration Studies) and Lea Sitkin (MSc Criminology). Various research students and colleagues helped to edit the manuscript, including Laura Hilly, Jack Bradley-Seddon, and Emily Hancox, who provided vital assistance in bringing the manuscript to completion. For personal participation, we as the editors owe an unusual debt to the other contributors to this work. It is unusual because of the fairly novel character of its essential enterprise, that of envisaging and realizing a significant zone of intersection between labour law and migration law. Most of the contributors, although eminent in one or other of those fields, are unaccustomed to working in both of them; we are really grateful to them for their willingness to engage wholeheartedly in the experimental activity of trying to combine the two disciplines. Although we are indebted to all the contributors, we feel that we can count on their assent to our singling out for special thanks and appreciation the two contributors, most eminent in our ranks, who, in their academic work as in their own personal lives, have achieved the marriage of labour law with migration law: we owe a very special debt to Ron McCallum and Mary Crock which we have tried in the elaboration of this work to start to repay. They can rightfully regard themselves as having been at the vanguard of this scholarly endeavour. We have found it particularly heartening that the project has served as a catalyst for many other collaborations on the intersection of migration and labour law. Alan Bogg, Tonia Novitz, and Virginia Mantouvalou have continued to critique the common law doctrine of illegality as it applies to migrant workers. Judy Fudge and Kendra Strauss have gathered a collection on the role of intermediaries in migrant labour supply. Catherine Barnard’s contribution to this volume is based on initial findings in a larger project seeking to understand EU migrant workers’ vulnerability to labour rights violations in the UK. Bernard Ryan’s latest collection under the auspices of the Employment Rights Institute on Labour Migration in Hard Times appeared at the end of 2013. In our doctoral student Mimi Zou, we have seen a new scholar develop a useful framework to analyse the impact of temporary migration status on labour relations. We greatly hope that further such endeavours may be stimulated by the work which is presented in this book. CC MRF 19 April 2014

Table of Cases UNITED KINGDOM CASE LAW Autoclenz v Belcher [2011] UKSC 41, [2011] ICR 1157 . . . . . . . . . . . . . . . . 18, 83, 202, 373–75, 380 Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154 . . . . . . . . . . . . . . . . . . . . . . . . 329 Bamgbose v Royal Star and Garter Home [1996] EAT 841/95 . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Bouchaala v Trusthouse Forte Hotels [1980] ICR 721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253–54 Bouzir v Country Style Foods Ltd [2011] EWCA Civ 1519 . . . . . . . . . . . . . . . . . . . . . . . . . . 210–11 Carmichael v National Power [1999] UKHL 47, [2000] IRLR 43 . . . . . . . . . . . . . . . . . . . . . . . . 201 Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202, [2010] ICR 397. . . . . . . . . . . . . . . 308 Consistent Group Ltd v Kalwak [2007] UKEAT/0535/06 . . . . . . . . . . . . . . . . . . . . 210–11, 213–14, 373–75 Consistent Group Ltd v Kalwak [2008] EWCA Civ 430, [2008] IRLR 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 202, 211, 213–14, 372–74 CWU v Cable & Wireless CAC Case No TUR1/570/2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Dacas v Brook St Bureau [2004] EWCA Civ 217, [2004] ICR 1437 . . . . . . . . . . . . . . . . . . . . . . . 202 Davis v Pyrz [2007] UKEAT/0304/06/MAA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 213 Dhatt v McDonalds Hamburgers Ltd [1991] ICR 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Dr V F Awotona v South Tyneside Healthcare Trust, Case Number 2500205/99, Newcastle-upon-Tyne, March 2000–November 2001 . . . . . . . . . . . . . . . . . . . . . . . . 304–06, 308–09, 319–21 Driving Edge Limited v Gietowski [2008] UKEAT/0444/07/RN . . . . . . . . . . . . . . . . . . 210, 212–13 Dziedziak v Future Electronics Ltd [2012] UKEAT/0270/11/ZT . . . . . . . . . . . . . . . . . . . . . 210, 213 Enfield Technical Services v Payne, BF Components Ltd v Grace [2008] IRLR 500 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 Eweida v British Airways [2010] EWCA Civ 80, [2010] IRLR 322 . . . . . . . . . . . . . . . . . . . . . . . 331 General Mills (Berwick) Ltd v Glowack [2011] UKEAT/0139/11/ZT . . . . . . . . . . . . . . . . . 210, 212 Hall v Woolston Hall Leisure Ltd [2000] IRLR 578, [2001] ICR 99 (CA) . . . . . . . . . . . . . . . 366–70 Hiero v Change-work Now Ltd [2011] UKEAT/0474/08/RN . . . . . . . . . . . . . . . . . . . . 210–11, 213 Hounga v Allen and Allen [2012] EWCA Civ 609, [2012] IRLR 685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 166, 303, 370–71 Hounga v Allen and Allen [2014] UKSC 47, 30 July 2014 . . . . . . . . . . . . . . . . 16, 166, 232, 255, 371 Hounslow LBC v Klusova [2007] EWCA Civ 1127, [2008] ICR 396 . . . . . . . . . . . . . . . . . . . 253–54 Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 JH Walker v Hussain [1996] IRLR 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 James v Greenwich [2008] EWCA Civ 35, [2008] ICR 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Jessemey v Rowstock Ltd & Anor [2014] EWCA Civ 185, [2014] WLR(D) 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Jones v Ann Corbin T/A Boo [2011] UKEAT/0504/10/RN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Jury’s Inn Group v Tatarova [2010] UKEAT/0295/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Kelly v University of Southampton [2007] UKEAT/0295/07/ZT, [2008] ICR 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253–55 Kestutis Kristapaitis v Thistle Seafood Limited [2009] UKEATS/0033/09 . . . . . . . . . . . . . . . . . . 210 Kulikaoskas v MacDuff Shellfish [2010] UKEATS/0062/09/BI . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Kurumuth v NHS Trust North Middlesex University Hospital [2011] UKEAT/0524/10/CEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251–52, 254 L’Estrange v Graucob [1934] 2 KB 394 (DC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

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Mandla v Lee [1983] 2 AC 548, [1983] 2 WLR 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 Mehmet t/a Rose Hotel Group v Aduma [2007] UKEAT/0573/06/CEA & UKEAT/0574/06 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Mogul Steamship Co v McGregor, Gower & Co [1982] AC 25 . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Muhammed v The Leprosy Mission International [2009] ET/2303459/09 (ET) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329–30 Nagle v Fielden [1966] 2 QB 633 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 (CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Okuoimose v City Facilities Management [2011] UKEAT/0192/11/DA . . . . . . . . . . . . . . . . 251–52 Oleksak v Atlanco Ltd [2006] UKEAT/0445/06/DM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210–13 Onu v Akwiwu and others [2013] UKEAT/0283/12/RN & UKEAT/0022/12/RN, [2013] IRLR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Onu v Akwiwu and another & Taiwo v Olaigbe and another [2014] EWCA Civ 279, [2014] WLR (D) 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Osborne Clarke Services v Purohit [2009] UKEAT/0305/08/ZT . . . . . . . . . . . . . . . . . . . . . . 247–48 Polkey v AE Dayton Services Ltd [1987] UKHL 8, [1988] AC 344 . . . . . . . . . . . . . . . . . . . . . . . 213 Procek v Oakford Farms Ltd [2008] UKEAT/0049/08/DA . . . . . . . . . . . . . . . . . . . . . . . . . 210, 213 R (BBC) v Central Arbitration Committee [2003] EWHC 1375 (Admin), [2003] IRLR 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 R (Harris) v Haringey London Borough Council [2010] EWCA Civ 703 [2010] BLGR 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 R (Kaur & Shah) v Ealing London Borough Council [2008] EWHC 2062 (Admin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 (QB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Seide v Gillette [1980] IRLR 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 Sharma v Hindu Temple EAT/253/90 (EAT 28 November 1991) . . . . . . . . . . . . . . . . . . . . . . . . 367 Sharpe v The Worcester Diocesan Board Of Finance Ltd & Anor [2013] UKEAT/0243/12/DM, [2014] ICR D9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Snook v London and West Riding Investments Ltd [1967] 2 QB 786 . . . . . . . . . . . . . . . . . . . . . 373 South Manchester Abbeyfield Society Ltd v Hopkins [2011] ICR 254 (EAT) . . . . . . . . . . . . . . . . 85 Taiwo v Olaigbe [2013] UKEAT 0254/12/KN & UKEAT/0285/12/KN, [2013] ICR 770 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Tariq v Young Case 247738/88 EOR Discrimination Case Law Digest No 2 . . . . . . . . . . . . . . . . 328 TGWU v Comet Group Plc TUR1/557/2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Unite the Union v Cranberry Foods Ltd, CAC Case No TUR1/708 /2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 376–79 Unite the Union v Kettle Foods Ltd, CAC Case No TUR1 /557/(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 376–78 Vakante v Addey and Stanhope School (No 2) [2005] ICR 231 (CA) . . . . . . . . . . . . . . . . . . . . . 368 Wojnarowicz v Moto Hospitality Ltd [2010] UKEAT/0315/10/JOJ . . . . . . . . . . . . . . . . 210, 212–13 Zarkasi v Anindita and Tse Tan [2012] UKEAT/0400/11/JOJ, [2012] ICR 788 . . . . . 166, 255, 367

DOMESTIC CASE LAW Australia Akhtar v Rays Snack Bar and Spicy Food [2011] FWA 6213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Alcantara & Anor v Buildpower Pty Ltd (No 2) [2010] FMCA 763 . . . . . . . . . . . . . . . . . . . 435–36 Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422–23 Armstrong v Healthcare Recruiting Australia [2008] FMCA 1050 . . . . . . . . . . . . . . . . . . . . . . . 437

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Australia Meat Holdings v Kazi [2004] 2 Qd R 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust t/as Fletcher International WA [2010] FWA 2667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Ex p HV McKay (Harvester) (1907) 2 CAR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 Fair Work Ombudsman v Kentwood Industries (No 2) 2010] FCA 1156 . . . . . . . . . . . . . . . 436–37 Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730 . . . . . . . . . . . . . . . . . . . . . . 442 Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 Fraser v Sydney Harbour Casino Pty Ltd (1997) 70 IR 472 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Fryer v Yoga Tandoori House Pty Ltd [2011] FMCA 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436 Hanssen Pty Ltd v Jones [2008] FCA 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Jones v Hanssen Pty Ltd [2008] FMCA 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Krishnakanth v Saai Bose Pty Ltd [2010] FWA 4678 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Paternella v Electroboard Solutions Pty Ltd [2011] FWA 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 Potter v Minahan (1908) 7 CLR 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 Prasad v Alcatel-Lucent [2010] FWA 7804 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 R v Yogalingam Rasalingam, District Court of New South Wales, 10–11 October 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436 Robtelmes v Brenan (1906) 4 CLR 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426–27 Webster v Mercury Colleges Pty Ltd [2011] FWA 1807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444–45 Work Cover Corporation (San Remo Macaroni Co Pty Ltd) v Liang Da Ping (1994) 175 LSJS 469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Canada Ontario Human Rights Commission and Rachael Baylis-Flannery v Walter DeWilde c.o.b. as Tri Community Physiotherapy [2003] HRTO 28 . . . . . . . . . . . . . . . . . . 311 China Fourth Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in Trial of Labour Dispute (1 February 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 France Conseil d’État 3/05/2000 No 217017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Conseil d’État 15/10/2003 No 244428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Germany Federal Labour Court 10 October 2002, 2 AZR 472/01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Greece Decision No 1148/2004 of the Greek Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Ireland Hussein v Labour Court [2012] IEHC 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 232–33 Lewis v Squash Ireland Ltd [1983] ILRM 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Israel Doron v The Ministry of Interior Affaris HCJ 1834/09 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Kav LaOved v The Government of Israel [2006] 4542/02 . . . . . . . . . . . . . . . . . . . . . . . . 19, 22, 136, 141–43, 149, 153 The Association of Contractors and Builders in Israel Ltd v The New Histadrut NLC 18/08 (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Yulanda Glutan v The National Labour Court HCJ 10007/09 (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150–52, 154–55, 157–58

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Italy Constitutional Court, 2 December 2005 no 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 21 February 2008 no 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 26 May 2010 no 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 22 July 2010 no 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 22 October 2010 no 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 21 February 2011 no 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 25 February 2011 no 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 12 December 2011 no 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 18 January 2013 no 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 4 July 2013 no 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutional Court, 19 July 2013 no 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Bari, 18 May 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Genova, 17 April 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Genova, 3 June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Appeal of Perugia, 13 June 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Ravenna, 16 January 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Ravenna, 1 October 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Vicenza, 7 August 2009

130 130 130 132 132 130 132 130 130 130 130 131 131 131 131 131 131

New Zealand Kahn v Harun Ali t/a Mod Fab (2002) 6 NZELC 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 South Africa Discovery Health Ltd v CCMA & others (CLL Vol 17, April 2008) . . . . . . . . . . . . . . . . . . . . . . 234 Sweden Swedish Labour Court Case AD 1989:120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Swedish Labour Court Case AD 2012:34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 United States Espinoza v Farah Mfg [1973] 414 US 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184–85 Flores et al v Albertson (2002) US Dist LEXIS 6171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Griggs v Duke Power [1971] 401 US 424. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Hoffman Plastic Compounds v National Labor Relations Board (2002) 535 US 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 185–86, 190, 235–36, 365, 395–96 Jeffries v Harris County Community Action Association 615 F 2nd 1025 (5th Cir 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 Lin et al v Donna Karan International Inc (2002) 207 F Supp 2d 191 . . . . . . . . . . . . . . . . . . . . . 236 Patel v Quality Inn [1988] 11th circuit 846 F 2d 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Pollock v Williams, [1944] 322 US 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 189, 191 Singh v Jutla (2002) 214 FSupp2d 1056 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221, 236 Sure Tan Inc v NLRB (1984) 467 US 833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

EU CASE LAW 152/73 Sotigiu v Deutsche Bundespost [1974] ECR 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149/79 Commission v Belgium [1980] ECR 3881 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53/81 Levin [1982] ECR 1035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66/85 Lawrie-Blum v Land Baden-Wurttemberg [1986] ECR 2121 . . . . . . . . . . . . . . . . . . . . . . . C-170/84 Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607 . . . . . . . . . . . . . . . . . . . . . . . . . C-139/85 R H Kempf v Staatssecretaris van Justitie [1986] ECR 1741 . . . . . . . . . . . . . . . . . . . . . C-171/88 Ingrid Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co [1989] ECR 2743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

103 103 197 197 336 343 343

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C-118/89 Société Rush Portuguesa Lda v Office National d’Immigration [1990] ECR I-2637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 C-221/89 R v Secretary of State for Transport ex parte Factortame [1991] ECR I-3905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 C-292/89 Antonissen [1991] ECR I-00745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 C-370/90 Surinder Singh [1992] ECR I-04265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 C-55/94 Gebhard [1995] ECR I-4165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-04139 . . . . . . . . . . . . . . . . . 244 C-184/99 Grzelczyk [2001] ECR I-06193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 C-112/00 Schmidberger Internationale Transporte Planzüge v Republik Österreich [2003] ECR I-5659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 C-36/02 Omega v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-06303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 C-291/05 Eind [2007] ECT I-10719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2007] ECR I-11767 . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 51–52, 197–98, 341, 346–49, 358–60 C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 52, 347 C-319/06 Commission v Luxembourg [2008] ECR I-4323 . . . . . . . . . . . . . . . . . . . . . 15, 51–52, 198 C-346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989 . . . . . . . . . . . . . . . . . . . 15, 51–53, 197–98 C-527/06 Renneberg v Staatssecretaris van Financiën [2008] ECR I-07735 . . . . . . . . . . . . . . . . . 130 C-54/07 Firma Feryn [2008] ECR I-05187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 C-158/07 Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Joined Cases C-22/08 and C-23/08 Vatsouras [2009] ECR I-4585 . . . . . . . . . . . . . . . . . . . . 101, 130 C-145/09 Tsakouridis [2010] ECR I-11979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 C-348/09 PI [2012] OJ C 200/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 C-300/11 ZZ [2013] OJ C 225/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 C-456/12 O & B (ECJ, 12 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 C-457/12 S & G (ECJ, 12 March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

INTERNATIONAL CASE LAW European Court of Human Rights Associated Society of Locomotive Engineers & Firemen (ASLEF) v UK (2007) 45 EHRR 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396–97 Bigaeva v Greece App No 26713/05 (ECtHR, 28 May 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 Carson v United Kingdom App no 42184/05 (ECtHR, 16 March 2010) . . . . . . . . . . . . . . . . . . . 129 CN v United Kingdom (2013) 56 EHRR 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171–72, 174, 392 Demir and Baykara v Turkey App No 34503/97 (ECtHR, 12 November 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391, 394–95 Eweida and Others v UK [2013] 57 EHHR 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336 Fawsie v Greece App No 40080/07 (ECtHR, 28 October 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 394 Gaygusuz v Austria (1997) 23 EHRR 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 393 Gustafsson v Sweden (1996) 22 EHRR 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396 Hirsi Jamaa v Italy (2012) 55 EHRR 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 Kawogo v UK App no 56921/09 (ECtHR 3 September 2013) . . . . . . . . . . . . . . . . . . . . . . . 171, 174 Koua Poirrez v France (2005) 40 EHRR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 394 Loizidou v Turkey (1995) 20 EHRR 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

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Lucsak v Poland App no 77782/01 (ECtHR, 2 June 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 MSS v Belgium and Greece (2011) 53 EHRR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390, 395 N v United Kingdom (2008) 47 EHRR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 Niedzwiecki v Germany (2006) 42 EHRR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 OGO v UK App No 13950/12 (ECtHR, 8 March 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 171–72, 174 Rantsev v Cyprus and Russia (2010) 51 EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 291 Si Amer v France App no 29137/06 (ECtHR, 29 October 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 129 Siliadin v France (2006) 43 EHRR 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 170–71, 174, 226, 291, 364, 391–92 Sorensen and Rasmussen v Denmark (2008) 46 EHRR 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396 Souza Ribeiro v France App No 22689/07 (ECtHR, 13 December 2012) . . . . . . . . . . . . . . . . . . . 394 Thlimmenos v Greece (2001) 31 EHRR 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 United Macedonian Organisation Ilinden and Others v Bulgaria App No 59491/00 (ECtHR, 19 January 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 Young, James and Webster v UK App No 7601/76, 7806/77 (ECtHR, 13 August 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396 Zeïbek v Greece App no 46368/06 (ECtHR, 9 July 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 European Committee on Social Rights Defence of Children International v Netherlands Complaint No C 47/2008, Decision 20 October 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291, 389 International Federation of Human Rights Leagues (FIDH) v France, Complaint No 14/2003, Decision of 8 September 2004 . . . . . . . . . . . . . . 22, 226–27, 290, 389 Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden Complaint No 85/2012, Decision of 3 July 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Inter-American Court of Human Rights Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 Inter-American Court of Human Rights Series A No 18 (17 September 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22, 190, 228–29, 365, 395 African Commission on Human and Peoples’ Rights Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and Others v Angola, Communication No 159/96 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 UN Human Rights Committee Gueye et al v France UN Human Rights Committee Communication No 196/1985 UN Doc CCPR/C/35/D/196/1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

Table of Legislation UNITED KINGDOM LEGISLATION Primary Legislation Act for the Better Releife of the Poore of this Kingdom 1662 (14 Cha. 2 c 12) . . . . . . . . . . . . . . . . . . . . . . . . . 36–37 Act for the Releife of the Poore 1601 (43 Eliz. 1 c 2) . . . . . . . . . . . . . . . . . . . . 36 Act for the Punishment of Sturdy Vagabonds and Beggars 1536 (27 Hen. 8 c 25) . . . . . . . . . . . . . . . . 32, 36 Act made for continuing of the Statutes for Beggars and Vagabonds 1536 (28 Hen. 8 c 6) . . . . . . . . . . . . . . . 32 Agricultural Wages Act 1948, s 2(2B) . . . . . . 84 Asylum and Immigration Act 1996 . . . . . . . . . . . . . . . . . 240–42, 253 s 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 s 8(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 241 s 8(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 s 8(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 8A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Asylum and Immigration Act (Treatment of Claimants, etc) 2004 . . . . . . . . . . . . 168 British Nationality Act 1948 . . . . . . . . . . . . 314 Commonwealth Immigrants Act 1962 . . . . . . . . . . . . . . . . . . . . . . 6, 314–15 Commonwealth Immigrants Act 1968 . . . . 314 Coroners and Justice Act 2009, s 71 . . . . . . 160 Disability Discrimination Act 2005 . . . . . . . 331 Employment Agencies Act 1973, s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 204 Employment Protection (Consolidation) Act 1978 s 57(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 s 57(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . 253 Employment Rights Act 1996 . . . . . . . . . . . 368 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 s 98(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 s 98(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . 253 s 98A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 s 230(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 201 s 230(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 201 s 230(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 201 s 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Enterprise and Regulatory Reform Act 2013, s 72 . . . . . . . . . . . . . . . . . . 83, 89 Equality Act 2006 . . . . . . . . . . . . . . . . . . . . . 331

Equality Act 2010 . . . . . . . . . . 245, 247, 307–08, 324, 328, 331, 368 s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 s 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 s 83(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 s 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Sch 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 Gangmasters (Licensing) Act 2004 . . . . . . . . . . . . 88–90, 94–95, 362 s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 s 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 s 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 s 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 s 26(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 s 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Groceries Code Adjudicator Act 2013 . . . . . . 97 Health and Safety at Work Act 1974 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 s 53(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Immigration Act 1971 . . . . . . . . . . . . . . . . . 243 s 3C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Immigration Act 1981. . . . . . . . . . . . . . . . . . 314 Immigration and Asylum Act 1999 . . . . . . . 245 Immigration, Asylum and Nationality Act 2006 . . . . . . . . . . . . . . . . . 168, 240–42 ss 15–25 . . . . . . . . . . . . . . . . . . . . . . . . . . 240 s 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 ss 16–17 . . . . . . . . . . . . . . . . . . . . . . . . . . 241 s 21(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 21(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Immigration Reform and Control Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . 240 National Minimum Wage Act 1998 . . . 84, 202 s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Oaths Act 1888 . . . . . . . . . . . . . . . . . . . . . . 325 Ordinance of Labourers 1349 (23 Edw. 3) . . . . . . . . . . . . . . . . . 30–32, 36

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Poor Law 1834 . . . . . . . . . . . . . . . . . . . . . . . . 37 Poor Removal Act 1846 . . . . . . . . . . . . . . . . . 37 Protection of Freedoms Act 2012 . . . . . . . . 167 Public Bodies Act 2011 . . . . . . . . . . . . . . . . . 82 Public Interest Disclosure Act 1998 . . . . . . . 202 Race Relations Act 1965 . . . . . . . . . . . . . 6, 314 Race Relations Act 1968 . . . . . . . . . . . . . 6, 314 Race Relations Act 1976 . . . . 245–46, 314, 328 s 1(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 247 s 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 Regulatory Enforcement and Sanctions Act 2008, s 50 . . . . . . . . . . . . . . . . . . . . . 94 Representation of the People Act 1983 . . . . . . 6 Roman Catholic Relief Act 1829 . . . . . . . . . 325 Sex Discrimination Act 1975 . . . . . . . . . . . . 331 Sexual Offences Act 2003 . . . . . . . . . . . . . . 168 Slave Trade Act 1807 . . . . . . . . . . . . . . . . . . 168 Statute of Artificers 1563 (5 Eliz. 1 c 4) . . . . . 33 Statute of Cambridge 1338 (12 Ric. 2 c 7) . . . . . . . . . . . . . . . . . . . . . 32 Statute of Labourers 1351 (25 Edw. 3 st 2) . . . . . . . . . . . . . . . . 30, 38 Trade Boards Act 1918 . . . . . . . . . . . . . . . . . 82 Trade Union and Labour Relations (Consolidation) Act 1992 s 145A . . . . . . . . . . . . . . . . . . . . . . . 363, 368 s 145B . . . . . . . . . . . . . . . . . . . . . . . . 363, 368 s 146 . . . . . . . . . . . . . . . . . . . . . 363, 368, 372 s 152 . . . . . . . . . . . . . . . . . . . . . 363, 368, 372 Schedule A1 . . . . . . . . . . . . . . . . . . . 363, 376 para 27A(2)(g) . . . . . . . . . . . . . . . . . . . 376 Statutory Instruments Accession (Immigration and Worker Authorisation) Regulations 2006, SI 2006/3317 . . . . . . . . . . . . . . . . . . . . . . 86 reg 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Agency Work Regulations 2010, SI 2010/93 . . . . . . . . . . . . . . . . . . . . . . 200 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Agricultural Wages (England and Wales) Order 2012 . . . . . . . . . . . . . . . . . 82 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Art 5(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . 85–86 Art 48(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Art 50(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Detention Services Order 15/2008 . . . . . . . . . 39 Detention Services Order 01/2013 . . . . . . . . . 39 Employment Act 2002 (Dispute Resolution) Regulations 2004, SI 2004/752 . . . . . . . . . . . . . . . . . . . . . 212 Employment of Adults Subject to Immigration Control (Maximum Penalty) Order 2008, SI 2008/132 . . . . 240 Employment Equality (Religion and Belief ) Regulations 2003, SI 2003/1660 . . . . . . . . . . . . . . . . . . 328–29 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, reg 19(1) . . . . . . . . . . . . 207 Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 . . . . . . . . . . . . . . . . . . . . . 209 Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034, reg 19 . . . . . . . . . . 200 Gangmasters (Licensing Conditions) Rules 2009, SI 2009/307 Rule 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Schedule 1 . . . . . . . . . . . . . . . . . . . . . . . . . 90 Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2008, SI 2008/132 . . . . 240 Immigration (Restrictions on Employment) Order 1996, SI 1996/3225 . . . . . . . . . . 241 Schedule part I, para 3 . . . . . . . . . . . . . . . . . . . . 254 part III . . . . . . . . . . . . . . . . . . . . . . . . . 242 Immigration (Restrictions on Employment) Order 2004, SI 2004/755 . . . . . . . . . . . . . . . . . . . . . 241 Art 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Immigration (Restrictions on Employment) Order 2007, SI 2007/3290 . . . . . . 240, 244 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 241 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 Schedule List A . . . . . . . . . . . . . . . . . . . . . . 242, 247 List B . . . . . . . . . . . . . . . . . . . 242, 247–49 point 3 . . . . . . . . . . . . . . . . . . . . . . . 243 point 4 . . . . . . . . . . . . . . . . . . . . . . . 243 point 6 . . . . . . . . . . . . . . . . . . . . . . . 243

Table of Legislation National Minimum Wage Regulations 1999, SI 1999/584 reg 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 regs 24–26A . . . . . . . . . . . . . . . . . . . . . . . . 84 reg 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Part-time Work Regulations 2000, SI 2000/1551 . . . . . . . . . . . . . . . . . . . . . 202 Working Time Regulations 1998, SI 1998/1833 . . . . . . . . . . . . . . . . 85, 202, 213 reg 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 regs 13–13A . . . . . . . . . . . . . . . . . . . . . . . . 85 reg 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 reg 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

DOMESTIC LEGISLATION Australia Primary Legislation Administrative Decisions (Judicial Review) Act 1977 (Cth) . . . . . . . . . . . . . . . . . . . 429 Constitution of the Commonwealth of Australia . . . . . . . . . . . . . . . . . . . . . 425–26 s 51(xxxv) . . . . . . . . . . . . . . . . . . . . . . . . . 426 Contract Immigrants Act 1905 . . . . . . . . . . 427 Fair Work Act 2009 (Cth) . . . . . . . . . 422, 425, 433–34, 439–41, 443 s 3(f ) . . . . . . . . . . . . . . . . . . . . . . . . . 433–34 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 s 382(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 s 382(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 443 s 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 s 385(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 443 s 385(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 443 s 386(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 443 s 386(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . 444 s 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 s 390(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . 443 s 682(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 441 s 682(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . 441 s 682(1)(e) . . . . . . . . . . . . . . . . . . . . . . . . 441 s 715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Immigration Restriction Act 1901 s 3(g)–(h) . . . . . . . . . . . . . . . . . . . . . . . 427 Industrial Relations Act 1988 (Cth) . . . . . . 429 Migration Act 1958 (Cth) . . . . . . 422, 428–29, 436, 446 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422

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s 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 ss 140GBA–140GBC . . . . . . . . . . . . . . . . 440 s 140GBA . . . . . . . . . . . . . . . . . . . . . . . . . 440 s 140GBA(2) . . . . . . . . . . . . . . . . . . . . . . 440 s 140GBC . . . . . . . . . . . . . . . . . . . . . . . . . 440 s 140H . . . . . . . . . . . . . . . . . . . . . . . 423, 432 s 140H(1) . . . . . . . . . . . . . . . . . . . . . . . . . 438 s 140K . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 ss 140K–140N . . . . . . . . . . . . . . . . . . . . . 440 ss 140Q–140R . . . . . . . . . . . . . . . . . . . . . 440 ss 140S–140U . . . . . . . . . . . . . . . . . . . . . . 441 ss 140V–140XJ . . . . . . . . . . . . . . . . . . . . . 441 s 140XE . . . . . . . . . . . . . . . . . . . . . . . . . . 441 s 140XF . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Migration Amendment (Temporary Sponsored Visas) Act 2013 . . . . . . . . . 440 Migration Legislation Amendment (Worker Protection) Act 2008 (Cth) . . . . . 438, 440 Migration Amendment (2014 Measures No 1) Regulation 2014 . . . . . . . . . . . . . 439 Pacific Island Labourers Act 1901 (Cth) . . . 427 Polynesian Labourers Act 1868 (Qld) . . . . . 427 Workplace Relations Act 1996 . . . . . . . . . . 435 s 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 s 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 s 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Secondary Legislation Determination of international trade obligations relating to labour market testing (F2013L01954-IMMI 13/138) . . .440 Fair Work Regulations 2009 (Cth) reg 2.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 reg 3.43 . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Migration Regulations 1994 (Cth) . . . 422, 429, 446 reg 1.20B . . . . . . . . . . . . . . . . . . . . . . . . . 432 reg 1.20CB . . . . . . . . . . . . . . . . . . . . . . . . 432 reg 1.20D(2)(a) . . . . . . . . . . . . . . . . . . . . . 432 reg 1.20D(2)(c) . . . . . . . . . . . . . . . . . . . . . 432 reg 1.20D(2)(d) . . . . . . . . . . . . . . . . . . . . 432 reg 1.20G(1)(d) . . . . . . . . . . . . . . . . . . . . 431 reg 1.20G(2) . . . . . . . . . . . . . . . . . . . . 431–32 reg 1.20G(4) . . . . . . . . . . . . . . . . . . . . . . . 432 reg 2.102C . . . . . . . . . . . . . . . . . . . . . . . . 441 reg 2.59(f )(ii) . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.72 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.78 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.79 . . . . . . . . . . . . . . . . . . . . . . . 423, 439 reg 2.79(2) . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.80 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.81 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.82 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.83 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.84 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439

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reg 2.85 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.86 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 reg 2.87 . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 Division 1.4A . . . . . . . . . . . . . . . . . . . . . . 431 Sch 2, Item 175.211(b)(i)(B) . . . . . . . . . . . . . . . . . . 438 457.221(2) . . . . . . . . . . . . . . . . . . . . . . 431 457.221(7) . . . . . . . . . . . . . . . . . . . . . . 431 457.221(8) . . . . . . . . . . . . . . . . . . . . . . 431 457.223(2) . . . . . . . . . . . . . . . . . . . . . . 439 457.223(3) . . . . . . . . . . . . . . . . . . . . . . 431 457.223(4)(e) . . . . . . . . . . . . . . . . . . . . 432 457.223(5)(e) . . . . . . . . . . . . . . . . . . . . 432 457.223(5)(f ) . . . . . . . . . . . . . . . . . . . . 432 Specified period in which labour market testing must be undertaken (F2013L01953-IMMI 13/136) . . . . . . . . 440 Specification of occupations exempt from labour market testing (F2013L01952-IMMI 13/137) . . . . . . . . 440 Brazil Brazilian Constitution of 1988 . . . . . . . . . . . 406 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Law No 11.324/2006 . . . . . . . . . . . . . . . . . . 406 Canada Canadian Human Rights Act 1977 . . . . . . . 307 France Code du Travail (Labour Code) Arts L5521–8, L8251–1, and L8252–2 . . . . . 234 Code Pénal (Criminal Code) Art 224–14 . . . . . . . . . . . . . . . . . . . . . . 170 Germany Arbeitsförderungsgesetz (AFG) (Employment Promotion Act), s 229.1 . . . . . . . . . 234–35 Bürgerliches Gesetzbuch (BGB) (Civil Code), s 134 . . . . . . . . . . . . . . . . . . . . . . . . 234–35 Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung (SchwarzArbG) (Law Against Forced Labour and Illegal Employment) s 3 no 9e . . . . . . . . . 234–35 Law on the management and limitation of inward migration and the regulation of the residence and integration of EU citizens and foreigners, BGBI Part I No 41 1950 of 5 August 2004 . . . . . 54–55 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Greece Law 3886/2005 . . . . . . . . . . . . . . . . . . . . . . . 234

Ireland Carers Leave Act 2001, s 2 . . . . . . . . . . . . . . 232 Employment Equality Act 1998 . . . . . . . . . . 232 Employment Permits Act 2003, s 2 . . . . . . . 232 Employment Permits Act 2006, s 2 . . . . . . . 232 Equality Act 2004, s 2 . . . . . . . . . . . . . . . . . 232 Maternity Protection Act 1994, s 2 . . . . . . . 232 Parental Leave Act 1998, s 2 . . . . . . . . . . . . 232 Terms of Employment (Information) Act 1994, s 1 . . . . . . . . . . . . . . . . . . . . . 232 Unfair Dismissals Act 1977, s 1 . . . . . . . . . . 232 Israel Basic Law of Human Dignity and Liberty 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Entry into Israel Law (1952) (Amendment 2011) Art 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Art 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Hours of Work and Rest Law 1951 . . . . . . .150, 152, 154, 15 Minimum Wage Law 1987 . . . . . . . . . . . . . 142 Italy Bossi-Fini Law, Law no 189/2002 . . . . 122–23, 125–27 Budget Law 2001, Law no 388/2000, Art 80(19) . . . . . . . . . . . . . . . . . . . . . . . 129 Civil Code Art 1418 . . . . . . . . . . . . . . . . . . . 127 Consolidated Law on Immigration, Legislative Decree no 286/1998 . . . 122–23, 125–26, 128 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Art 5-bis . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Art 22(11) . . . . . . . . . . . . . . . . . . . . . . . . 125 Arts 34–42 . . . . . . . . . . . . . . . . . . . . . . . . 124 Art 35(3) . . . . . . . . . . . . . . . . . . . . . . . . . 132 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Constitutional Reform of 2001, Law no 3/2001 . . . . . . . . . . . . . . . . . . . 131 Italian Constitution Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Art 35(1) . . . . . . . . . . . . . . . . . . . . . . . . . 124 Art 38(1) . . . . . . . . . . . . . . . . . . . . . . . . . 129 Art 38(2) . . . . . . . . . . . . . . . . . . . . . . . . . 129 Art 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Art 117(2)(m) . . . . . . . . . . . . . . . . . . . . . 132 Law no 1305/1952 ratifying ILO Convention No 97 . . . . . . . . . . . . . . . . 128 Law no 741/1956 ratifying ILO Convention No 102 . . . . . . . . . . . . . . . 128

Table of Legislation Law no 657/1966 ratifying ILO Convention No 118 . . . . . . . . . . . . . . . 128 Law no 158/1981 ratifying ILO Convention No 143 . . . . . . . . . . . . . . . 128 Law no 5/2004 of the Emilia Romagna Region, Art 2 . . . . . . . . . . . . . . . . . . . . 131 Law no 46/2004 of the Abruzzo Region, Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Law no 5/2005 of the Friuli Venezia Giulia Region, Art 2 . . . . . . . . . . . . . . . . . . . . 131 Law no 10/2008 of the Lazio Region, Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Law no 125/2008 . . . . . . . . . . . . . . . . . . . . . 123 Law no 13/2009 of the Marche Region . . . . 132 Law no 29/2009 of the Toscana Region, Art 2 . . . . . . . . . . . . . . . . . . . . . . . . 131–32 Law no 32/2009 of the Puglia Region, Art 2 . . . . . . . . . . . . . . . . . . . . . . . . 131–32 Law no 94/2009 . . . . . . . . . . . . . . . . . . . 123–24 Law no 6/2010 of the Campania Region, Art 2 . . . . . . . . . . . . . . . . . . . . . . . . 131–32 Law no 217/2010 . . . . . . . . . . . . . . . . . . . . . 123 Law no 129/2011 . . . . . . . . . . . . . . . . . . . . . 124 Law no 99/2013, Art 9(7) . . . . . . . . . . . . . . 126 Legislative Decree no 3/2007 . . . . . . . . . . . . 129 Legislative Decree no 109/2012 . . . . . . . 123–24 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Mexico Mexican Constitution, Arts 1 and 33 . . . . . 234 Nepal Foreign Employment Act 2064 (2007) . . . . 413 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 413 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 Philippines Migrant Workers and Overseas Filipinos Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 Poland Labor Code (Dz. U 1998 r Nr 21 poz 94) Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 South Africa Basic Conditions of Employment (75/1997) Amendment of Sectoral Determination 7: Domestic Worker Sector, Government Gazette No 10668 (15 August 2002) . . . . . . . . . . . . . . . . . 407 cl 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408 cl 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

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s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . 407, 410 s 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 Basic Conditions of Employment (75/1997) Amendment of Sectoral Determination 7: Domestic Worker Sector, Government Gazette No 9632 (28 November 2011) . . . 415, 417–18, 420 Labour Relations Act 1995 . . . . . . . . . . . . . . 407 Unemployment Insurance Act 2001. . . . . . . 407 Sweden Aliens Act (2005:716) . . . . . . . . . . . . . . . . . 356 ch 5, s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 352 ch 6 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 s 2a . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 ch 7, s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 352 ch 20, s 5 . . . . . . . . . . . . . . . . . . . . . . . . . 356 Co-determination in the Workplace Act (1975:580) . . . . . . . . . . . . . . . . . . . 345–47 s 41c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 ss 41–42 . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Foreign Posting of Employees Act (1999:678) . . . . . . . . . . . . . . . 345, 347 s 5a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 s 5b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 s 9a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 United States Age Discrimination in Employment Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . 181 Americans with Disabilities Act 1991 . . . . . 181 Anti Peonage Statue 1867 . . . . . . . . . . . 181–82 Civil Rights Act 1964 . . . . . . . . . . . . . . . . . . 307 Title VII . . . . . . . . . . . . . . . . . . 181, 184, 311 Fair Labor Standards Act 1938 . . . . . . . 235–36 s 215(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 236 Immigration and Nationality Act 1952 s 1324b . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 s 274A(a)(1),(b) . . . . . . . . . . . . . . . . . . . . 241 Immigration Reform and Control Act 1986 . . . . . . . . . . . . . . . . 185, 236, 240 McCarran-Walter Act 1952 . . . . . . . . . . . . . 314 National Labor Relations Act 1935 . . . . . . . 182, 186, 188 Occupational Safety and Health Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Thirteenth Amendment to the United States Constitution 1865 . . . . . . . . . 20, 22, 180–81, 189–92 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

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Trafficking Victims Protection Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . 182 Trafficking Victims Protection Act 2003 . . . . . . . . . . . . . . . . . . . . . . . . 182 Trafficking Victims Protection Act 2008 . . . 182 Zambia Statutory Instrument No 3 of 2011 The Minimum Wages and Conditions of Employment Act (Laws, Volume 15, Cap 276) The Minimum Wages and Conditions of Employment (Domestic Workers) Order 2011 . . . . . . . . . . . . . . 414

EU LEGISLATION Treaties Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded [2005] OJ L157/203 . . . . . . . . . . . . . . . . 86 Additional Protocol to the EEC-Turkey Association Agreement [1973] OJ C113/18 . . . . . . . . . . . . . . . . . . . . . . . . . 99 Charter of Fundamental Rights of the EU . . . . . . . . . . . . . . . . . . . . . 284, 334 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Art 34(3) . . . . . . . . . . . . . . . . . . . . . . . . . 128 EEC-Turkey Association Agreement [1973] OJ C113/2 . . . . . . . . . . . . . . . . . . . . . . . . 99 EU-Swiss Agreement on the Free Movement of Persons [2002] OJ L 114/6 Art 7(a) . . . . . . . . . . . . . . . . . . . . . . . 244–45 Art 7(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Treaty establishing the European Economic Community 1957 . . . . . . . . . . . . . . . . . 100 Arts 59–66. . . . . . . . . . . . . . . . . . . . . . . . . . 51 Treaty on the European Union, Art 6(2) . . . . . 336 Treaty on the Functioning of the European Union Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . 194, 303 Art 45 . . . . . . . . . . . . . . . . 100, 102, 196, 198, 200–1, 214, 244 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . 100 Art 45(3) . . . . . . . . . . . . . . . . . . . . . . . . . 101 Art 49 . . . . . . . . . . . . . . 52, 194, 196–97, 214 Art 56 . . . . . . . . . . . . . 53, 196–198, 200, 214 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Art 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Art 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

Art 79(5) . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 153(5) . . . . . . . . . . . . . . . . . . . . . . . . 346 Directives Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [1964] OJ 850/64 . . . . . . . . . . . . . . . . . . . 100, 102 Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families [1968] OJ L257/13 . . . . . . . . . . . . . . . . 100 Council Directive (EC) 96/71 concerning the posting of workers in the framework of the provision of services (Posted Workers Directive) [1997] OJ L18/1 . . . 15, 51, 196, 198, 200, 344–48, 358, 365 Art 1(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . 200 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 Art 3(1) . . . . . . . . . . . 198–201, 207, 344–46 Art 3(7) . . . . . . . . . . . . . . . . . . . . . . 198, 349 Art 3(8) . . . . . . . . . . . . . . . 198, 200, 344–45 Art 3(9) . . . . . . . . . . . . . . . . . . . . . . 199–200 Art 3(10) . . . . . . . . . . . . . . . . . . . . . 198, 345 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Art 153(5) . . . . . . . . . . . . . . . . . . . . . . . . . 346 Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 . . . . . . . . . . . 333 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 . . . . . . . 325, 328, 334–36, 338 Art 2(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . 335 Council Directive 2003/9 laying down minimum standards for the reception of asylum seekers of 27 January 2003 [2003] OJ L31/18 . . . . . . . . . . . . . . . . . . . . . . . 114 Council Directive 2003/86/EC on the right to family reunification [2003] OJ L251/12 . . . . . . . . . . . . . . . . 111, 115, 333 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Table of Legislation Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art 14(1)(b) . . . . . . . . . . . . . . . . . . . . . . . 116 Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . 111 Council Directive (EC) 2003/109 concerning the status of third-country nationals who are long-term residents (2004) OJ L16/44 . . . 106–08, 111–12, 128 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Art 16(4)(c) . . . . . . . . . . . . . . . . . . . . . . . 111 Art 21(2) . . . . . . . . . . . . . . . . . . . . . . . . . 107 Art 21(3) . . . . . . . . . . . . . . . . . . . . . . . . . 111 Chapter III . . . . . . . . . . . . . . . . . . . . . . . . 107 Council Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 . . . . . . . . . . . . . 100–02, 106, 196 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Art 24 . . . . . . . . . . . . . . . . . . . . 101, 130, 245 Council Directive (EC) 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19 . . . . . . . . . . . . . . . . . . . . 168–9 Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12 . . . . . . . . . . . . 106, 110, 114, 244 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Council Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L289/15 . . . . . . . . . . . . . . . . . 110, 114–16 Art 2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

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Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Council Directive (EC) 2008/104 on temporary agency work [2008] OJ L327/9 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 Art 5(2)–(4) . . . . . . . . . . . . . . . . . . . . . . . 199 Council Directive (EC) 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 . . . . . . . . . . . . . . . . . . . . . . 227 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (Blue Card Directive) [2009] OJ L155/17 . . . . 6, 14, 108, 111–12 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 108 para 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 108 para 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 17(2) . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . 108, 112 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Council Directive (EC) 2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24 . . . . . . . . . .16, 123–24, 168–69, 227–28, 237, 240 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Art 6(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 227 Art 6(1)(a)–(c) . . . . . . . . . . . . . . . . . . . . . 227 Recital 38 . . . . . . . . . . . . . . . . . . . . . . . . . 228 Recital 39 . . . . . . . . . . . . . . . . . . . . . . . . . 228 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/1 . . . . . . . . . . . . . . . . . . . 167, 174 Directive 2011/51/EU of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection [2011] OJ L132/1 . . . . . . . . . . . . . . . . . 106, 110, 112

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Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9 . . . . . . . . . . . 106, 110, 114, 244 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96 . . . . . . . . . . . . . . . . 114 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Council Directive 2014/36/EU of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers [2014] OJ L94/375 . . . . . . . . 6, 14, 22, 109, 111–12, 116 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 3(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Regulations Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257/2 . . . . . . . . . . . . . . . . . . . . 62, 100 Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 . . . . . . . . . . . 207 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Regulation (EC) 593/2008 of 18 June 2008 on the law applicable to contractual relations (Rome I) [2008] OJ L177/6 . . . . . . . . . . . . . . . . . . . . 197–98

Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . 199–201 Art 8(2) . . . . . . . . . . . . . . . . . . . . . . 198–201 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality [2010] OJ L344/1 . . . . . . . . . . . . . . . . . 128 Regulation (EU) 492/2011 of 5 April 2011 on freedom of movement for workers within the Union (codification) [2011] OJ L141/1 . . . . . . . . . . . . . . . . . . . 100, 196

INTERNATIONAL INSTRUMENTS Abolition of Forced Labour Convention 1957 (ILO No 105) . . . . . . . . . . . . . 19, 269 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ‘Protocol of San Salvador’, Art 7(a) . . . . . . . . . . . . . . . . 228 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints 1995 . . . . . . . . . . . . . . . . . . . . . . . 283, 285 African Charter on Human and Peoples' Rights 1981 . . . . . . . . . . . . . . . . . . 230, 237 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Agreement on the European Economic Area [1994] OJ L1/3, Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . 244 American Convention on Human Rights 1969 . . . . . . . . . . . . . . 228, 237, 390 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Arab Charter on Human Rights 2004 . . . . .231, 237, 390 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Charter of the United Nations 1946 . . . . . . 260 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 260 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Art 55(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 260

Table of Legislation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 20 November 1984) 1465 UNTS 85 . . . . . . . . . . . . . . 262 Convention concerning Forced or Compulsory Labour 1930 (ILO No 29) 59 UNTS 55 . . . . . . . . . . . . . . . . . . . . . 170 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979) 1249 UNTS 13 . . . . . . . . . . . . . . . . . . . 262, 405 Convention on the Rights of the Child (adopted 20 November 1989) 1577 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . 262 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006) 2515 UNTS 3 . . . . . . . . . . . . . . . . . . . . 262 Convention relating to the Status of Refugees (adopted 28 July 1951) 189 UNTS 137 . . . . . . . . . . . . . . . . . . . . . . 110 Arts 17–19 . . . . . . . . . . . . . . . . . . . . . . . . 115 Council of Europe Convention on Action against Trafficking in Human Beings 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Council of Europe Convention on Social and Medical Assistance 1953 . . . . . . . . 302 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 Declaration concerning the Aims and Purposes of the International Labour Organisation 1944 . . . . . . . . 260, 265, 387 Part I(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 II(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Discrimination (Employment and Occupation) Convention 1958 (ILO No 111) . . . . . . . . . . . . . 268–69, 279 Art 1(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 271 Art 1(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 271 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Domestic Workers Convention 2011 (ILO No 189) . . . . . . . . . . 13, 21, 176, 261, 265, 280, 400, 405, 409 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 405 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 407–08 Art 1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Art 2(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 408 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 280

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Art 3 . . . . . . . . . . . . . . . 280, 410–11, 414–15 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 408, 412 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . 280, 413 Art 9 . . . . . . . . . . . . . . . . . . . 412–13, 418–19 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . . 418 Art 11 . . . . . . . . . . . . . . . . . . . . . 280, 414–15 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 Art 12(2) . . . . . . . . . . . . . . . . . . . . . 412, 416 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . 280, 416 Art 15 . . . . . . . . . . . . . . . . . . . . . 280, 409–10 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Employment Injury Benefits Convention 1964 (Schedule I amended in 1980) (No 121) . . . . . . . . . . . . . . . . . . . . . . . . 265 Employment Policy Convention 1964 (ILO No 122) 569 UNTS . . . . . . . . . . . . 65 Equal Remuneration Convention 1951 (ILO No 100) . . . . . . . . . . . . . . . . . . . . 269 Equality of Treatment (Accident Compensation) Convention 1925 (ILO No 19) . . . . . . . . . . . . . . . . . . . . . 265 Equality of Treatment (Social Security) Convention 1962 (ILO No 118) 494 UNTS 271 . . . . . . . . . . . . . . . . . . 128, 265 European Convention on Human Rights and Fundamental Freedoms (ECHR) 1950 . . . . . . . . 110, 226, 228, 237, 282–83, 290, 382, 388, 390, 395–98 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . 226, 390 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 Art 4 . . . . . . . . 19, 169–73, 175, 226, 391–93 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394 Art 11 . . . .364, 388, 390–91, 393–94, 396–97 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 364 Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . 364 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 Art 14 . . . . . . . . . . . . . . . . . 129, 131, 393–94 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 Protocol 1, Art 1 . . . . . . . . . . . 129, 131, 393 Protocol 4, Art 2 . . . . . . . . . . . . . . . . . . . 390 Protocol 12, Art 1 . . . . . . . . . . . . . . . . . . . 226 European Convention on the Legal Status of Migrant Workers 1977 . . . . . . . . . . 389 European Social Charter 1961 . . . . . . . . .18, 22, 226–28, 282–84, 382, 389, 398 Preamble . . . . . . . . . . . . . . . . . . . . . 226, 288 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284

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Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . 291–92 Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . 284, 291 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . 284, 388 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 284, 388 Art 9 . . . . . . . . . . . . . . . . . . . . . 284, 292, 388 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . 284, 292 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 Art 12(4) . . . . . . . . . . . . . . . . . . . . . 289, 292 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . 287–89 Art 13(4) . . . . . . . . . . . . . . . . . 289, 292, 302 Arts 15–17 . . . . . . . . . . . . . . . . . . . . . . . . 284 Art 18 . . . . . . . . . . . . . . 282, 288–89, 292–94 Art 18(1) . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 18 (1)–(3) . . . . . . . . . . . . . . . . . . . . . 289 Art 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 19 . . . . . . . . . . . . . 284, 288–89, 292, 294, 298, 388–89 Art 19(1)–(9) . . . . . . . . . . . . . . . . . . . . . . 299 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 19(4) . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 19(5) . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 19 (6) . . . . . . . . . . . . . . . . . . . . . 289, 296 Art 19(7) . . . . . . . . . . . . . . . . . . . . . . . . . 297 Art 19(8) . . . . . . . . . . . . . . . . . . 298, 301–02 Art 19(9) . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 19(10) . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 20(1)(b) . . . . . . . . . . . . . . . . . . . . . . . 284 Appendix . . . . . . . . . . 289–91, 297, 301, 388 European Social Charter (Revised) 1995 . . . . . . . . . . . . . . 18, 22, 226–28, 237, 282–84, 350 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 226 Art A(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . 284 Art E . . . . . . . . . . . . . . . . . . . . . . . . . 288, 290 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . 291–92 Arts 2–4 . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Art 6(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . 289, 299 Art 12(4) . . . . . . . . . . . . . 289, 292, 299–300 Art 13 . . . . . . . . . . . . . . . . . . . . . 287–89, 299 Art 13(1) . . . . . . . . . . . . . . . . . . 290, 300–01 Art 13(4) . . . . . . . . . . . . . . 289–90, 292, 302 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . 290 Art 18 . . . . . . . . . . . . . . 282, 288–89, 292–94

Art 18 (1)–(3) . . . . . . . . . . . . . . . . . . . . . 289 Art 18(1) . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 19 . . . . . . . . . . . . . . . . . . . . . 288–89, 292 Art 19 . . . . . . . . . 284, 288–89, 292, 294, 298 Art 19(1)–(9) . . . . . . . . . . . . . . . . . . . . . . 299 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 19(4) . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 19(4)(a) . . . . . . . . . . . . . . . . . . . . . . . 350 Art 19(4)(b) . . . . . . . . . . . . . . . . . . . . . . . 350 Art 19(5) . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 19 (6) . . . . . . . . . . . . . . . . . . . . . 289, 296 Art 19(7) . . . . . . . . . . . . . . . . . . . . . . . . . 297 Art 19(8) . . . . . . . . . . . . . . . . . . 298, 301–02 Art 19(9) . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 19(10) . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 19(11) . . . . . . . . . . . . . . . . . . . . 294, 299 Art 19(12) . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . 284, 286 Art 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Appendix . . . . . . . . . . . . . . . . . . 289–91, 301 Forced Labour Convention 1930 (ILO No 29) . . . . . . . . . . . . . . . . . . . . . 269 Freedom of Association and Protection of the Right to Organise Convention 1948 (ILO No 87) . . . . . . . . 269, 272, 349, 364–66, 387–88, 395 Art 2 . . . . . . . . . . . . . . . . . . . . . 272, 274, 396 General Agreement on Trade in Services 1994 (15 April 1994) 1869 UNTS 183 (GATS) . . . . . . . . . . . . . 357, 424, 430 ILO Constitution 1919 . . . . . . . . . . . . . 265, 387 Preamble, recital 2 . . . . . . . . . . . . . . . . . . 265 Article 23 . . . . . . . . . . . . . . . . . . . . . . . . . 271 Annex . . . . . . . . . . . . . . . . . . . . . . . . 265, 272 International Convention on the Elimination of All Forms of Discrimination against Women . . . . . . . . . . . . . . . . . . . . . . 222–23 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 International Convention on the Elimination of All Forms of Racial Discrimination 1966 660 UNTS 195 . . . . . . . . . . . . . . . 23, 222, 262 Art 1(2) . . . . . . . . . . . . . . . . . . . . 23, 263–64 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Art 5(e)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 222

Table of Legislation International Convention for the Protection of All Persons from Enforced Disappearance 2006 . . . . . . . . . . . . . . . 262 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990) 2220 UNTS 93 . . . . . . . . . . . . 12, 157, 222, 224, 240, 261, 275, 278, 388–89, 414 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 388 Art 3(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . 157, 262 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . 157, 224 Art 25(3) . . . . . . . . . . . . . . . . . . . . . . . . . 414 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 Art 59(1) . . . . . . . . . . . . . . . . . . . . . . . . . 278 Part III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 International Covenant on Civil and Political Rights (adopted 16 December 1966) 999 UNTS 171 . . . . . . .222–23, 262, 275, 390 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . 364, 387 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 International Covenant on Economic, Social and Cultural Rights 1966 993 UNTS 3 . . . . . . . . . . . . . . . . . . . 222–23, 262, 275 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Art 7(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . 223 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387 Labour Inspection Convention 1947 (ILO No 81) . . . . . . . . . . . . . . . . . . . . . 274 Migration for Employment Convention (Revised) 1949 (ILO No 97) . . . .128, 240, 266–67, 270–71, 278–79, 365, 409 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . 267, 365 Migrant Workers (Supplementary Provisions) 1975 (ILO No 143) . . .17, 128, 222, 224, 266–67, 271, 276, 278, 365, 409 Arts 1–9 . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 1 . . . . . . . . . . . . . . . . . . . . . 268, 275, 365 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240, Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

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Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Art 9(1) . . . . . . . . . . . . 17, 224–25, 267, 275 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Art 9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . 267–68 Art 12(g) . . . . . . . . . . . . . . . . . . . . . . . . . 268 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . 267–68 Part I . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 365 II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Minimum Age Convention 1973 (ILO No 138) . . . . . . . . . . . . . . . . . . . . 269 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 18 December 2002) 2374 UNTS 237 . . . . . . . . . . . . . . . . . . . . . . 262 Private Employment Agencies Convention 1997 (ILO No 181) . . . . . . . . . . . . 265, 409 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Protection of Wages Convention 1949 (ILO No 95) . . . . . . . . . . . . . . . . . 265, 275 Protocol against Smuggling of Migrants by Land, Sea and Air (adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 480 . . . . 167 Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 . . . . . . . . . . . . . . . . . . . . . . 110 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, (adopted 15 November 2000, entered into force on 25 December 2003) 2237 UNTS 319 . . . . . . . . . . . . . . . . . . . 12, 167 Right to Organise and Collective Bargaining Convention 1949 (ILO No 98) . . . . . . . . . . . . . . . . . . . . . 269, 272, 364–66, 387, 395 Social Security (Minimum Standards) Convention 1952 (ILO No 102) 2010 UNTS 131 . . . . . . . . . . . . . . . . . . . . . . 128 Treaty of Versailles 1919, Part XIII, Art 427 . . . . . . . . . . . . . . . . . . . . . . . 264–5 Universal Declaration of Human Rights 1948 . . . . . . . . . . 3, 222–23, 260, 262, 275 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 263

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Art 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art 13(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 UN Convention against Torture 1989 . . . . . 110

UN Convention against Transnational Organised Crime 2000 . . . . . . . . . . . . . 167 Vienna Convention on the Law of Treaties 1969, Art 31 . . . . . . . . . . . . . . 290 Worst Forms of Child Labour Convention 1999 (ILO No 182) . . . . . . . . . . . . . . . . 269

List of Contributors Einat Albin is Lecturer in Law and the Academic Director of the Clinical Legal Education Center at the Hebrew University in Jerusalem. She has an LLB in Law and Political Science from the Hebrew University, an LLM in Law, Society, and Politics from Tel-Aviv University (cum laude), and a DPhil from the University of Oxford. Her main fields of interest are labour law, migration, and social rights. More particularly, her research focuses on service work, domestic labour, segmentation theory, sectors in the labour market, and migrant workers. She has published widely in leading law journals, such as the Oxford Journal of Legal Studies, the Modern Law Review, and the Industrial Law Journal. Bridget Anderson is Professor of Migration and Citizenship and Deputy Director at the Centre on Migration, Policy and Society (COMPAS) at the University of Oxford. She has a DPhil in Sociology and previous training in Philosophy and Modern Languages. She is the author of Us and Them: The Dangerous Politics of Immigration Controls (Oxford University Press 2013) and Doing the Dirty Work? The Global Politics of Domestic Labour (Zed Books 2000). She has also co-edited Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy with Martin Ruhs (Oxford University Press 2010), The Social, Political and Historical Contours of Deportation with Matthew Gibney and Emanuela Paoletti (Springer 2013), and Migration and Care Labour: Theory, Policy and Politics, with Isabel Shutes (Palgrave 2014). Catherine Barnard is Professor of European Union Law and Employment Law at the University of Cambridge and a fellow of Trinity College. Catherine has an MA and PhD from the University of Cambridge and an LLM from the European University Institute. She is the author of numerous articles and several books, including The Substantive Law of the European Union: The Four Freedoms (Oxford University Press 2013) and EU Employment Law (Oxford University Press 2012). She has also co-edited various volumes, including EU Law (Oxford University Press 2014) with Steve Peers; The Constitutional Order of States: Essays in Honour of Alan Dashwood (Hart Publishing 2011) with Anthony Arnull, Michael Dougan, and Eleanor Spaventa; The Outer Limits of EU Law (Hart Publishing 2009) with Okeoghene Odudu; The Future of Labour Law (Hart Publishing 2004) with Simon Deakin and Gillian Morris; and The Law of the Single European Market: Unpacking the Premises (Hart Publishing 2002) with Joanne Scott. Alan Bogg is Professor of Labour Law at the University of Oxford and a Fellow and Tutor in Law at Hertford College, as well as being a member of the Executive Committee of the Institute of Employment Rights. Alan received his BA (first class), BCL (distinction), and DPhil from the University of Oxford. He is the author of The Democratic Aspects of Trade Union Recognition (Hart Publishing 2009). The book has been reviewed in the Cambridge Law Journal, Law Quarterly Review, Modern Law Review, Industrial Law Journal, British Journal of Industrial Relations, International

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Journal of Law in Context, Industrial Relations Journal (UK), Journal of Industrial Relations (Australia), Osgoode Hall Law Journal, and Canadian Journal of Employment and Labour Law. He is currently coordinating a Leverhulme International Research Network with Professor Tonia Novitz at the University of Bristol following the successful award of a large-scale grant. Most recently, his work was cited with approval by the United Kingdom Supreme Court on the issue of sham contracts of employment in Autoclenz v Belcher. William Chiaromonte is Researcher in Labour Law at the University of Florence Law School. He has a European Masters in Labour Studies from the University of Florence and the Université Catholique de Louvain and a PhD in European Social Law from the University of Macerata. His thesis on Labour and Social Rights of Migrant Workers was awarded both the Marco Biagi Prize for Young Researchers by the Marco Biagi Foundation (University of Modena and Reggio Emilia) for the best Italian PhD thesis in Labour Law (2010) and the UNAR-CRUI Prize by the National Office against Racial Discrimination, for the best Italian PhD thesis in Anti-discrimination Law (3rd prize, 2010). He has been involved in various national and European research groups, and he is the author of various publications in the field of labour law and social security law. In 2013, he published Lavoro e diritti sociali degli stranieri. Il governo delle migrazioni economiche in Italia e in Europa (G. Giappichelli Editore 2013). Ryszard Cholewinski is a Migration Policy Specialist in the Labour Migration Branch, Conditions of Work and Equality Department at the International Labour Organization (ILO). He holds a BA from the University of Leicester, an LLM from the University of Saskatchewan, and a PhD from the University of Ottawa. Prior to coming to the ILO, he was a Senior Migration Policy and Research Specialist in the International Organization for Migration (IOM) in Geneva and Reader in Law at the University of Leicester. A lawyer by training, he has written widely on the human rights of migrants, international labour migration, and various aspects of European Union law and policy relating to migration. In particular, he is the author of Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Clarendon Press 1997) and two publications for the Council of Europe: The Legal Status of Migrants Admitted for Employment (Council of Europe Publishing 2004) and Irregular Migrants: Access to Minimum Social Rights (Council of Europe Publishing 2005). While at IOM, he was co-editor-in-chief of World Migration 2008: Managing Labour Mobility in the Evolving Global Economy; co-editor of a volume of articles on International Migration Law: Developing Paradigms and Key Challenges (T.M.C. Asser 2007); and co-author of the Handbook on Establishing Effective Labour Migration Policies in Countries of Origin and Destination (2007), a joint publication of the Organization for Security and Co-operation in Europe, IOM, and ILO. Cathryn Costello is Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, at the Refugee Studies Centre, Oxford, with a fellowship at St Antony’s College. From 2003 to 2013 she was Francis Reynolds Fellow and Tutor in EU and Public Law at Worcester College, Oxford, during which time she also completed her DPhil studies on EU Asylum and Immigration Law. She has taught a range of public

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and EU law courses on the Oxford undergraduate and postgraduate curriculum. She began her academic career in 1998 as Lecturer in European Law at the Law School, Trinity College Dublin, and from 2000 to 2003 she also held the position of Director of the Irish Centre for European Law. She has been a Visiting Professor at the University of San Francisco and a visiting research fellow at NYU School of Law. Cathryn has published widely on many aspects of EU and human rights law, including asylum and refugee law, immigration, EU citizenship and third country national family members, family reunification, and immigration detention. Her monograph Human Rights of Migrants in European Law will be published by Oxford University Press in 2014. She is also an Associate Director of the Oxford Human Rights Hub, which aims to bring together academics, practitioners, and policy-makers from across the globe to advance the understanding and protection of human rights and equality. Mary Crock is Professor of Public Law and Associate Dean of Research at the Faculty of Law, University of Sydney. Mary has a BA, an LLB, and a PhD from Melbourne University. Mary came to academia from a background in practice and after establishing and running the Victorian Immigration Advice and Rights Centre Inc. in Melbourne, now the Refugee and Immigration Law Centre. She is an Accredited Specialist in Immigration Law and one of Australia’s leading academic commentators on all aspects of migration and refugee law. She teaches Public Law, Administrative Law, Migration Law, Refugee Law, and Immigration and Labour Law in both the undergraduate and postgraduate law programmes at the University of Sydney. Her research interests range broadly from studies of the interaction between immigration and labour laws, through the examination of vulnerabilities in particular categories of migrants— most particularly refugee children and youths, and refugees with disabilities. Through her work with Ron McCallum, she has been involved in internal United Nations initiatives for the reform of the UN Human Rights treaty body system. She is also a Chief Investigator of an ambitious comparative immigration law initiative known as the International Migration Policy and Law Analysis (IMPALA) Database Project. Anne Davies is Professor of Law and Public Policy at the University of Oxford, and the Garrick Fellow and Tutor in Law at Brasenose College. She writes about public law and labour/employment law. Anne has a particular interest in the analysis of government contracts and the ‘contractualization’ of government from a public law perspective. She is the author of an important monograph on government contracts, The Public Law of Government Contracts (Oxford University Press 2008). She has written extensively about ‘contractualization’ with a particular focus on the market in the UK National Health Service, with publications including Accountability: A Public Law Analysis of Government by Contract (Oxford University Press 2001) and ‘This Time, it’s for Real: the Health And Social Care Act 2012’ (2013) 76 Modern Law Review 564. In labour and employment law, she has wide-ranging interests, encompassing international, European, and domestic law. She is the author of Perspectives on Labour Law (Cambridge University Press 2009) and EU Labour Law (Elgar 2012). Some of her recent research projects have focused on the European Court of Justice and its role in labour law cases, the problems faced by workers at the margins of the labour market, and the relationship between labour law and public law.

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Elaine Dewhurst is a Lecturer in Employment Law at the University of Manchester. She has a BCL (first class) and a PhD, written on the topic of Migrant Workers and Employment Equality, from University College Cork. She has previously worked in the Law Society of Ireland and Dublin City University, and has been a Scholar in Residence at the University of Coimbra, Portugal. She has also undertaken research fellowships at the MaxNetAging Research School at the Max Planck Institute for Demographic Research, Rostock, Germany and at the Max Planck Institute for Social Law and Policy, Munich, Germany. She has presented her research on irregular immigrant rights internationally and has published on this theme in journals such as the European Journal of Migration and Law and in the Comparative Labor Law and Policy Journal. Samuel Engblom is the chief legal advisor of TCO—The Swedish Confederation for Professional Employees. He has a PhD in Law from the European University Institute and a Masters in Law from Lund University. Prior to taking up his position at TCO he was Deputy Head of Analysis of the Swedish National Labour Market Board. He has also served as an expert or trade union representative on several Swedish government committees preparing new legislation in the fields of labour law and migration, including the committee that prepared the 2008 Swedish labour migration reform. Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth and the USA as well as a fellow of Pembroke College Oxford. She holds degrees from the University of Witwatersrand and the University of Oxford, and is a practising barrister at Old Square Chambers. She was elected a Fellow of the British Academy in 2005, made an Honorary Queen’s Counsel in 2012, and is Honorary Professor of Law at the University of Cape Town. She has written and published widely on anti-discrimination law, human rights law, and labour law, including numerous peer-reviewed articles, and three monographs: Human Rights Transformed (Oxford University Press 2008); Discrimination Law (Oxford University Press 2011); and Women and the Law (Oxford University Press 1997), as well as two co-authored books: The State as Employer (Mansell 1988) with Gillian Morris, and Labour Law and Industrial Relations in Great Britain (Kluwer 1992) with Bob Hepple. She was awarded a three-year Leverhulme Major Research Fellowship in 2004 to further her research into socio-economic rights and substantive equality. She founded the Oxford Human Rights Hub in 2012, of which she is the director. Mark Freedland is Emeritus Professor of Employment Law in the University of Oxford, an Emeritus Research Fellow of St John’s College Oxford, and an Honorary Professor in the Law Faculty of University College London. He is also a Fellow of the British Academy, a Bencher of Gray’s Inn, and an Honorary Queen’s Counsel. He was first initiated into labour law (or ‘Industrial Law’ as it was then called) as an undergraduate student of Professor Roger Rideout, at University College London from 1963 to 1966. Following postgraduate studies at the University of Oxford (under the tutelage of Sir Otto Kahn-Freund), he went on to become one of the Law Tutors of St John’s College, and a Reader in the Oxford Law Faculty with the title of Professor, his research and writing being in the fields of labour law and public law.

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Judy Fudge is Professor at Kent Law School, University of Kent, which she joined in 2013. She began her academic career in Canada, where she was Professor at Osgoode Hall Law School and Lansdowne Chair in Law at the University of Victoria. She has visited many universities, and was most recently a Fernand Braudel Fellow at the European University Institute in Florence and Leverhulme Visiting Professor at Kent Law School. Her research interests include Canadian labour law history, the nexus between immigration and labour law, equality rights at work, precarious work, gender and labour law, and labour rights as human rights. In 2013, Judy was elected as a Fellow of the Royal Society of Canada for her contribution to labour law scholarship. Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of London and Radboud University Nijmegen, Netherlands, as well as being a partner at the London law firm, Kingsley Napley, and an associate senior research fellow at the Centre for European Policy Studies, Brussels. She specializes in EU borders and immigration law, and researches on EU privacy and data protection law and its nexus with human rights. For around a decade she coordinated the European Commission’s Network of Experts on Free Movement of Workers managed by Radboud University, and brought together academic experts from the twenty-eight Member States providing national reports annually on the implementation of EU law in the Member States, thematic reports, regional conferences, and a national conference each year. She is also co-editor of the European Journal of Migration and Law and Free Movement of Workers (the European Commission’s online journal) and on the editorial board of the journal International Political Sociology. She is co-editor of the book series Immigration and Asylum Law and Policy in Europe published by Martinus Nijhoff. Sean Howe is an Associate to Deputy President Peter Sams AM at the Fair Work Commission in Sydney, Australia. He graduated from Sydney University in May 2012 with an LLB (Hons), having previously graduated from Macquarie University in 2005 with a BA (Hons). After completing his studies, he worked as a research assistant at Sydney Law School, undertaking research for Professor Mary Crock on the International Migration Policy and Law Analysis (IMPALA) Database Project. He also provided research assistance to Emeritus Professor Ron McCallum AO in his capacity as a member of the Panel in the Australian Commonwealth Government’s 2012 Review of the Fair Work Act 2009 (Cth). Virginia Mantouvalou is Reader in Human Rights and Labour Law at University College London (UCL) and Co-Director of the UCL Institute for Human Rights. She holds an LLM and a PhD from the London School of Economics and an LLB from the University of Athens. She is also joint editor of Current Legal Problems. She is the coauthor of Debating Social Rights (Hart 2011) with Conor Gearty, as well as author of several articles, book chapters, and essays in human rights, labour law, and European law. In 2010 she was Dean’s Visiting Scholar at Georgetown University Law Centre in Washington DC. She has received several scholarships and awards for her research, including an Arts and Humanities Research Council grant to work on theoretical aspects of social and labour rights. Virginia has also worked as a consultant for projects

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of the International Labour Organization. She is a member of the management board of Kalayaan (an organization working on the rights of migrant domestic workers) and the Equal Rights Trust, and a collaborator of FLOOR (the Financial Assistance, Land Policy and Global Social Rights project) at Bielefeld University in Germany. Ron McCallum is Professor Emeritus in the Faculty of Law, University of Sydney. He has a BJuris and an LLB (Hons) from Monash University and an LLM from Queen’s University Canada. In 1993, Ron was the first totally blind person to be appointed to a full professorship in any field at any Australian or New Zealand university when he became the Blake Dawson Waldron Professor in Industrial Law, University of Sydney. His field of expertise is labour and employment law, and he was the inaugural President of the Australian Labour Law Association from 2001 to 2009. He was made an Officer in the Order of Australia (AO) in the 2006 Queen’s Birthday honours list for his services to tertiary education, for industrial relations advice to governments, for assistance to visually impaired persons, and for social justice. Professor McCallum is a current Vice-Chairperson and the immediate past Chairperson of the United Nations Committee on the Rights of Persons with Disabilities. Georg Menz is Professor of Political Economy and Jean Monnet Chair in European Integration at Goldsmiths College, University of London. He is the author of The Political Economy of Managed Migration (Oxford University Press 2008) and Varieties of Capitalism and Europeanization (Oxford University Press 2005), as well as numerous journal articles on questions of immigration, social and labour market policy, and international political economy. Tonia Novitz is Professor of Labour Law at the University of Bristol. She has a law degree from University of Canterbury in New Zealand and qualified there as a barrister and solicitor, specializing in employment law and civil litigation. She then obtained her BCL and DPhil from Balliol College, Oxford. She has been a visiting fellow at the International Institute for Labour Studies (Geneva), a Jean Monnet Fellow and a Marie Curie Fellow at the European University Institute (Florence), and a visiting professor at the University of Melbourne. She is a member of the editorial board of the UK Industrial Law Journal, with special responsibility for the Recent Legislation section. She has written on UK labour law, international labour standards, EU social policy, EU external relations, and mechanisms for the protection of human rights. She was author of International and European Protection of the Right to Strike (Oxford University Press 2003), and has been co-editor of a number of edited collections, including Human Rights at Work (Hart Publishing 2010) with Colin Fenwick, The Role of Labour Standards in Development (Oxford University Press 2011) with David Mangan, and Voices at Work: Continuity and Change in the Common Law World (Oxford University Press 2014, forthcoming) with Alan Bogg. Colm O’Cinnéide is a Reader in Law, specializing in human rights, comparative constitutional, and anti-discrimination law at University College London. He is also currently General Rapporteur of the European Committee of Social Rights and a member of the Blackstone Chambers Academic Panel. He has served as specialist legal adviser to the Joint Committee on Human Rights of the UK Parliament and has

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also acted as consultant to a range of organizations, including the Northern Irish Human Rights Commission, the UK Equality and Human Rights Commission, and the Irish Equality Authority. Shauna Olney is Chief of the Gender, Equality and Diversity Branch, in the Conditions of Work and Equality Department of the International Labour Organization. She studied law at the University of British Columbia and then moved on to postgraduate study at the University of Oxford, with a focus on industrial relations and human rights. She has been with the ILO since 1991, working in the areas of equality and nondiscrimination, migrant workers, industrial relations, labour law, and freedom of association. Previously she worked as a barrister and solicitor in Canada, specializing in industrial relations, labour law, and human rights. She also worked at the Supreme Court of Canada. She has authored and co-authored a number of publications on labour rights, including Equal Pay: An Introductory Guide (ILO 2013); ‘The ILO, Gender Equality, and Trade Unions’ in Making Globalization Work for Women (Suny Series, Praxis 2011); Promote Collective Bargaining: Ratify and Apply Convention No 154 (ILO 2005); and Gender Equality: A Guide to Collective Bargaining (ILO 2002). Maria Ontiveros is Professor of Law at the University of San Francisco. She was educated at UC Berkeley (AB), Cornell University (MILR), Harvard University (JD), and Stanford University (JSD). Her scholarly work focuses on employment law with an emphasis on immigrant workers’ rights. She publishes and presents regularly on a variety of related topics, including the history of immigrant workers, workplace harassment of women of colour, organized labour, immigrants and the Thirteenth Amendment, and access to education for children of undocumented workers. She is coauthor of Employment Discrimination Law: Cases and Materials on Equality in the Workplace (West, 7th edn 2004, 8th edn 2010, co-authored with Dianne Avery, Roberto L Corrada, Michael L Selmi, and Melissa Hart), and the author of numerous articles and book chapters. She has prior experience as an associate at Heller, Ehrman, White & McAuliffe, at Raychem Corporation, and as a Professor at the Golden Gate University School of Law. Martin Ruhs is Associate Professor of Political Economy at the Department for Continuing Education and a Fellow of Kellogg College at the University of Oxford. He is also a Senior Research Fellow at the Centre on Migration, Policy, and Society (COMPAS), where he directed the Migration Observatory between 2010 and 2012. His research focuses on the economics and politics of international labour migration, with a strong international comparative dimension. Publications include The Price of Rights. Regulating International Labour Migration (Princeton University Press 2013) and Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy (Oxford University Press 2010 and 2012), co-edited with Bridget Anderson. In 2008–09 he was Specialist Advisor to an inquiry by the Economic Affairs Committee of the House of Lords into the economic impacts of immigration. Martin is currently a member of the UK’s Migration Advisory Committee (MAC), an independent body of five academic economists tasked to advise the UK government on labour immigration policy.

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Bernard Ryan is Professor of Migration Law at the University of Leicester. His research interests cover the field of migration law and policy, including labour migration and irregular migration. He recently edited an Institute of Employment Rights report entitled ‘Labour Migration in Hard Times: Reforming Labour Market Regulation?’ (2013). His recent publications include ‘In Defence of the Migrant Workers Convention: Standard-Setting for Contemporary Migration’ in Satvinder Juss (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013). He is the co-chair of the Migration and Law Network. Silvana Sciarra is Professor of Labour Law and European Social Law at the University of Florence Law School and external Professor at LUISS Guido Carli in Rome. For several years she held the chair in European Labour and Social Law at the European University Institute. She was visiting Professor at several universities, including Columbia Law School, the University of Cambridge (as Goodhart Professor in Legal Sciences), Stockholm University, and Lund University. Her main interests are in the field of European social and employment policies, with an emphasis on the impact of the crisis on national legal systems. Iyiola Solanke is a Senior Lecturer in the School of Law at the University of Leeds, a Visiting Professor at Wake Forest University Law School, and an Academic Fellow of the Inner Temple. Prior to this she was a Jean Monnet Fellow at the University of Michigan and a Research Fellow at the European Institute, London School of Economics. Her research interests fall in the fields of EU law and equality law, and she conducts empirical legal research in these areas. She writes on aspects of anti-discrimination law in general; intersectionality; independence and diversity in judicial institutions; and comparative social action and legal change. With Matrix Chambers she organizes an international forum investigating black experiences of policing in the EU, and with Inner and Middle Temples she organizes the Temple North Women’s Forum which aims to support and inspire women in all branches of the legal profession. At Leeds, she leads the LLM module on Alternative Dispute Resolution and also teaches EU Law and Discrimination Law. Publications include Making Anti-Racial Discrimination Law: A Comparative History of Social Action and Anti-Racial Discrimination Law (Routledge-Cavendish 2009), The Cambridge Yearbook of European Legal Studies (co-editor, Volume 14, 2011–12), and the entry on anti-discrimination laws in the Wiley-Blackwell Encyclopedia of Race, Ethnicity and Nationalism (forthcoming, 2014). Kendra Strauss is an Assistant Professor in the Labour Studies Program at Simon Fraser University and an Associate Member of the Department of Geography. She has an MSc and DPhil from the School of Geography and the Environment, University of Oxford. Working at the intersection of political economy, feminist theory, and economic and labour geographies, her research explores processes of labour market change, new forms of unfreedom, and the intensification of social reproduction. She has previously been a Postdoctoral Research Fellow with the Interuniversity Research Centre on Globalization and Work (CRIMT), and held positions at the University of Glasgow and the University of Cambridge.

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Lucy Vickers is Professor of Law at Oxford Brookes University. She studied law at Queens’ College, Cambridge, and qualified as a solicitor before joining Oxford Brookes. Lucy’s main research area is the protection of human rights within the workplace and aspects of equality law. She is author of Freedom of Speech and Employment (Oxford University Press 2002) and Religious Freedom, Religious Discrimination and the Workplace (Hart Publishing 2008). She has worked on issues relating to harassment at work, as well as religious discrimination and age discrimination. Her work has been published in the Cambridge Law Journal, the Industrial Law Journal, Comparative Labor Law and Policy Journal, Maastricht Journal of European and Comparative Law, and the International Journal of Comparative Labour Law and Industrial Relations. She is the author of a report for the European Commission on Religion and Belief Discrimination in Employment—The EU Law (2007).

List of Abbreviations ACHPR ACHR ACtHR AHRD AIRC ALC Arab Charter ASEAN AWA AWB AWO BAILII BCEA BDA

African Charter of Human and Peoples’ Rights American Convention on Human Rights Inter-American Court of Human Rights ASEAN Human Rights Declaration Australian Industrial Relations Commission additional licence condition Arab Charter on Human Rights Association of Southeast Asian Nations Australian Workplace Agreement Agricultural Wages Board Agricultural Wages Order British and Irish Legal Information Institute South African Basic Conditions of Employment Act Bundesvereinigung der Deutschen Arbeitgeberverbände (Confederation of German Employers’ Associations) BME black and minority ethnic BNP British National Party CAB Citizens Advice Bureau CAC Central Arbitration Committee CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CBI Confederation of British Industry CCMA Commission for Conciliation Mediation and Arbitration (South Africa) CEACR Committee of Experts on the Application of Conventions and Recommendations CEDAW Convention on the Elimination of All Forms of Discrimination against Women CEE Central and Eastern Europe CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CIA Commonwealth Immigrants Act CJEU Court of Justice of the European Union CME coordinated market economy CMW Committee on Migrant Workers COE Council of Europe Committee of Experts ILO Committee of Experts on the Application of Conventions and Recommendations COMPAS Centre on Migration, Policy and Society (University of Oxford) COSATU Congress of South African Trade Unions CoVE Commission on Vulnerable Employment CPED International Convention for the Protection of All Persons from Enforced Disappearance CRC Convention on the Rights of the Child

xxxviii CRPD DEFRA DIAC DP DRW EAT ECHR ECJ ECS ECSR ECtHR EEA EEC EHRC EMA EOC ESC ESL ET ETI ETUC EU FEA FM FWC FWO FY GAO GATS GCIM GFMD GLA HRC IACtHR ICCPR ICE ICEDAW ICERD ICESCR ICRMW ILO ISTAT ITUC LCA LME

List of Abbreviations Convention on the Rights of Persons with Disabilities Department for the Environment, Food and Rural Affairs Department of Immigration and Citizenship (Australia) Deputy President documented resident workers Employment Appeal Tribunal European Convention on Human Rights European Court of Justice Employer Checking Service European Committee on Social Rights European Court of Human Rights European Economic Area European Economic Community Equality and Human Rights Commission Enterprise Migration Agreement Equal Opportunities Commission European Social Charter English as a Second Language employment tribunal Ethical Trading Initiative European Trade Union Confederation European Union Fair Employment Agency Federal Magistrate Fair Work Commission (Australia) Fair Work Ombudsman financial year Government Accountability Office General Agreement on Trade in Services Global Commission on International Migration Global Forum on Migration and Development Gangmasters Licensing Authority Human Rights Committee Inter-American Court of Human Rights International Covenant on Civil and Political Rights Immigration and Customs Enforcement International Convention on the Elimination of Discrimination Against Women International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Labour Organization Italian National Statistic Institute International Trade Union Confederation Labor Condition Application liberal market economy

List of Abbreviations LMI LMT LO MAC MoU MUA NASSCOM NES NGO NHS NLRA NLRB NMW NRM ODW OEA OECD OHCHR PICUM PWD quango Roach Committee RSC SAWS SDP SETA TBG TCN TCO TFEU TUC TULRCA UDHR UGT UN UNHRC UPR WTR

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labour market intermediaries Labour Market Testing Landsorganisationeni Sverige (Swedish Trade Union Confederation) Migration Advisory Committee Memorandum of Understanding Maritime Union of Australia Indian IT sector chamber of commerce National Employment Standards non-governmental organization National Health Service National Labor Relations Act National Labor Relations Board National Minimum Wage National Referral Mechanism overseas domestic worker Office of Employment Advocate Organisation for Economic Co-operation and Development Office of the High Commissioner for Human Rights Platform for International Cooperation on Undocumented Migrant Workers Posted Workers Directive quasi-non-governmental organization Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists (Australia) Refugee Studies Centre (University of Oxford) Seasonal Agricultural Workers Scheme Senior Deputy President Survey of Employment Tribunal Applications The Burke Group Third-Country National Tjänstemännens Centralorganisation (Swedish Confederation for Professional Employees) Treaty on the Functioning of the European Union Trade Union Congress Trade Union and Labour Relations (Consolidation) Act Universal Declaration of Human Rights General Union of Workers of Spain United Nations UN Human Rights Council Universal Periodic Review Working Time Regulations

1 Migrants at Work and the Division of Labour Law Mark Freedland and Cathryn Costello As we explained in the Preface, this book has its origins in our perception that there is a highly significant and still somewhat under-considered intersection and interaction between migration law and labour law. With some notable exceptions,1 labour lawyers have tended to regard migration law, generally speaking, as outside their purview, and migration lawyers have somewhat similarly tended to neglect labour law. The work presented in the ensuing chapters has been assembled and written in the belief that it is important to counteract those tendencies: it represents an attempt to bring this intersection and interaction into greater prominence in the consciousness of those who are concerned with either or both of those two areas of law and regulation. To that extent, the project has been a purposive one; but the work represented in the ensuing chapters has not been in any sense orchestrated according to a pre-conceived view which determined how this area of intersection between the two legal topics should be explained, analysed, or normatively criticized. That has imposed a certain necessity to try to organize the chapters into a thematic shape. It would be presumptuous on our part to try to coerce the contributions into a strongly imposed scheme; but some light ordering of this richly varied body of material seems to be appropriate. This, however, is on the understanding that we are putting forward our own views, with which we hope that the other contributors would agree, but to which they should not be seen as jointly or severally committed. There are, to be sure, a number of different ways in which we could construct our analysis of this area of intersection between these two bodies of law, no one of them necessarily the most commanding choice. We could, for example, suggest that a distinctive intermediate body of ‘labour migration law’, composed of interacting elements of labour law and migration law, had come to exist or was in the course of evolving. We might alternatively think that our best analytical strategy was to identify labour law’s impact upon migration law. In fact our chosen path is to think, on the contrary, about the ways in which both migration law and immigration itself impact upon labour law. It will be noted that not only have we thus at a stroke identified the direction and the object of the impact with which we are concerned—as being an impact upon labour law—but that we have also widened the source of that impact, so 1 Two of our contributors made significant early contributions to this domain of intersection: M Crock and K Lyons (eds), Nation Skilling: Immigration, Labour and the Law in Australia, Canada, New Zealand and the United States (Desert Pea Press and Australia Pacific Migration Research Network: Sydney 2002); B Ryan, Labour Migration and Employment Rights (Institute of Employment Rights 2005).

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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that we are talking about the impact upon labour law not only of migration law but also of the fact or practice of migration itself. As to the combining of those two elements, migration and migration law, we do not feel that this requires elaborate justification; the fact of labour migration and its legal regulation (or for that matter its regulation in general) seem to us to be ultimately inseparable elements for the purposes of our present discussion. However, our choice to concentrate upon the impact of those linked elements upon labour law does need to be a reasoned one, rather than simply a reflection of the fact that a majority of the contributors come to this topic as labour lawyers and are therefore specially likely to be interested in this topic from the perspective of their original discipline or home ground. Our motive for this choice consists in the fact that, whereas there is no very strong reason to regard labour law as having a distinctive or non-obvious impact upon migration law, there is every reason to regard labour migration and its regulation as having a major and under-appreciated impact upon labour law.2 This turns out to be the central insight which, in different ways, informs most if not all of the contributions which make up this work: it has become centrally important to a rounded and complete understanding of labour law to factor in the impact upon it of labour migration and the law and regulation of migration. Before we seek further to develop that insight, we should offer some explanation of our usage of some key terminologies. The way in which we use the very terms ‘migration law’ and ‘labour law’ themselves warrants some explanation. Our working understanding of both terms is a broad one. Moreover, we have purposely not imposed a particular view of the meaning of these terms on the contributors. We like to think that the richness of the collection consists in part in the fact that, although we assume that there are distinct bodies of migration law and labour law, the contributions reflect the diverse and complex interactions between the regulation of these domains at sectoral, national, regional, and international levels. Firstly, then, we offer a brief reflection on our usage of the term ‘labour law’, and then a slightly fuller explanation of our usage of the term ‘migration law’ and of some of the key terminologies of that legal discipline. In this work, the terminology of ‘labour law’ is used so as to connote a body of law with its own particular set of objectives and subjects, but in such a way as to acknowledge the deep contestations within that domain. Our working assumption is that the body of ‘labour law’ is at once domestic, regional, and international; and that its objectives are predominantly worker-protective, although perennially in tension with the purpose of labour supply regulation, meaning ensuring that employing organizations have a secure source of workers to fulfil their economic needs. The subjects of labour law traditionally are ‘employees’, although again that categorization is highly contested. We take it as given that different forms of personal work relations come under labour law’s purview, and, again, have not imposed any defined view on

2 Admittedly, domestic labour market conditions (including domestic labour law) may create or dampen demand for migrant workers, such as if undeclared work is prevalent or employers are facilitated in paying migrant workers less than prevailing domestic wages.

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the contributors. We hope that some of the richness of the ensuing collection of chapters lies in the diversity of approaches in this respect also. It is also an important preliminary task to set out some of the most pertinent features of the understanding of ‘migration law’ which informs this work; in so doing, we embark upon a summary account of the ensuing chapters themselves. The contributions focus on immigration law, looking at a diverse set of predominantly industrialized, migrantreceiving countries. While several contributions focus on the UK, others examine Australia, Ireland, Israel, Italy, Germany, Sweden, and the US. References are also made to discrete practices in Brazil, France, Greece, New Zealand, Mexico, Poland, and South Africa. These countries all host migrants and have developed systems of immigration law reflecting very different trajectories. Some are traditional countries of immigration and settlement (US, Australia), while others have traditionally being countries of emigration (Italy, Ireland) but now import many workers. Nonetheless, we find some common features in their immigration law, in particular, as is the focus of this collection, that they have a profound impact on labour law by creating often temporary migration statuses. In focusing on immigration law, the collection reflects the standard assumption that it is predominantly the receiving state that regulates migration. That assumption rests on the asymmetry built into the international system, with the right to leave a country being enshrined in international law, but no right to enter any particular state. The Universal Declaration of Human Rights (UDHR) reflects this assumption, and it percolates through other international legal instruments.3 The UDHR speaks of a ‘right to nationality’, but not in the country of one’s residence or choosing. It affirms the right ‘to freedom of movement and residence’, but only ‘within the borders of each state’,4 and the ‘right to leave any country, including his own, and to return to his country’,5 but not to enter another. As Benhabib puts it, ‘a series of internal contradictions between universal human rights and territorial sovereignty are built into the logic of the most comprehensive international law documents in our world.’6 While sending countries increasingly do get involved in the business of regulating the export of migrant workers, with a resurgence of bilateral labour migration agreements in recent years,7 we focus predominantly on immigration law. The contributions not only look at formal migration law, but also less formal practices. As Sciarra and Chiaromonte demonstrate, formal migration laws often fail to regulate migration, leading states to have recourse to ad hoc regularization programmes.8 Moreover, as many of the contributions demonstrate, while control over entry and residence is traditionally regarded as a hallmark of statehood, and so vests in the central state, in reality many other public and private actors are involved in the migration policy process. Several contributions identify the role of courts, national and 3

For instance, International Covenant on Civil and Political Rights, Arts 12 and 13. 5 UDHR, Art 13(1). UDHR, Art 13(2). 6 S Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge University Press 2004) 11. 7 These agreements do often contain provisions that seek to determine the rights of migrant workers, in a manner that should attract the interest of labour lawyers. 8 S Sciarra and W Chiaromonte, ‘Migration Status in Labour and Social Security Law: Between Inclusion and Exclusion in Italy’, Chapter 7. 4

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supranational, in safeguarding the rights of migrants in the territory (Albin; Mantouvalou; Sciarra and Chiaromonte), although jurisprudential creations like the common law of illegality (Bogg and Novitz; Barnard; Dewhurst) militate against any general account of courts’ migrant protective disposition. Moreover, interactions between different levels of governance, local, central, and regional, appear in many contributions, with both productive and destructive frictions between levels contributing to how migrants are treated. Migration law emerges as at once statist and multilevel. We do not treat the apparent subject of migration law, the migrant, as at all selfevident or stable. As Anderson’s opening contribution reminds us, the figure of the migrant is historically contingent and liable to become a placeholder for all manner of political concerns.9 While some of the contributions deal with workers entering the territory of a state explicitly under labour migration law or programmes, our conception of migrant includes EU citizens on the move, posted workers, and those who enter a state for one purpose and then seek to regularize their residence and work status. We use the term ‘labour migrant’ in a broad sense, to capture all of these. Nor is the ostensibly competing local worker a given: As Ruhs demonstrates, even if we accept that states may or should grant their ‘own’ workers preferential access to the national labour market, defining the preferred category is fraught.10 We use the term ‘local’ workers to convey the fact that the insiders often include both citizens and other more settled migrant workers. The concept of ‘migration status’ recurs throughout the collection. We use this term to convey the manner in which migration law creates personal status within the host state.11 We conceive of migration status as personal, in the sense that it is a more closely personal status differentiation than when we speak of people as, for example, ‘contract workers’ or ‘seasonal workers’.12 Migration status takes the migrants’ alienage, and attaches to it conditions governing not only the migrants’ entry on the territory, but also their presence and work there. In this way, migration status may be at once transient and indelible. It is transient as most migration status is temporary: migrants are admitted for particular purposes for a particular duration. Yet, it is indelible in that, unless the migrant naturalizes, the legal status accorded to her or him has enduring consequences.13 There may be a more secure long-term status, but even that is subject to conditions, and available only after a period as a temporary migrant. Out of that particular character of migration status emerges its personal character: the migrants’ conditional rights to enter, stay, and work continue over time and infractions of migration law may lead to later restrictions of rights to settlement, if these exist at all. Rather than a simple binary between legal and illegal migration, migration law creates statuses which are conditional and often precarious. Migrants may over time B Anderson, ‘Precarious Pasts, Precarious Futures’, Chapter 2. M Ruhs, ‘Immigration and Labour Market Protectionism: Protecting Local Workers’ Preferential Access to the National Labour Market’, Chapter 4. 11 For an early appreciation of this phenomenon, see O Kahn-Freund, ‘A Note on Status and Contract in British Labour Law’ (1967) (30)6 MLR 635. 12 Even if still not as indelibly or intimately ‘personal’ as race, gender, disability, sexual orientation, religion or belief, or age. 13 In practice, too, states sometimes differentiate between former aliens who naturalize and citizens by birth, treating the nationality of the former as less secure. The indelibility of previous migrant status remains even past naturalization in this context. 9

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find themselves working within the terms of their migration status (which we tend to refer to as ‘regular’ working), or acting in contradiction of its terms (which we term ‘irregular’). Often, employers and intermediaries exert control over whether that is so. The contributions offer a corrective to any straightforward account of the migration trajectory as a single move of the atomized migrant worker from home to host country to settle. Rather, various diverse forms of labour intermediaries and complex transnational processes are at work. Employers, intermediaries, and other local and transnational actors all appear in surprising guises in the contributions. While the migration law–labour law interactions are producing a new field of inquiry for labour law scholars, we do not suggest that the interactions themselves are new. Although the forms of today’s migration laws are of relatively recent origin,14 controls on mobile labour have a longer history. As Anderson demonstrates in her contribution, prior to the institutionalization of border controls as part of the consolidation of state and nation, forms of local mobility control, usually aimed at the poor and vagrants, predominated. We are inclined all too often to imagine a past before migration, where homogenous nations formed bounded communities, with labour markets mapping neatly on to the same. Evidently a historical perspective is required. In our sense, then, migration law determines not only who may enter the territory to work, but also who needs authorization so to do. In other words, our conception of ‘migration law’ also includes the norms and practices that determine who is subject to migration law. It subjects some workers to controls, whilst granting others privileged access to the labour market. In this way, migration law is parasitic on nationality law, in that a state must permit its own nationals to enter and reside in the territory.15 Many of the instances of nationality law which are cited in the course of this work are those of the United Kingdom and of the nations once constituting its colonies or dominions, so it is appropriate to focus for a moment upon that broad domain. British citizenship, or, more accurately, subjecthood, is inextricably inscribed in the history of British colonialism, empire, and the decline thereof. Colonization and decolonization were both processes to which migration of various forms were central. The colonial project included migration and transportation of elites and settler-workers from the metropole, and transferring indentured labourers across the empire. The history of the development of the ‘migration controls’ we view as ‘normal’ today is a labour history—important fault-lines were institutionalized between free labour and indentured labour for instance.16 As Crock, Howe, and McCallum demonstrate in their closing chapter, Australian migration law is intimately connected with colonial settlement, nation-building, and racist exclusion.17 It is also a labour history, with hostility to certain forms of migration being institutionalized precisely in order to maintain

14

J Torpey, Invention of the Passport (Cambridge University Press 2000). Although the age of banishment is no more, states do increasingly treat nationality as conditional. At the time of writing, there are UK proposals to facilitate deprivation of British nationality. The proposal is contained in the draft Immigration Bill, going through Parliament at the time of writing. 16 See further A McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (Columbia University Press 2008). 17 M Crock, S Howe, and R McCallum, ‘Conflicted Priorities? Enforcing Fairness for Temporary Migrant Workers in Australia’, Chapter 22. 15

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domestic labour standards. Anderson cautions us to be wary of this approach, which treats the labour ‘unfreedom’ of prospective migrants with suspicion, as a means to rationalize exclusion. In the contributions, we find both remarkable continuities and striking ruptures in migration law, in particular as to who is subject to immigration law’s purview. One remarkable continuity concerns the role of Irish workers in England. Menz cites Engels writing in 1844, who noted the function of Irish men as the ‘reserve army’, liable to undermine the pay and conditions of Englishmen.18 Anderson notes the inclusion of Irish paupers in the 1846 amendments to the Poor Laws. This amendment coincided with mass Irish emigration to England and further afield to escape the Great Irish Famine (1845–1852). The privileged access of Irish citizens to the UK labour market survived Irish independence, and remains today.19 In contrast, a striking rupture was the Commonwealth Immigrants Act of 1962 (CIA), as explored in Solanke’s contribution.20 While empire was characterized by highly varied categories of membership (still a feature of British nationality law today), a generalized entitlement was the right of abode in the UK for all British subjects. The removal of that right of abode in the CIA turned imperial subjects into excludable potential migrants by subjecting them to immigration controls. The UK Race Relations Acts of 1965 and 1968 were adopted in the wake of the CIA, reflecting a commitment to secure ‘good relations’ between racially differentiated Commonwealth migrants already in the UK and ‘local’ workers.21 The transformative exception to statist immigration control is the EU, with a commitment to internal ‘free movement’ at its heart. The common market project sought from its inception to allow free movement of labour, service provision, and establishment across the (now) EU. However, the beneficiaries of that freedom are principally those who hold the nationality of the Member States, and, crucially, their families. For other labour migrants, family reunification is usually a privilege rather than a right.22 The EU also regulates some aspects of entry and residence by so-called ‘third-country nationals’, with common rules on some forms of migration, such as Highly-Skilled Workers (Blue Card Directive)23 and Seasonal Workers.24 As Guild discusses in her contribution, there is a tension between the commitment to an internal

18 F Engels, The Condition of the Working-Class in England in 1844 (reprint edn, George Allen & Unwin 1943). 19 Under the Representation of the People Act 1983, Irish nationals retain a right to vote in British general elections which other EU citizens do not. 20 I Solanke, ‘Black Women Workers and Discrimination: Exit, Voice and Loyalty . . . or “Shifting”?’, Chapter 16. 21 B Hepple, ‘Race and Law in Fortress Europe’ (2004) 67(1) MLR 1. 22 Family migrants were traditionally conceived of as ‘trailing spouses’, often without a right to work in the territory. The gendered division of labour remains pertinent to migration law today. See further S Benhabib and J Resnik (eds), Migrations and Mobilities: Gender, Citizenship, Borders (New York University Press 2009); S Van Walsum and T Spijkerboer (eds), Women and Immigration Law: New Variations on Classical Feminist Themes (Routledge-Cavendish 2007). 23 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualified employment [2009] OJ L155/17. 24 Council Directive 2014/36/EU of 26 February 2014 on the conditions of entry and stay of thirdcountry nationals for the purpose of employment as seasonal workers [2014] OJ L94/375.

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market and EU regulation of migration into that market, which tends to still conceive of admission to a single Member State as the norm.25 This means that EU citizens generally work in an EU-wide labour market, while some so-called Third-Country Nationals (TCNs) have nationally bounded rights to reside and work. Legally, EU citizens are privileged migrants, in that they are not usually subject to ‘normal’ immigration law and have secure migration status. However, as Barnard demonstrates, that does not guarantee that their labour rights are secure.26 While labour lawyers have traditionally tended not to integrate migration law into their field of study, other disciplines have sought to examine how immigration, immigration law, and labour markets interact. Immigration clearly affects labour law, in that it affects labour supply. The ‘supply’ role of migration leads some to regard it as liable to instrumentalization by capital to undermine pay and conditions of local workers, particularly given labour market segmentation, as Menz argues in his contribution, drawing on accounts of labour market segmentation.27 As Ruhs also identifies, migration law responds to and in turn structures demand for migrant labour, possibly leading to the erosion of terms and conditions in the particular sectors or segments concerned. Nowadays, migration law creates a multiplicity of statuses, usually temporary, which determine not only the right to enter the territory, but determine the nature of the employment relations enjoyed. Accordingly, Anderson, Fudge, and others have refined the claim that immigration ‘regulates’ labour markets, by demonstrating how the precariousness of migration status creates a precarious, ‘ultra-flexible’ workforce.28 Migration law, in this account, combines with less formalized migratory processes to help produce ‘precarious workers that cluster in particular jobs and segments in the labour market.’29 We hope that these observations about some key terminologies and assumptions will have placed us in a better position to pursue further our central question, about the nature of the impact of migration law on labour law. The answer to that question is a truly multi-faceted one, as the variety of the chapters in this book will demonstrate. We can usefully begin our analysis with a set of questions and tentative assertions which present themselves from a general reading of those chapters. What does labour migration do to labour law? (i) It may affect the supply of workers. (ii) It may increase segmentation of the workforce.

E Guild, ‘The EU’s Internal Market and the Fragmentary Nature of EU Labour Migration’, Chapter 6. C Barnard, ‘Enforcement of Employment Rights by Migrant Workers in the UK: The Case of EU-8 Nationals’, Chapter 11. 27 G Menz, ‘Employers and Migrant Legality: Liberalization of Service Provision, Transnational Posting, and the Bifurcation of the European Labour Market’, Chapter 3, citing, inter alia, M Piore, Birds of Passage: Migrant Labor and Industrial Societies (Cambridge University Press 1979). 28 B Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment and Society 300; J Fudge, The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers (Metropolis British Columbia Working Paper Series No 11–15, 2011) 5; S Marsden, ‘The New Precariousness: Temporary Migrants and the Law of Canada’ (2012) 27 Canadian Journal of Law and Society 209, 211. 29 B Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (n 28) 301. 25 26

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(iii) It may increase demand for migrant workers. (iv) It may increase the role of intermediaries in the labour supply chain. We posit the above and following replies in tentative terms, as much will depend on the context, and, in particular, on the migration laws in question. When we pose the question, what does migration law do to labour law, we arrive at several responses. What unites them is the likelihood that migration law creates vulnerability in labour relations. This is not to make any generalizations about migrants themselves, but rather to identify how migration law, as currently designed, tends to alter the work relation. In particular, we note that: (i) it increases the control of employers over the supply of labour, especially by according to them control over migration status; (ii) by creating ‘migration status’, it introduces a personal (in the sense of statusbased) rather than relation-based set of categories into labour law; (iii) it may thereby also increase employers’ control over local workers; (iv) it increases the duties of employers to the state, in turn altering work environments by reason of requirements on employers to monitor migration status; (v) by establishing distinctions based on this migration status, it sets up tensions with non-discrimination law; (vi) it may challenge collective worker-protective institutions, increasing tensions between workers, undermining solidarity and solidaristic institutions, including, but not confined to trades unions; (vii) it increases the temporariness and precariousness of work relations, and workers’ dependency on employers; (viii) it tends to force workers into particular statuses, such as that of self-employment, by placing lesser restrictions on labour migration into those statuses; (ix) it imports into the conduct and regulation of employment relations its own set of offences and sanctions and its own notions of ‘illegality’; (x) depending on how they are regulated, it increases the role of intermediaries in the labour supply chain, and increases triangular labour relations. As we have indicated, there are many possible ways of theorizing and schematizing this set of phenomena; but our own suggestion is that the impact of labour migration and migration law upon labour law can best be understood as an essentially divisive one: hence the notion, which we have encapsulated in the title to this introductory chapter, of migrants at work and the division of labour law. This notion obviously needs to be carefully expounded, and we acknowledge it from the outset to be a fully contestable one. It imports the idea of a breaking up of labour law into parts; we could almost equally well have used the terminology of ‘fragmentation’, or of ‘disintegration’, though those expressions might be slightly too extreme to convey our exact meaning. That exact meaning can perhaps best be pinned down by identifying the various kinds of ‘division’ that may be involved. We think, in short, that labour migration and migration law tend to impact upon labour law both by enlarging or deepening some

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divisions which are already present in labour law and also by introducing some new divisions of their own into labour law. The most important of these new or enlarged divisions seem to us to be of two kinds; firstly, divisions in the objectives of labour law, and, secondly, divisions between the subjects or coverage of labour law. We proceed to consider each of those two kinds of divisive impact in more detail: it is worth adding that we are at this stage, of necessity, generalizing across all the national, regional, and international labour law systems which are discussed in the succeeding chapters; the impacts of labour migration and migration law will of course vary as between those systems in a way which will be apparent from the texture of those chapters. We begin with an outline of those two sets of arguments; we then consider, equally in outline at this initial stage, the question of whether labour law has, or might have, re-integrative responses to these divisive impacts coming from labour migration and migration law. After that, each of these three lines of argument is developed more fully with reference to the ensuing chapters of this work. When we speak of the propensity of labour migration and migration law to create or enhance division in the objectives of labour law, we have in mind the following phenomenon: we suggest that labour migration and migration law tend to intensify the division, and the tension, between the objectives of, on the one hand, worker protection, and, on the other hand, labour market regulation and in particular labour supply regulation. This is a division or tension that has a long history. Before the twentieth century, the systems of ‘master and servant law’ which were the antecedents of modern labour law were primarily devoted to labour supply regulation; during the twentieth century, the objectives generally turned strongly towards those of worker protection, to the point where many theorists argued that this, in its various forms, had become the overriding objective of labour law. Latterly that has become a very contested view; but all the protagonists in that debate might agree, whatever their view of the starting position, that increased labour migration and a consequential widespread strengthening of controls upon labour migration have combined to bring about a significant turn towards labour supply regulation, and moreover to intensify the division between the two sets of objectives. A most vivid example is that of posted workers. In this context, Member States’ EU commitments to liberalize cross-border service provision have been interpreted in a manner that privileges the freedoms of employing organizations, undermining domestic labour law. The division and tension between labour supply regulation and worker protection has assumed extreme proportions in the body of EU law associated with the Laval 30 and Viking Line31 cases. Many further illustrations of the argument will emerge from the ensuing chapters of this work. When we speak, on the other hand, of the capacity of labour migration and migration law to create or intensify divisions between the subjects of labour law, we have in mind many of the particular tendencies which we listed above, themselves

30 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2007] ECR I-11767, as discussed in the chapters by Engblom and Menz in this collection. 31 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779.

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largely the result of the turn towards labour supply regulation which we have just identified as a general impact of labour migration and migration law upon labour law. We suggest that these divisive tendencies from labour migration and migration law both add to and combine with existing divisions between the subjects of labour law, doing so in such ways as to turn labour law’s application into a patchwork fragmented according to the personal work status of each worker. We proceed to develop these notions of the personal work status of each worker, of the fragmentation of labour law’s application according to personal work status, and of the way in which labour migration and migration law tend to increase that fragmentation. The notion of ‘personal work status’ that we here invoke is one that refers in part to the idea of the ‘personal scope’ of labour laws, but also reaches significantly beyond that idea. The idea of the ‘personal scope’ of labour laws purports to determine the application of labour laws to particular individuals on a ‘personal’ basis, which we loosely assume to mean according to their personal attributes or characteristics. However, the differentiations in question largely, if not entirely, refer to the work arrangement under which a person works rather than to his or her own personal attributes or characteristics. Although we tend to speak of people as ‘employees’ or ‘self-employed’, as ‘workers’ or ‘independent contractors’, we are actually thereby classifying them according to the contracts which happen to frame their working at the time in question; and the more deeply or truly ‘personal’ differentiations tend to be made in different conceptual forms, such as under the heading of legal ‘capacity’, or by the formulation of grounds of unlawful discrimination. Labour migration and migration law, on the other hand, do contribute in no uncertain terms to the drawing of more truly ‘personal’ (that is to say status-based) distinctions in the application of labour laws. Migration tends to heighten the stress that is placed on discrimination law. Migration law is in its essence a system which determines the eligibility of individuals to enter into and remain in personal work relations according to their nationality. Migration law thereby determines whether individuals are working ‘legally’ or ‘illegally’ in any given jurisdiction, which is in a real sense one of the most basic divisions in personal work status which labour law makes— so when we speak of illegal or ‘undocumented’ or ‘irregular’ workers, we are making a more closely personal status differentiation than when we speak of people as, for example, ‘contract workers’ or ‘seasonal workers’. Hence our notion of labour migration and migration law as contributing to the fragmentation of labour law according to personal work status: but that contribution goes still further. For the law and regulation of labour migration interacts elaborately with labour law’s own domestic determinations of personal work status. As we have mentioned, it may direct or confine migrants’ choice between the forms of work contract or work arrangement which domestic labour law lays down or permits for its citizens,32 for example by steering them into or confining them to self-employment rather than dependent employment, or, even more typically and significantly, into temporary employment rather than permanent employment. 32 We recognize that the delineation of a boundary between the ‘citizen’ and the ‘migrant’ is a difficult exercise, both descriptively and normatively.

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Moreover—and this is most important—the laws and regulations of labour migration also superimpose upon labour law their own special, and often restricted,33 personal work statuses. The labour migrant may thereby be ‘tied’ to a personal work contract or arrangement which is specific to a particular occupation or sector, to a specific duration, and/or to a specific employer, in ways which are unknown or virtually unknown to modern domestic labour law systems. The most vivid illustrations of this are to be found in the schemes of visas for temporary work for a named employer who imports or sponsors the worker, but there are many other manifestations of this phenomenon. The superimposition of such personal work statuses upon domestic labour law systems is apt to corral labour migrants into situations both of ultra-dependency and ultra-precarity34 in a way which further fragments and can threaten ultimately to erode the integrity of those systems themselves. This brings us to the third of the lines of discussion which we sketched out at the beginning of the chapter, namely the question of whether labour law has, or might have, re-integrative responses to these divisive impacts coming from labour migration and migration law—responses which, to pick up on the discourse of the previous paragraph, restore or might restore to labour law an integrity which is compromised by or under the impact of labour migration and labour law. The argument of the chapter, having no doubt been an implicitly normative one from the outset, now becomes more openly so; and that makes it important somewhat to refine the terms of the normative debate at this juncture: one or two notes of caution need to be entered at this stage against the normative construct which we may have been impliedly advancing thus far. Those notes of caution need to be sounded if we are to embark on a search for ‘reintegrative responses from labour law’ to a set of problems or concerns which are thereby identified as squarely attributable to labour migration and migration law. This would tend to commit us to a way of thinking about labour law as a resolutely pure body of worker protective law whose virtue is threatened with defilement emanating from labour migration and its regulation by migration law. That way of thinking would be inappropriate in many ways, perhaps first and foremost because of the great danger of coming to think about labour migration as solely or primarily a problematical phenomenon rather than a productive or beneficial one: it would also represent a deep misunderstanding of the relationship which we envisage, both descriptively and normatively, between migration law and labour law. Thus, with regard to labour law itself, we have been at pains to stress the extent to which we recognize the internal contest about its own objectives, as between various kinds of labour market, in particular labour supply, regulation, and equally various kinds of worker protection. On the other hand, we work from the conventional view that states may and do regulate immigration.35 The key challenge is to ensure that in so doing they protect the rights of migrants and locals. Moreover, migration law does have its own 33

But not always: it is arguable that EU free movement law may in certain ways confer a specially enlarged personal work status upon labour migrants. 34 Building on the terminology of ‘hyper-dependence’ and ‘hyper-precarity’, our doctoral student Ms Mimi Zou has, in the course of her doctoral research work, developed a valuable analysis of these two notions in the context of temporary work permit schemes for immigrants to the UK and Australia. 35 J Carens, The Ethics of Immigration (Oxford University Press 2013).

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authentic set of concerns with the well-being and protection of migrants at work. The normative task, even for the most bien pensant of labour lawyers, is to arrive at a normatively constructive relationship between migration law and their own discipline, rather than to seek to achieve some kind of imagined victory of the one over the other. Our search for ‘re-integrative responses’ needs to take place in that hinterland of labour law in which it already intersects with and shares common concerns with migration law, as well as with human rights and equality law. In that hinterland of labour law, we suggest that it is possible, and indeed helpful, to identify a range of techniques of intervention all of which are broadly speaking concerned with the well-being of migrants and the appropriate balancing of their interests with those of the local workforce, but some of which are more closely and directly focused upon labour migrants than others. We advance the tentative suggestion that it is the interventions which are solely focused upon migrants as such which are apt to be the least useful as ‘re-integrative responses’ in the sense in which we are using that normative idea, while by contrast the interventions which are driven by concerns about labour but are least closely centred upon migrants which are apt to be the most promising ones.36 We proceed to suggest and to evaluate examples of interventions which we see as sitting in different positions along that spectrum. The best examples of interventions sitting at the migration-centred extreme of our spectrum are almost certainly to be found in the genre of regulation which identifies itself as the control of ‘human trafficking.’ That activity is understood, very prescriptively, as the coercive organizing and arranging of labour migration in ways which are exploitative and abusive of the labour migrants in question.37 By definition focused upon migrants rather than upon the workforce at large, interventions of this kind, while very important in their own way, are increasingly the object of misgivings as to their fit with the general concerns of worker protection. They sharply differentiate between the situations of labour migrants on the one hand and the local workforce on the other; and they tend to operate by means of the blunt instruments of criminalizing the employers and intermediaries and excluding the labour migrants in question.38 At the other, least migrant-specific, end of this spectrum are those interventions which, while more or less deliberately focused upon sectors of the labour market or labour economy in which migrant workers are clustered and open to exploitation, are nevertheless addressed to those sectors at large and not specifically targeted upon labour migrants. A very good example is the International Labour Organization 36 An exception might be the UN Migrant Workers Convention. However, it remains conspicuously underratified by migrant-receiving countries. See further B Ryan, ‘In Defence of the Migrant Workers Convention: Standard-Setting for Contemporary Migration’ in S Juss (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013) 491. 37 The dominant definition is that in the Palermo Protocol, Protocol against Trafficking of Migrants by Land, Sea and Air (adopted 15 November 2000, entered into force 28 January 2004) 2237 UNTS 319. It defines trafficking as occurring where there is coercion (force, deception, coercion, fraud, threats, abuse of power or position of vulnerability, and the giving of payments or benefits to a person in control of the victim) in the ‘supply’ of people (recruitment, transportation, transfer, harbouring or receipt of a person) for the purposes of exploitation (broadly defined to include for forced labour, as well as prostitution, slavery or similar, or removal of organs). 38 J Fudge and K Strauss, ‘Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude: Migrant Domestic Workers in the UK’, Chapter 9.

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(ILO) Domestic Workers Convention No 189 of 2011 (the focus of Fredman’s contribution), and we can find many comparable examples in the (partly convergent) spheres of national and EU regulation of agricultural work and seasonal work. Interestingly poised in the middle of this spectrum, we suggest, is an expanding range of interventions against ‘servitude’ or ‘modern slavery’. Closely allied with the concern to prohibit ‘forced labour’, which is an authentic concern of contemporary systems of labour law as of human rights law, the rhetoric and measures against ‘modern slavery’ in particular, however righteous and justified, seems prone to become very strongly centred upon migration control, so that ‘modern slavery’ is, like ‘human trafficking’, policed more at national borders than in workplaces: moreover, the concern to single out and stamp out ‘modern slavery’ can mask, or even support, the legitimation of less extreme but still very real forms of exploitation of both migrant and local workers alike. The search for ‘re-integrative responses’ is not one which can be concluded in this introduction, nor even in this book as a whole; but we hope that the idea of ‘reintegrative responses’, in conjunction with the two arguments about the ‘division of objectives’ within labour law and the ‘division between the subjects’ of labour law, might suffice to provide a frame of reference within which the ensuing chapters of this book can be placed. Without implying that any one chapter can or should be viewed as devoted to any one of those lines of argument to the exclusion of the others, we proceed to attempt to show how the chapters can be loosely grouped together around and within that set of arguments as a whole.

I. Division of Objectives We observe that migration law exacerbates the existing tension in the objectives of labour law, tending to downplay the worker-protective mission and focus on the supply of workers to employers. As Ruhs demonstrates, different migration laws grant employers varying degrees of control over the supply of migrant workers, but are united in increasing their control over labour supply.39 Working from the commonplace normative premise that ‘local’ workers (however defined) should have some sort of preferential access to the labour market, he finds that the efficacy of mechanisms to ensure this end depends on the robustness of domestic labour law protections. However, he identifies that employers’ strong preference for migrant workers, given that their migration status is liable to render them more ‘flexible’, can easily become structural. Menz examines the political economy of employers’ advocacy of their ‘need’ for migrant workers, focusing on posted workers and temporary labour migration to the UK and Germany. He argues that employers ‘proactively use and abuse migration as a tool to achieve more pronounced disparities in wages and working conditions’.40 He identifies the ‘disintegration of European labour markets’, both in the traditionally strongly regulated German context, and in the more deregulated UK. EU legal M Ruhs, ‘Immigration and labour market protectionism: protecting local workers’ preferential access to the national labour market’, Chapter 2. 40 Menz, ‘Employers and Migrant Legality: Liberalization of Service Provision, Transnational Posting, and the Bifurcation of the European Labour Market’, Chapter 3. 39

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commitments frame any discussion of the labour market. As Guild demonstrates, the labour market is EU-wide if employers wish to hire EU citizens, but even in those areas where there is EU immigration law (such as for highly skilled migrants under the EU Blue Card Directive, or most recently under the EU Seasonal Workers Directive), admission remains, at least at the outset, confined to the national labour market. That division of objectives is particularly vivid in certain sectors. Sectoral labour market regulation has tended to be about identifying particular economic sectors where there are particular needs for added worker-protective regulation. For instance, the seasonality, unpredictability, and hazardousness of agricultural work led to a particular system to protect workers in the UK, including by setting wage rates. As Davies demonstrates in her contribution,41 there is a worrying trend of undermining sectoral labour law for all workers in the sector, whilst focusing on criminalizing extreme practices, like trafficking of migrants and forced labour. These contributions belong to different disciplinary traditions. Davies’s insights are within the labour law tradition, while Ruhs and Menz draw from different strands of political economy. They focus on different contexts and sectors. Nonetheless, they reach strikingly similar conclusions about migration and migration law’s role as jeopardizing labour law’s worker-protective dimension, whilst privileging employers’ interests. Whilst they acknowledge that labour law can serve to dampen demand for migrant workers, in a manner protective of local workers as the Swedish example attests (discussed by Engblom), they also identify trends to undermine labour law in general, whilst also liberalizing labour migration. The move may doubly expose workers: general labour protections are undermined as employers are permitted to admit more migrant workers. When read together, these contributions suggest that migration law is highly employer-driven. However, Ryan reminds us that migration law places increasingly onerous duties on employers too.42 There is no contradiction between these assertions: An employercentric policy can take many forms, and, in its legal and bureaucratic manifestation, may create particular obligations with unanticipated consequences for employers and workers. As Ryan demonstrates, the duties migration law imposes at recruitment and during employment are in tension with labour law, in ways yet to be resolved. As Dewhurst identifies in her contribution on the rights of irregular migrants to back pay,43 if we regard the objective of migration law as principally to preclude irregular migration, we may perversely create greater incentives for unscrupulous employers to hire such workers.

II. Division of Subjects The subject of labour law is ordinarily the ‘employee’ or the ‘worker’. Migration and migration status may make it more difficult for migrants to come within these established A Davies, ‘Migrant Workers in Agriculture: A Legal Perspective’, Chapter 5. B Ryan, ‘Employer Checks of Immigration Status and Employment Law’, Chapter 13. 43 E Dewhurst, ‘The Right of Irregular Immigrants to Back Pay: The Spectrum of Protection in International, Regional and National Legal Systems’, Chapter 12. 41 42

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divisions. Moreover, migration status may determine labour relations, altering the nature of the legal subject of labour law. The contributions identify other ways in which migrants may find themselves falling outside the purview of labour law. These include when they are treated as not fully present within the jurisdiction of the host state, or when their migration status leads them to be deemed unworthy or not entirely worthy of labour law’s protections. In these liminal scenarios, the subject of migration law becomes excluded from being a full subject of labour law. The contributions identify various ways in which, although migrant workers are by definition present on the territory of the host state whilst working, presence may not be sufficient to trigger the law’s full protections. Although the bounded territoriality of the state and the scope of its laws may seem self-evident, that is not always so. Barnard meticulously examines the law applicable to migrant workers’ contracts, demonstrating that normally British labour law will apply to migrant workers in the UK, but not invariably. As she notes, long qualification periods are liable to exclude temporary labour migrants from many protections. The very complexity of the legal questions she addresses renders migrant workers’ vulnerable, as they may be under incorrect impressions about their labour rights. Crock, Howe, and McCallum’s contribution opens with the example of the ‘Allseas’ dispute in Australia, where the courts were called to determine whether the offshore activities of that company were subject to Australian immigration law. The courts held not, but in March 2014 a bill was introduced to reverse this holding. As mentioned earlier, posted workers are striking exceptions to the general rule that the labour law of the host state covers migrant workers. This term applies to workers temporarily on the territory of the host state as part of cross-border service provisions by employing organizations. The Court of Justice of the European Union treats these workers less as workers and more as adjuncts of cross-border service provision. The extent to which they are subject to the labour law of the host state is constrained by EU legislation44 and case law.45 Posted workers recur throughout the collection as the Achilles’ heel in attempts to ensure that openness to service provision and workers from outside does not undermine domestic labour law and protections for local workers. For Menz, they are a powerful tool for employers in their mission to divide domestic labour markets. For Engblom,46 the ‘convulsions’ caused by the Laval case in Sweden are explained by Sweden’s decision to open its labour market and rely on domestic labour laws and collective structures to ensure that demand for migrant workers was dampened and that high labour standards for all workers on the territory were preserved.47 Laval undermined that approach. While posted workers have come to attract great legal and political attention, less well understood are the implications of

44 Council Directive (EC) 96/71 concerning the posting of workers in the framework of the provision of services (Posted Workers Directive) [1997] OJ L18/1. 45 See especially Laval (n 30); Case C-346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06 Commission v Luxembourg [2008] ECR I-4323. 46 S Engblom ‘Reconciling Openness and High Labour Standards? Sweden’s Attempts to Regulate Labour Migration and Trade in Services’, Chapter 18. 47 Laval (n 30).

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easing migration controls over intra-company transferees more generally, a feature of many states’ migration laws, and possibly soon to be regulated at EU level.48 The other context in which migrants may be denied labour law’s protections arises in relation to irregular migration status. The normative question of how labour law should respond to breaches of migration law recurs throughout the collection. Or to frame the question differently, should labour law seek to insulate its worker-protective aspects from migration law, in order to protect all workers irrespective of their migration status? That move would have much to recommend it ethically, both in order to protect local workers from undercutting and to protect migrant workers from treatment that is unfair or unjust.49 Some systems diverge extremely from the worker-protective approach. The common law doctrine of illegality at its worst, as Bogg and Novitz demonstrate with regard to the UK, excludes workers who are deemed to be working illegally from the ability to vindicate their labour rights, including human rights such as the right not to be discriminated against on racial grounds.50 They characterize the law even after the Supreme Court ruling in Hounga51 as ‘harsh and extremely difficult to understand, let alone justify’.52 The approach of the Irish High Court in Hussein,53 discussed by Dewhurst, seems even harsher. This approach places the risks of irregularity onto the worker, even though she may not be in a position to regularize her status. This may be so even if the employer, too, is acting illegally, or possibly orchestrating the worker’s illegality. In contrast, Ontiveros examines the 2002 US Supreme Court ruling in Hoffman Plastic Compounds, Inc. v NLRB,54 where an irregular migrant was denied back pay due to his migration status.55 She notes that since Hoffman, the law has been clarified, so that while irregular migrants are protected from discrimination and some other breaches of labour rights, they may not enforce the remedies of reinstatement or back pay. An alternative approach (at least as regards one particular labour right) is that in the EU Employer Sanctions Directive,56 to which neither the UK nor Ireland has opted in. Dewhurst’s wide-ranging survey of the right to back pay of irregular migrants looks at international, regional, and diverse national systems. She concludes that most states in her survey take a middle course, aiming to protect some labour rights of irregular migrants, but not entirely insulating labour rights from migration law concerns. She

48 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer’ COM (2010) 378 final. 49 J Carens, ‘The Rights of Irregular Migrants’ (2008) 22 Ethics and International Affairs 163. 50 A Bogg and T Novitz, ‘Links between Individual Employment Law and Collective Labour Law: Their Implications for Migrant Workers’, Chapter 19 of this volume. 51 Hounga v Allen and Allen [2014] UKSC 47, 30 July 2014. The Supreme Court reversed the Court of Appeal decision. Importantly, it accepted that protecting human rights (in casu prevention of human trafficking) should outweigh the public policy concerns on which the illegality doctrine rested. 52 Bogg and Novitz (n 50), 371. 53 Hussein v Labour Court [2012] IEHC 364 currently under appeal to the Supreme Court. 54 Hoffman Plastic Compounds, Inc. v NLRB [2002] 535 US 137. 55 M Ontiveros, ‘Migrant Labour in the United States: Working Beneath the Floor for Free Labour?’ Chapter 10. 56 Council Directive (EC) 2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24.

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expresses concern that unless the enforcement of labour rights is insulated from the enforcement of migration law, employers may exploit irregular migrants in the knowledge that they are unlikely to seek redress for breaches of their labour rights. Dewhurst, Mantouvalou, and Ontiveros all note the Inter-American Court of Human Rights’ assertion that irregular migrants should enjoy protection of labour and human rights.57 Olney and Cholewinski provide a detailed assessment of the ILO approach to migrant workers in an irregular situation,58 noting that institution’s long commitment to all workers, irrespective of migration status.59 They note also that ILO Convention No 143 provides explicitly for equal treatment of irregular migrants as regards rights arising out of past employment in relation to remuneration, social security, and other benefits.60 In terms of division of subjects, the figure of the migrant, the subject of migration law, is liable to other forms of legal exclusion, in particular from social rights. Anderson locates the origins of migration law in the early vagrancy acts, which purported to control mobility of the poor within states. She illustrates the parallels between the master–servant relation, indentured labour, and contemporary migration control. In addition, she explores affinities between the historical figure of the ‘vagrant’ and contemporary ‘benefit claimant’, and concerns about social disorder that recur in contemporary migration policy-making. Her contribution reminds us that the figure of the ‘migrant’ should be questioned in order to identify the propensity for migration law to become hostage to concerns about poverty, disorder, and control. She also identifies how concerns about certain forms of ‘unfree labour’ have a long history of being institutionalized so as to rationalize exclusion of certain migrants. Sciarra and Chiaromonte’s account of Italian migration law has some striking resonance with the themes Anderson identifies. Italian law imagines the ‘migrant’ as outside Italy, seeking entry. However, many of those subject to migration law are already living and working in Italy, as the repeated ad hoc regularizations of labour migrants attest. Italian migration law sets up legal hurdles that are out of synch with Italian labour market structures, depriving workers of secure migration status. Sciarra and Chiaromonte’s account illustrates how migration law may exacerbate divisions in existing labour law, between those privileged insiders working under standard contracts of employment, and others whose work relations are more precarious. The Italian courts have become the venue to challenge legal exclusion, in particular ensuring access to social rights. Moreover, in a further resonance with Anderson’s historical account, some regional legislatures have adopted legislation to extend social rights to migrants, even with irregular status, as part of a pushback against migrant exclusion at the state level. The migrant appears in the contributions of Anderson and Sciarra and

57 Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 InterAmerican Court of Human Rights Series A No 18 (17 September 2003). 58 They draw on ‘ILO Note on the Dignity and Rights of Migrant Workers in an Irregular Situation’, prepared for the Working Group on Labour Exploitation at the EU Fundamental Rights Agency (FRA) Conference on Dignity and Rights of Irregular Migrants (21–22 November 2011). 59 S Olney and R Cholewinski, ‘Migrant Workers and the Right to Non-discrimination and Equality’, Chapter 14. 60 Migrant Workers (Supplementary Provisions) 1975 (ILO No 143), Art 9(1).

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Chiaromonte as subject to legal exclusion not only from labour law, but also from social rights which for insiders serve as an important aspect of labour market regulation, by cushioning workers from the consequences of labour market transitions and in some respects subsidizing employers at the low end of the labour market. O’Cinnéide acknowledges that even the European Social Charter reflects a tension between universal human rights and communitarian social rights.61 While textually it protects only some lawfully present migrants, it has been interpreted to protect a minimum core of social rights even for irregular migrants, in an attempt to mediate that tension. Mantouvalou is highly critical of its limitations.62 Labour law’s subject is centrally the ‘employee’ working under a ‘contract of employment’. That foundational division in the subject of labour law has been much fragmented, as other statuses such as ‘worker’ have come to define the personal scope of some other labour rights. Migration law exacerbates the existing divisions between the subjects of labour law. Bogg and Novitz identify how the requirement to show that one is working under a ‘contract of employment’ bears down particularly heavily on migrant workers. They identify the vulnerability of migrant workers to sham selfemployment, as exemplified in the Kalwak case,63 which is also critiqued by Barnard. In Kalwak, the workers were dismissed for trade union activity. Statutory labour protections were denied as, under the terms of their written contracts (which they had neither negotiated nor understood), they were classified as self-employed. However, the reality of their work relations was that they were employees. The UK Supreme Court has since made it easier for workers to bring evidence of the reality of their employment,64 with ‘radical potential for migrant workers’.65 The contributions also demonstrate that migration law tends to be sectoral. We tend to find the highest proportions of migrant workers in low-wage sectors such as care work, agriculture and horticulture, local transportation, catering and hospitality, and construction.66 As the contributions attest, there are difficult immigration statuses inter alia for seasonal agricultural workers (Davies), domestic workers (Albin, Fredman, Fudge and Strauss), and construction (Albin). The rationale for sectoral admissions policies is that migrant workers should fill jobs in sectors where there are labour shortages. As Anderson and Ruhs have demonstrated in their earlier work, the notion of ‘shortage’ is problematic, particularly as restrictive immigration status may create a more dependent workforce, leading to greater demand for migrant workers.67 As Ruhs

C O’Cinnéide, ‘Migrant Rights under the European Social Charter’, Chapter 15. V Mantouvalou, ‘Organizing against Abuse and Exclusion: The Associational Rights of Undocumented Workers’, Chapter 20. 63 Consistent Group Limited v Kalwak [2008] EWCA Civ 430, [2008] IRLR 505. For a powerful critique, see L Barmes, ‘Learning from Case Law Accounts of Marginalised Working’ in J Fudge, S McCrystal, and K Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 320. See also the discussion by Barnard in this collection. 64 Autoclenz v Belcher [2011] UKSC 41. See further A Bogg, ‘Sham Self-Employment in the Supreme Court’ (2012) 42 ILJ 328. 65 Bogg and Novitz, 375. 66 C Rienzo and C Vargas-Silva ‘Migrants in the UK: An Overview’ (Migration Observatory 2013). 67 M Ruhs and B Anderson (eds), Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy (Oxford University Press 2010). 61 62

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puts it in his contribution, ‘some employers may develop a preference for migrants because of the characteristics and restrictions attached to their immigration status’.68 As discussed earlier, the most striking example of migration law determining the nature of the work relation are ‘ties’ which bind migrant workers to particular employers in order to maintain their migration status. Albin’s contribution examines the responses to an Israeli Supreme Court decision, which had declared that the binding of migrant workers to their employer was unconstitutional as a violation of the basic dignity and liberty of the individual.69 She traces the impact of that ruling in two sectors, the construction sector and the domestic care work sector. By examining the diverse actors, structures, and interests in both sectors, she elucidates how the liberty-protective values of the Supreme Court ruling came to be translated (if not distorted) in different ways as new migration laws were created for each sector. Fudge and Strauss, in contrast, identify a different migrant-restrictive trajectory, that is the reintroduction of a tie in the UK Overseas Domestic Worker Scheme in 2012, which had previously been removed following successful political lobbying.70 A key recurrent question is how migration status bears on commitments to ensure free labour (in the political sense) or even to avoid forced labour, slavery, and servitude (in the legal sense).71 The Israeli Supreme Court condemned strict ties as a violation of human rights, as Albin discusses. In international law, the European Court of Human Rights has examined migration status as a source of vulnerability to forced labour, but has not gone so far as to treat ties as inherently problematic.72 While Fudge and Strauss admit that international and European human rights bodies do make the link between migration status immigration controls and exploitation,73 they are doubtful as to the transformative effect of human rights law in this context. In particular, they doubt whether criminalizing these extreme practices may serve to obscure the general erosion

68 Ruhs, citing R Bloomekatz, ‘Rethinking Immigration Status Discrimination and Exploitation in the Low-Wage Workplace’ (2007) 54(6) UCLA Law Review 1963. 69 E Albin, ‘The Sectoral Regulatory Regime: When Work Migration Controls and the Sectorally Differentiated Labour Market Meet’, Chapter 8, referring to Kav LaOved v The Government of Israel HCJ 4542/02. 70 See further B Anderson, ‘Mobilizing Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ (2010) 33 Ethnic and Racial Studies 60. 71 ECHR, Art 4; Abolition of Forced Labour Convention 1957 (ILO No 105). Care should be taken to distinguish between the political term ‘unfree labour’ and the legal term ‘forced labour’. See further K Strauss, ‘Coerced, Forced and Unfree Labour: Geographies of Exploitation in Contemporary Labour Market’ (2012) 6(3) Geography Compass 137; C Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in A Bogg, C Costello, A Davies, and J Prassl (eds), The Autonomy of Labour Law (Hart Publishing 2014) (forthcoming). 72 Siliadin v France (2006) 43 EHRR 287 as discussed in V Mantouvalou, ‘Modern Slavery: The UK Response’ in (2010) 39(4) ILJ 425. 73 UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland (A/HRC/14/30/Add.3, 16 March 2010), 15 and 16, and recommendation at paragraph 60–61; G Shahinia, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences (UN Doc A/HRC/15/ 20, 18 January 2010) para 96; UN Committee on Migrant Workers, General Comment No 1 (CMW/C/ GC1, 23 February 2011), para 21; Report of the European Union Agency for Fundamental Rights Agency, Migrants in an Irregular Situation Employed in Domestic Work: Fundamental Rights Challenges for the European Union and its Member States (Publications Office of the European Union 2011), 19.

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of general labour protections that sets up the conditions for these abuses in the first place, a claim also made by Davies. In contrast, Ontiveros, in her broad survey of the US context, identifies the manifold ways in which migrant workers are excluded from the basic floor of US labour rights. She argues that US law thereby creates a class of workers who labour ‘below the floor for free labour’ and whose treatment should therefore be scrutinized under the Thirteenth Amendment to the United States Constitution of 1865, which includes a prohibition against slavery and involuntary servitude. Her claim is a strategic one, conceived of a means to challenge the ways in which migration law undermines labour law in the US.74 Moreover, it does not trade on an analogy with chattel slavery, but rather notes that the Amendment was intended ‘not merely to end slavery but to maintain a system of completely free and voluntary labor’, meaning work where the right to quit was assured, and freedom from ‘harsh overlordship or unwholesome conditions of work’.75

III. Reintegrative Responses As well as identify the divisions that migration law brings to labour law, several contributions go on to identify ways to mitigate the disadvantages attendant on migrant status. We contrast various reintegrative responses here. Some draw on the labour law tradition of looking to collective action and regulation of the labour intermediaries. Other contributors look to equality law and human rights law for some palliative reintegrative moves in favour of migrant workers, or indeed a combination of both approaches. Migration law restricts migrant workers’ labour rights in various ways. Given this additional vulnerability, the role of collective voice and action is all the more important. However, there may be legal hurdles. Mantouvalou identifies the particularly high barriers facing irregular migrants seeking to join or form trade unions. Some EU Member States explicitly prevent irregular migrants from so doing. There may also be practical hurdles for migrant workers seeking to access existing structures. In particular, established trade unions may privilege their own members and existing relationships with employers’ associations, thereby further exacerbating the vulnerabilities of migrant workers.76 As Bogg and Novitz identify, ‘the chant of “British Jobs for British Workers” has a rather chilling echo, that could deter migrant workers from seeking membership’.77 Admittedly, all in all, the contributions identify a shift in British trade union practice, such that the dominant approach nowadays is both promigration and pro-migrant worker.78 Even if existing local and national unions are

74 M Ontiveros, ‘A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers’ (2012) 27 Wisconsin Law Journal, Gender and Society 133, 147–8. 75 Pollock v Williams [1944] 322 US 4, 17–18. 76 Albin’s account of the Israeli construction sector exemplifies this tendency. 77 Bogg and Novitz in this contribution, citing B Ryan, ‘Transnationalism and Labour Law: The “British Jobs” Protests of 2009’ in M Moreau (ed), Before and After the Economic Crisis: What Implications for the ‘European Social Model’? (Edward Elgar 2011). 78 See the chapters by Bogg and Novitz and by Mantouvalou.

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open to migrant workers, as many migrant workers are temporarily present, some form of transnational organizing seems required. However, attempts to create transnational unions of migrant workers have had limited success.79 Migrant workers may work in sectors where organizing is challenging, in particular domestic and seasonal work. However, as several contributions attest, domestic workers are organizing in new ways: Albin traces the creation of a domestic workers’ trade union, established under the auspices of a rather new Israeli trade union, Koach LaOvdim. Similarly, Fredman, in her contribution on the ILO Domestic Workers Convention, notes the important role in South Africa of the ‘activist union’, the Domestic Workers and Allied Trade Union.80 As she explains, this union has campaigned in South Africa and at the ILO to achieve the Domestic Workers Convention. The campaigning political role is all the more important as union membership is extremely low, so collective bargaining and other traditional union activities are particularly challenging given the multiplicity of employers in question. Even when the established trade union movement is inclusive towards migrant workers, there may be significant legal hurdles facing migrant workers as Bogg and Novitz demonstrate. They identify the common law doctrine of illegality, and the standard approaches in labour law as regards who is a ‘worker’ and who an ‘employee’ as sources of migrant exclusion. As discussed earlier, migrants are more vulnerable to sham self-employment. In other words, employers orchestrate sham self-employment in a manner which prevents migrant workers from effectively exercising their statutory rights to organize. Bogg and Novitz also identify how the collective protections in UK law for unionization could be adapted to better protect migrant workers, in light of two recent attempts to unionize workplaces with high migrant worker concentration. Labour intermediaries make repeat appearances in the contributions. As Barnard notes in her contribution, labour law usually precludes agents from charging workers for finding them jobs.81 In the UK, levying such charges is a criminal offence,82 yet as her account of abuse of workers from Central and Eastern Europe in the UK reveals, that prohibition is widely flouted. Licensing can be effective, provided it captures the transnational nature of the labour chain and prevents costs being imposed on the worker, as Fudge has demonstrated concerning the supply of domestic workers in some Canadian provinces.83 As Davies explores, the UK Gangmasters Licensing Authority (GLA), introduced by private members’ bill to avoid the abuse of workers subject to ‘gang’ labour after the Morecambe Bay disaster, covers a limited range of sectors.84 Within those limited sectors, though, it applies in a comprehensive manner to any 79 Mantouvalou, 387, citing I Greer, Z Ciupijus, and N Lillie, ‘The European Migrant Workers Union and the Barriers to Transnational Industrial Citizenship’ (2013) 19 European Journal of Industrial Relations 5. 80 S Fredman, ‘Home from Home: Migrant Domestic Workers and the ILO Convention on Domestic Workers’, Chapter 21. 81 Private Employment Agencies Convention 1997 (ILO Convention No 181), Art 7. 82 Employment Agencies Act 1973, s 6. 83 J Fudge, ‘Global Care Chains: Employment Agencies, and the Conundrum of Jurisdiction: Decent Work for Domestic Workers in Canada’ (2011) 23 Canadian Journal of Women and the Law 235. 84 It applies to the supply of workers to the agricultural, forestry, horticultural, shellfish-gathering, food processing, and packaging industries.

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supply of workers in the UK (irrespective of where the gangmaster is based), taking a wide non-traditional understanding of ‘worker’. As she explains, the provisions ‘break out of the traditional labour law paradigm in which protection is reserved to individuals working under a contract of employment or a worker’s contract, and— arguably—doing so on a lawful basis’.85 Fredman, too, highlights the problematic role of intermediaries in the supply of domestic workers. Guild also echoes criticisms that the EU Seasonal Workers Directive may increase the role of intermediaries, to the detriment of the migrant workers. Regulating intermediaries would seem an obvious move congruent with the traditional aims of both labour and migration law.86 Several contributors look to human rights law as a re-integrative animus for labour law. While there may be practical and legal impediments to employing international human rights law to remedy disadvantages arising out of migration status, human rights evidently apply to all within the state’s jurisdiction. Human rights are found in international, regional, and domestic bills of rights. Mantouvalou examines international and regional human rights materials to support her conclusion that migrant workers are entitled to protection of their human rights to freedom of association, irrespective of their migration status. She looks in particular to the Inter-American Court of Human Rights, for its ringing endorsement of the proposition that labour rights are human rights, and belong to all human beings simply by virtue of engaging in work.87 O’Cinnéide notes that the European Social Charter’s approach to the rights of migrants is textually limited, in that most rights only apply to nationals of contracting states who are lawfully present or ‘working regularly’ in the territory of the host state. Nonetheless, the European Social Committee has held that some protections do apply to nationals of non-state parties, and even to some irregular migrants.88 Albin and Ontiveros, in contrast, look to distinctive national constitutional protections. By looking to domestic constitutional norms, they seek to place labour rights within the strongly rooted protections of the domestic constitution, rather than seeking to invoke international norms. Both accounts are strategic, in the sense that Albin’s account begins with strategic litigation, whilst Ontiveros identifies a strategy to reanimate the Thirteenth Amendment’s labour law content. The contributions of Albin, Fudge and Strauss, and Ontiveros set up a crucial conversation, moreover, about how best to characterize the effective denial of basic labour rights, such as the right to quit, to migrant workers. Strict ties in particular seem apt to be challenged on human rights grounds. Albin, who litigated the Kav LaOved case on behalf of the head litigant, the Workers’ Hotline NGO, identifies how the ruling was translated into practice, with distinct sectoral responses emerging. Private actors, in particular employers’ organizations and local unions, dominated this process. Fudge and Strauss identify how antitrafficking discourse permeates human rights law. In their account, this discourse has an elective affinity with traditional (civil and political) human rights, strict migration 85

Davies (n 41) 90. See further J Fudge and K Strauss (eds), Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work (Routledge 2013). 87 Advisory Opinion OC-198/03 (n 57). 88 International Federation of Human Rights Leagues (FIDH) v France CC 14/2003, European Committee of Social Rights, Decision of 8 September 2004. 86

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controls, and criminal prohibitions, rather than social and labour rights. Accordingly, their account cautions that the victory of framing ties as labour unfreedom may be a pyrrhic one, liable to set the scene for further restrictions on migrant workers. Nonetheless, as Ontiveros reminds us, prohibitions on slavery, servitude, and forced labour are generally rooted in general concerns about decent working and avoiding labour domination. The turn to human rights is closely aligned with a turn to equality and nondiscrimination law. Commitments to equality and non-discrimination in the workplace are rooted in labour, EU, and human rights law. Olney and Cholewinski meticulously examine the range of international legal instruments, with particular reference to international labour standards and the work of the ILO supervisory bodies. They provide a crucial overview of the commitment to equality between local and migrant workers under the right to non-discrimination and equality. Distinguishing between workers on the basis of their migration status might seem contrary to equality law. Equality law sometimes captures some forms of discrimination on grounds of migration status as indirect race, nationality, or national origin discrimination. For instance, in Firma Feryn,89 the European Court of Justice (ECJ) characterized as direct race discrimination a Belgian employer’s statement that it would not hire Moroccan workers. In that case, excluding the ‘migrant worker’ was found to amount to ‘race discrimination’. Similarly, as Olney and Cholewinski discuss in relation to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),90 while Article 1(2) ICERD appears to exclude distinctions made in respect of non-citizens from ICERD’s application,91 that provision does not insulate all distinctions on the basis of migration status from scrutiny.92 However, in general, discriminating on grounds of ‘migration status’ is not per se prohibited. As Ontiveros explores in her chapter on US law, most courts there reject the notion that migration status is itself a suspect ground. In fact, migration law may positively require employers and intermediaries to treat workers differently on this ground, as Ryan explores in particular. As he demonstrates, there are unresolved tensions between employers’ duties not to discriminate and their obligations to subject prospective and current workers to checks to ensure that their migration status is in order. Moreover, there can be no glib equation of ‘migrant’ and ‘ethnic’ identity. As Solanke explores, some migrant workers of black and ethnic minority background may be better positioned to complain about race discrimination than local minorities, particularly women of black and ethnic minority background. Her claim seeks to elucidate the important differences in experiences between local ethnic minorities, 89

Case C-54/07 Firma Feryn [2008] ECR I-05187. International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966) 660 UNTS 195. 91 ICERD, Art 1(2) reads: ‘This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.’ 92 UN Committee on the Elimination of Racial Discrimination (CERD) ‘General Recommendation No 30: Discrimination Against Non-Citizens’ (1 October 2004), [4], ‘[D]ifferential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.’ 90

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for whom the experience of race discrimination may have a long, sometimes intergenerational, history, and the newly arrived migrant, for whom being treated differently on grounds of race may be an affront prompting complaint rather than painful internalization. In a different vein, Vickers considers religious discrimination in the workplace.93 She suggests that some contentious claims in relation to religious freedom in the workplace would benefit from being framed in terms of migrant integration. Although integration has taken on an exclusionary ring of late,94 as she argues, EU law contains strong legal and political commitments to migrant integration. She argues that equality law should therefore become more attuned to the distinctive claims of migrants than has been heretofore. Both contributions, in different ways, strive to convey the fluidity of identity in the context of the relative solidity of migration status. When Solanke contrasts ‘migrant black women’ and ‘non-migrant black women’, and Vickers of those with migrant background, both acknowledge that these categories are highly contestable. The contributions also acknowledge the deeply gendered nature of migration and migration law. In particular, Fredman notes that domestic work, and migrant domestic work in particular, raises acute dilemmas for feminists. Anderson and Fudge and Strauss each consider the gendered division of labour, and the gendered nature of anti-trafficking discourse. Solanke reminds us that intersectionality concerns take on further complex dimensions when migration status and migrant background are taken into account. Other contributors look to equality law for different reasons. For instance, Barnard identifies what appears to be a massive enforcement gap whereby even relatively privileged migrant workers do not enforce their labour rights. She contrasts the empirical evidence of labour exploitation of the EU citizen-workers from the A8 Member States with their comparative lack of recourse to employment tribunals. She looks to the lessons of equality law for more worker-protective institutional protections, suggesting that a Fair Employment Agency be established.

IV. Conclusion In focusing on immigration law, the collection starts from the conventional view that states may regulate immigration, but places under scrutiny the basis and consequences of that assumption. This collection identifies the myriad ways in which migration and migration law are apt to undermine labour law. We identify the fundamental unresolved normative tension between the objectives of expanding employers’ access to migrant workers; protecting the employment prospects and conditions of local workers; and acknowledging the importance of migration for the life chances and even, in some instances, survival of migrants. There is a strong trend in the international arena to

L Vickers, ‘Migration, Labour Law and Religious Discrimination’, Chapter 17. In particular, some EU Member States use ‘integration requirements’ as a form of immigration control. See K Groenendijk, ‘Predeparture Integration Strategies in the EU: Integration or Immigration Policy’ (2011) 13 EJML 1; R Van Oers, E Ersbøoll, and T Kostakopoulou, A Re-definition of Belonging? Language and Integration Tests in Europe (Martinus Nijhoff 2010). 93 94

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treat properly designed temporary migration programmes as a way of ensuring a triplewin in this context, by increasing the supply of migrant labour benefiting host employers, increasing opportunities for migrant workers themselves, and protecting local workers.95 However, throughout this collection, temporary status is demonstrated as placing workers in a position of additional vulnerability and dependency. Crock, Howe, and McCallum admit that temporary labour migration is becoming a permanent feature in Australia. The challenge under these conditions, as they see it, is to ensure that regulatory protections are in place to prevent undercutting of local standards of pay and conditions. Ensuring that migrant workers are treated fairly, in the sense of like local workers, is the central message of their closing piece. They identify particular adaptations that have been made to Australian labour law to acknowledge and mitigate the vulnerability of migrant workers. Their conclusion identifies two contradictory trends. Australia is simultaneously institutionalizing greater employer control over the admission of temporary labour migrants, whilst enhancing regulatory controls to ensure the fair treatment of migrant workers. As they admit, this strategy depends on the ability of Australian agencies to ensure enforcement of these workers’ rights and that Australian terms and conditions are not undercut. As long as migrant status places migrant workers in a position of added dependency on the employer, that regulatory challenge is great. So, we conclude by noting that even where there is a strong normative commitment to the fair treatment of migrant workers, making this commitment a reality demands constant vigilance as to how migration law and migration status actually create the vulnerability of migrant workers in the first place. We do not posit the figure of the migrant as vulnerable, but rather identify how migration law creates vulnerability by distorting the employment relationship. We conclude by observing that even those who share a commitment to the fair treatment of migrant workers acknowledge that ensuring fairness requires new thinking on the institutionalization and enforcement of labour rights.96 No single strategy emerges as the answer. The glimmers of reintegrative hope in the contributions take many forms, often innovative ones. Fredman identifies innovative legislation in both Brazil and South Africa, aiming to include domestic workers within the mainstream of labour law. Barnard reveals how, in response to an inquiry by the UK Equality and Human Rights Commission, a major supermarket began to cooperate with trade unions to ensure that its suppliers provided equal treatment between migrant and local workers. As this example reveals, a proactive human rights institution prompted engagement between soft corporate social responsibility duties and traditional unions. Bogg and Novitz also identify the turn to corporate social responsibility in the form of the ‘Ethical Trading Initiative’, an international alliance of companies, trade unions, and civil society organizations, which sought to secure unionization of a workplace with a high concentration of migrant workers in the UK. That processes originally

95 Global Commission on International Migration (GCIM), Migration in an Interconnected World: New Directions for Action (GCIM October 2005), 81. 96 In this respect, we echo the view of B Ryan, ‘From Labour Migration to Labour Law Reform’ in B Ryan (ed), Labour Migration in Hard Times (Institute of Employment Rights 2013).

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conceived of to address ethical concerns about workers’ rights in distant lands are now being invoked to protect workers in the territory should itself give us pause, as it suggests that the migration and labour laws of the land are lacking. Nonetheless, the potential to reach worker-protective outcomes is evident. So, finally, we recapitulate for a moment and relate back to the title we have given to this book and to the title we have given to this introductory chapter. In the course of this chapter, we have tried to suggest some ways of identifying the intersection between migration law and labour law, and of appreciating the analytical and normative significance of that intersection. Thus, broadly speaking, we have advanced a general hypothesis that the fact of immigration, and more particularly the various kinds of status which migration law accords to immigrants, may be a cause or source of vulnerability on the part of those working as migrants or seeking work as migrants— vulnerability, that is to say, to disadvantage both factual and legal, and consisting of or engendering various kinds of openness to exploitation or abuse. We have suggested that it is meaningful and useful to think about this vulnerability within the context of labour law, and indeed as presenting a particular set of challenges to labour law. Those challenges, we have argued, can be viewed in terms of divisiveness, in the sense that existing divisions within labour law, both between labour law’s objectives and between labour law’s subjects, may be enhanced and new divisions may be opened up. Our contention is not, of course, that migrants are uniquely vulnerable. Moreover, we would not wish to generalize about or essentialize migrants in any way. Rather, the contention is that migration law, as currently configured, creates identifiable forms of vulnerability in work relations. We have on the one hand sought to derive these themes from the ensuing chapters which make up the body of this book, and we have on the other hand indicated some ways of using those themes to order and interrelate those chapters. All that said, we are conscious that this is something of an imposition of our own ideas upon our colleagues, who must above all be read and regarded as speaking for themselves. That, we think, would be a pre-condition for the coherence and success of a symposium work in this area, even if it confined its ambitions to separate treatment of some topics in migration law on the one hand and labour law on the other. It is, we conclude, truly a sine qua non of a work which seeks to effect some degree of synthesis between the two disciplines, but to do so by presenting many diverse points of view in many different voices.

2 Precarious Pasts, Precarious Futures Bridget Anderson*

I. Introduction Mobility has always been a feature of human existence. Humans have been globally mobile since people first left the rift valley 100,000–80,000 years ago, yet the people of the past are not thought of as migrants but as nomads, troubadours, conquistadors, apprentices, brides, and traders. ‘The history of European migration is the history of European social life’.1 But ‘migration’ is typically treated as a distinctively modern phenomenon, reflecting a curious disconnect between the historical research and literature, and work on contemporary immigration. This stems from treating the migrant as a body apart, and the tendency on the part of migration studies to take for granted the modern relation between nation, state, territory, and people. In this chapter, I attempt to bring historical research into dialogue with the study of contemporary migration. By locating the origins of immigration controls in early Vagrancy Acts, I argue we can gain new insights into migration and its relation to other social processes. I will begin by outlining the origins of vagrancy controls, and then identify three key interrelated insights. First, I expose the relevance of the master– servant relation, questions of contract, indenture, and free labour to the study of migration. What makes free labour, and how is it that this seems to be different for migrants than it does for citizens? Secondly, it offers the potential to analyse the relation between ‘the migrant’ and the benefit claimant in such a way that we can move beyond claims that immigration pushes citizens on to welfare benefits, and migrants come in order to claim welfare benefits, or indeed that migrants do not come in order to claim welfare benefits (a tired setting out of stalls where neither side will ever convince the other). Thirdly, it encourages the examination of the relation between mobility and social disorder, and law’s role in that relation. From the early modern period, the vagrant was regarded as a source of social disorder, and this fear has now been projected onto the ‘migrant’. I will conclude with a brief outline of some of the implications of this move for our analysis of international migration. Before beginning, however, it is important to acknowledge the fuzziness of who is a ‘migrant’. Several decades ago Charles Tilly asked, ‘Is a gypsy a migrant?’2 And seeking the answer to the ‘who is a migrant’ question, whether one is asking it of Roma, au pairs, or

* Bridget Anderson is Professor of Migration and Citizenship and Deputy Director at the Centre on Migration, Policy and Society (COMPAS) at the University of Oxford. 1 C Tilly, Migration in Modern European History (Center for Research on Social Organization, Working Paper 145, University of Michigan) 32. 2 Tilly (n 1).

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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millionaire investors, continues to challenge. How is ‘migrant’ to be defined: as the foreign born, those subject to immigration controls, as a person who moves, or only a person who moves across international borders? The answer to the question, ‘Who is a migrant?’ often seems to depend upon who is doing the counting and what the purpose of the counting is. How ‘migrant’ is defined also clearly affects how many migrants are counted, and in a debate that is very focused on numbers, knowing who or what to count is clearly critical. Importantly, not all ‘migrants’ are subject to the policy levers of immigration controls. EU nationals moving within the EU, those with permanent residence in certain states, and returning nationals are the obvious cases of those not subject to immigration control. This presents a real problem for evidence-based policy. It is a problem that becomes even more acute when considering migrant workers. Not all migrants who participate in the labour market have a visa that designates them as workers. They may be working legally as a spouse or dependant, or they may be residing legally but working in breach of visa conditions. Furthermore, there is the question of what counts as ‘work’ in the first place—what about interns, or those working in private households, or missionaries? This is further complicated by the fact that public debate about immigration is rarely interested in these niceties. To clarify who counts as a migrant, this chapter does not attempt to work towards an allencompassing definition, but rather begins to suggest ways in which we can understand how these different imaginings of ‘the migrant’ and indeed of ‘the worker’ have come about. They endlessly reinforce, rather than undermine, both the multiple meanings of migrant and the migrant/citizen binary.

II. Mobility, Labour, Disorder, and Alms A desire to control the movement of the poor on the part of rulers pre-dates the British state. The first English law on vagrancy was the 1349 Ordinance of Labourers,3 revised in 1351 to the Statute of Labourers.4 Its introduction was prompted by acute agricultural labour shortages and the rising cost of labour. During feudal times, geographical mobility was clearly linked to labour mobility: to be mobile was to be able to sell your labour to a different master and there had been a growth of commutation, meaning labour services were being replaced by money payments. In 1349, there was anxiety about labour for the harvest because of the precipitous population decline resulting most immediately from the previous year’s Plague outbreak, which was to kill between a third and a half of the population. Rural labour shortages were exacerbated by an increase in the number of chartered towns that had purchased freedom from feudal obligations. ‘Town air breathes free’, so the saying went, and these chartered towns attracted a floating population of former serfs fleeing increasingly harsh conditions imposed by landowners.5

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4 23 Edw. 3. 25 Edw. 3 st 2. W Chambliss, ‘A Sociological Analysis of the Law of Vagrancy’ in W Carson and P Wiles (eds), The Sociology of Crime and Delinquency in Britain (Martin Robertson 1970); A Morton, A People’s History of England (Victor Gollancz 1938). 5

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The 1349 Ordinance establishes the relation between physical and labour mobility and processes of proletarianization. It was an ‘attempt to . . . substitute for serfdom’6 control over the mobility of labourers in order that ‘they [might] be compelled to labour for their necessary living’. It had three main labour provisions: regulation of wages; the enforcement of labour contracts; and the introduction of compulsory service. The first of these, the curbing of ‘excessive wages’, required masters to pay pre-Plague wages, even if they had previously agreed to pay more.7 The second stipulation attempted to curb labour mobility by requiring that servants should not leave before their agreed term was up on ‘pain of imprisonment’, making the labour contract, as Bennett puts it, ‘public, long-term and unbreakable’.8 The third provision significantly extended compulsory service. This required that able-bodied men and women who did not have work or land to make a living on ‘shall be bounded to serve him which shall him require’ or imprisoned until they agreed to do so. Bennett emphasizes the importance of this being compulsory service, rather than compulsory labour. The imposition of a service relation indicated ‘that the compulsory employment of idle people was not to be casual or short-term, but was to entail dependence and durability’,9 particularly in the light of the limitations on leaving imposed by the second stipulation. This duty to work for whoever required their service could be imposed upon any people under sixty years old without ‘craft’, ‘proper land’, or visible means of support, whether they were a serf or a free tenant. The imposition of compulsory labour on free tenants was a new departure from previous forms of compulsory labour. It extended the power of landowners over all tenants, and this included smaller farmers, a group that was proliferating as large landowners divested themselves of holdings that the labour shortage meant they could not use. The Ordinance enabled an ‘idle tenant’ to be compelled elsewhere, and thus runaway serfs could be replaced by compelled servants. Masters were not permitted to compete for labour by offering higher wages, but they were allowed to demand service from labourers that would previously not have been available to them because they were another person’s tenants. Bennett claims that there is evidence to suggest that the relations of compulsory service were hated more than serfdom and that this power of compulsion was to have particular consequences for women. Women are specifically mentioned in the compulsory service clause and they frequently figure in legal court cases detailing enforcement and resistance. ‘There is a marvellous illogic to the notion that the landless poor were mostly men, given that men inherited more land than women ever did, were more often gainers than losers in the land market, found employment more readily than women and, of course, earned higher wages.’10

6 C Foote, ‘Vagrancy Type Law and its Administration’ (1956) University of Pennsylvania Law Review 104, 240. 7 It also regulated the price of ‘victuals’ and food sellers were enjoined ‘to sell the same victual for a reasonable price, having respect to the price that such victual be sold at in the places adjoining, so that the same sellers have moderate gains and not excessive, reasonably to be required according to the distance of the place from whence the said victuals be carried.’ 8 J Bennett, ‘Compulsory Service in Late Medieval England’ (2010) 209 Past and Present 7, 13. 9 10 Bennett (n 8) 10. Bennett (n 8) 43.

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The 1349 Ordinance marked the beginning of a long history of vagrancy controls. As people became more ‘unsettled’ with the demise of feudalism, demographic growth, and other socio-economic and political changes, the numbers of ‘vagrants’ increased and the policies to control them became ever more harsh. By 1536, a vagrant who was a repeat offender could be sentenced to death ‘as a felon and an enemy of the commonwealth’.11 Vagrancy controls were also a feature of Britain’s imperial expansion. The penalty of transportation transformed thousands from recidivists and idlers into the building blocks of Empire, while at the same time vagrancy controls enacted in British territories were used to coerce not only natives but also Europeans behaving in a manner ‘demeaning to the white race’.12 Nor was this restricted to the British Empire. In late colonial Mexico, for example, ‘vagrants and idlers’ were drafted by the Spanish state for military service in the Philippines, as part of an ‘enlightened’ moral programme. There is a substantial and fascinating historical literature on vagrancy, yet there is little connection made between vagrancy controls on the mobility of the poor and contemporary immigration controls. There are remarkable parallels between them, even if admittedly vagrancy controls are not the direct antecedents of immigration controls. When it came to enforcement, for example, in 1388 those servants who were travelling on their master’s business were to be given a ‘letter patent containing the cause of his going and the time of his return . . . under the King’s seal’.13 By 1570 false papers could be bought almost anywhere at the cost of between two and four pennies, and the problem of forgery was rife. In 1569–72 and 1631–9 ‘great national searches’ were instituted to root out vagrancy, ‘local officials and keepers of lodgings for travellers examine lodgers’ names, dwelling places, destinations, and reasons for travel and bring away suspicious persons before a Justice of the Peace’.14 Like today, there was a problem with the administering of penalties for mobility: there were not enough gaols to imprison vagrants and members of the judiciary were too few to try them.

III. Vagrancy, Contract, and Master–Servant Relations Bennett,15 Steinfeld,16 and Woodward,17 among others, have argued for the importance of vagrancy legislation in controlling wage rates and the employment relations between master and servant, and master and labourer. As law on wages and employment relations developed, it operated alongside the threat of vagrancy to force

11 Act for the Punishment of Sturdy Vagabonds and Beggars 1535 (27 Hen. 8 c 25); Act made for continuing of the Statutes for Beggars and Vagabonds 1536 (28 Hen. 8 c 6). 12 D Arnold, ‘Vagrant India: Famine, Poverty and Welfare under Colonial Rule’ in A Beier and P Ocobock (eds), Cast Out: A History of Vagrancy and Homelessness in Global Perspective (Ohio University Monographs in International Studies 2008) 117. 13 Statute of Cambridge 1388 (12 Ric. 2 c 7). 14 A Beier, Masterless Men: The Vagrancy Problem in England 1560–1640 (Methuen 1985) 155. 15 Bennett (n 8). 16 R Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (University of North Carolina Press 1991). 17 D Woodward, ‘The Background to the Background to the Statute of Artificers: The Genesis of Labour Policy, 1558–63’ (1980) 33(1) The Economic History Review 32.

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labourers into service. For example, a 1444 statute pronounced that those who did not have sufficient land to justify their annual employment should serve by the year ‘upon the pain to be justified as a vagabond’.18 Legislation on labour was consolidated in the 1563 Statute of Artificers.19 The Statute set out the ways in which masters could recover runaways and made those mobile poor without testimonials from their masters punishable as vagabonds.20 In the UK and other liberal democracies, the relation between geographical mobility and labour mobility, between physical movement and leaving/changing an employer has become far more complex and indirect since feudal times.21 Limitations on the right to leave an employer are managed through the labour contract rather than through constraining the right to physically move—but migrant workers represent a startling exception. In contrast to wealthy investors, for many migrants, the employment contract dramatically affects the legal and political status of the worker, and has consequences beyond the employment relationship. While the right to leave an employer and to work for whom one wishes is regarded as a defining element of what constitutes ‘free’ labour,22 this is not a right that migrant workers, understood as those who enter as workers, can straightforwardly claim. Immigration controls effectively set the terms of legitimized less favourable treatment, indeed legitimized inequality, with comparable citizen workers. They may be tied to a named employer, or be otherwise constrained in whom they can work for and the terms of their employment. If their employer withdraws their support from them for any reason (joining a trades union for example23), they not only lose their employment, but also risk their right to reside. In this way immigration laws mean that migrant workers are cast in relations of domination and subordination to (citizen) employers through the creation of particular types of dependency that extend beyond the wage–labour relation. Throughout the world non-citizens who enter states as workers are typically subject to a battery of controls and constraints on their labour market activity. This is perhaps most notorious in the so-called ‘kafala’ system in the Gulf States. Any foreigner who wishes to work in a Gulf Cooperation Council (GCC) country must have a sponsor, a ‘kafeel’. The sponsor must be a GCC national, who takes financial and legal responsibility for them. Migrants can only work for their sponsor, and it is possible to renew a working permit many times over, but not to obtain a right to permanent residence or to citizenship. While this system is notorious, it is not so far removed from the immigration policies of the UK and other liberal democratic states, particularly since oftentimes working visas can be renewable, but rarely for long enough to give a right to permanent residence. Many categories of migrants are dependent on their employer not only for their employment, but also for their continuing residence rights.24 Arguably what is 18

19 20 Steinfeld (n 16) 3. 5 Eliz. 1 c 4. Steinfeld (n 16). Importantly, though, this is not true of all workers, people in highly specialized jobs, for example, or, more commonly, live-in carers and certain types of agricultural workers (all, notably, often associated with immigration). 22 R Steinfeld, Coercion, Contract and Free Labor in the Nineteenth Century (Cambridge University Press 2001). 23 B Anderson and B Rogaly, Forced Labour and Migration to the UK (Trades Union Congress 2005). 24 R Parreñas, ‘The Construction of Migrant Domestic Workers as “One of the Family” ’ in B Anderson and I Shutes (eds), Migration and Care Labour: Theory, Policy and Politics (Palgrave Macmillan 2014). Under the current UK system, it is only possible to enter under the Tier 2 (general) entry route for ‘skilled 21

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unusual about the GCC case is that it applies to highly paid ‘skilled’ workers as well as to the low waged.25 In many states, the highly skilled (intimately related to the highwaged) are given preferential treatment.26 Extreme abuse of this system is often presented as ‘modern day slavery’, with abusive and exploitative employers as ‘slave masters’, and those who facilitate these arrangements as ‘traffickers’. Drawing on a long association of the slave with the foreigner and the non-citizen, this overlooks the state-created nature of dependence and suggests that the problem is employers’ abuse of power, ignoring the mechanism that affords them this power in the first place. ‘Slavery’ here is a metaphor in that, unlike in the eighteenth century, there is not a slave system of production. This is not to claim that contemporary abuse and exploitation is any better or worse than abuse in the past, but rather to point out the work that the term ‘slavery’ is doing in foregrounding the foreign-ness of migrants, and matters of racism, mobility, and unfamiliarity. A historical perspective suggests the system itself might more fruitfully be analysed as related to indenture. Indeed, invoking ‘slavery’ overlooks indentured servitude, which arguably has a much stronger connection between the situation of contemporary migrants and previous classes of ‘unfree labour’. ‘Indenture’ does not straightforwardly foreground ‘foreign-ness’ or race, but rather class and servitude. It suggests a linkage between the migrant and previous transatlantic mobility of the poor, between migrant and the vagrant, between contemporary sponsorship and contracts of indenture. While the ‘solution’ to slavery is contract, imagined as an agreement between juridical equals that acknowledges self-ownership, it is not the solution to indenture. Indeed, contract was key to the abuse and exploitation of those who were indentured. In the past, indentured servitude was viewed as perfectly compatible with ideas of ‘free labour’: servants could be physically beaten, forbidden from marriage, runaways could be captured and compelled to work additional terms in punishment, but they would

migrants’ if one has a specific job offer from a licensed sponsor that pays a minimum of £20,500 a year. It is only possible to change jobs once in the UK if there is another job offer from a different sponsor. Furthermore, if the sponsor reduces the earnings or changes the post’s core duties, the migrant may no longer be eligible to remain in the UK. UK Visas and Immigration ‘Tiers 2 and 5 of the Points Based System–Guidance for Sponsor’ (6 April 2014), available at . 25 M Ruhs, The Price of Rights (Princeton University Press 2013). 26 In some states, not only are the wealthy subject to lighter migration controls, they may even ‘buy’ citizenship under ‘investor citizenship’ programmes, such as that run by Malta and Cyprus. Public controversy over the Malta’s proposed scheme, in particular its effective sale of EU Citizenship, led to EU involvement and some agreed changes: S Carrera ‘How much does EU citizenship cost? The Maltese citizenship-for-sale affair: A breakthrough for sincere cooperation in citizenship of the union?’ (CEPS Liberty and Security in Europe Papers 2014). The Cypriot investor citizenship also enabled investors to access Cypriot nationality, and also served as a consolation prize for wealthy foreign investors who lost investments in Cypriot banks under the EU bailout deal. See . In the UK, direct investor citizenship is not possible. However, those with earnings over a particular threshold are exempted from labour market tests and so may migrate with ease, and then naturalize. Interestingly these types of jobs are not ‘protected’ from perceived competition by foreigners, it is rather the low paid, low status work that is felt necessary to save for British workers. See generally A Shachar and R Baübock (eds) Should Citizenship be for Sale? (EUI Working Papers, RSCAS 2014/01).

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still be ‘free’.27 Indenture is the missing link between vagrancy and migration, and helps explain how it is that the powers that employers can exercise over migrants are not regarded as incompatible with ‘free labour’. It reminds us that the very idea of free labour is socially embedded and historically particular, and attempts to distinguish between free and forced labour in practice reveal ‘a moral/political judgment about the kinds of pressures to enter and remain at work that are considered legitimate and those that are not’.28 The rhetoric of slavery focuses on the foreigner, raising some very real contradictions for states. Low-waged migrants typically come from states where the options are considerably poorer than those available in the so-called receiving states. This means they have different frames of reference, and potentially different forces acting to determine the legitimacy or otherwise of their consent to enter and to remain in particular employment conditions. It is the recognition of the potency of the force of Marx’s ‘dull compulsion of economic relations’ that underlies fears of migrants’ undercutting the wages of the national labour force. As the UK government action plan put it: ‘One of the difficulties we will face in investigating trafficking for forced labour is distinguishing between poor working conditions and situations involving forced labour.’29 The set of alternatives available to many migrants are different from those available to many citizens, even leaving aside the consequences for residence, because they often do not have access to the welfare system. Thus while the UK is a site of ‘free labour’ not tolerating slavery, introducing situations of migrant workers can complicate the picture. Ability to leave a labour relation is limited by immigration controls that supplement contractual requirements, but there are also issues with consent to enter, regarded as crucial to legitimate labour relations. As John Dawson wrote, ‘the instances of more extreme pressure were precisely those in which the consent expressed was more real; the more unpleasant the alternative, the more real the consent to a course which would avoid it’.30 The fewer one’s alternatives, the more likely one is to enthusiastically consent to a situation, which can be labelled ‘unfree’.31 Given the variation between countries and economic sectors in terms of what is socially and legally constructed as acceptable employment practice, and indeed in terms of what is considered an employment practice at all, this raises difficult questions when it comes to migration, particularly migration of women. Is consent to enter a highly exploitative employment or service relationship sufficient to guarantee ‘free labour’? If it is not, are such expressions of consent invalid, in which case, what about a person’s own assessment of their choices, desires, and futures?

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Steinfeld (n 16). R Steinfeld, ‘Coercion/Consent in Labour’ (Speech at the COMPAS Annual Conference: Theorizing Key Migration Debates, St Anne’s College, University of Oxford 2008). 29 Home Office, UK Action Plan on Tackling Human Trafficking (Her Majesty’s Stationery Office 2011) 40. 30 J Dawson, ‘Economic Duress—An Essay in Perspective’ (1947) 45 Michigan Law Review 267, cited in R Steinfeld, Working Paper No 66 (COMPAS 2009). accessed 17 December 2013. 31 B Anderson and B Hancilova, ‘Migrant Labour in Kazakhstan: A Cause for Concern?’ (2011) 37 Journal of Ethnic and Migration Studies 467. 28

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IV. Idleness—The Root and Mother of all Vices Immigration and welfare issues are often brought together. As Prime Minister David Cameron put it, ‘Immigration and welfare reform are two sides of the same coin’.32 Acknowledging this relation tends to position migrants and low-waged citizens (the global and the national poor) as competitors for the privileges of membership. Either cheating migrants take welfare benefits that they are not entitled to, or they force lowwaged British workers into unemployment by taking ‘their’ jobs. Furthermore, sometimes the hardworking migrant can be used to berate the lacklustre ‘benefit claimant’ (as when employers complain about ‘lazy Brits’). Thinking historically can help us develop the tools to analyse migrants and low-waged/unemployed citizens using the same lens, and suggest we should be attentive to the relation between labour and the mobility of citizens as well as non-citizens. As well as the measures outlined above, the 1349 Ordinance of Labourers criminalized the giving of alms to ‘valiant beggars’ who ‘as long as they live of begging, do refuse to labour, giving themselves to idleness and vice, and sometimes to theft and other abominations’.33 Those giving alms to such people were to be subject to ‘pain of imprisonment’. Like the punishment of vagrancy, this was a means of forcing people to labour, only in this instance it was punishment to those who supported the ‘idle’. In 1536, the Act for the Punishment of Sturdy Vagabonds and Beggars forbade indiscriminate personal giving and provided that parishes collect and disburse alms to the disabled poor. Alms collectors were compensated and were also required ‘to compel all and every sturdy vagabond and valiant beggar to be set and kept to continual labour’.34 In 1563, the first act requiring the levy of compulsory poor rate was passed. This was formalized in the 1601 Elizabethan Poor Law, which created a complex system administered by parishes and paid for by levies on local ratepayers. The ‘settled’ poor were eligible for outdoor relief in their home or indoor relief in the almshouses (or later in workhouses). Importantly, as poor relief moved from the responsibility of monasteries or social solidarity to the responsibility of local parishes, a new emphasis was placed on the problem of the claiming of relief by those who did not belong. The vagrancy statutes had long required that those who were not resident in a hundred or parish to be punished and expelled or forced to labour, and this received new urgency as ratepayers attempted to limit their responsibility to those who were settled in the parish. There were claims that the poor were gravitating towards more generous parishes simply to claim more generous poor relief financed by ratepayers. The 1662 Poor Relief Act sanctioned the removal of incomers ‘likely to be chargeable to the Parish’35 and ordered that poor relief or work only be given to those who were ‘settled’ in a parish or who were in their parish of birth. But who counts as ‘settled poor’ in a society that is ever D Cameron, ‘Good Immigration, not Mass Immigration’ (Speech published on Conservative Party website, 14 April 2011) accessed 1 February 2012. 33 Ordinance of Labourers 1349 (23 Edw. 3). 34 Act for the Punishment of Sturdy Vagabonds and Beggars 1536 (27 Hen. 8 c 25). 35 Act for the Better Releife of the Poore of this Kingdom 1662 (14 Cha. 2 c 12). 32

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more mobile? Strong efforts were made to limit settlement through bureaucratic practices. To claim relief, one had to have lived in a parish for forty days ‘without objection’ and seasonal labourers who did not return when their work was finished could not count their time towards settlement. Various other administrative obstacles were placed in the way of the forty-day settlement so that over the years in practice this became increasingly difficult to obtain. From 1685, newcomers were required to give written notice of their arrival and their location, and the forty days would begin only from receipt of this notice. Settlement could be attained with evidence of paying ten pounds a year for a tenement or by marriage, or by indenture and service. Working alongside the vagrancy statutes, the 1662 Act promoted the immobility of the poor other than for the purposes of temporary labour, and unemployed unsettled residents risked becoming ‘sturdy beggars’ who could be compelled to labour and, should they return to a parish from which they had been removed, they could be pursued as vagrants. ‘The greatest effect of the law of Settlement was to force the non-settled poor to survive without support from the poor law.’36 However, it also facilitated the forced mobility of the poor. Like the vagrancy statutes, the Act enabled the forced removal of the ‘unsettled’ poor to their last parish of settlement or their parish of birth. In the case of Scotland and Ireland, which did not have the parish system, paupers were simply removed to Scotland or to Ireland. The numbers of removals between parishes seems to have been quite significant, even through to the early part of the nineteenth century: between 25 March 1827 and 25 March 1828, 43,677 individuals were removed from parishes in England and Wales.37 Yet the functional value of migration to the cities of a rapidly industrializing society is clear. In 1834, the Poor Law fundamentally overhauled the Elizabethan arrangements, partly to encourage the able-bodied rural poor to migrate to manufacturing districts. It established national oversight of parish practices, discouraged outdoor relief, and required every person in need of support to receive it in a workhouse. This centralization meant that the boundaries between parishes became less important. Concerns began to be expressed at ‘parochial selfishness’ and attention paid to the harshness of enforced removals. In 1846, the Poor Removal Act made it illegal to remove a person who had been in a parish for five years, even if they did not have settlement, and irremoveability was gradually extended over the next two decades. It also applied to the Irish in England, despite public hostility to the Irish and fears of immigration.38 There was a rebalancing of the response to the mobility of the poor. Being mobile and moving from one’s parish was increasingly about being ‘free’, improving oneself through selling one’s labour rather than being ‘masterless’.

36 D Feldman, ‘Migrants, Immigrants and Welfare From the Old Poor Law to the Welfare State’ (2003) 13 Transactions of the Royal Historical Society 79, 90. 37 Feldman (n 36) 90. 38 Feldman points out that ‘improvements in the welfare entitlements of the Irish arose in the nineteenth century when there was a complete absence of state controls on their entry to the country’ (Feldman (n 36), 104). This is interesting because it suggests that access to welfare does not have to entail restrictions on entry, which challenges some of the assumptions in contemporary debates about migration and welfare benefits.

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The valiant beggar marks the first appearance of a figure of idleness and indiscipline which is to haunt the statute books and the popular press to this day—‘the benefit scrounger’. There are also obvious parallels between past responses to the fear that ‘the poor stranger is crept among us’ with the contemporary situation of migrants, including bureaucratic hurdles to settlement and removals. Notably, the development of poor relief meant that alms giving became associated with belonging, rather than hospitality to the stranger. Alms were not to be given to the vagrant because they were idle, and also because they did not belong. Thus there were two forms of undeservingness: idleness ‘the mother and root of all vices’,39 and not belonging, manifest in the contemporary figures of the benefit scrounger and the migrant. So it is that the ‘migrant’ is imagined as too mobile, moving when they should stay in their ‘own’ country, and often undermining national workers’ conditions because they are prepared to work for wages that are too low in sub-standard conditions. They are undeserving because they do not belong, and for them work is a right that they do not automatically have. In contrast, benefit dependents are imagined as not mobile enough, stuck in housing estates in front of flat-screen televisions, only prepared to work at ludicrously overpaid and easy jobs. They are undeserving because they are idle, and for them work is a duty that they do not fulfil. There are multiple attempts to prick the benefit claimant into mobility. In 2011, the government announced that those claiming benefits would have to be prepared to take jobs offered that were within one-and-a-half-hour’s commute of their home in order to continue to be eligible for welfare. In 2013, there were proposals that claimants should be forced to travel one-and-a-half hours to collect their benefits. The rhetoric from all political parties is about ‘protecting’ the labour market (the right to work) for the ‘hardworking family man’, but this language of protection, rarely invoked except when it comes to immigration, has a strong disciplinary flipside. The strong imagining of the national labour market is critical to this. The depiction of British communities is very localized (neighbourhood pubs, churches, schools), but when it comes to debates about migration and the labour market, British workers are depicted, not as living in particular places in neighbourhoods, with relations to others in the community, but as unmoored, ranging across the entire of the United Kingdom in their search for employment. The ‘hardworking family man’, recognizing his duty, will travel to wherever the work is, but the ‘benefit scrounger’ must be made to get on his bike. In certain sectors and highly specialized occupations, the labour market is national and even international. For example, an offshore drilling engineer on an oil rig will be more limited in one way and less constrained in another in their choice of the physical location where they practise their skills, than the dishwasher working on the same rig. For the latter, the scale of the national is not necessarily helpful, and the national labour market does not particularly help in understanding the processes that lead to ‘hard–tofill vacancies’ in areas of unemployment.40 Most ‘British workers’ do not simply look 39

Statute of Labourers 1351 (25 Edw. 3 st 2). J Adams, M Grieg, and R Mcquaid, ‘Mismatch in Local Labour Markets in Central Scotland: The Neglected Role of Demand’ (2002) 39 Urban Studies 1399; A Murphy, J Muellbauer and G Cameron, ‘Housing Market Dynamics and Regional Migration in Britain’ (CEPR Discussion Paper 2006) accessed 17 December 2013. 40

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for jobs anywhere within the state territory, but rather in a particular neighbourhood, town, or region in labour markets shaped by local and regional factors. Moreover, the logic of job competition that underpins labour migration policy should not be taken at face value. Indeed, there are some interesting exceptions to this logic that point to more creative ways of understanding the social relations of the labour market. For example, although asylum seekers are not allowed to work while their claims are being considered, and failed asylum seekers are not allowed any access at all to the labour market, detained (often ‘failed’) asylum seekers can be paid to work in the detention centre that is holding them. The jobs they perform are usually tasks like serving food, washing, painting rooms, that is, they are generally to do with the provision of services internal to the detention centre, most of which are managed by large corporations. Detainees are exempt from the minimum wage, and pay rates are either for routine work at £1.00 per hour, or specified projects at £1.25.41 Yet this is not treated as ‘taking’ jobs from British people who live near detention centres, and the minimum wage exemption is not regarded as undermining the local market. Similarly, according to a 2009 government statement, an annual 12 million hours is worked in prisons doing jobs like packing for large supermarket chains and putting together headphones for airline companies, as well as providing services within the prison itself.42 In the UK, average pay for prison labour is about £10 a week,43 yet despite the fact that this is labour that is paid substantially below the minimum wage, this is not construed as having the potential to undermine the pay and conditions of ‘more deserving’ workers. How is it that groups like detained asylum seekers, prisoners, and even interns, volunteers, and those on welfare to work schemes fall outside the logic of competition? The answer seems to be that their work, though potentially paid, is nevertheless taken out of the labour market. This is similar to the situation regarding domestic labour. A housewife washing the windows in her family home may be working, but she is not a worker. Even though she is not paid, she is not cast as doing British window cleaners out of a job or undermining their labour market position, because she is not in the labour market. Her place outside the labour market is not simply because she is not paid. If she pays her child to perform the same task, she will not be prosecuted for making use of child labour, that is, payment is not sufficient to turn the work into labour market activity. Noah Zatz argues that when the social relations of work are given primacy, when, as with detained asylum seekers, prisoners, or interns, work is imagined as ‘for your own good’ then it is non-market work.44 ‘Detainees should be advised . . . that work opportunities are a privilege and a position of responsibility’.45 It is not the nature of the task, but the social relations that govern its performance that determine whether work is

41

Detention Services Order 01/2013 (UK Border Agency March 2013). ‘Investigating Prison Labour’ accessed 28 June 2014. 43 Ministry of Justice, ‘Prisoners Pay Back Victims’ (Press Release 30 May 2012) accessed 28 June 2014. 44 N Zatz, ‘Prison Labor and the Paradox of Paid Nonmarket Work’ in N Bandelj (ed), Economic Sociology of Work (Emerald Press 2009). 45 Detention Services Order 15/2008 (Home Office, UK Border Agency). 42

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employment. Zatz describes these kinds of arrangements as ‘paid non-market work’. Importantly, these social relations are not independent of the law. The labour market is socially and legally constructed, and in the same way that immigration and citizenship law helps to ‘produce’ migrants, so employment law ‘produces’ workers. In this way, whether or not particular types of work are considered as part of the labour market is fundamentally contested, and law does not simply regulate an already existing labour market, but helps to produce employment and labour markets as social fields: ‘Law does more than give employment relationships a particular character. It produces employment as a relationship both coherent unto itself and distinct from others . . . In doing so, however, employment law draws on and rearticulates extant institutional forms and cultural categories.’46 One of these extant institutions and cultural categories is the nation. The national labour market is not only about the territorial borders of the state, but also about social borders between the market and not market, between work and labour, set within a context that is strongly imagined as national but rarely interrogated.

V. Mobility and Social Disorder Early vagrancy statutes saw compulsory service as the solution, not just to the rising price of labour, but also to social unrest. The vagabonds and beggars were not simply people without jobs who were able to sell their labour on a competitive labour market, but they were people without positions. The vagrant had become, to use Beier’s term, ‘masterless’,47 without position, and threatened social hierarchies and order. Importantly, being ‘masterless’ did not mean that vagrants were masters of themselves or of their own destiny—ideas of self-ownership and ‘property in the person’ which were to become so important from the seventeenth century until today, were not developed by the late middle ages. In a society in which ‘ideas of labour and belonging were inextricably entangled in each other’,48 their mobility was a sign that they, quite literally, were not keeping to their place. Vagrants had broken not just with masters, but often with family life; vagrant women were prostitutes, vagrant men were unruly and a sexual threat. ‘These offences also involved a new concept of collective crime: of a good society versus a wicked one; of Christians against covens of witches; of rightful rulers against treasonous plotters; of law abiding citizens against anti-societies of rogues.’49 Migrancy, like vagrancy, is above all a crime of status, of refusing to accept one’s position. Nowadays, however, this is not cast as one’s position as a serf, as belonging to a master, but one’s position as ‘belonging’ to a state. The Lockean individual is tied in the first instance, not to a plot of land, nor to a master, but to a nation state. As Henry Ireton put it in the Putney Debates: ‘This, I perceive, is pressed as that which is so essential and due: the right of the people of this kingdom, and as they are the people of this kingdom, distinct and divided from other people, and that we must for this right 46 48 49

47 Zatz (n 44) 857. Beier (n 14). L Brace, The Politics of Property: Labour, Freedom and Belonging (Edinburgh University Press 2004) 14. Beier (n 14) 12.

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lay aside all other considerations.’50 This intensely ideological assumption is politically extremely important in a world where inequality is so shaped by where a person lives. So at the time of Ireton, a person’s access to resources and status, conventional food– wage levels, was determined in many places of the world by whether one was a master or a servant. Where one lived was not as important as who one was. Contemporaneously this has changed. Where one lives matters, for those who are poor in wealthy states are generally significantly better off than the middle class in poorer states.51 Thus tying individuals to territories also ties them to a particular position in the hierarchy of global inequalities. Yet the relation between self-ownership, freedom, and belonging are far from fixed. While today there is an assumed naturalness to belonging to a state that is imagined, through ideals of the nation, as going back into the mists of time, these are recent social and political formations, not natural arrangements disrupted by industrialization and globalization. Honig has explored how the foreigner/non-citizen defines the citizen from outside, while I have argued that the failed citizen defines the citizen from the inside.52 The failed citizen describes those individuals and groups who are imagined as incapable of, or who fail to live up to, liberal ideas. It includes a wide range of people: the ‘benefit scrounger’, the rioter, the criminal and others. The failed citizen is both a disappointment and threat to the local community and/or the nation. Non-citizens are urged to differentiate themselves from failed citizens. Migrants are often presented as hardworking, good family members, law-abiding people. They are explicitly not criminals, not benefit dependents, not sex workers, not single mums. This argument may work to support the claims of some ‘migrants’ and it may even work for many of them. Indeed, too often this is what migration ‘debates’ are reduced to: are ‘some’, ‘many’, or ‘most’ migrants good citizens? But what, then, of those migrants who are single mums, benefit dependents, or who have criminal convictions or work in the sex sector? And similarly, what of those citizens who find themselves with the same labels? Ultimately this serves only to reinforce the logic of exclusion and failure. What happens if, remembering their common ancestor in the vagrant rather than seeing migrants as competitors for the privileges of membership, we rather look for points of similarity with criminals and welfare dependents, who are excluded from social membership? Recovering the history of the relation of control of internal mobility and relating it to immigration is more important than ever in the context of mobility of EU citizens. EU nationals are no longer simply ‘non-citizens’ and indeed in law they must generally be treated in the same way as citizens. However, in common with most of the groups who have made that transition from non-citizen to citizen, Blacks, women, Roma, nonproperty owners, they can easily topple into the ‘failed citizen’ category—given the

50 C Firth (ed), The Clarke Papers: Selections from the Papers of William Clarke, Secretary to the Council of the Army, 1647–1649, and to General Monck and the Commanders of the Army in Scotland, 1651–1660 (The Camden Society 1901, volume 1) 314. 51 The World Bank Development Research Group Poverty and Inequality Team, Global Inequality: From Class to Location, from Proletarians to Migrants (Policy Research Working Paper 5820 by Branko Milanovic, September 2011, WPS5820). 52 B Honig, Democracy and the Foreigner (Princeton University Press 2003). B Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford University Press 2013).

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rights of citizenship, they then disappoint and fail to live up to ‘good citizen’ values. Furthermore their movement from one EU state to another is ‘internal’ in the same way that vagrants’ movement is now constructed as ‘internal’. In the UK, the moves to control EU mobility bear a striking resemblance to those deployed to control vagrancy. Because immigration laws cannot be used, welfare benefit laws are. Measures to restrict access to benefits and services, including accommodation and legal aid, to ‘locals’ are being enthusiastically embraced because they are seen as anti-migrant and pro-British. But who is a ‘local’ is contested, and is certainly not defined by citizenship, and these measures are as likely to impact on the British poor as they are on the Romanian and Bulgarian migrant. So, for example, the restriction of housing benefits to those who have lived in the ‘local area’ for a number of years, will impact on those who are moving within UK territory as well as within the European Union. Historicizing the ‘migrant’ challenges the taken-for-grantedness of nation, citizenship, and state. A historical perspective reveals the relation between the expansion of state authority and control first over the mobility of subjects within the realm, more particularly of poor people, and later over the mobility of non-citizens outside the state. Thus, although mobility in the contemporary world is often regarded as a challenge to states, the control of mobility was a factor that facilitated the emergence of certain types of (nation) states. But a historical perspective also highlights the taken-for-grantedness of contract, property, and self-ownership, which in turn ground other assumptions underpinning migration debates about gender, work, decision making, and skill. It indicates the importance of ideas of property, sovereignty, and the self that were highly contested, particularly in the seventeenth century, but that are now readily assumed in our analyses. Situating our analyses of migration within this historical context reveals that it cannot be extricated from struggles over labour and labour control and anxiety about the uncontrolled masses.

VI. Conclusion But after all this deconstruction, what do we do? What does it mean for the practical politics of migration? Can we put Humpty Dumpty back together again? Perhaps the point is that when we put Humpty Dumpty together, he isn’t Humpty Dumpty any more. Deconstruction shows that we can reconstruct. I’d like to suggest two questions this raises for the study and the politics of migration. Firstly, we need to think carefully about when being a ‘migrant’ matters—and it does sometimes matter in itself—and when it is shorthand for something else. When it comes to the labour market, sometimes being a ‘migrant’ is critical in understanding employment relations, but often these differences are created not by ‘being a migrant’, but by the operation of immigration controls. That is, immigration controls are not neutral, but create certain types of employment relations and processes. Other times, differences between migrants and citizens can be attributed to lack of familiarity with rights, lack of contacts, lack of English (none of which are exclusive to non-citizens), or to racism, again not only experienced by non-citizens. It is interesting, too, to think about how these differ and overlap with the kinds of controls that are imposed on benefit claimants, or on squatters and contemporary vagrants.

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Secondly, what is the point of immigration policy? Vagrancy served state building, asserting and extending state bureaucracies.53 The same can be said for immigration. Immigration enforcement is increasingly becoming part of daily life, as employers, university lecturers, public sector employees, those delivering the welfare state, and landlords are required to endlessly remake the migrant/citizen distinction through the policing of immigration controls. But what kind of society and economy is immigration policy working towards and imagining? If this is not our vision of a society that promotes human flourishing, what is? But there are also lessons that the study of migration can offer to our engagement with the past. How do we read and relate to the past? How much do we invest in ideas of ancestry and nation (which typically can become diffuse and imaginary, but are powerful nevertheless), and how is this related to place and to our interpretations of political struggle? Situating migration within this broader history of unruly mobilities, unmooring people, nation, and state, offers opportunities for developing a new politics of migration, one that does not essentialize (and thereby re-create) the figures of ‘the migrant’ and ‘the citizen’.

53 P Ocobock, ‘Introduction: Vagrancy and Homelessness in Global and Historical Perspective’ in L Beier and P Ocobock (eds), Cast Out: Vagrancy and Homelessness in Global and Historical Perspective (Ohio University Press 2008).

3 Employers and Migrant Legality Liberalization of Service Provision, Transnational Posting, and the Bifurcation of the European Labour Market Georg Menz* The grabbing hands grab all they can. All for themselves, after all: It is a competitive world. Everything counts in large amounts. Depeche Mode, ‘Everything Counts’ [July 1983]

I. Mapping the Changing Composition of the European Labour Market European labour markets have undergone epochal transformations over the course of the past fifteen years. This is particularly true for continental Europe, where relatively strong unions, organizational coherence amongst employers, and sophisticated juridical regulation led to fairly regulated labour markets with low degrees of wage dispersal. However, this assessment of unified and regulated labour markets, already somewhat inaccurate during the era of Fordism and the long post-war boom, no longer adequately captures the dynamics of contemporary labour markets, due to the gradual structural transformation of labour market regulation. This transformation is driven by the transnationalization of production strategies, neoliberal policy reform, and changing commitments amongst employers. In this process of carefully induced disintegration, migration plays a significant role, which both scholars and commentators often underappreciate or neglect altogether. This chapter will demonstrate that migrants are channelled into new substandard tiers of the labour market, ensuring the expansion and permanence of these tiers. Employers proactively use and abuse migration as a tool to achieve more pronounced disparities in wages and working conditions. The recent rediscovery of labour migration in Europe therefore needs to be assessed as a strategic tool to produce greater differentiation in the labour market. Migration, for the purposes of this chapter, includes not only labour migration from outside Europe, but also intra-European mobility. The latter includes both labour mobility and the transnational provision of services involving the temporary posting of workers. Given the formidable size of the intra-European wage gap, the exploitation of labour migration is an important and lucrative strategy in undermining formerly more structured and regulated labour markets. * Georg Menz is Professor of Political Economy and Jean Monnet Chair in European Integration at Goldsmiths College, University of London. The author wishes to express his gratitude to the editors.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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This chapter makes three chief arguments. First, it demonstrates how debates in comparative political economy can be significantly enhanced and improved by taking seriously developments in European labour markets induced by immigration. The comparative political economy literature tends not to take migration into consideration. Conversely, there has been a dearth of scholarly migration accounts, at least in political science, that focus on the labour market implications of the movement of people. This chapter seeks to address this lacuna, arguing that labour migrants, both legal and undocumented, are used to help perpetuate the disintegration of European labour markets. This proposition holds both in systems commonly still regarded as subject to considerable regulation, greater homogeneity, and, not least, union influence, such as Germany, and in those already regarded as much more liberalized and heterogeneous, namely in the United Kingdom. Labour migration can therefore be utilized as a conscious employer strategy in helping to liberalize and deregulate labour markets. Migration does not in itself bring about the disintegration of formerly tightly organized labour markets, yet it arguably promotes this transformation. This argument is substantiated by an in-depth study of sectoral labour market developments. Secondly, it is argued that some of this structural transformation ought to be understood as being related to structural changes in the role of the state. The modern European state has cast off reservations associated with the era of embedded capitalism and is more aggressively enabling the pursuit of accumulation, entailing a business-friendly stance towards labour migration. Thirdly, and relatedly, employers are active agents in driving forward the liberalization of labour migration, including the analytically somewhat distinct, yet related, liberalization of service provision. Thus, immigration from outside of the EU is being promoted and supported by active lobbying. In addition, the EU liberalization of service provision is being exploited as a mechanism of prying open new access channels to labour markets. The significance of employers’ agency is underappreciated in the current literature. It is also worth noting that this inferior legal status pertaining to labour migrants might in some cases even apply to citizens of EU Member States.

II. Orderly Disintegration: The Use and Abuse of Labour Migration Recent debates in comparative political economy have focused on the causes and implications of economic liberalization in Europe. In particular, debate centres on whether domestic factors engendered the embrace of neoliberal ideology or whether more general tectonic shifts attributable to globalization and European integration are the primary drivers.1 More recent contributions, especially those informed by the

1 C Crouch and W Streeck, The Political Economy of Modern Capitalism (Sage 1997); B Amable, The Diversity of Modern Capitalism (Oxford University Press 2005); W Streeck and M Höpner, Alle Macht dem Markt? Fallstudien zur Abwicklung der Deutschland (AG Frankfurt: Campus 2003); W Streeck and A Hassel, ‘The Crumbling Pillars of Social Partnership’ in H Kitschelt and W Streeck (eds), Germany: Beyond the Stable State (Frank Cass 2004) 101.

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varieties of capitalism approach, contest that earlier pessimistic predictions of convergence on a minimalist liberal Anglo-American model of capitalism are inaccurate, suggesting instead a taxonomy that encapsulates coordinated market economies (CMEs) and liberal market economies (LMEs). This framework suggests that, notwithstanding the general trend towards post-Fordist liberalization, significant differences in regulatory style continue to persist across Europe, partially driven by highly diverse production strategies that encompass different corporate interests in degrees of intracompany cooperation and coordination, skills distribution levels of employees, and the regulatory style of the labour market in general terms. However, one obvious point of weakness is the relative myopia of attempts to sketch a CME, given the bifurcation of labour markets and the more general ongoing steadily proceeding liberalization of these very models.2 The pace and extent of disintegration, by which I refer to the dissolution of formerly more uniform and cohesive labour market structures into an atomized multi-tiered structure, is astonishing. The resultant dualization entails the segmentation of the labour market not only in the UK and other LMEs, where precarization, dualization, and atypical forms of employment emerged from the late 1970s onwards and are well documented,3 but, more strikingly, also in Germany and the CME category. Drawing on the UK Labour Force Survey, Goos and Manning4 show that though the proportion of top-paying jobs in the UK increased between 1979 and 1999 (by 25 per cent and 70 per cent respectively in deciles nine and ten), the same period also saw a significant rise (40 per cent) in the proportion of jobs in the lowest paying decile. Concomitantly, between 1979 and 1993, the poorest decile experienced a real income decrease of 18 per cent, whilst the richest decile experienced an explosive 61 per cent rise.5 The received wisdom of the German economy as being dominated by well-regulated and highly unionized industrial relations needs to be re-evaluated in light of the now readily apparent impact of labour market reforms and ongoing union weaknesses. Hassel documents the use of marginal employment and fixed term contracts, especially in the service sector, which accounts for 80 per cent of such marginal employment.6 Drawing on government data, she suggests that more than 20 per cent of all jobs in the service sector are fixed-term contracts. With income inequality rising, nearly one-third of recipients of long-term unemployment benefit are also in employment, spawning the phenomenon of the working poor. Part-time employment has doubled between 1991 and 2007, whilst the number of full time jobs has decreased by 20 per cent. Fixed term contracts and contracts secured through work agencies amount to under 10 per cent of 2 W Streeck, Reforming Capitalism: Institutional Change in the German Political Economy (Oxford University Press 2009). 3 A Gamble, The Free Economy and the Strong State: The Politics of Thatcherism (Duke University Press 1988); D Coates, Models of Capitalism: Growth and Stagnation in the Modern Era (Polity Press 2000). 4 M Goos and A Manning, ‘McJobs and MacJobs: The Growing Polarisation of Jobs in the UK’ in R Dickens, P Gregg, and J Wadsworth (eds), The Labour Market under New Labour (Palgrave Macmillan 2003). 5 J Macnicol, ‘Perspectives on the Idea of an “Underclass” ’ in J Edwards and J Révauger (eds), Discourse on Inequality in France and Britain (Ashgate 1998). 6 A Hassel, ‘The Paradox of Liberalization: Understanding Dualism and the Recovery of the German Political Economy’ (LSE European Institute 2011).

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the total labour force, though there are striking recent increases in absolute terms.7 However, 22.4 per cent of all employees received less than €9.19 as a gross hourly wage in 2007. The percentage of employees thus covered by minimal wages only has risen from 14.2 per cent in 1998.8 Worryingly, not all poorly paid jobs are necessarily appropriately to be classified as low skill and many are held by clearly over-qualified individuals, with 70.8 per cent of employees in this category having undergone vocational training and 8.4 per cent having obtained a tertiary education degree. Foreign citizens make up 11.3 per cent of all employees. Between 1995 and 2007, real average wages in the low wage sector have actually decreased from €6.03 to €5.77 in West Germany and marginally increased from €4.66 to €4.69.9 Recent scholarship has all but neglected the neo-Marxist works of the early 1970s that postulated a link between migration and the ‘reserve army of labour’.10 In 1844 Engels wrote that: With such a competitor the English working-man has to struggle with a competitor upon the lowest plane possible in a civilised country, who for this very reason requires less wages than any other. Nothing else is therefore possible than that, as Carlyle says, the wages of English working-men should be forced down further and further in every branch in which the Irish compete with him. And these branches are many. All such as demand little or no skill are open to the Irish. For work which requires long training or regular, pertinacious application, the dissolute, unsteady, drunken Irishman is on too low a plane. To become a mechanic, a mill-hand, he would have to adopt the English civilisation, the English customs, become, in the main, an Englishman. But for all simple, less exact work, wherever it is a question more of strength than skill, the Irishman is as good as the Englishman.11

Inspired by the claim that migrant labour was consciously used to feed into substandard jobs, Michael Piore argued that the capitalist economies of the late 1970s were characterized by ‘dual labour markets’ inasmuch as there was a permanent tier of poorly remunerated jobs attracting little or no prestige, often subject to bad or even hazardous working conditions.12 The contemporary term ‘dirty, dull and dangerous’ aptly summarizes the conditions found in this bottom tier of the labour market. According to Piore, this sector was a permanent structural component of the labour market, not a transitory or temporary phenomenon. Drawing on the concept of the dual labour market, I argue that there is indeed a strong correlation between the manufactured disintegration of the labour market and

7 W Eichhorst and P Marx, ‘Reforming German Labor Market Institutions: A Dual Path to Flexibility’ (IZA Discussion Paper 4100, IZA 2009). 8 T Kalina and C Weinkopf, ‘Niedriglohnbeschäftigung 2007 weiter gestiegen—zunehmende Bedeutung von Mindestlöhnen’ (IAQ-Report 2009–5). 9 Kalina and Weinkopf (n 8). 10 S Castles and G Kosack, Immigrant Workers and Class Structure in Western Europe (Oxford University Press 1973); M Castells, ‘Immigrant Workers and Class Struggles in Advanced Capitalism: The Western European Experience’ (1975) 5(10) Politics and Society 33. 11 F Engels, The Condition of the Working-Class in England in 1844 (reprint edn, George Allen & Unwin 1943). 12 M Piore, Birds of Passage: Migrant Labor and Industrial Societies (Cambridge University Press 1979).

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migration. Labour migration is thus used both as an axe to crack open tightly regulated and homogenous labour market structures, permitting new substandard forms of employment and to people such new substandard tiers. The trend towards tertiarization, already evident in the 1970s, certainly dovetailed with this development, as newly emergent service industries proved more difficult for both unions and labour authorities to police effectively. Concomitant with disintegration is the disproportionate effect of economic restructuring on settled immigrants, especially those working in relatively unskilled jobs.13 This is borne out by the relatively high unemployment rates amongst UK ethnic minorities, as documented in the UK Labour Force Survey. Whilst in 2005–6 the rate was 3.8 for the white majority, it stood at 12.8 per cent for Pakistanis, 19.4 per cent for Bangladeshis, 11 per cent for Black Caribbean, and 11.8 per cent for Black Africans. Though no similar data is available for Germany, 2007 EU Labour Force Survey data indicate that 19.24 per cent of all resident non-EU citizens are unemployed as opposed to 7.76 per cent native born.14 Similarly, in 2009, the rate of economic activity for White Britons was 75.0 per cent, whilst for other ethnic groups this was 59.4 per cent.15 The disintegration of the labour market is accompanied by the (re-)creation of different groups entitled to different rights. Legality of employment, a common theme in the contributions to this collection, obviously matters greatly, but less immediately apparent is the inferior status of ‘posted workers’, that is, EU citizens (and in some cases so-called ‘third-country nationals’ working regularly in one EU Member State) seconded transnationally under the auspices of the liberalization of service provision or ‘self-employed’ as de facto subcontractors in this context. The fundamental change in the legislative and political landscape is evident in the transnationalization of production, corporate strategies and legislative changes aimed at reducing trade union influence, and workfare policies making the receipt of welfare payments conditional on willingness to undertake generally poorly remunerated work. These policy measures were informed by an ideological shift towards neoliberalism, although the extent to which this ideology was embraced obviously varied across Europe.

III. The Changing Architecture of the European State The architecture of the European state has changed radically when juxtaposed with the form and functions carried out by the post-war Keynesian welfare state. It was always misleading to conceive of the state as a neutral umpire between conflicting societal interests. However, equally important is a clear understanding of what the internalization of neoliberalism and the embrace of authoritarian étatisme entail for the nature of the state and its population control policy. Such analytical confusion might be

13 C Dustmann, A Glitz, and T Vogel, Employment, Wages, and the Economic Cycle: Differences between Immigrants and Natives (IZA Discussion Papers 4432, IZA 2009). 14 M Kahanec, A Zaiceva, and K Zimmermann, ‘Ethnic Minorities in the European Union: An Overview’ (IZA Discussion Papers 5397, 2010). 15 Office for National Statistics, Local Labour Markets: Statistical Indicators January 2010 (ONS 2010).

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attributable to neoliberalism being conceived of as an ideology limiting the scope of the state, as exemplified in an early exposition by Milton Friedman. Friedman posited that neoliberalism must ‘give high priority to limiting the state’s ability to intervene in the activities of the individual’, leaving the state’s role as merely policing the system of competition. Accordingly, ‘Citizens [would] be protected against the state, since there exists a free private market, and the competition [would] protect them from each other’.16 It is more accurate, however, to consider the more punitive elements of the neoliberalized state and its increasingly authoritarian nature. Earlier state theorists, including Poulantzas,17 forecast a dichotomy between a liberalized economy and an increasing control and surveillance regime aimed at those considered deviant or somehow ill fit to contribute to the accumulation process. [I]t seems to be precisely this incapacity to make a clear distinction between ‘threats’ and ‘resources’, between the ‘dangerous’ and the ‘laborious’ classes or, to follow another sociologically successful dichotomy, between ‘social junk’ and ‘social dynamite’, which compels the institutions of social control to regroup whole sectors of the post-Fordist labour force as ‘categories at risk’, and to deploy consequent strategies of confinement, incapacitation and surveillance.18

Wacquant makes a similar argument that stresses the rise of the disciplining penal state, which renders what are often mere survival strategies into pathological and deviant behaviour, thus ‘penalizing the poor.’19 But the state does not only possess a newly reinforced repressive role, it also possesses an important ideological apparatus, which is involved in ‘ideological inculcation and transmission’.20 Thus understood, the basic architecture of the European neoliberalized state becomes clearer: ‘[T]he state must not be considered as an intrinsic entity, but, as is also true for “capital” itself, it must be considered as a relation, more exactly as a material condensation (apparatus) of a relation of force between classes and fraction of classes.’21 Three important arguments follow from this Poulantzian understanding of the state. The state is not captured by capitalist interests, but nevertheless strongly shaped by the ‘power bloc’, a congregation of influential political, social, and economic actors. The state does retain a certain degree of autonomy, but it needs to be understood as the expression of economically driven struggles over political influence. Therefore, predominant and hegemonic classes will strongly influence public policy concerning population control and labour market regulation, with immigration policy presenting an obvious confluence of the two fields. In order to understand changes in migration policy, it is thus much more fruitful to study the position of economically dominant actors than to remain wedded to an ultimately shortsighted liberal pluralist paradigm. 16 M Friedman, ‘Nyliberalismen og dens muligheter’ [Neoliberalism and its Prospects], Farmand (17 February 1951) 89–93 (translation author’s own). 17 N Poulantzas, Staatstheorie (VSA 2002). 18 A De Giorgi, Re-Thinking the Political Economy of Punishment (Ashgate 2006) 76. 19 L Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke University Press 2009). 20 21 J Martin, The Poulantzas Reader (Verso 2008) 183. Martin (n 20) 307.

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Secondly, though this chapter empirically focuses primarily on employers, not unions, the latter partly play a role in representing the labour aristocracy and acting as part of the ideological apparatus.22 It is thus misleading to assume either a highly active or an anti-immigrant status on the part of the unions, but more instructive to understand their interests as being shaped by defending the interests of their core clientele. This might entail accepting disintegration of the labour market as a lesser evil. Thirdly, the state needs to ensure its own underlying material resources and hence assure its reproduction over time. Immigration policy is thus always driven by the sometimesconflicting prerogatives of seeking to ensure a steady supply of a taxable labour pool and arresting costly demands by the new migrant population to services proffered and financially underwritten by the state. This includes directly repressive measures by the police, border police units, and social services aimed at migrants and migrant populations. From this last point arises the interest in recruiting an easily manageable migrant population that can readily be slotted into existing production strategies and fit into either end of a bifurcated labour market. If the reorganization of the contemporary state has thus led to a gradual re-discovery of economic migration, this should come as little surprise. Weakening unions, more aggressive employers, labour market deregulation, and new corporate production strategies have redrawn the contours of the labour market. Employers perceive of a need to solicit migrant labour, both because this helps promote and solidify a bottom tier of the labour market and because it broadens the size of the labour pool more generally and thus keeps wage increases in check. Indeed, real wages in Germany have stagnated since 1995; between 2004 and 2008 they have even declined slightly.23 In the UK, recent EU A8 immigrants earn an average hourly wage of £9.34 for men and £8.55 for women, compared with £17.79 for men and £11.70 respectively for non-immigrants, suggesting a slight negative impact on wages in the bottom tier of the labour market.24 The consolidation of a bottom tier in the labour market through liberalized labour migration is proceeding apace, yet it cannot simply be deduced from employer preferences. In the following section, it will be empirically illustrated how the renaissance of labour migration in Europe since the mid-1990s25 and the rhetorical link between the ‘need’ for such labour migration due to demographic pressures and labour market shortages thus needs to be understood as part of an active strategy by employers to create downward wage pressure, and establish and strengthen substandard tiers of the labour market. Understandably, such political activities by employers are not necessarily particularly popular. Consequently, political demands for liberalized labour migration are couched in terms of ‘competitiveness’, ‘labour market shortages’, or are portrayed as inevitable and without alternative in light of declining birth rates and rising life expectancy at birth throughout Europe. 22 23

2009.

Martin (n 20) 186–219. K Brenke, ‘Real Wages in Germany: Numerous Years of Decline’ Vol 5, 28/2009, DIW Weekly Report

24 C Rienzo, ‘Characteristics and Outcomes of Migrants in the UK Labour Market’ (Migration Observatory 2013). 25 G Menz, The Political Economy of Managed Migration (Oxford University Press 2008).

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IV. Liberalization through the European Backdoor: Service Provision Though originally already contained in Articles 59 to 66 of the Treaty of Rome and one of the ‘four freedoms’, considerable legal uncertainty clouded trans-European service provision and it remained of little practical significance well into the 1980s. Historically, relatively homogenous wage levels meant that transnational service provision was limited to instances of highly specialized niche providers. De facto, European service sectors remained well within the legal remit of national regulatory authorities and the often highly technical nature of applicable regulation deterred transnational service provision. The Commission grew increasingly frustrated with this state of affairs. At the same time, the 1990s had witnessed a massive increase in transnational service provision, especially in the construction sector. The substantial wage gaps across Europe in this sector were first exploited by a Portuguese subcontractor of French construction conglomerate Bouygues in 1986 and reached epic proportions in booming Berlin in the mid-1990s.26 Such transnational service provision, spawning posted workers from low-wage countries such as Portugal and Greece to high-wage destinations in northern Europe, was welcomed by economic liberals, whilst critics perceived the emergence of islands of foreign law that imported Portuguese wages into Germany as a neoliberal nightmare. EU law developed in a way that meant the posted workers were subject only to statutory laws of an ordre public character. This notably did not include wages in many countries, especially in the absence of a statutory minimum wage.27 The Single Market was spawning the bifurcation of the labour market in service industries, creating a bottom tier inhabited by EU citizens not entitled to standard national wages. The 1990 decision of the European Court of Justice (ECJ) in Rush Portuguesa28 opened up the way to national response strategies. National re-regulatory strategies in a number of countries sought to establish some form of legally binding lowest wage tier, although in the Netherlands and Germany the re-regulation was so non-intrusive as to fail in arresting labour market bifurcation. However, EU eastward enlargements in 2004 and 2007 re-ignited this problématique. Despite the imposition of temporary bans on labour mobility and service provision in all but three of the EU-15, the potential for competition via the wage factor re-emerged. Political debates focusing on social dumping were very quickly met by a number of practical developments that juxtaposed national regulatory regimes in 26

G Menz, Varieties of Capitalism and Europeanization: National Response Strategies to the Single European Market (Oxford University Press 2005). 27 The ‘posting’ of workers employed in one Member State to another is now facilitated by Directive 96/ 71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1. On the interpretation of this Directive see, Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767; Case C-346/06 Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06 Commission v Luxembourg [2008] ECR I-4323. 28 Case C-118/89 Société Rush Portuguesa Lda v Office National d’Immigration [1990] ECR I-2637.

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wages and working conditions with European deregulatory tendencies. Companies availed themselves of new opportunities for transnational service provision with the explicit aim of lowering wages. In some cases, this entrepreneurial exploitation of wage gaps generated legal battles,29 but generally a predictable conflict between profit-driven companies and trade unions concerned with wage dumping and a downward spiral in remuneration and social protection levels ensued. For example, in Ireland, shipping company Irish Ferries incorporated a Cypriot subcontractor, replacing existing employees with new staff from Latvia, remunerated at Latvian wage levels. In Sweden, a Latvian construction company active in Växholm applied its home country regime on wages and working conditions offered to posted employees in Sweden. In Germany, meat processing plants and construction companies found enterprising avenues for circumventing the temporary ban on service provision by employing nominally self-employed workers from Central and Eastern Europe (CEE) remunerated also at home country levels. In the absence of a statutory minimum wage, it proved possible to circumvent standard German wages, legally applicable only to businesses with membership in the German employer association, but not pseudoindependent subcontractors, of course. Most controversially, perhaps, the 2004 draft directive named after former Commissioner Frits Bolkestein30 would have enshrined the home country principle for transnational service provision, while forcing Member States to open up significant segments of their economies to foreign competition, including areas traditionally regarded as service public, such as health and education.31 While economic liberals, notably EU Trade Commissioner Peter Mandelson, warmly welcomed it, the critics perceived the ‘Frankenstein’ directive as an incarnation of runaway neoliberalization, undermining fair wages and working conditions and pushing forward the doctrine of privatization by stealth. Such fears were nourished by the practical implications of the home country principle for host country wages, setting in motion a downward spiral. However, vociferous protest from the trades unions and a number of Member State governments neutered the directive considerably. Three recent ECJ judgments resurrected concerns regarding the clash between an essentially liberal Single Market project and national safeguards to protect labour markets.32 The 2007 Viking case33 centred on a strike by the Finnish Seamen’s Union against a Finnish company that operated its ferry services under the Estonian flag and labour legislation. This industrial action was considered by the court undue interference with the company’s rights under Article 43 EC, preventing restrictions on the right of establishment. The 2007 Laval case34 mentioned earlier, involving Swedish union action against a Latvian company posting Latvian workers to a Swedish building 29

Laval (n 27); Rüffert (n 27); Commission v Luxembourg (n 27). Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market’ COM (2004) 2 final/3. 31 C Barnard, ‘Unravelling the Services Directive’ (2008) 45(2) Common Market Law Review 323. 32 M Höpner, and A Schäfer, A New Phase of European Integration: Organized Capitalisms in PostRicardian Europe (MPIfG Discussion Paper 07/4, MPIfG 2007). 33 Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779. 34 Laval (n 27). 30

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site and reimbursed at 40 per cent below standard local wage rates, was judged unlawful under Article 49 EC on restrictions on the freedom to provide services. Finally, the 2008 Rüffert case35 overruled a decision by the German state of Lower Saxony to end a contract with a German firm employing Polish subcontractors. These employees received 46 per cent less than the standard wages and the practice violated state law requiring contractors to adhere to regionally applicable collectively bargained wages. Nevertheless, the ECJ considered this decision a violation of Article 49. In all three cases, the ECJ argued the regulations being sought by national actors were ‘disproportionate’ and ‘unjustified’.

V. Employers as Active Advocates of Immigration Notwithstanding the political impediments to resuming labour recruitment36 and the obvious shortcomings of the guestworker concept of the post-war decades, European governments rediscovered labour migration in the early 2000s. Thus, between 1999 and 2006, the annual net flow of foreign workers into the UK rose from 42,000 to 62,700; in Germany it rose from 304,900 in 1999 to 380,300 in 2004.37 This general trend holds true across European members of the Organisation for Economic Cooperation and Development (OECD). There is no tangible sign of this course being abandoned, notwithstanding the changing economic fortunes evident from 2008 onwards. But who drives this change? Debates in migration studies seek to account for the ‘gap’ between restrictionist rhetoric and slightly more permissive practice.38 This paradox has previously been partially accounted for by the activities of liberal courts,39 though generally ‘prevailing scholarship . . . has been inconclusive with regard to the role and nature of domestic actors on national immigration policy-making’.40 Little scholarly attention has been paid to the role of employer associations,41 although organized business played a pivotal role in earlier Marxist-inspired analytical contributions.42 This is surprising, for it would seem prima facie fruitful to explore the role of these actors in understanding how and why national-level labour migration policy has come to be liberalized across Europe from the mid-1990s onwards, abandoning the previous restrictive approach introduced after the oil shocks of the mid-1970s. 35

Rüffert (n 27). A Messina, ‘Political Impediments to the Resumption of Labour Migration to Western Europe’ (1990) 13(1) West European Politics 31. 37 OECD 2008: Table A.2.1. 38 R Hansen, ‘Globalization, Embedded Realism, and Path Dependence: The Other Immigrants to Europe’ (2002) 35(3) Comparative Political Studies 259. 39 J Hollifield, Immigrants, Markets and States: The Political Economy of Postwar Europe (Harvard University Press 1992); V Guiraudon, ‘The Marshallian Tryptich Reordered: The Role of Courts and Bureaucracies in Furthering Migrants’ Social Rights’ in M Bommes and A Geddes (eds), Immigration and Welfare: Challenging the Borders of the Welfare State (Routledge 2000). 40 G Lahav and V Guiraudon, ‘Actors and Venues in Immigration Control: Closing the Gap between Political Demands and Policy’ (2006) 29(2) West European Politics 207. 41 An exception is L Cerna, ‘The Varieties of High-skilled Immigration Policies: Coalitions and Policy Outputs in Advanced Industrial Countries’ (2009) 16(1) Journal of European Public Policy 144. 42 Castles and Kosack (n 10); Castells (n 10); Piore (n 12). 36

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While the ‘gap’ puzzle is still unresolved, it is worth noting that with respect to labour migrants, official discourse is strikingly less restrictive in regard to ‘undesirable’ migrant groups.

1. Developments in Germany German employers re-discovered labour migration in the late 1990s. Especially influential was outspoken late-1990s President of the Confederation of German Employers’ Associations (BDA),43 Hans-Olaf Henkel. The employers saw the liberalization of labour migration both as a useful tool in securing greater competitiveness and as a mechanism of addressing alleged shortages of skilled employees, expressed particularly by the largest sectoral employer Gesamtmetall. Henkel himself was part of two government expert commissions on immigration, and harshly criticized the Christian Democrats’ rejection of explicit labour migration quotas geared exclusively at highly skilled migrants.44 Convinced of the necessity to ‘compete for the best brains’ and ‘internationally mobile high flyers’ to address ‘labour market shortages’ and to ensure the continued ‘competitiveness of Germany as place to do business’, the BDA suggested changes to regulation, liberalizing economic migration, permitting both temporary and long-term migration flows, with minimal discretion for local and regional administrative interventions.45 Not content with voicing their demands for liberalized labour migration through the expert committees, the employers also launched a vociferous and financially wellendowed public relations vehicle to popularize their demands for a general liberalization of the economy, including migration. Founded in 2000 by Gesamtmetall (the federation of German employers’ associations in the metal and electrical engineering industries), the New Social Market Economy Initiative aims to influence public opinion and media reports,46 drawing on an annual budget of €10 million. Immigration of ‘highly qualified foreigners’ is one of its many proposals based on the ‘know how’ and ‘contribution to economic growth’ and ‘the future’ that skilled migrants make.47 These lobbying activities started bearing fruit in the 2000s. In 2000, the Red-Green Government launched a temporary labour recruitment programme for 20,000 highly skilled migrants, particularly in IT (the so-called ‘green card’ initiative). The following year, Minister for the Interior Schily commissioned a report from an expert commission composed of academics, legal experts, the social partners, and politicians from all parties, headed by moderate Christian Democrat Süßmuth. The ‘Law on the management and limitation of inward migration and the regulation of the residence and integration of EU citizens and foreigners’ was finally accepted by the Bundestag on Bundesvereinigung der Deutschen Arbeitgeberverbände, referred to as ‘BDA’ throughout. Manager Magazin (16 October 2000). 45 BDA, Stellungnahme zum Zuwanderungsgesetz (16 January 2002). 46 T Leif, Die politischen Strategien der Initiative Neue Soziale Marktwirtschaft (Hans-Bockler-Stiftung 2004). 47 Initiative Neue Soziale Marktwirtschaft. Deutschland braucht qualifizierte Zuwanderer, Berlin: Initiative Neue Soziale Marktwirtschaft (27 February 2004); Initiative Neue Soziale Marktwirtschaft. Deutschland muss die Zuwanderung aus eigenem Interesse steuem, Berlin: Initiative Neue Soziale Marktwirtschaft (3 July 2006). 43 44

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1 July and by the Bundesrat on 9 July 2004, and came into effect as of 1 January 2005.48 Article 18 specifies that in processing an application for a work permit (henceforth linked to a residency permit), consideration should be given to the labour market situation, the fight against unemployment, and the exigencies of securing national competitiveness. The employer association had been consulted throughout the drafting of the bill.49 Both BDA representatives within the commission strongly lobbied in favour of more ‘demand oriented managed migration’ and less bureaucratic leeway for regional labour market administrations in the context of more ‘competition for the best brains’, coupled with faster asylum decisions and more rigorously enforced deportations to ‘avoid any signal that could be understood in countries of origin that immigration for non-labour market related reasons will be expanded’.50 Employers were particularly interested in highly skilled migrants, not least due to the positive experiences with the IT sector programme, and contributed to the demand for an annual migration quota, based on a points system.51 Consistent lobbying led to the creation of migration channels for highly skilled high wage professionals in the new immigration bill, namely entrepreneurs investing at least €1million and creating at least ten new jobs, and carefully delineated categories of highly skilled migrants were permitted access, including teachers, scientists, and skilled managers earning in excess of €100,000, as defined in Article 19. In addition, foreign graduates of German universities were permitted to remain in the country for one additional year to search for employment. By contrast, no categories were created for graduates of foreign vocational training schemes or labour migrants with general skills. Following a meeting of ministers in Meseberg in August 2007, further businessfriendly concessions were made effective as of November 2007, including facilitated access for highly skilled engineering graduates from CEE, three-year work permits for foreign graduates of German universities, and the creation of a working group within the Ministry of Labour and Education charged with developing ‘a labour market-oriented management of migration’, including the examination of a points-based system measuring qualification levels, age, and language skills.52 Vice-Chancellor and Minister of Labour Müntefering announced that there was no need for low-skilled labour migration, echoing the position of the BDA. The employers enthusiastically welcomed the liberalization of access,53 and continued their advocacy of the ‘long overdue introduction’ of such a points-based system,54 pointing to Britain as a possible model.55

48

BGBI Part I No 41 1950 of 5 August 2004. BDA, Interview with senior official at German Ministry of Interior Affairs (2005). On file with author. 50 BDA, Stellungnahme zum Zuwanderungsgesetz (n 45). 51 BDA, Interview with official at employer association (2005); BDA, Interview with official at sectoral employer association for gastronomy (2008). On file with author. 52 Berliner Zeitung (6 and 25 August 2007). 53 BDA, ‘Newsletter: Diskussion um Fachkräftemangel gewinnt an Dynamik’ (BDA 2007). 54 BDA, ‘Arbeitgeberprasident Dr. Dieter Hundt: Einführung des Punktesystems ist ein längst überfalliger Schritt’ (Press Release 46/2007). 55 BDA, ‘Arbeitgeber begrufsen Beschluss des Bundeskabinetts zu kurzfristigen Maßnahmen gegen Fachkräftemangel’ (Press Release 671/2007); BDA, ‘Arbeitgeberprä sident Dr. Dieter Hundt: Gezielte Zuwanderungja, undurchdachte europäische Gesetzgebung nein!’ (Press Release 105/2007). 49

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The Ministry of Labour drafted a bill on the ‘management of the migration of the highly qualified’ during the summer of 2008. The key changes entailed were further reducing the annual income required for highly qualified migrants eligible for ‘fasttracking’ from €86,400 to €63,600, permitting labour market access for university graduates from the EU-8 accession countries, and creating a permanent council advising and evaluating labour market needs for skilled employees which would include a representative of the employers. It also facilitated labour market access for already resident temporarily ‘tolerated’ refugees if they could demonstrate successful completion of a three-year tertiary training programme. The bill was accepted by the Bundestag on 17 November, and by the Bundesrat on 19 December 2008. Complaints over minor details notwithstanding, and the absence of a comprehensive points-based system, employers warmly welcomed the project.56 The employers were successful in rhetorically linking competitiveness with the need for liberalized labour migration and in thus influencing public policy design.

2. Developments in the United Kingdom In the UK, discourse rhetorically framing migration as vital to ensuring competitiveness played an important role in ushering in more liberal policies. Whilst employers played an active role in this process, the New Labour Government of Tony Blair was active on its own. It wrapped its policy initiatives into the language of competitiveness, demonstrating that both business and governmental actors employed the discourse of linking migration with competitiveness. The beginning of this new turn towards ‘managed migration’ and the discourse accompanying it can be traced to 2000.57 The very phrase was used no less than eleven times in Parliament by David Blunkett during his tenure as Home Secretary. That year, a major governmental review of international migration and its impact on the economy was conducted, influenced by pro-liberalization Minister for Immigration Barbara Roche. A Department for Trade and Industry 1998 White Paper had first raised the possibility of lowering entry barriers for skilled migrants.58 This White Paper, entitled ‘Our Competitive Future: Building the Knowledge-Driven Economy’, questioned restrictive policy towards highly skilled migrants and entrepreneurs. The skill range covered by the work permit scheme was broadened beginning in 2000, at the same time formal requirements were relaxed to possession of a tertiary degree rather than a degree and work experience. Consequently, the numbers of work permit holders rose from 62,975 in 1997 to 137,035 in 2005. That same year, an ‘Innovator’s Scheme’ was piloted, supported by Minister of Immigration Roche, who, in an influential speech on 11 September 2000, declared that the ‘UK was in competition for the brightest and best talents—the entrepreneurs, the scientists, the high technology specialists who make the

56 BDA, ‘Neue Regelung für Arbeitsmarktmigration schritt in die richtige Richtung—Punktesystem nach wie vor dringend erforderlich’ (Position Paper August 2008). 57 A Balch, ‘Labour and Epistemic Communities: The Case of “Managed Migration” in the UK’ (2009) 11 (4) British Journal of Politics and International Relations 613. 58 W Somerville, Immigration Under New Labour (Policy Press 2007) 29–30.

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economy tick.’59 The December 2001 Highly Skilled Migrants Programme, complemented by the Innovators Scheme, first introduced an explicit point system, taking into consideration formal level of education, work experience, salary level, overall qualification, and qualification of the spouse. Additional points were added for applicants in sectors with shortages—especially medicine—and, unlike the previous procedure, applicants themselves filed the application rather than their employer. This rhetorical link between liberalized migration and enhanced competitiveness was to be found not only in employer pronouncements, but also in elite government circles. The Home Office’s 2002 ‘Secure Borders, Safe Havens’ argued that on balance the UK stood to benefit from global mobility, given that ‘our strong labour market acts as a magnet for those seeking better jobs for themselves . . . Migrants bring new experiences and talents that can widen and enrich the knowledge base of the economy.’60 Meanwhile, Prime Minister Tony Blair argued during an April 2004 speech at the Confederation of British Industry (CBI) that ‘recognition of the benefits that controlled migration brings not just to the economy but to delivering the public and private services on which we rely’ was needed. Given the power vested in the executive in Britain’s political system, the discourse produced was largely directed at the policy elite itself and successfully so.61 The critical voices in the media and amongst the Conservative Party focused on alleged deficits in the control of asylum, but no signs of critical discourse regarding labour migration emerged, not even amongst the political opposition.62 The 2005 White Paper, its logic already apparent in its subtitle ‘Making Migration Work for Britain’, based on a ‘flexible, employer-led’ logic,63 is highly representative of this rhetorical justification of relaxed immigration rules. ‘Managed migration is not just good for our country. It is essential for our continued prosperity’, the paper claims, and proceeds to emphasize on twelve occasions that employers will be consulted or that the scheme is employer-led. In mid-2005, then CBI president Digby Jones stressed the advantage Britain enjoyed thanks to its flexible labour markets and pragmatic labour migration schemes, having earlier proclaimed that ‘capital can’t afford to be racist for lots of reasons’.64 In January 2006, the CBI stated that there was virtually no difference in opinion between government and employers: The CBI believes that migration is beneficial to the UK. Migrants have made an important contribution to the UK economy—bringing valuable and scarce skills that have benefited UK business and helped contribute to economic growth. Migrant workers are an integral part of the UK workforce and the CBI shares the Government’s belief that a carefully managed migration policy can bring further benefits to the UK.65

59

Somerville (n 58) 29–31. Home Office, Secure Borders, Safe Havens (Home Office 2002) para 1.13. 61 Balch (n 57). 62 C Boswell, M Chou, and J Smith, Reconciling Demand for Labour Migration with Public Concerns about Immigration: Germany and the UK (Anglo-German Foundation for the Study of Industrial Society 2005). 63 Home Office, Controlling our Borders: Making Migration Work for Britain—Five Year Strategy for Asylum and Immigration (Home Office 2005) 9. 64 Commission for Racial Equality, ‘Capital Can’t Afford Racism’ Catalyst Magazine (Winter 2003/4). 65 CBI, Business Summaries: Immigration and Illegal Working (CBI 2006). 60

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The employers welcomed this new turn towards liberalized labour migration due to concerns over labour shortages in a variety of economic sectors and in both high- and low-skilled positions.66 They assumed an active stance in advocating immigrants considered of economic utility.67 An interest in economic migrants pervaded all sectoral associations.68 There was a particular interest both in very highly skilled service sector jobs, especially in finance, law, health, natural science research, and in lowskilled jobs in food processing, agriculture, gastronomy, and construction, and both regarding generalist and sector-specific skills.69 In an interview, a CBI representative confirmed sectoral and firm concerns over poor ‘employability’ of domestic workers in some sectors and highlighted the advantages of hiring ‘better trained’ graduates of ‘continental vocational training schemes’ and universities, despite their marginally higher average age.70 In 2005, the CBI together with the union federation Trade Union Congress (TUC) and the Home Office published a joint position paper, emphasizing that ‘the skills and enthusiasm’71 of new migrants was welcomed by all parties. Along with the unions and certain non-governmental organizations (NGOs), the CBI is invited to the bi-annual ‘user panel’ planning sessions of the Immigration and Nationality Directorate in the Home Office. Its representatives are also part of the employer taskforce group, which is responsible for providing policy suggestions to the Home Office’s Border and Immigration Agency. Recommendations from this group have fed into the establishment of an Australian-style high skill migration programme in February 2008 and the illegal working stakeholder group.72 Within this taskforce group, along with a trade union delegate, major internationally oriented businesses such as Shell, Ernst & Young, Tesco, Citigroup, and Goldman Sachs are represented, as well as sectoral employer associations in engineering, hospitality, and employment services, alongside NASSCOM, the Indian IT sector chamber of commerce. Both formal responses to government initiatives and informal avenues to the Home Office have been fairly well received73 and the CBI has positioned itself well to influence governmental deliberations. It is also part of the stakeholder panel of the Migration Advisory Committee, an academic expert body convened by the Home Office. The turn towards liberalized labour migration, a policy stance embraced both by the New Labour Government and employers, was supported by a discourse that portrayed migration as part of an inevitable attempt to retain international competitiveness. Whilst the 2010 Liberal Democrats–Conservative Coalition Government announced plans to reduce the numbers of non-EU highly skilled migrants immediately after coming to office in July 2010, internal dissent has already surfaced, with outspoken Liberal Democrat Business Secretary Cable sharply criticizing such a cap as ‘damaging’,74 suggesting an eventual compromise outcome. Though the temporary 66

Confederation of British Industry, Selective Admissions: Making Migration Work for Britain (CBI 2005). 67 Interview CBI, on file with the author. 68 Interviews CBI, British Hospitality Association (BHA), on file with the author. 69 70 Interviews CBI, BHA, on file with the author. Interview CBI, on file with the author. 71 Trade Union Congress, Managed Migration: Working for Britain—A Joint Statement from the Home Office, CBI and TUC (TUC Press Release 2005) 1. 72 73 Interview CBI, on file with the author. Interview Home Office, on file with the author. 74 The Independent (18 September 2010).

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cap put in place may be extended, it seems unlikely that there will be a complete reversal of previous migration liberalization initiatives. There was and is virtually no ideational difference between government and organized business in this process.

VI. Conclusion: Disintegration and Bifurcation Labour migration can be used as a strategy to establish and enhance the bifurcation of labour markets. In the bottom tiers of the labour market, substandard wages and working conditions apply. Consequently, labour migration can also be used as an efficient tool to pry open more homogeneous labour markets. This chapter has analysed such (ab)use of labour migration by employers, arguing that change from within, even in coordinated market economies, leads to a multi-tiered labour market structure, which holds obvious appeal to employers. Only the members of the core labour market still enjoy standard wages and working conditions. In the bottom tier, this is simply no longer the case. By marrying insights from migration studies and comparative political economy, this chapter demonstrates how labour migration, even if technically legal, can be utilized as a political tool based on power resources. It is striking that employer associations have rediscovered an appetite for labour migrants. The need for liberalized labour migration is portrayed rhetorically as being pivotal in securing and maintaining ‘competitiveness’ and thus crucial to national security. Both in the UK and Germany, employers enjoyed privileged access to policy-makers and succeeded in having their demands heard and incorporated into more liberal policy. However, considerably less effort was required to convince the particularly economically liberal British Government to take action. Privileged access to decision-makers by business interests in part reflects the changed architecture of the contemporary European state. Labour migrants are used to help usher in the disintegration and bifurcation of labour markets. This is true even of formerly organized and more coherent continental European labour markets, such as the German one. Though this chapter focuses exclusively on legal forms of immigration, it is striking how limited access rights apply even to posted workers, thus suggesting a mismatch between legal entitlement to employment and eligibility to standard wages and working conditions.

4 Immigration and Labour Market Protectionism Protecting Local Workers’ Preferential Access to the National Labour Market Martin Ruhs*

I. Introduction: Globalizing Labour Markets versus Protecting Local Workers The admission of migrant workers has become one of the most salient and contested public policy issues in high-income countries. Although national contexts differ, a key question in almost all countries is how to link labour immigration to the ‘needs’ of the domestic labour market and economy more generally. What these needs are, how they vary across sectors and occupations, and how they change during periods of economic growth and crisis are highly contested. Employers often claim that migrant workers are needed to help reduce labour and skills shortages and/or do the jobs that domestic workers ‘cannot or will not do’. Sceptics, including some trades unions, point out that such arguments are often simply a reflection of employer demand for a cheap and exploitable workforce. Arguments about the need for more or fewer migrant workers reflect a fundamental tension in the labour immigration policy objectives of nation states in an increasingly globalized world economy: the policy dilemma can be crudely described as ‘economic efficiency’ versus ‘distribution’. ‘Economic efficiency’ refers to the goal of maximizing the net economic benefits (ie benefits minus costs) from immigration for the incomes and living standards of the residents of the host country. A key question is how immigration can be used to stimulate economic growth, which, in the long run, is driven by innovation and technological change. Economic research suggests a variety of ways in which immigration can generate economic benefits, for example, skills complementarities and dynamic and spillover effects from having a more highly skilled workforce (see, for example, the endogenous growth literature that emphasizes the importance of human capital). Employers’ calls for better access to migrant workers are typically at the heart of the economic case for more labour immigration. ‘To compete successfully in the global economy’, many employers are very explicit about their need for good access to the ‘best workers’ regardless of where they come from. In addition to supporting economic growth, most governments’ public policies are also concerned—certainly in rhetoric, but often also in policy practice—about the * Martin Ruhs is Associate Professor in Political Economy at the Department for Continuing Education, a Fellow of Kellogg College, and a Senior Research Fellow at the Centre on Migration, Policy and Society (COMPAS) at the University of Oxford.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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distribution of national income, for example about domestic inequality and, in particular, the protection of the welfare and economic well-being of the lowest income earners in the economy. Clearly, the labour immigration policy that is in the best interest of business (or more broadly, ‘capital’) is not always in the best interest of domestic workers (‘labour’). Labour immigration not only affects the size of national income but also its distribution among existing residents. In the short run, immigration can create economic winners and losers. The winners typically include employers who benefit from the increased supply of labour and some consumers who may gain from lower prices of products and services whose production/provision is intensive in the use of migrant workers. Potential losers include resident workers who are similar to the migrant workers in terms of their skills and, therefore, may compete with migrants in the labour market. Whether and how immigration affects wages and employment opportunities of resident workers, and profit margins of employers, is an empirical question that critically depends on the time frame adopted. Adverse effects that can occur in the short run, such as lower wages and reduced employment opportunities, may be partially or fully reversed in the longer run when the economy adjusts to immigration through an increase in the demand for labour.1 In practice, distributional considerations have played an important and sometimes predominant role in public debates of labour immigration. This is reflected in popular concerns about ‘cheap migrants driving down wages’ and migrants ‘stealing jobs of resident workers’. Although the relative importance of distributional effects varies across time and place, policymakers are unlikely to be able to implement policies without considering their consequences for both economic efficiency and distribution (eg Gordon Brown’s ‘British jobs for British workers’ slogan, which was suggesting a policy that was contrary to EU law, but which nevertheless reflected a general political concern, present to some degree in all countries, with protecting the employment prospects of domestic workers from foreign competition). This chapter discusses the fundamental tension between the objectives of expanding employers’ access to migrant workers on the one hand, and protecting the employment prospects and conditions of domestic workers on the other. More specifically, the chapter explores when, why, and how nation states protect citizens’ ‘rights2 to preferential access to the national labour market’ when admitting migrant workers. This specific conceptual lens offers opportunities for a wide range of different types of analysis, ranging from its ‘normative foundations’, determinants, and impacts in practice, as well as relationships with policies towards international trade and capital flows. In this exploratory chapter, I focus on three sets of issues: 1. What are the variations in definitions, scope, and beneficiaries of the right to preferential access to the national labour market? What are the exceptions? (section II) 2. Why do some employers prefer migrant over local workers? (section III) 1 See eg C Dustmann, A Glitz, and T Frattini, ‘The Labour Market Impact of Immigration’ (2008) Oxford Review of Economic Policy 477, 24. 2 The term ‘right’ is used loosely and not necessarily in the legal sense.

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3. What are the principal modes of protecting the right to preferential access, and what do we know about their effectiveness based on different countries’ experiences? (section IV) My discussion of these questions is based on a mix of theoretical considerations and analysis of empirical examples, primarily taken from the UK, US, Sweden, and other high-income countries.

II. The Right to Preferential Access to the National Labour Market: Definitions and Exceptions The right to preferential access to the national labour market implies that workers in the ‘preferred group’ have the opportunity to access (ie apply for, accept, or reject) a job in the national labour market3 before workers who are not in the preferred group. So the immediate question is who should be in the preferred group of workers, ie who should be granted the right to preferential access to the national labour market vis-à-vis whom? In theory, a whole range of criteria could be used to make this decision. In practice, four have been most commonly used: citizenship; residence status; characteristics of the job under consideration; and the skills of the migrant.

1. Citizenship and residence status The narrowest definition grants the right to preferential access to the national labour market to citizens only. A more expanded definition, which is probably most common among high-income countries, also includes long-term residents, ie those with permanent residence status. Canada’s temporary migration programmes are an example. A yet wider definition, to the best of my knowledge not used by any country at the moment, would also include some shorter-term residents, such as migrant workers admitted on temporary work permits. In some cases, countries may also extend the right to preferential access to the national labour market to citizens of other countries that are part of a common political/legal framework, as is the case with the European Union. The ‘community preference’ principle within the EU is defined as follows: Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national or Community manpower or by non-Community manpower locally resident on a permanent basis in that Member State and already forming part of that Member State’s regular labour market. The Accession Treaty of 16 April 2003 gives preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to Member States’ labour markets.4

3

I define the national labour markets to include any jobs offered within the territory of the nation state. Council Resolution on the limitation on admission of third-country nationals to the territory of the Member States for employment [1996] OJ C274/3 in connection with Council Regulation (EEC) 1612/68 on freedom of movement for workers within the Community. 4

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The European Commission has openly suggested also including non-EU workers on temporary permits, but this has met with stiff resistance from many EU Member States.5

2. Characteristics of the job: ‘global jobs’ Some countries explicitly exclude some jobs from the ‘protected labour market’ where ‘local workers’—however defined—enjoy a right to preferential access. Employers looking for workers to fill these ‘global jobs’ are not required to give preference to local workers.6 Instead, employers are free to choose the most suitable workers from the global labour market. In practice, these global jobs typically include the most highpaid jobs for highly skilled workers. For example, in the UK, employers looking for workers for jobs paying more than £150,000 per year are not required to meet the requirements of a resident labour market test. Employers offering jobs that pay more than £70,000 per year face fewer requirements than those paying less. Global jobs sometimes also include lower-paid occupations in the arts, ie ballet dancers and musicians, as is the case in the UK. ‘Global jobs’, where the right to preferential access to the national labour market for local workers does not apply, are typically the result of employer lobbying on the need to access the ‘best and most highly skilled workers’ (or the best artists) in order to remain globally competitive.7 A key policy question is where to draw the line, for example, what should be the annual pay threshold above which local workers are denied the right to preferential access to jobs? There is also the important larger question—not pursued in this chapter—whether global jobs should go beyond highly skilled and highly paid jobs and also include lower-skilled jobs. Why do Goldman Sachs and PriceWaterhouse face a global labour market, while a food processing factory producing frozen mackerel for export to the Japanese market does not? This is an important question which involves a range of normative issues.

3. Skills and characteristics of the migrants: points-based systems that admit migrant workers without a job offer Points-based labour immigration policies that admit migrant workers without a job offer in the host country constitute a second explicit exception to the general principle of protecting local workers’ right to preferential access to the national labour market. In practice, points-based systems that do not require a job offer for admission are limited to skilled migrants and are most common among the traditional settlement countries

Commission, ‘Green Paper of 11 January 2005 on an EU approach to managing economic migration’ COM (2004) 811 final. 6 Henceforth, I use the term ‘local workers’ to indicate the group of people who are given the right to preferential access to the national labour market. 7 See eg the employer evidence and debates around this issue in the UK, discussed in Migration Advisory Committee, Analysis of the Impacts of Migration (MAC 2012). 5

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including Australia, Canada, New Zealand, but notably not the US.8 Based on endogenous growth models that emphasize the importance of growing human capital, the economic rationale for admitting skilled migrants without a job offer is to increase the skills and knowledge base of a country’s workforce to promote innovation, productivity growth, and ultimately economic growth and national competitiveness.9 In settlement countries, the admission of skilled migrant workers is also frequently seen as a tool for ‘nation building’ that aims to increase the population and economy, in addition to filling existing shortages that cannot be met by the available workforce. Canada is an example. A key policy question in designing effective points-based systems is what criteria should be used to select (highly) skilled migrants for admission. There is no obvious definition of what constitutes ‘skills’ and no clear set of indicators/criteria that could be used to identify a ‘skilled worker’. In practice, a range of criteria have been used in different countries, with each criterion given different weight within different national selection systems. The most commonly used criteria include age (younger workers are generally given preference), years of education, work experience (some countries give extra points for prior work experience in the host country), and language skills. Some countries, such as Canada, give extra points for a job offer, but under all of the systems reviewed here (Canada, Australia, and New Zealand) admission is possible without a job offer. Points-based systems that admit migrant workers without a job offer affect local workers’ right to preferential access to the national labour market because they admit migrant workers to compete with local workers for jobs on an equal footing. As migrants admitted this way are generally given permanent residence on arrival, or at least the right to free choice of employment, they can in principle compete with local workers for any job. Labour immigration policies that admit migrants without a job offer are still significant, but clearly declining in importance in settlement countries. For example, in both Canada and Australia, the size and scale of temporary migration programmes that require a job offer—for both skilled and low-skilled migrant workers—has rapidly increased in recent years.10

III. Why do some Employers Prefer Migrant Workers? While definitions of ‘local workers’ and the presence of exceptions clearly vary across countries, most high-income countries’ labour immigration policies include policies that aim to protect local workers’ preferential access to the national labour market. Before analysing the different modes and effectiveness of protecting this right in practice, it is useful to review briefly some of the reasons why such protectionist

8 M Ruhs, The Price of Rights: Regulating International Labor Migration (Princeton University Press 2013). 9 See the discussion in L Cerna, Selecting the Best and the Brightest (Migration Observatory 2011). 10 Ruhs, The Price of Rights (n 8).

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policies are necessary in the first place. Why do some employers prefer migrant over local workers?11 A key consideration in the analysis of employer demand for labour in general, and for migrant workers in particular, is that ‘what employers want’ (ie the skills, competencies, and attributes required of employees) is critically influenced by what employers ‘think they can get’ from the available pools of labour.12 The labour supply potentially available to employers (eg the unemployed, inactive, migrant workers, etc) is highly diverse, has different expectations, and is differently motivated to participate in the labour market. It is easy to see how, faced with a diverse pool of labour, employers can become increasingly ‘picky’ and demanding about the types of workers they ‘need’. This raises the possibility that employers develop a preference for migrant workers (or particular types of migrant workers) over domestic workers based on migrants’ perceived superior characteristics and attributes.13 This is in practice reflected in employers’ common claims that migrants have superior ‘work ethic’ and ‘attitude’. These sorts of claims are typically made for relatively new arrivals rather than for foreign-born individuals more generally. A number of factors may encourage employers to develop such a preference.

1. Factors encouraging employer preference for migrant workers Some employers may prefer migrants because of their lower expectations about wages and employment conditions. Research suggests that employers are typically acutely aware of the economic and other trade-offs that new migrants are willing to make by tolerating wages and employment conditions that are poor by the standards of their host country, but higher than those prevailing in their countries of origin, and this is not confined to the lowest-paying occupations and sectors in the labour market.14 In the UK, some employers in sectors such as agriculture openly acknowledge that the wages and employment conditions they offer for low-skilled work are considered unacceptable to most British workers. Second, some employers may develop a preference for migrants because of the characteristics and restrictions attached to their immigration status.15 In most highincome countries, immigration policies are characterized by a multitude of different types of status. Each status (such as work-permit holder, student, working-holiday maker, and dependent) is associated with different rights and restrictions in and beyond the labour market. These restrictions, which cannot be imposed on citizens, may give rise to a specific demand for particular types of migrant workers. Some employers, especially those finding it difficult to retain workers in certain jobs, may 11

The discussion in this section draws heavily on the analysis in M Ruhs and B Anderson (eds), Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy (Oxford University Press 2010). 12 Ruhs and Anderson, Who Needs Migrant Workers? (n 11). 13 R Waldinger and M Lichter, How the Other Half Works: Immigration and the Social Organization of Labor (University of California Press 2003). 14 B Anderson, M Ruhs, B Rogaly, and S Spencer, Fair Enough? Central and East European Migrants in Low-Wage Employment in the UK (Joseph Rowntree Foundation 2006). 15 See eg R Bloomekatz, ‘Rethinking Immigration Status Discrimination and Exploitation in the LowWage Workplace’ (2007) 54(6) UCLA Law Review 1963.

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prefer workers whose choice of employment is restricted, as is usually the case with recent arrivals and migrants on temporary visas. Immigration requirements can make it difficult for migrants to change jobs. From the employer’s perspective, the employment restrictions associated with particular types of immigration status may make migrants the more ‘suitable’ workers and easier to retain in jobs that offer low wages and poor employment conditions.16 Third, because of their different frame of reference, new migrants may be prepared to accept jobs whose skill requirements are significantly below their actual skills and qualifications, creating ‘high quality workers for low-waged jobs’, who may well be more attractive employees than the available local workforce. In some cases, employer demand for particular groups of migrant labour may reflect a demand for specified skills or knowledge related to particular countries, including foreign language skills. In a globalized economy, in both high- and low-skilled sectors, employers may value the knowledge and contacts migrants bring from their countries of origin. Whether or not these specialized skills (related to particular countries or regions) can be taught to, and acquired by, local workers, and consequently, whether certain products and services can only be provided by workers from particular countries, is typically more contested in low- and medium-skilled occupations (such as mid-level chefs) than in high-skilled occupations (such as financial services). The perceived advantages of recruiting migrants can also include employers’ preference for a ‘self-regulating’ and ‘self-sustaining’ labour supply.17 Employers can use migrant networks to control and regulate the flow of labour. In the UK, recruitment through migrant networks is known to be a common practice among employers with a migrant workforce. Companies with a demand for a flexible workforce may make use of employment agencies to help find suitable workers. Since employment agencies often have significant numbers of migrant workers on their books, they can play an important role in impacting on the national composition of the workforce.

2. ‘System effects’ and ‘path dependence’ Employers’ choices between employing local workers, migrant workers, and other potential responses to labour shortages (such as mechanization and offshoring) will critically depend on the relative cost of each option. However, it is important to recognize that employers do not make their choices in a vacuum. Employers’ incentives and business and recruitment strategies are critically influenced and in many ways constrained by the wider institutional and regulatory framework that is, to a large degree, created by public policies. In the UK, for example, public policies have often incentivized—and in some cases left little choice for—employers in some sectors and occupations to respond to shortages through the employment of migrant workers. The UK has long prided itself on its labour market flexibility and its relatively low levels of 16 B Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ Work’ (2010) 24(2) Employment and Society 300. 17 N Rodriguez, ‘ “Workers Wanted”: Employer Recruitment of Immigrant Labour’ (2004) 31(4) Work and Occupations 453.

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labour regulation. Together with a range of policies from training to housing, this stance has contributed to creating a growing demand for migrant workers. For example, in the construction sector, the difficulty of finding suitably skilled British workers is critically related to low levels of labour market regulation and the absence of a comprehensive vocational education and training system.18 The industry is highly fragmented. It relies on temporary, project-based labour, informal recruitment, and casualized employment. These practices may have proved profitable in the short term, but they have eroded employers’ incentives to invest in long-term training. As a consequence, vocational education provisions are inadequate for the sector. By contrast, many other European states have well-developed training and apprenticeship programmes, producing workers with a wide range of transferable skills. It is often these workers who are doing jobs in Britain, such as groundwork, or foundationbuilding, which is low-paid and which has no formal training requirement, despite years of lobbying by contractors. Social care in the UK is another sector where public policies have created an increasing demand for migrant workers.19 Two-thirds of care assistants in London are migrants. The shortages of social-care workers and care assistants are largely due to low wages and poor working conditions. Most social care in the UK is publicly funded, but actually provided by the private sector and voluntary organizations. Constraints in local authority budgets have contributed to chronic underinvestment. Together with the structure of the care sector itself, this approach has resulted in a growing demand for low-waged, flexible workers who, in practice, have increasingly been migrant workers who are much more willing than local workers to do the work at the prevailing wages (especially in London). To understand employer demand—and in some cases preference—for migrant labour, it is also important to recognize the potential ‘path dependencies’ in the employment of migrants. Once their workforce includes a substantial share of migrants, it may be difficult and costly for employers to switch to alternative responses. In other words, immigration targeted to address short-term shortages may help to sustain the conditions (such as relatively low wages, poor conditions, little training of domestic workers, low propensities for employers to adopt new technologies, and, importantly, low status) that encourage shortages of domestic workers in the long run.20 There is a supply-side element to path dependence: it can combine with migratory patterns driven by cumulative causation to ensure a ready supply of new arrivals—through family reunion, if not through labour market programmes.21 18 P Chan, L Clarke, and A Dainty, ‘The Dynamics of Migrant Employment in Construction: Can Supply of Skilled Labour ever Match Demand?’ in Ruhs and Anderson, Who Needs Migrant Workers? (n 11). 19 A Cangiano, I Shutes, S Spencer, and G Leeson, Migrant Care Workers in Ageing Societies: Research Findings in the United Kingdom (COMPAS 2009); J Moriarty, ‘Competing with Myths: Migrant Labour in Social Care’ in Ruhs and Anderson, Who Needs Migrant Workers? (n 11). 20 House of Lords Economic Affairs Select Committee, The Economic Impact of Immigration (House of Lords 2008); J Wickham and I Bruff, ‘Skills Shortages are Not Always What they Seem: Migration and the Irish Software Industry’ (2008) 23(1) New Technology, Work and Employment 30. 21 D Massey, ‘Social Structure, Household Strategies and the Cumulative Causation of Migration’ (1990) 56(1) Population Index 3; J Dobson, A Latham, and J Salt, On the Move? Labour Migration in Times of Recession: What Can We Learn from the Past? (Policy Network 2009).

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Moreover, in the same way that jobs done by men can become ‘women’s jobs’,22 jobs previously done by (white) citizens can become ‘migrant jobs’ and therefore get a lower status. The converse, however, is much more difficult, and it is not easy for jobs to regain social status once they have been performed by stigmatized groups, even if pay and conditions improve.23 These processes can lead to what Cornelius and others have called a ‘structural embeddedness’ of the demand for migrant workers in the economy.24

IV. Modes of Protection How do high-income countries protect local workers’ rights to preferential access to the national labour market in practice? This section briefly discusses four modes of protecting local workers (representing policies ranging from very weak to very strong protections for local workers): • ‘attestation without a labour market test’ (based on the example of the H-1B programme in the US); • ‘attestation with labour market tests’ (Tier 2 in the UK); • ‘certification with labour market test’ (Germany and Ireland); and • ‘labour market regulation’ (Sweden). All the policies I discuss are part of temporary migration programmes that require a job offer before admission. Temporary migration programmes, defined as policies that grant migrant workers temporary residence and employment status on arrival, constitute over 90 per cent of labour immigration policies in high-income countries.25

1. Attestation without labour market test: the H-1B programme in the United States The US H-1B programme for admitting skilled migrant workers on a temporary basis is an example of a labour immigration programme that combines relatively weak and ineffective measures to protect US workers’ rights to preferential access to the national labour market with a quota, which effectively acts as a safeguard to maintain control over the number of migrant workers admitted. H-1B visas are available to foreign workers with at least a BA degree who are requested by US employers to fill jobs that normally require such degrees. As discussed in Martin and Ruhs,26 when the H-1B programme was created in 1990, a compromise 22 C Goldin, ‘Understanding the Gender Gap: An Economic History of American Women’ in P Burstein (ed), Equal Employment Opportunity: Labor Market Discrimination and Public Policy (University of Chicago Press 1994) 302. 23 J Gordon and R Lenhardt, ‘Rethinking Work and Citizenship’ (2008) 55 UCLA Law Review 1161. 24 W Cornelius, ‘The Structural Embeddedness of Demand for Mexican Immigrant Labour: New Evidence from California’ in M Suarez-Orozco (ed), Crossings: Mexican Immigration in Interdisciplinary Perspective (Harvard University Press 1998). 25 Ruhs, The Price of Rights (n 8). 26 P Martin and M Ruhs, ‘Labor Shortages and US Immigration Reform: Promises and Perils of an Independent Commission’ (2011) 45(1) International Migration Review 174.

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gave employers easy access to foreign university graduates in exchange for an annual cap of 65,000 visas a year, almost three times the annual admissions at the time. A combination of the IT-boom in the 1990s and the development of a migration infrastructure to move Indian and other guest workers into US jobs pushed employer requests above 65,000 a year in the late 1990s, and prompted successful employer efforts to raise the cap and create exemptions from it. Today, the cap is 65,000 a year, plus 20,000 H-1B visas for foreigners with advanced degrees from US universities, and an unlimited number for those employed in non-profit institutions such as universities. The H-1B programme is dominated by the IT sector. The top four occupations for which H-1B visas were issued in 2010 were all in the IT sector. Positions in software engineering, computer systems analysis, and programming accounted for almost 40 per cent of the total H-1B certified positions in 2010.27 Over half of recently admitted H-1B workers were born in India.28 As part of the application for an H-1B worker, the US employer must submit a ‘Labor Condition Application’ (LCA), either electronically or by mail, to the Department of Labor. The LCA requires the employer to attest (ie to state) that he or she will comply with the following conditions:29 1. Wages: pay non-immigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. Offer nonimmigrants’ benefits on the same basis as offered to US workers. 2. Working conditions: provide working conditions for non-immigrants which will not adversely affect the working conditions of workers similarly employed. 3. Strike, lockout, or work stoppage: there is no strike, lockout, or work stoppage in the named occupation at the place of employment. 4. Notice: notice to union or to workers has been or will be provided in the named occupation at the place of employment. A copy of this form will be provided to each non-immigrant worker employed pursuant to the application. Employers who are ‘H-1B dependent’ or ‘wilful violators’ must also agree with the following three labour condition statements: 5. Displacement: non-displacement of the US workers in the employer’s workforce. 6. Secondary displacement: non-displacement of US workers in another employer’s workforce. 7. Recruitment and hiring: recruitment of US workers and hiring of US worker applicant(s) who are equally or better qualified than the H-1B non-immigrant(s). To find out the relevant ‘prevailing wage’, employers must request—preferably online at the iCert Portal30—a ‘prevailing wage determination’ from the ‘National 27

US Department of Labor, Foreign Labor Certification (Office of Foreign Labor Certification 2010). US Department of Homeland Security, Characteristics of H-1B Specialty Occupation Workers (Annual Report to Congress 12 March 2012). 29 US Department of Labor, ‘Labor Condition Application for Nonimmigrant Workers’ (ETA Forms 9035 and 9035E). 30 US Department of Labor accessed 18 December 2013. 28

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Prevailing Wage Center’ within the Department of Labor. The Department of Labor determines the appropriate ‘prevailing wage’ for each occupation, based on ‘nature of the job offer, the area of intended employment, and jobs duties for workers that are similarly employed’. Prevailing wage determinations include four levels of wages, starting with an entry-level wage and progressing to wages that are ‘commensurate with that of a qualified, experienced, or fully competent worker only after considering the experience, education, and skill requirements of an employer’s job description (opportunity)’.31 There is considerable research analysing the H-1B programme,32 most of which is critical of the effectiveness of the protections provided to US workers. Three reasons are commonly discussed. First, there is no explicit requirement for most H-1B employers to search the US labour market for suitable workers. In fact, there is no legal requirement that would prevent US employers from recruiting a migrant over a US worker.33 Second, the prevailing wage is often much lower than the market wage and often requested by employers to be set at the entry level wage (ie the lowest of the available prevailing wages) for the purpose of the labour condition application. According to the Government Accountability Office (GAO), ‘over 50 per cent of employers requesting H-1B workers between June 2009 and July 2010 categorized their prospective H-1B workers as receiving entry-level wages, although we cannot tell whether this trend reflects lower skill levels or other factors.’34 Third, the H-1B suffers from a lack of enforcement. By design, almost all monitoring and enforcement takes place after the H-1B workers have been admitted. Most employers’ pre-admission attestations about wages and employment conditions are submitted via the Internet, and over 99 per cent are approved in seconds (ie the system is automated and effectively facilitates ‘self-certification’). Post-admission enforcement action usually requires complaints about employer violations, but complaints are rare because H-1B workers whose legal stay in the US depends on satisfying their employer are typically reluctant to complain.35 The list of companies that are the biggest recipients of H-1B visas confirms the conclusion drawn by most of the existing literature that, partly by design but also due to ineffective enforcement, the H-1B programme does not protect US workers’ rights to preferential access to the US labour market. As shown in Table 4.1, a large share of the top ten H-1B visa sponsors in financial year (FY) 2011 were third-party contracting companies (including Tata Consultancy Services as the biggest sponsor of H-1B visas in FY 2011).

31 Employment and Training Administration, ‘Prevailing Wage Determination Policy Guidance’ (November 2009). 32 See eg Government Accountability Office, H-1B Visa Program (GAO 2011) and R Hira and A Hira, Outsourcing America: What’s Behind our National Crisis and How can we Reclaim American Jobs (American Management Association 2005). 33 Hira and Hira (n 32). 34 Government Accountability Office, H-1B Visa Program (GAO 2011) 3. 35 Martin and Ruhs (n 26).

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Table 4.1 Top 10 H-1B visa sponsors in FY 201136 Rank

H-1B visa sponsor

1 2 3 4 5 6 7 8 9 10

Tata Consultancy Services Microsoft IBM Deloitte Consulting Wipro Larsen Toubro Infotech Cognizant Technology Solutions Intel HCL Technologies America Ernst Young

Number of LCA

Average salary $

5,416 4,251 3,906 3,632 3,024 2,746 2,738 1,951 1,701 1,430

63,502 97,256 88,555 96,876 80,553 59,343 66,640 98,545 70,123 97,144

2. Attestation with labour market test: Tier 2 of the UK’s points-based system The UK’s policies for regulating labour immigration from outside the EU have evolved differently to the H-1B programme in the US, but they have nevertheless grappled with the same key challenge: how to encourage employers to recruit non-EEA workers only after unsuccessfully searching for British and other EEA workers? After coming into power in 1997, the Labour Government introduced a new Managed Migration Policy in the early 2000s that was based on the idea that, if managed properly, immigration can generate significant economic benefits for the UK. Labour’s Managed Migration policies rapidly increased the number of work permits issued to non-EU workers. The main work permit system was largely ‘employer-led’ with no limit on numbers. The only restriction on employers was the requirement to undergo a labour market test aimed at ascertaining that no British or other EEA workers are available to do the job (as discussed earlier, this requirement does not exist under the H-1B programme in the US). The labour market test was to advertise the job for two weeks (one week if the salary exceeded £40,000) and, if local workers were unavailable, the employer received permission to hire the migrant worker. Employers offering jobs that were on a ‘shortage occupation list’, compiled by civil servants, were exempt from the labour market test requirement. Amidst rapid economic growth, there was little oversight of employer recruitment efforts, and labour migration from outside the EU more than tripled from 30,000 in the mid 1990s to 100,000 in the mid 2000s. In 2008, Britain reformed its immigration policy for admitting migrant workers from outside the EEA, moving from a system that offered more than 80 routes of entry to a streamlined points-based system with five tiers or entry channels: Tier 1 for highly skilled migrants without a job offer—a variant of the previous Highly Skilled Migrant programme; Tier 2 for skilled migrants with a job offer—a variant of the previous work

36 Myvisajobs, ‘2012 H1B Visa Reports: Top 100 H1B Visa Sponsors’ (2012) accessed 18 December 2013.

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permit system; Tier 3 for low-skilled migrants, which has never been opened; Tier 4 for students; and Tier 5 for other miscellaneous temporary categories. Tier 2 for admitting skilled migrant workers with a job offer differed in two important ways from the previous ‘work permit system’. First, in addition to undergoing a labour market test (the modalities of the test were left the same), employers now had to also meet a minimum threshold of points awarded based on prospective earnings and education. Second, the list of jobs on the shortage occupation list, which are exempt from the labour market test requirement, has, since 2008, been compiled by the Migration Advisory Committee (MAC), a panel of independent labour market experts. The MAC recommends jobs to be included on the shortage list if they meet three criteria: (i) the jobs must be ‘skilled’; (ii) there must be a ‘shortage’; and (iii) it must be ‘sensible’ to address the shortage with non-EEA labour immigration. The ‘sensible’ criterion is an important and new consideration. It means that even if the MAC finds that there is a labour shortage, it can decide not to recommend the admission of migrant workers. A key criterion for assessing whether labour immigration is sensible is to consider the likely impact for short- and long-term displacement of British and other EEA workers.37 After coming into power in May 2010, the Conservative–Liberal Democrat Coalition Government essentially maintained the structure of the points-based system but introduced—for the first time in British labour immigration policy over the past twenty years—an overall limit (cap) on the annual number of non-EU workers admitted to the UK. The cap on non-EU labour immigration is part of an overall policy goal of reducing overall net migration from over 200,000 to the ‘tens of thousands’ by 2015. Other important policy changes included the raising of the skills threshold for Tier 2, which resulted in even greater selectivity by skill. Non-EU labour immigration—as measured by data from the International Passengers Survey38—has been on a downward trend since its peak between 2004 and 2006 (when it stood at just over 100,000 per year), and is now roughly where it was in the late 1990s (at about 50,000 per year). The various policy changes introduced over the past few years have clearly contributed—together with the economic downturn—to reducing non-EU labour immigration in the UK. Although the system is clearly ‘under control’ in terms of numbers, the protections for local workers’ rights to preferential access to the national labour market are weak (although probably a little stronger than under the H-1B programme in the US). The design and implementation of the resident labour market test under Tier 2 constitutes a key Achilles’ heel in terms of protecting the employment prospects and employment conditions of local workers in the UK. The requirements of the labour market test have been amended at various times over the past few years (which can be interpreted as a reflection of successive governments’ concerns about its effectiveness): • In March 2009, the (Labour) Government introduced the requirement that all vacancies must be advertised in Jobcentre Plus, not just in any two places as had

37

For further discussion, see Martin and Ruhs (n 26). See Migration Observatory 2013 at . 38

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previously been the case. This was due to a policy concern, emerging after the onset of the economic downturn, that some employers with preferences for employing migrants were ‘strategically’ advertising in places where they could expect few applications from British or other EEA workers. • In early 2010, the mandatory advertising period was increased from two to four weeks (on the advice of the MAC39). This was due to a concern that the two-week period was not sufficient for an adequate search of the domestic and European labour market. • In early 2012, the Government decided (again on recommendation by the MAC) that jobs attracting a salary between £70,000 and £150,000 no longer need to advertise with Jobcentre Plus, but they still need to carry out the labour market test. This decision was taken partly in response to corporate employers arguing that suitable candidates for their highly skilled positions do not use Jobcentre Plus (and, employers argued, that dealing with obviously unsuitable applications creates significant costs). The current policy (as of June 2012) is that employers are required to advertise the relevant vacancy through Jobcentre Plus and at least one other medium stated in the relevant occupational code of practice (for example, in a trade magazine) for at least four weeks, at a level of earnings deemed ‘reasonable’ by the UK Border Agency for that job. Jobs attracting a salary of £150,000 or more are exempt from the relevant labour market test. What constitutes ‘reasonable wages’ in a given profession is specified in the ‘Codes of Practice’ issued by the UK Borders Agency. There are three key problems with the UK’s resident labour market test, which undermine its effectiveness in protecting the employment prospects of local workers. First, although it does include a requirement to test the labour market, this test is based on attestation, ie on employers simply stating that they have carried out the test and found no suitable applicants. Few or no routine checks are made about the validity of this statement before a non-EU worker is admitted. Almost all of the enforcement of the labour market test (ie whether it has taken place and to what extent it has complied with the required procedures eg wages and advertising requirements) occurs after the migrant has been admitted. As is the case with the H-1B programme in the US, enforcement appears to have been very low. There are no published data on how many employers have been fined or punished in another way (eg by withdrawing their sponsorship licence) due to post-admission enforcement of the labour market test requirements. This ‘trust-the-employer approach’ with relatively little enforcement of the labour market test has been identified as a weakness by a Migration Advisory Committee Report in 2009. The MAC report advised the Government to consider moving to a ‘certification policy’ that involves an institution, such as Jobcentre Plus, checking whether the requirements of the labour market test have been met before the non-EU workers is

39 See MAC 2009 at .

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admitted. The Government rejected this recommendation, citing administrative and logistical problems.40 So, compared to the US, the UK’s Government has been much more proactive in introducing a range of new policies to try to better protect local workers’ rights to preferential access to the national labour market. However, it can be argued that the UK has done only marginally better than the US in protecting British and other EEA workers’ employment prospects and conditions when admitting non-EU migrant workers. Partly in recognition of these ongoing difficulties, a cap on numbers was introduced in 2010, which means that the UK’s policies for admitting non-EU migrant workers now look quite similar to the H-1B programme: they both combine relatively weak protections of local workers, based on an attestation system, with a hard limit on numbers.

3. Certification of labour market test before migrant workers are admitted: Germany and Ireland Many coordinated market economies, such as Germany, and some liberal market economies, such as Ireland, aim to protect local workers’ rights to preferential access to the national labour market by requiring employers seeking to recruit non-EU workers to undergo a labour market test that includes mandatory advertising, often at prescribed wages, and some sort of certification of employers’ claims that no local workers are available to do the job. Importantly, certification is required before the migrant worker is admitted. For example, in Ireland, employers need to advertise their vacancies with FAS, a public employment and training agency, for a minimum of eight weeks. FAS contributes to efforts to identify available local workers. If no match can be found after eight weeks, FAS issues a letter to the employer certifying that a labour market test has taken place and that no local workers could be found for the job. This letter enables the employer to proceed with a work permit application for a non-EEA national. Other European countries operate similar systems. In Germany, application for a work permit requires approval from the Federal Employment Agency. Although some of these certification-based tests have worked better than others, effective implementation has proved challenging in a wide range of contexts and different countries. There are a number of generic problems with certification-based labour market tests. First, if trade unions are involved in deciding whether or not there really is a need for migrant workers to fill particular vacancies, there is the obvious possibility that the assessments are not made on ‘objective’ grounds, ie on whether or not there is a labour or skills shortage based on a certain set of transparent indicators, but on simple ‘protection grounds’, ie on a trade union interest in limiting the supply of workers within particular industries or occupations in order to maintain or increase (upward) pressure on wages and conditions. A second common problem in the design of labour market tests is that, even when the public employment institution tasked with the certification of labour market tests

40

MAC, Analysis of the Points-based System: Tier 2 and Dependants (MAC 2009).

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identifies and recommends a local worker to fill the vacancy, employers can simply say that the worker is ‘unsuitable’ and this is often where the process ends. In the worstcase scenario, neither the employer nor the local worker (encouraged/required by the public employment body to apply for the job) are really interested in engaging in an employment relationship. In this case, the labour market test requirement simply becomes a bureaucratic procedure for employers and local workers, which clearly does not meet the original aims of the test. In principle, there clearly are at least some jobs where a certifying/public body could ‘override’ employers’ arguments and decide that a particular local worker is suitable for the job under consideration, regardless of what the employer says. But this may not be possible for all types of jobs. Although many employers have a preference for migrant workers and their claims must therefore be critically evaluated, it is also the case that employers can be expected to know more about the precise job requirements than public officials. So there is a general difficulty with assessing whether or not the available local workers would be suitable for the job. This makes enforcement very difficult, as it can be very hard to unequivocally show that the domestic worker is equally or even better qualified than a migrant worker would be.

4. Swedish exceptionalism: labour market regulation as a constraint on employer demand for migrant labour With a population of just under nine million, Sweden is the biggest Scandinavian country with one of the world’s most advanced social welfare states. It combines a liberal market economy with an extensive state-run welfare state. Most comparative analyses of social policy consider Sweden the archetypal ‘social democratic welfare state’ that aims at universal coverage and rights and benefit equality. Most wages and employment conditions are determined by collective bargaining and, with most workers in unions, employment conditions generally adhere to industry-wide standards. With the exception of the period between 1949 and 1971, when Sweden experienced labour immigration from Finland and southern Europe, migration to Sweden has— until recently—primarily consisted of asylum seekers and family members. Over the past thirty years, labour immigration from outside the common Nordic labour market has been minimal. In 2007, Sweden issued fewer than 5,000 first-time work permits and migration for work accounted for less than 2 per cent of permanent-type migration to Sweden in 2007.41 The low numbers of labour migrants from outside the EU were due to a very restrictive labour immigration policy in place in Sweden since the early 1970s. Concerned about ‘social dumping’, adverse impacts on collectively agreed wages and employment conditions and maintaining the Swedish ‘economic model’ more generally, Sweden’s powerful trade unions have—until very recently—played an important role in opposing and restricting non-EU labour immigration. The key requirement was that any application for a work permit for a non-EU national needed to be approved by the Swedish Public Employment Service, which consulted closely with the unions when

41

OECD, International Migration Outlook (2009).

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deciding whether the work permit should be granted. Reflecting the highly restrictive policy at the time, in the early 2000s the homepage of the Swedish Migration Board’s website made clear that ‘obtaining a Swedish work permit is no easy matter’.42 In late 2008, Sweden’s new centre-right Coalition Government, in power since 2006, introduced significant reforms of its labour immigration policy for workers from outside the EU. In stark contrast to previous governments, the new Government considered a more open and flexible labour immigration policy of vital interest to the Swedish labour market and economy. The new rules made it significantly easier for employers to recruit workers from outside the EU. The long-standing requirement of approval from the Public Employment Service has been eliminated, thus significantly weakening the influence of trade unions over migrant worker admissions. Meant to be ‘employer driven’, the new labour immigration policy has four requirements for the admission of non-EEA workers: (i) an offer of employment; (ii) advertisement of the job in Sweden and EU for ten days; (iii) the terms of employment must be equivalent to those provided by a Swedish collective agreement or to customary terms and conditions for the occupation or industry (which constitutes the continuation of a longstanding requirement of labour immigration policy in Sweden); and (iv) the relevant union must be given the opportunity to state an opinion on the terms of employment. The temporary work permits are valid for two years and renewable. After forty-eight months, the employee will be eligible for a permanent residence permit. Following the introduction of the new policy, the number of work permits issued to employees from outside the EU increased significantly to over 14,000 in both 2009 and 2010, double the figure in 2008 and triple the number for 2007. The numbers are likely to have been larger without the economic downturn. Permits were issued to a wide range of low-, medium-, and high-skilled occupations. In 2010, the top three occupations were agricultural, fishery and related workers (most of which were seasonal workers), data specialists, and restaurant and hotel workers (these three occupations accounted for almost 60 per cent of all permits issued in 2010). The top three countries whose nationals received new work permits were Thailand, India, and China (together accounting for half of the total that year43). Although Sweden’s policy appears very open and employer-driven on paper, in practice the strict requirement that all workers be employed at collectively agreed wages is likely to act as a strong deterrent for employing large numbers of migrants. Unlike employers in countries with flexible labour markets, such as the UK, Swedish employers cannot easily use non-EU labour immigration to lower wages or moderate wage growth, which reduces the danger of adversely affecting the employment conditions of low-skilled (and other) Swedish workers. This—together with Swedish language—is likely to help explain why the number of work permits issued to nonEU nationals remains relatively low, despite significant reforms of the policy. Sweden’s high level of labour market regulation also helps explain why Sweden has seen a relatively small number of East European migrants enter and take up 42 G Bucken-Knapp, Defending the Swedish Model. Social Democrats, Trade Unions, and Labor Migration Policy Reform (Lexington Books 2009). 43 Swedish Migration Board Statistics at .

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employment, despite opening up Swedish labour market to EU-8 workers in May 2004 (under 50,000 EU workers in total—ie EU-8 plus other EU countries—between 2005 and 2010).44 Like the UK and Ireland, Sweden decided not to impose any transitional restrictions on the employment of EU-8 migrants when the EU-8 countries joined the EU in 2004. More flexible labour markets in the UK and Ireland were associated with significantly greater inflows of EU-8 workers than the more regulated labour market in Sweden. Sweden’s new policies for admitting non-EU workers are clearly ‘experimental’ and, arguably, not yet in equilibrium. It remains to be seen how sustainable the policy proves to be over time. Mindful of potential debates about policy changes, Sweden recently commissioned the Organisation for Economic Co-operation and Development (OECD) to evaluate its new policy. In its first evaluation report, the OECD notes that ‘the faith in employers appears to be largely justified until now, although some vulnerability in the system could be addressed, especially in monitoring workplaces not covered by collective bargaining, and marginal businesses’.45 More stringent requirements have been announced in January 2012 for employers in mainly low-skilled industries and new businesses applying for work permits to hire non-EU workers.46

V. Conclusion I have argued in this chapter that the ‘right to preferential access to the national labour market’ provides an interesting and relatively unexplored conceptual lens for studying a fundamental tension, in all nation states, between opening national labour markets to more migrant workers (‘globalizing labour markets’) and protecting local workers— however defined—from unfettered foreign competition. The logic of nation states arguably implies the need for at least some labour market protectionism, while the demands of employers and the forces of globalization discourage restrictions on international labour flows. How local workers should be defined, and why and to what extent nation states should protect local workers’ rights to preferential access to the national labour market, are important normative questions that have not been explored in any depth in this chapter. The main focus of this chapter has been on reviewing and discussing how—and how effectively—different countries’ labour immigration policies protect local workers’ preferential access to the national labour market in practice. My preliminary analysis suggests the existence of different modes of immigration control and protection of local workers that are likely to be linked to prevailing modes of production and welfare states. Labour immigration policies for admitting skilled migrant workers in the UK and the US, two liberal market economies with relatively flexible labour markets, are characterized by relatively weak protections for local workers coupled with a numerical Migrationsverket (Swedish Migration Board), ‘Migration and Asylum 2005–2013’. OECD, Recruiting Immigrant Workers: Sweden (OECD 2011) 131. 46 Migrationsverket, ‘Employers who Plan to Employ Someone from Another Country’ (5 December 2013). 44 45

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limit of labour immigration which acts as a safeguard against rapid growth in the number of migrants admitted. In more coordinated market economies with more regulated labour markets, such as Germany and Sweden, protections for local workers are stronger both by design and in practice. But the overall conclusion from this brief review of selected cases is that efforts to effectively protect local workers’ preferential access to the national labour market have been beset with considerable problems in a wide range of different national contexts and countries. The key policy problem is that many employers, especially but not only those operating in low-waged labour markets, have a clear preference for migrant over local workers. How to evaluate and respond to this preference remains the key challenge in the making and implementation of national labour immigration policies.

5 Migrant Workers in Agriculture A Legal Perspective ACL Davies*

I. Introduction Many people travel from around the world—and particularly from Eastern Europe—to seek work in the agriculture sector in the UK, in jobs such as fruit picking or vegetable harvesting. For some, agricultural work offers a good way of earning some extra money (during university vacations, for example); for others, the work is precarious, arduous, and poorly paid, and sometimes irregular and unfree. This chapter explores the law applicable to agricultural workers, with a particular focus on those who are also migrant workers. Rather than attempting to give an overview of all the applicable law, I will examine three main topics particular to the sector: the role of the soon-to-be abolished Agricultural Wages Board (AWB) in setting terms and conditions of employment in agriculture; the Seasonal Agricultural Workers Scheme (SAWS), ending in 2013, a transitional arrangement which allows temporary migration from Bulgaria and Romania for the purposes of agricultural work; and the activities of the Gangmasters Licensing Authority (GLA) in regulating individuals or agencies that supply labour to farm businesses. I will argue that the gradual evolution of this patchwork of regulation tells a story of shifting government priorities: from securing decent working conditions for agricultural workers, given their especial vulnerability, to combating irregular migration, forced labour, and human trafficking. While it is obviously a good thing to focus limited enforcement resources on identifying and tackling the worst cases of exploitation, the importance of pursuing this task should not be allowed to obscure the fact that simply tackling the worst forms of exploitation will not guarantee decent working conditions for all agricultural workers. My concern is that the shift from an ‘employment’ agenda to an ‘immigration control’ agenda—while superficially attractive—may ultimately turn out to be damaging to the interests of the majority of workers in this category. The remainder of this chapter is organized as follows. Section II provides some background to the agriculture sector. Section III examines the demise of the Agricultural Wages Board regime as a means of regulating the terms and conditions of employment for employees in agriculture. Section IV examines SAWS as a ‘combined’

* Anne Davies is Professor of Law and Public Policy at the University of Oxford and Garrick Fellow and Tutor in Law at Brasenose College, Oxford. I am grateful to participants in the Migrants at Work conference, and to Cathryn Costello in particular, for helpful comments on an earlier draft. Responsibility for errors remains my own. This chapter considers developments up to 15 November 2013.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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mechanism to manage migration and to regulate labour standards. Section V assesses the evolution of the GLA, focusing in particular on recent government proposals to change its regulatory approach. Section VI offers some concluding thoughts.

II. Agricultural Work In global terms, agriculture is a very significant part of the economy.1 Worldwide, it accounts for around 35 per cent of global employment, making it second only to services as a source of jobs.2 One billion people worldwide work in agriculture. However, these statistics mark very significant variations between countries. In sub-Saharan Africa, for example, agriculture provides just under 60 per cent of jobs, whereas in developed Western economies, the figure is around 3–4 per cent. In the UK, 481,000 people are employed in agriculture, of whom 67,000 are seasonal or casual workers.3 It seems reasonable to assume that a significant proportion of the latter group are migrants. Indeed, employers in the sector report that they could not manage without migrant workers for seasonal tasks such as fruit picking and vegetable harvesting.4

1. Agriculture and worker disadvantage Since agricultural work is the subject of various forms of specific regulation to be explored in this chapter, it may be helpful to think about why the sector might have been singled out by government for special attention. The issues identified here apply to both local and migrant workers, though in the case of migrant workers they tend to exacerbate pre-existing vulnerabilities (such as uncertain immigration status, poor grasp of English, and lack of awareness of legal rights). First, agricultural work is usually seasonal in nature. Workers do not have a stable, guaranteed income over the longer term and may accept work on whatever terms the employer offers because they need the money. Where there is a possibility of returning to the same farm the following year, the workers may not want to ‘rock the boat’ by demanding better terms and conditions because this will reduce their chances of re-engagement. And because the workers are only in a particular job for a short period, they are less likely to have the opportunity to enforce their legal rights. Moreover, for migrants in particular, seasonal work may make it difficult to build up periods of longterm continuous residence in order to acquire more secure residence status.5

1 The various legal regimes discussed in this chapter all adopt slightly different approaches to defining the sector, but a common-sense understanding of agriculture is sufficient for my purposes. 2 International Labour Organization (ILO), ‘Agriculture; Plantations; Other Rural Sectors’ accessed 4 November 2013. 3 Department for the Environment, Food and Rural Affairs (DEFRA), Agriculture in the United Kingdom 2012 (2012) 8. 4 National Farmers’ Union, A Seasonal Agricultural Workers Scheme for the Next Decade (May 2012) 3–4. 5 See eg Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2007] OJ L204/28, arts 7 and 16.

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Second, agriculture is a dangerous sector in which to work. According to the UK Health and Safety Executive, despite only employing 1.5 per cent of the working population, agriculture accounts for between 15 and 20 per cent of worker fatalities every year.6 The GLA was established after a tragic accident in which twenty-three Chinese cockle-pickers drowned in Morecambe Bay, an area well known for its fastrising tides and hazardous sands.7 The cockle-pickers worked for a gangmaster who was subsequently found guilty of manslaughter and imprisoned for fourteen years. Although ‘agricultural’ tasks like fruit picking do not sound so dangerous, agricultural workers are at risk of being run over by tractors, injured by machinery, or hit by falling objects (badly stacked crates, for example). There is also a well-documented intersection between short-term work and health and safety risks: people are much more likely to be injured when they are new to a job and, despite legal obligations on the employer to provide proper health and safety information and training, temporary workers often miss out. Third, agricultural work usually takes place in geographically isolated areas. The work is inherently rural in nature, and public transport links to towns and cities are often poor. This limits the opportunities for workers to seek help or advice from lawyers or other sources if they have problems with their terms and conditions of employment. It is also difficult for unions to obtain access to the workers to organize or assist them, because they usually live and work on private land. Fourth, many agricultural workers, particularly migrant workers, are accommodated by their employer on the farm. Of course, this represents a significant benefit: the workers would not usually be able to afford privately rented accommodation in the local area or transport to the farm. However, the provision of accommodation increases the workers’ dependence on their employer. If they leave their job because of poor terms and conditions, for example, they are also rendering themselves homeless. The quality of the accommodation may be poor and the workers may face significant charges for the accommodation itself and for the use of other amenities.8 Fifth, a high proportion of agricultural workers (again, particularly migrant workers) are supplied by agencies or ‘gangmasters’. This is understandable given that farmers may lack the time and resources to recruit workers, and, in particular, the expertise and language skills to recruit migrant workers and steer them through the immigration system, where applicable. But ‘triangular’ employment relationships can create confusion and uncertainty on a practical level about who is responsible for any problems— the agency or gangmaster on the one hand, or the farm business on the other—and, on the legal level, about who is the employer for the purposes of employment rights.9 6

Health and Safety Executive, Farmwise (HSG 270, 2009) 4. Although the remains of twenty-one people were found at the time of the tragedy, it is generally accepted that there were two other victims. The remains of one of those victims have since been found: Crown Prosecution Service (North West), ‘No Further Prosecution in Cockle Picking Case’ (Press release 27 October 2010). 8 The amount that an employer can deduct for accommodation is controlled by the National Minimum Wage Regulations 1999, SI 1999/584, reg 36, but this is easy to evade by providing the accommodation through another legal entity and charging rent. 9 On agency work generally, see A Davies, ‘The Implementation of the Directive on Temporary Agency Work in the UK: A Missed Opportunity’ (2010) 1 European Labour Law Journal 303. 7

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From the above discussion, it can be seen that agricultural work has particular characteristics which single it out for special consideration: the work is short term; the work is dangerous; the workers are isolated; they depend on their employer for accommodation; and they are often in ‘triangular’ employment relationships.

2. Sectoral approaches As this chapter will explain, it is now the Government’s policy to minimize the differences between the regulation of agricultural work and the regulation of work in other sectors of the economy.10 This means that ‘normal’ employment law will take on an increasingly important role as the main source of protection for agricultural workers. My purpose in this chapter is not to provide an overview of the rights afforded to these workers by the ordinary law. Nor is it to debate whether the agricultural sector warrants special treatment. While agriculture appears to have a particularly high concentration of problematic features, many are shared with other sectors (for example, domestic workers tend to be isolated and to rely on the employer for accommodation as well as work).11 Instead, my aim is to use agriculture as a lens through which to view important shifts in government policy on the regulation of work and migrant work in particular.

III. The Agricultural Wages Board The Agricultural Wages Board (AWB) was set up under the Agricultural Wages Act 1948. As its name suggests, it has the power to set wages for agricultural workers, but, importantly, it also has the power to regulate other terms and conditions, such as allowances, working hours, and holidays. This is done in the form of a statutory instrument, the Agricultural Wages Order (AWO), which is made annually and comes into effect on 1 October each year.12 A worker whose terms and conditions do not conform to the applicable AWO may complain to the Agricultural Wages Enforcement Team, a part of DEFRA. The AWB is the sole survivor of the system of Wages Councils, set up under the Trade Boards Act 1918 to protect workers in industries with no collective bargaining, the remainder of which were abolished as part of the deregulation policies of the 1980s.13 Since the AWB is, at the time of writing, about to be abolished itself as part of the Government’s review of arm’s length bodies,14 it might be asked why it is worth

10

See eg DEFRA (n 3) 6. For discussion, see E Albin and V Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) 41 ILJ 67. 12 The latest is the Agricultural Wages (England and Wales) Order 2012. 13 For the history of the rise and fall of Wages Councils, see P Davies and M Freedland, Labour Legislation and Public Policy (Clarendon Press 1993). 14 Public Bodies Act 2011. This review, sometimes also termed the ‘bonfire of the quangos’ (quango meaning quasi-non-governmental organization) was an attempt to save money by identifying public bodies that were not needed and could be abolished. 11

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considering.15 I suggest that the AWB merits examination because it shows what an ‘employment-focused’ approach to the regulation of agricultural work might look like. It enables us to see how ‘migration-focused’ the regulatory regime is becoming.

1. Eligibility The AWO applies to ‘every worker employed in agriculture in England and Wales’.16 ‘Employment’ is defined as ‘employment under a contract of service or apprenticeship’.17 Thus, despite the use of the term ‘worker’ throughout the Act and the Order, the protected class consists only of employees. This opens up the possibility that individuals may be excluded from the scope of protection because they do not qualify as employees. This problem may have been eased somewhat as a result of the Supreme Court decision in Autoclenz v Belcher, in which it was held that courts and tribunals should look beyond the parties’ written agreement when it is alleged that this does not reflect the reality of the relationship.18 This limits the employer’s ability to avoid the application of employment rights by means of clever contract drafting. Nevertheless, an individual claiming to be an employee must still demonstrate that the traditional tests for employee status are met, such as the control or risk test (either that the employer controls the individual’s work or shields him or her from economic risks) and the requirement for mutuality of obligation.19 Mutuality of obligation denotes a promise on the part of the individual to accept future work and a promise on the part of the employer to provide future work and pay, and is regarded by the courts as an essential element of long-term employee status. Both the risk test and the mutuality of obligation test have the effect that an individual can only be an employee if he or she is required to work regularly, regardless of fluctuations in demand. But these requirements may be particularly difficult for agricultural workers to satisfy because the putative employer may not make promises about future work, given the unpredictability of harvesting times and yields. The problems are exacerbated where the workers are supplied by an agency or gangmaster because the agency or gangmaster is even less likely than a farm business to promise that there will always be work available over the longer term. Abolition of the AWB is, of course, only one of the possible policy responses to the problem of its limited personal scope. The alternative would have been to replace the ‘employee’ definition with the ‘worker’ concept, or to adopt some broader notion of personal scope.20 Whether this would have been worth doing depends on the terms and conditions set by the AWB, to which I will now turn.

15 16 17 18 19 20

Enterprise and Regulatory Reform Act 2013, s 72. Agricultural Wages (England and Wales) Order 2012, Art 1(2). Agricultural Wages (England and Wales) Order 2012, Art 2(1). Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157. For discussion, see S Deakin and G Morris, Labour Law (6th edn, Hart 2012) ch 3. Deakin and Morris (n 19).

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2. Wages The National Minimum Wage (NMW) Act 1998 sets a minimum wage for all sectors of the economy, including agriculture. The AWB regulates wages in much greater detail, as this section will illustrate, but with the NMW as a floor.21 The AWO grade one rate in 2012–13 was £6.21 per hour,22 only fractionally above the applicable NMW adult rate of £6.19, but there are a number of advantages to falling within the AWO rather than the NMW. First, the AWO rate applies to those aged sixteen and over, whereas the NMW has lower rates for workers under twenty-one. Second, an agricultural worker is entitled to be paid the appropriate AWO rate for every hour worked (and there is no use of a pay reference period to make the calculation).23 Where the worker is paid piece rates, ‘the worker’s wages for each hour that they work must not be less than the hourly minimum rate of pay applicable to their grade’ under the AWO.24 There is no option for ‘rated output work’, where the employer may comply with the obligation to pay the NMW by applying a formula based on the number of pieces an average worker can produce in an hour.25 And third, the employer is not permitted to make deductions in respect of bad weather (a potentially significant issue in agriculture).26 But the AWO is not just concerned with setting a minimum rate of pay. The AWO divides farm workers into six grades, from the initial grade one to farm manager at grade six, and sets an hourly rate for each of these grades.27 Thus, an individual may be a grade two ‘standard worker’ either if he or she holds certain listed qualifications,28 or: in the course of the worker’s employment the worker: (i) works wholly or mainly without their supervisor being present at the place where the worker carries out their work; or (ii) works with animals; or (iii) is in control of powered machinery; or (iv) drives an agricultural tractor.29

And a worker may be a grade three ‘lead worker’ if he or she leads a team of workers and various conditions are met.30 The 2012–13 rates of pay were £6.96 per hour for a grade two worker and £7.66 per hour for a grade three worker. Finally, unlike the NMW, the AWO makes provision for additional payments and overtime.31 The overtime rates in 2012–13 were £9.32 for a grade one worker over 21

Agricultural Wages Act 1948, s 2(2B). Agricultural Wages (England and Wales) Order 2012, Art 25. 23 Agricultural Wages (England and Wales) Order 2012, Art 17. 24 Agricultural Wages (England and Wales) Order 2012, Art 21. 25 National Minimum Wage Regulations 1999, regs 24–26A. 26 Agricultural Wages (England and Wales) Order 2012, Art 29. 27 Agricultural Wages (England and Wales) Order 2012, Art 25. 28 Noticeably these are UK qualifications and thus potentially discriminatory against migrant workers under EU law. 29 Agricultural Wages (England and Wales) Order 2012, Art 5(1)(c). 30 Agricultural Wages (England and Wales) Order 2012, Art 6. 31 Different arrangements apply where the parties enter into a Flexible Working Agreement, but constraints of space prevent me from discussing this issue. 22

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sixteen, £10.44 for a grade two worker, and £11.49 for a grade three.32 These rates are applicable in a variety of situations but the main ones are where the worker: a) works more than eight hours on any day with the same employer; b) works any hours beyond the working hours under their contract of employment; c) works on a public holiday or a bank holiday in England and Wales . . .33

Two further payments worth considering are the on-call allowance and the night work supplement. The on-call allowance applies in respect of any day on which the worker is required to be available to come in to work when contacted by the employer.34 The worker is entitled to two hours’ pay at the overtime rate simply for being on call (a clear contrast with the NMW).35 If the employer makes use of the worker’s services during the on-call period, the worker is entitled to be paid at the overtime rate for the hours worked, subject to a minimum payment of two hours’ overtime. The night work supplement is £1.36 per hour (on top of the worker’s usual rate) for every hour between 7 pm and 6 am, though the first two hours of work are excluded.36 Night work is a feature of various forms of agricultural work, including livestock management and fruit picking.

3. Hours The AWO also contains provisions about hours and holidays. Under Article 44, the worker is entitled to a rest break of at least thirty minutes where he or she has daily working time of more than five-and-a-half hours. This is more generous than the requirement in the Working Time Regulations 1998 (WTR) to provide a rest break of twenty minutes after six hours’ work.37 However, there are several exceptions to this right, mirroring the language of the WTR. The provision of paid annual leave is also more generous under the AWO. The WTR provides for a minimum of twenty-eight days’ paid annual leave.38 This represents 5.6 weeks for an individual working a five-day week. Under the AWO regime, an individual working a five-day week is entitled to thirty-one days’ annual leave.39 The WTR does not provide for any increase in entitlement beyond twenty-eight days for those who work more than five days in a week. By contrast, the AWO grants thirty-five days’ annual leave to those who work more than five but not more than six days per week, and thirty-eight days of leave to those who work more than six days per week.40 Under the WTR, if the individual works fewer than five days a week, their entitlement is calculated on a pro rata basis, by multiplying their days worked per week by 5.6. The

32

Agricultural Wages (England and Wales) Order 2012, Art 26. Agricultural Wages (England and Wales) Order 2012, Art 22. Where the worker is not required to work on a bank holiday, their annual leave entitlement is reduced by one day under Article 50(3). 34 Agricultural Wages (England and Wales) Order 2012, Art 33. 35 See eg South Manchester Abbeyfield Society Ltd v Hopkins [2011] ICR 254 (EAT). 36 Agricultural Wages (England and Wales) Order 2012, Art 34. 37 38 Working Time Regulations 1998, reg 12. Working Time Regulations 1998, regs 13–13A. 39 Agricultural Wages (England and Wales) Order 2012, Art 46. 40 Agricultural Wages (England and Wales) Order 2012, Art 46. 33

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AWO is, again, more generous, so, for example, a person working one day per week in agriculture would get 7.5 days’ annual leave.41 Finally, the AWO regulates the timing of leave to some extent. This is important in a seasonal activity such as agriculture because the employer is likely to want the employee to take time off outside busy periods, but this could have the effect that the employee is unable to take a summer holiday when, for example, his or her children have school holidays. Although the exact timing of leave is to be agreed by the employer, Article 48(6) provides that the worker is entitled to take two consecutive weeks of his or her entitlement between 1 April and 30 September. This is balanced by a right on the part of the employer to require the worker to take up to two weeks’ leave between 1 October and 31 March.

4. Conclusions The AWB regime was originally designed to set terms and conditions of employment for workers who could not protect themselves through collective bargaining. A significant disadvantage of the regime is that it applies only to employees, so that it now excludes (and perhaps always has excluded) many agricultural workers, particularly migrants, whose working arrangements are casual or flexible in nature. Nevertheless, it remains a useful lesson in what ‘employment-focused’ regulation in this area might look like. Because of its focus on a single sector, it is able to address some of the potential problems faced by agricultural workers, such as non-payment of wages during bad weather, being required to work at night, or being required to take all holidays during the ‘off season’. It reflects the traditional employment law concern of improving the lot of workers whose bargaining power as against their employer is limited or non-existent. Its abolition is a significant element in the shift away from ‘employment-focused’ regulation in this sector.

IV. Seasonal Agricultural Workers Scheme So far, the discussion has focused on the regulation of agricultural work regardless of the migration status of the workers. In this section, I turn to the intersection of migration law and employment law by examining the SAWS scheme. When Bulgaria and Romania joined the EU in 2007, the UK government took advantage of the option of applying ‘transitional arrangements’ in which nationals of these countries would not acquire full free movement rights until the end of 2013.42 Within the transitional regime, it is possible to make exceptions. SAWS is one such exception for agricultural workers.43 Although SAWS is primarily a means of regulating migration, it also offers a degree of employment protection to those who enter the UK under the scheme. I will discuss its advantages and disadvantages. 41

Agricultural Wages (England and Wales) Order 2012, Art 46. Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the Treaties on which the European Union is founded [2005] OJ L157/203; Accession (Immigration and Worker Authorisation) Regulations 2006, SI 2006/3317. 43 There is a similar scheme for food processing called the Sectors Based Scheme. 42

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1. SAWS in detail SAWS allows workers from Bulgaria and Romania to come to the UK on a temporary basis in order to do unskilled agricultural work such as fruit picking and handling livestock.44 The scheme is operated by nine approved operators on behalf of the UK Border Agency. Some of these operators are farm businesses (usually large ones) that use the scheme to recruit workers to work on their own farms. Others are so-called ‘multiple operators’ (or employment agencies) that recruit workers who are then supplied to different farms. The operators are responsible for identifying and recruiting suitable workers, and issuing them with permission to work in the UK under SAWS, known informally as a ‘work card’. Workers entering the UK under SAWS are guaranteed certain minimum terms and conditions of employment. There must be a minimum of five weeks’ work available. The workers must be given a contract of employment and paid and otherwise treated in accordance with the applicable AWO. The work must be safe, and the employer must offer suitable accommodation. Where the SAWS operator is a farm business using SAWS to recruit workers for itself, it is responsible for its own compliance with these standards. Where the SAWS operator is an agency, it must monitor the farms to which it sends workers in order to check that they are meeting the standards. Permission to work under SAWS is granted for a specific period of time, from a minimum of five weeks up to a maximum of six months. A worker who is granted permission for less than six months may apply to extend his or her stay up to the maximum of six months, but once a worker has completed six months’ work, he or she must wait for three months before re-applying. During the three-month gap, the worker need not return to his or her country of origin, but it may not be practical to remain in the UK without permission to work or accommodation.45 Since 2006, it has been possible for Bulgarian and Romanian nationals who have been employed continuously in the UK for twelve months to gain exemption from the requirement to have permission to work, but SAWS workers are unable to reach this threshold because of the enforced gaps in their employment. Workers who enter the UK under the SAWS scheme have limited freedom of choice if they are unhappy with their placement. Although they are free to leave the scheme, they have no general right to work in the UK, so (unless they can obtain permission in some other way) in practice their options are to return home or to work illegally. If their work card is issued by a multiple operator (an agency), they may be able to move to another employer, but this is a matter for them to negotiate with the operator. Thus, the SAWS scheme ‘ties’ individuals’ migration status to employment with a particular employer. The SAWS operates on a quota basis: the UK Border Agency sets a fixed number of places for workers on the scheme each year. There were just over 20,000 places in 2012

44 45

Accession (Immigration and Worker Authorisation) Regulations 2006, reg 9. Unless this can be obtained under a different scheme.

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and 2013.46 Once the places have been filled, no more are available until the next year. In this way, the scheme is designed both to facilitate and to control migration.

2. Assessment From 2014 onwards, the UK Government will be required to grant full EU free movement rights to Bulgarian and Romanian nationals, so the SAWS scheme will come to an end.47 Perhaps tellingly, the National Farmers’ Union campaigned to persuade the Government to introduce a new version of SAWS to bring in workers from other non-EU countries (Ukraine was suggested as a possibility) from 2014 onwards, fearing that once Bulgarian and Romanian nationals could work in any sector, they would not take farm work.48 This reflects the argument made by Geddes and Scott that schemes like SAWS can be seen as a form of ‘subsidy’, making certain sectors of the economy dependent for their competitiveness on access to cheap labour.49 From the worker perspective, the demise of SAWS is largely welcome. From 2014 onwards, workers from Bulgaria and Romania will benefit from a wider choice of job opportunities in other economic sectors in the UK, and from the possibility of securing longer-term employment. Moreover, a significant problem with SAWS is the ‘tie’ to a particular employer. This means that workers cannot easily remove themselves from an abusive situation, which in turn may tempt unscrupulous employers to disregard workers’ rights. However, there is a disadvantage: the need for SAWS operators to maintain UK Border Agency approval probably offered some indirect protection to workers, because reports of bad practices would put their operator status in jeopardy for future years. Without this safeguard, workers will have to judge for themselves whether a particular employer or agency is offering reliable work on fair terms and conditions.

V. The Gangmasters Licensing Authority The Gangmasters Licensing Authority (GLA) was set up under the Gangmasters (Licensing) Act 2004 (GLA 2004).50 With the demise of SAWS and the AWB, the GLA will soon be one of the main sources of protection (alongside ‘ordinary’ UK Border Agency, ‘Seasonal Agricultural Workers Scheme’. The Government argues that in a time of high unemployment, an extension of the scheme cannot be justified: M Harper, Written statement to Parliament, Seasonal Agricultural Workers Scheme and the Food Processing Sectors Based Scheme (12 September 2013). 48 National Farmers’ Union (n 4). This is an EU-wide concern: see Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment’ (Communication) COM (2010) 379 final, though this would not apply in the UK. 49 A Geddes and S Scott, ‘UK Food Businesses’ Reliance on Low-Wage Migrant Labour: A Case of Choice or Constraint?’ in M Ruhs and B Anderson, Who Needs Migrant Workers? Labour Shortages, Immigration, and Public Policy (Oxford University Press 2010). 50 For a very helpful overview of the GLA regime, drawing on empirical evidence, see M Wilkinson with G Craig, and A Gaus, Forced Labour in the UK and the Gangmasters Licensing Authority (Hull University 2010). 46 47

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employment law) for both local and migrant agricultural workers in the UK. This section will examine the key features of that regime and will attempt to assess its effectiveness. A few caveats are in order at the outset. First, it is important not to be misled by the old-fashioned and often negative term ‘gangmaster’: the GLA regulates any individual or agency supplying labour in agriculture. The GLA itself uses the neutral term ‘labour provider’ in its publications.51 Second, because the GLA is focused on labour providers, it is not relevant to individuals who are employed directly by farm businesses. For these individuals, there will soon be no agriculture-specific regulation. And third, the GLA operates a licensing regime. Although the objective of licensing is to protect workers, it does so indirectly, as the discussion that follows will explain.52 It would not be accurate to describe the GLA as, for example, a labour inspectorate for the agriculture sector. The GLA has escaped the Coalition Government’s ‘bonfire of the quangos’,53 but it is currently undergoing reforms, some initiated by the Government and some from within. I will suggest that these reforms will shift the GLA’s focus away from upholding employment standards and towards tackling irregular migration. While there are good justifications for focusing the GLA’s energies on the worst forms of abuse, this should not be allowed to obscure the goal of ensuring decent work in agriculture more generally.

1. Scope Any labour provider who falls within the scope of the GLA regime must apply for and continue to hold a licence in order to operate lawfully in the sector. The Act adopts a comprehensive definition of ‘gangmaster’ or labour provider which is intended to cope with the variety of different contractual arrangements that might be found in practice. There are three elements to the definition. A is a gangmaster if he or she: • ‘supplies a worker to do work to which this Act applies for another person (“B”)’;54 • ‘uses a worker to do work to which this Act applies in connection with services provided by him to another person’;55 • ‘uses a worker to [harvest agricultural produce] for the purposes of a business carried on by him’.56 The Act also seeks to ensure that a variety of different contractual arrangements as between the gangmaster, the labour user, and intermediaries (if any) are caught by its provisions. Thus:

51

2013.

See, generally, Gangmasters Licensing Authority accessed 5 September

52 For discussion of licensing as a regulatory approach, see, generally, A Ogus, Regulation: Legal Form and Economic Theory (Clarendon Press 1994) ch 10. 53 54 Enterprise and Regulatory Reform Act 2013, s 72. Gangmasters (Licensing) Act 2004, s 4(2). 55 56 Gangmasters (Licensing) Act 2004, s 4(4). Gangmasters (Licensing) Act 2004, s 4(5).

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So a person may be a gangmaster at any point in the ‘supply chain’: it is not necessary to have a direct relationship with the worker or with the end user of the labour. For the purposes of a discussion of migrant workers in particular, it is important to note that the GLA regime applies if the work takes place in the UK regardless of where the labour provider is situated.58 This means that an agency recruiting workers in Poland for UK farms must be licensed under the Act. The ‘gangmaster’ definition is further broadened by the adoption of a non-technical definition of ‘worker’ in the Act. According to section 26(1): ‘In this Act “worker” means an individual who does work to which this Act applies.’ And under section 26(2), protection does not depend on the individual’s immigration status: ‘A person is not prevented from being a worker for the purposes of this Act by reason of the fact that he has no right to be, or to work, in the United Kingdom.’ These provisions break out of the traditional labour law paradigm in which protection is reserved to individuals working under a contract of employment or a worker’s contract, and—arguably— doing so on a lawful basis.59

2. Licensing standards The GLA licensing regime operates on the basis of eight licensing standards.60 Within each standard, there are more detailed requirements. Although space precludes a full account of the licensing standards, I will highlight some of the key points for each in this section, before examining how the GLA applies the standards within the licensing regime. The first standard is the ‘fit and proper’ requirement. This is designed to make it more difficult for individuals with a history of criminal convictions, regulatory violations, or obstructing the GLA to obtain a licence. The licence-holder is expected to have a good understanding of the licensing requirements under this heading and to correct any ‘additional licence conditions’ (examined later) promptly. The second standard relates to pay and tax requirements. Here, the licence-holder must have appropriate tax arrangements in place (where applicable) and must pay workers in accordance with the 57

58 Gangmasters (Licensing) Act 2004, s 4(3). Gangmasters (Licensing) Act 2004, s 5. See Allen v Hounga [2012] EWCA Civ 609, [2012] IRLR 685 (at the time of writing, on appeal to the Supreme Court), discussed by A Bogg and T Novitz, ‘Race Discrimination and the Doctrine of Illegality’ (2013) 129 LQR 12. 60 Gangmasters (Licensing Conditions) Rules 2009, SI 2009/307, Schedule 1. See also GLA, Licensing Standards (May 2012). 59

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NMW (or applicable AWO rate). The third standard prohibits forced labour (‘forc[ing] or coerc[ing] a worker to work against their will’)61 and a number of other (related) abusive practices, such as keeping a worker’s identity documents, threatening a worker who proposes to leave, or using debt bondage (‘there should be no debts between a licence holder and worker that prevent the worker freely seeking other employment’).62 The fourth standard relates to accommodation and requires the gangmaster to ensure that where accommodation is provided in connection with the work, it is safe and not overcrowded. The standard adopts a broad approach to the provision of accommodation to ensure that the application of this standard cannot be evaded by providing accommodation through intermediaries. The fifth standard, on working conditions, requires the gangmaster to comply with equality and working time legislation, and to refrain from discriminating against workers on grounds of trade union membership. Sixth, the gangmaster must cooperate with the labour user to ensure that various health and safety requirements are met, including risk assessments and the provision of safety equipment. This is an important safeguard given that the gangmaster and the labour user may be tempted each to regard the other as responsible for workers’ safety. Any transport to and from the workers’ place of work must be safe and must comply with applicable legislation. The seventh standard focuses primarily on record keeping, but also includes important requirements about not charging workers a fee for finding them employment, giving workers a statement of their terms and conditions, and not varying those terms and conditions without their agreement. Finally, the eighth standard states that a gangmaster may not make use of another labour provider, for example, as a sub-contractor, unless that provider is also licensed. Taken together, the eight licensing standards offer a comprehensive set of requirements that should not only serve to protect workers against the worst forms of exploitation and abuse, but also ensure that they enjoy safe and decent working conditions and a floor of basic employment rights.

3. Applying for a licence At present, individuals or businesses applying for a new GLA licence must be inspected by the GLA before the licence can be granted.63 Where the business is new and not yet trading, the GLA may return to conduct a second inspection after the licence has been granted to see how the business is operating in practice. When the GLA is considering whether to grant a licence, a failure to comply with any of the standards will attract a ‘score’.64 Standards identified as critical attract a score of thirty; other standards attract a score of eight. Critical standards include, for example, failing to pay the NMW (or AWO rate, where applicable) or failing to provide safe accommodation. If an applicant for a licence scores more than thirty (so, for example, is in breach of one critical and one non-critical standard) the licence will usually be refused. If the licence applicant scores less than thirty, the GLA will grant the 61 63

62 GLA (n 60) para 3.2. GLA (n 60) para 3.2. Gangmasters (Licensing Conditions) Rules 2009, rule 3.

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licence subject to ALCs (additional licence conditions), which the licence-holder will have to correct within an appropriate time.

4. Monitoring and enforcement There are two aspects to monitoring and enforcement. First, once an operator has a licence, it is important that the GLA checks that it continues to meet the relevant standards and takes action when there is evidence of a breach. Otherwise, the licensing system may offer a false sense of security as to the operator’s compliance with GLA standards. Second, the GLA must be able to identify and deal with unlicensed operators. The most serious instances of exploitation are likely to occur where the labour provider is acting outside the legal framework, and law-abiding firms rightly expect that the licensing regime will protect them against being undercut by unscrupulous operators. In assessing the effectiveness of the regime, it is important to think both about the likelihood of getting caught, and the severity of the sanctions in the event that a non-compliant or unlicensed operator is caught.

i. Licensed operators Although GLA licences are only valid for one year and must therefore be renewed, the renewal process is very simple and does not involve an automatic inspection.65 Instead, the GLA relies on a system of spot checks and intelligence-led inspections to monitor compliance, with much greater emphasis on the latter. Thus, the effectiveness of the regime depends on the willingness of workers, other labour providers, or farm businesses to contact the GLA to complain about particular operators, and on the GLA’s capacity to investigate these complaints. The GLA provides a telephone number, an email address, and an online form for people to report instances of exploitation.66 The GLA accepts anonymous complaints, which is particularly important for workers in fear of reprisals from the gangmaster for contacting the authorities. It has worked hard to raise its public profile and has been praised for ‘punching above its weight’ in this regard.67 It also publishes its ‘Workers’ Rights’ leaflet in eighteen languages. However, problems remain. It is not clear how many workers are aware of its activities or have easy access to a phone or the Internet to report exploitation. One study found that Citizens Advice Bureau workers—who are at the front line in assisting people who do seek help—were sometimes not sure of the role of the GLA or when they should contact it.68 Of course, it is also important that the GLA can act upon the information it has received. The GLA’s resources are a current topic of concern. The GLA’s budget for 2012–13 was around £4.1 million, and it identified 1,373 workers who were being 65

GLA (n 60) para 5.5. See GLA at accessed 5 September 2013. 67 A Balch, P Brindley, A Geddes, and S Scott, Gangmasters Licensing Authority: Annual Review 2008 (GLA 2009), 30 (an independent evaluation of the GLA’s early work). 68 Wilkinson, Craig, and Gaus (n 50) 34. 66

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exploited.69 Like most public bodies, the GLA is going through a period of significant budget cuts. As a result, it has had to scale back some of its activities. For example, in 2010–11, the GLA had as one of its targets the conduct of eighteen high-profile enforcement operations.70 It failed to achieve this target (managing only twelve due to resource constraints) and changed the 2012–13 target to twelve operations (though in fact it conducted fourteen).71 It has also abandoned plans for Community Enforcement Officers who would have worked with local authorities to gather intelligence on exploitation because there is no longer enough funding available for these roles.72 Of course, it is difficult to determine the ‘right’ level of resources for the GLA: there would always be a case to be made for more funding. However, it is clear from the GLA’s own publications that the budget cuts go beyond ‘efficiency savings’ and will lead to a reduction in the GLA’s activities. Where the GLA does identify a breach of an operator’s licence, its main sanction is to revoke the licence.73 This can take place with immediate effect, where certain critical standards are breached. This means that the labour provider can no longer operate in the sector (and is at risk of prosecution if it does so). In the event of a less significant violation, revocation can take place without immediate effect. This allows the provider to continue trading, either whilst putting the problem right and applying for a new licence (potentially with additional conditions), or whilst appealing against the GLA’s ruling. The GLA publishes a list of revoked licences which indicates that almost 200 have been revoked to date.74 The GLA also has a high success rate in the appeals process (though the statistics include appeals against decisions to refuse a licence as well as revocations).75 There are three main concerns about the GLA regime in this area. First, from the perspective of ‘well-meaning’ operators, the GLA’s sanctions are quite severe. In the regulation literature, it is seen as important for regulators to have an ‘enforcement pyramid’ in which they reserve prosecution for the most serious offenders and use lesser means to persuade those who are ignorant or incompetent, but not malicious, to come into compliance.76 The GLA has itself suggested that it needs a greater array of penalties at its disposal, particularly civil rather than criminal penalties, in order to increase the range of options it has for bringing labour providers into compliance.77 Second, in terms of its effectiveness in relation to serious offenders, there is a major concern about the phenomenon of ‘phoenixing’. This is where a firm loses its licence but is set up again under a different name with different people ostensibly in charge, even though in reality the same operator might be behind it. The GLA has sought to 69

GLA, Annual Report and Accounts 2012–13 (HC 101, 2013). 71 GLA, Annual Report and Accounts 2010–11 (HC 1221, 2011). GLA (n 69). 72 GLA (n 70) 4. 73 Gangmasters (Licensing) Act 2004, s 9; GLA, Licensing Decision Policy (June 2013). 74 See GLA, ‘List of Revoked GLA Licences’, at accessed 5 September 2013. 75 See GLA, ‘Appeal Results’, at accessed 5 September 2013, showing that the GLA has lost or withdrawn a mere 23 appeals out of a total of 198. 76 I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press 1995). 77 GLA, ‘GLA Welcomes Government Consultation Results’ (Press release 5 September 2013). 70

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address this by including, in the ‘fit and proper’ licensing standard, references to being ‘influenced’ by a person who is not ‘fit and proper’.78 Third, from the perspective of the affected workers, there is the concern that if a labour provider is put out of business, the workers may lose their jobs (and accommodation) and may encounter additional problems such as unpaid wages. The GLA works informally in these situations to try to ensure that workers are put in touch with legitimate businesses who can help them to find alternative work, and can alert other agencies such as the NMW compliance team. However, it is not formally a part of the GLA’s remit to help workers to find alternative jobs or to help them to litigate to enforce their legal rights.79

ii. Unlicensed operators There are two main offences under the GLA 2004. One is operating as a gangmaster in a regulated sector without being licensed.80 The maximum penalty here is ten years’ imprisonment and a fine. The other is to use labour from an unlicensed provider.81 The maximum penalty here is fifty-one weeks’ imprisonment and a fine in England and Wales, or six months’ imprisonment and a fine in Scotland and Northern Ireland. In 2012, there were eight convictions under the Act.82 It is very difficult to judge the GLA’s performance in this area. We simply do not know how big the informal economy is in the agricultural sector, or how many unlicensed labour providers there are, precisely because all of this activity takes place outside normal legal frameworks. Thus, it is impossible to tell whether or not this level of prosecution is good.

5. Reform The GLA is currently undergoing a period of reform, some of it initiated by the GLA itself, and some by the Government as part of its review of arm’s length bodies. I will argue here that while some of the reforms are beneficial, the GLA faces a challenge in justifying the licensing model—which is currently out of fashion—and is being pushed in the direction of focusing on immigration enforcement to the exclusion of labour standards. The Government is proposing to introduce civil penalties as a means of giving the GLA a bigger ‘enforcement pyramid’, with lower-level sanctions for lesser infringements.83 Because the Government has committed itself not to impose additional financial penalties on small businesses, the proposal takes the form of ‘enforcement undertakings’ under the Regulatory Enforcement and Sanctions Act 2008, section 50.

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GLA (n 60) 11. Where a worker has entered the UK illegally, he or she may be barred from bringing employment claims: Hounga (n 59), currently on appeal to the Supreme Court. See Bogg and Novitz (n 59). 80 81 GLA 2004, s 12. GLA 2004, s 13. 82 See GLA, ‘Convictions’ at accessed 5 September 2013. 83 DEFRA (n 3). The Government is also proposing to reduce the size of the GLA’s board and to remove certain ‘low-risk’ sectors from its remit. 79

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These are used by other regulators and enable non-compliant businesses to give a formal undertaking that they will take specified steps to remedy the breach, in exchange for an agreement not to prosecute. The Government suggests that these undertakings would be appropriate where, for example, a business does not have a licence but would be entitled to one if it applied.84 In general terms, the proposal to extend the GLA’s enforcement options is welcome, given the need for a pyramid of sanctions discussed earlier, though some might disagree with the Government’s examples of ‘minor’ infringements that do not warrant prosecution. At the time of writing, the Government intends to consult further on these proposals. The GLA itself is suggesting change in two main areas, both of which are intended to respond to the criticism that its current approach does not fully comply with the Government’s ‘Hampton principles’ which require proportionate, risk-based regulation.85 These principles state that regulators should avoid over-burdening compliant businesses (for example, by inspecting them when there is no reason to do so) and should focus their energies on potentially non-compliant businesses. One of the GLA’s proposals relates to the requirement that every business applying for a new licence should be inspected first.86 The GLA is currently considering whether to remove this requirement completely, or to develop a risk-based approach in which only some new applicants would be inspected. This would be more consistent with the Hampton principles and would conserve the GLA’s scarce resources. However, it is questionable whether it is possible to operate a meaningful licensing system on this basis: if licences are granted without proper checks, it is hard to see what reassurance they offer. The other proposal is to abandon the annual renewal process.87 The GLA consultation document proposes two options here: the grant of a licence valid for longer than a year if there are no concerns about a particular licence-holder, or the grant of indefinite licences with no renewal at all. Given that the renewal process does not trigger any kind of inspection, as explained earlier, it is arguable that this would be a positive change, reducing the burden of paperwork on both firms and the GLA. But— taken with the first proposal—it would no longer be clear what the significance of a licence was if the GLA moved to an approach in which a licence was granted for an indefinite period without an initial inspection. Unfortunately for the GLA, it appears to have been set up to operate a particular regulatory model—licensing—which was already falling out of favour when the Hampton review reported in 2005. This may reflect the fact that the 2004 Act began life not as a government Bill but as a Private Members’ Bill which was then supported by the Government.88 Licensing is inherently bureaucratic and normally requires some sort of automatic scrutiny or testing before a licence is granted. Although licensing has its

84

DEFRA (n 3) ch 6. P Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement (March 2005), and see Better Regulation Executive and National Audit Office, Gangmasters Licensing Authority: A Hampton Implementation Review Report (September 2009). 86 GLA, Application and Inspections Consultation (January 2013) ch 2. 87 GLA, Application and Inspections Consultation (January 2013) ch 4. 88 For background, see K Strauss, ‘Unfree Again: Social Reproduction, Flexible Labour Markets and the Resurgence of Gang Labour in the UK’ (2013) 45 Antipode 180, 188–91. 85

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disadvantages—simply passing an initial test does not guarantee continued compliance with the relevant standards—a half-hearted approach to licensing risks generating a false sense of security. The Government’s underlying objectives for the GLA are made clear in a written ministerial statement to Parliament in May 2012. They are to: reduce the burden on compliant labour providers and labour users and focus forensically on gross abuse of workers by unscrupulous gangmasters—whose crimes include tax evasion, trafficking, health and safety negligence and other serious crimes.89

The new approach also reflects DEFRA’s objective—also evidenced by the abolition of the AWB—that agricultural work should not be regulated differently to work in other sectors of the economy.90 The GLA has responded by publishing a new strategy identifying the following six priorities: Target, dismantle and disrupt serious and organised crime/early identification of human trafficking. Provide effective, meaningful engagement with stakeholders thereby enhancing reputation. Work with industry to recognise and address non-compliance without formal GLA intervention. Tackle tax evasion, health and safety negligence, fraud, breaches of employment and other law/regulations. Maintain credible licensing scheme creating level playing field and promoting growth. Identify and tackle forced/bonded labour by licensed and unlicensed gangmasters.91

While the fourth objective mentions employment law compliance, it is clear that the GLA’s focus is shifting from employment-focused regulation, designed to secure decent working conditions, to an emphasis on combating serious crime. Although this is not defined exclusively in terms of trafficking, it is clear that dealing with breaches of immigration law is to become a key part of the GLA’s remit.

VI. Conclusions I have suggested in this chapter that the abolition of the AWB, the demise of SAWS, and reforms to the GLA all suggest a trend away from regulating agricultural work in order to secure decent working conditions for the workers (whether local or migrant), towards regulating agricultural work as a means of locating and dealing with criminal gangs operating in the unofficial economy (with a strong emphasis on combating trafficking). On some levels, it is hard to be against this policy focus. The problems faced by agricultural workers—not knowing their rights, not being able to access enforcement methods, depending on their employer for work and accommodation—

89 90 91

J Paice, Written Ministerial Statement to Parliament 24 May 2012, published in DEFRA (n 3), annex. DEFRA (n 3). GLA, Strategy for Protecting Vulnerable and Exploited Workers 2013–2016 (2013) 8–9.

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are not unique to the sector. For example, domestic workers often live in accommodation attached to their job, and many vulnerable workers, particularly but not exclusively migrant workers, find it difficult to enforce their labour rights. So why offer additional employment protections to agricultural workers? Instead, in a time of limited public sector resources, why not focus on combating the worst forms of abuse and exploitation? But perhaps there are other ways of looking at the problem. One option, favoured by the Trades Union Congress (TUC), among others, is to extend the GLA regulatory regime to other economic sectors, such as construction and hospitality, where low-paid agency work is common and where there are well-documented examples of abuse.92 Rather than levelling down the protection afforded to agricultural workers, perhaps we should be levelling up the protection afforded to other vulnerable groups. Another option may be to see whether the market solves the problem once SAWS comes to an end. Once all EU nationals (including Bulgarians and Romanians) have a free choice of jobs in the UK, the agriculture sector may have to improve its terms and conditions of employment in order to compete with other, potentially more attractive sources of work for migrant workers in particular. The Government’s refusal to replace SAWS with a new temporary work permit for non-EU nationals from 2014 supports this option.93 Finally, the problem may be addressed indirectly by better regulation of the relationship between agricultural producers and their customers, the major supermarkets.94 Farm businesses complain that they cannot treat workers any better—or make much profit for themselves—because of the pressure they are under to produce cheap food. The introduction of the Groceries Supply Code of Practice in 2009 and the Groceries Code Adjudicator in 2013 are intended to combat certain sharp practices, such as making suppliers cover the costs of supermarket promotions.95 Although the Code has weaknesses—for example, it only applies to farms that supply directly to supermarkets rather than through an intermediary—it represents a step forward in rebalancing the relationship between supermarkets and producers. Whichever policy is adopted, it is important not to lose sight of the workers at the heart of the situation. Even the GLA regime is far from perfect in this regard: taking away a provider’s licence or prosecuting an unlicensed provider does not mean that the affected workers are compensated for poor terms and conditions, or are able to secure alternative work, or are even allowed to stay in the UK. In that sense, the price we pay for cheap food is a very high one indeed.

92 TUC, ‘New Gangmasters Licensing Authority inspection rules will see more rogue agencies, says TUC’ (Press release 24 July 13). 93 Harper (n 47). 94 For discussion of the influence of this relationship, see B Rogaly, ‘Intensification of Workplace Regimes in British Horticulture: The Role of Migrant Workers’ (2008) 14 Population, Space and Place 497. 95 Groceries Code Adjudicator Act 2013.

6 The EU’s Internal Market and the Fragmentary Nature of EU Labour Migration Elspeth Guild*

I. Introduction The EU’s internal market is founded on the principle that there is free movement of goods, persons, services, and capital. This principle presupposes that there is one common labour market in a Union of twenty-eight Members States, though the management of that labour market varies to meet national and local requirements subject to general EU regulation, for instance on working conditions and standards. In this chapter I will revisit this premise of the common EU labour market from a number of perspectives. First, I want to question just how singular the internal market is for the free movement of workers who are nationals of the EU Member States. The issue here is the extent to which national restrictions on the movement of persons for employment act as a brake on the creation of a single labour market in the Union. This is particularly important in the context of enlargement of the EU. Secondly, I will examine how the single labour market of the EU operates for third-country nationals who are already within the EU and subject to EU law regarding their rights of residence, work, and mobility. In this framework, the disaggregation of the EU labour market becomes more explicit and evident. Thereafter, I will examine how this labour market operates as twenty-eight quite separate labour markets for the purposes of first admission to work for third-country nationals. Here the steps towards a single labour market are tentative indeed. While there is much discussion in policy circles about the need for the EU to attract skilled migrants to fill vacancies in the labour market and increase the knowledge and skills base of the EU, the actual measures which have been adopted so far perpetuate competition among the Member States to attract those they consider most desirable as the EU rules permit Member States to capture them for their own national labour market. This is because the EU rules do not provide for, or only make very limited provision for, intra-Member State mobility for these participants in the labour market.

* Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of London and Radboud University Nijmegen, Netherlands, as well as being a partner at the London law firm, Kingsley Napley and an associate senior research fellow at the Centre for European Policy Studies, Brussels. This chapter is based on my research recently published in V Chetail and C Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar 2014). It has been fully revised and updated. I must thank most sincerely Emily Hancox and Dr Cathryn Costello for their excellent assistance and work on this chapter.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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It is not uncommon for academics and policy makers to discount labour migration in the EU involving only nationals of one Member State moving to live and work in another Member State.1 Only when third-country nationals (ie those who are not nationals of any Member State) attempt to move is the term labour migration used. Nonetheless, some third-country nationals, those who have an EU national family member, are assimilated to the position of EU nationals. Other third-country nationals have rights equivalent to EU nationals as a result of agreements between their states and the EU (for instance Iceland, Norway, and Switzerland), while yet others have more limited but important rights of continued access to employment, first access to self-employment under privileged rules, and protection against expulsion (for instance Turkish nationals under the EEC Turkey Association Agreement 1963 and its 1970 Protocol).2 There are two aspects to labour migration by third-country nationals—first the movement for employment of third-country nationals who are already within the EU; secondly the movement of third-country nationals into the EU for the purposes of labour migration.3 The definitional difficulties do not stop there as we are also confronted with the question of the labour market. Is there one EU labour market or twenty-eight? The answer to that question seems to depend on who the individual is. Finally, the EU chops up migration into various kinds and types. For EU nationals exercising free movement rights, some acquire rights as workers—and this chapter will focus on these—whereas others acquire rights as self-employed persons, and still others as service providers.4 I will only refer to these other categories, which are wider than labour migration, in passing when necessary. For third-country nationals the situation is rather complicated, as not only has the EU chosen to consider them under the headings of workers, self-employed, and service providers (and their employees), but also sectorally. When dealing with third-country nationals I will seek to clarify the complexity. To examine these questions, I divide the chapter into three main sections, with relevant subdivisions. First, in section II, I will look at labour migration by EU nationals and their third-country national family members within the territory of the EU. This section will divide into those EU nationals who are not subject to transitional restrictions and a short section covering the scheme of transitional restrictions. Secondly, in section III, I will describe labour migration of third-country nationals who have been admitted to the labour market of at least one Member State. How does EU law deal with them? This part will subdivide into six main topics: long term resident third-country 1 C Joppke, ‘Trends in European Immigration Policies’ and J Carling ‘The European Paradox of Unwanted Migration’ both in J Burgess and S Gutwirth (eds), A Threat Against Europe? Security, Migration, and Integration (Brussels University Press 2011). 2 R Gutmann, Die Assoziationsfreizügigkeit türkischer Staatsangehöriger: Ihre Entdeckung und ihr Inhalt (Nomos 2000). 3 For an excellent overview see K Groenendijk, ‘Access of Third-Country Nationals to Employment under the New EC Migration Law’ in F Julien-Laferrière, H Labayle, and O Edström (eds), The European Immigration and Asylum Policy: Critical Assessment Five Years After the Amsterdam Treaty (Bruylant 2005) 141. 4 M Condinanzi, A Lang, and B Nascimbene, Citizenship of the Union and Freedom of Movement of Persons (Martinus Nijhoff 2008).

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nationals; highly qualified workers; seasonal workers; refugees and beneficiaries of international protection; researchers; and the family members of all of the above. Finally, in section IV, I will deal with first access to the labour market for third-country nationals who are resident outside the EU. This part will subdivide into five: highly qualified workers; seasonal workers; researchers and students; posted workers; and workers under international agreements and obligations.

II. Labour Migration and EU Nationals 1. EU nationals not subject to transition arrangements The right to free movement of workers is one of the four freedoms of the EU. It was included in the first EEC treaty in 1957 and provides that free movement of workers shall be secured in the EU (currently Article 45 Treaty on the Functioning of the European Union (TFEU)).5 The principle, free movement of workers, is defined in Article 45(2) as entailing the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration, and other conditions of work and employment. The original treaty provided for a transitional period for the achievement of free movement of workers until 1968. By that date, the Member States were required to make it a reality. Between 1957 and 1968 a series of directives and regulations were adopted by the EU legislator, paving the way to free movement of workers. I have examined these in some depth elsewhere.6 The definition of rights set out in the measures has remained fairly stable—including wide family reunification rights encompassing third-country national family members, employment access rights, and equality of treatment in social and tax benefits.7 Since the end of the transitional arrangements in 1968, the main secondary legislation governing the field included Regulation 1612/68 setting out workers’ rights (now replaced by Regulation 492/2011—though family reunification rights have been moved elsewhere);8 Directive 360/68 setting out the procedural requirements (now replaced in its entirety by Directive 2004/38 that also includes the family reunification rights);9 and Directive 64/221 (also now replaced by Directive 2004/38).10 A series of directives were adopted in 1990 for other classes of EU nationals moving among the Member States, such as pensioners and students (also all now repealed). These rights were integrated 5

J Carlier and E Guild (eds), L’avenir de la libre circulation des personnes dans l’UE (Bruylant 2006). E Guild, ‘Equivocal Claims? Ambivalent Controls? Labour Migration Regimes in the European Union’ in E Guild and S Mantu (eds), Constructing and Imagining Labour Migration (Ashgate Publishing 2011). 7 E Guild, Immigration Law in the European Union (Kluwer Law 1999). 8 Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257/2; Regulation (EU) 492/2011 of 5 April 2011 on freedom of movement for workers within the Union (codification) [2011] OJ L141/1. 9 Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families [1968] OJ L257/13; Council Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 10 Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health [1964] OJ 850/64. 6

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into Directive 2004/38, which is something of an omnibus. Each development has resulted in the widening of rights for workers and other beneficiaries, with only exceptional deviations from this rule. A rare exception to that trend is the introduction of what some see as a clarification, others a new restriction, on the limitation to access to social benefits in the first three months of residence in a host Member State and the concept of an unreasonable burden on the social security system of a Member State as a ground for the loss of residence rights, all found in Article 24 Directive 2004/38. In 2013, the Commission proposed a new directive to give effect in secondary legislation to the prohibition on discrimination on the basis of (EU) nationality in the area of workers’ rights.11 This has been surprisingly uncontroversial, no doubt because the proposed directive is quite restrained in its objectives and gives specific legislative voice to a principle of grand and long standing in the treaties. The proposal would require Member States to provide mechanisms of redress for EU workers who allege that they have suffered discrimination on the basis of nationality in a host Member State. It was approved by the European Parliament on 12 March 2014. A second source of the right to move and reside anywhere in the EU resulted from the introduction of the citizenship of the Union in 1993.12 I will not examine this new status but only note that its acquisition depends on the holder being a national of an EU Member State. However, according to the European Court of Justice (ECJ) it is destined to become the fundamental status of all nationals of the Member States.13 Nonetheless, for the moment the impact of Citizenship of the Union has not overtaken workers’ rights as a profound source of rights. Article 45(3) TFEU provides four main rights as the core of free movement of workers. The first is the right to access offers of employment actually made. This right has been interpreted by the ECJ as including the right to move to any Member State for the purpose of seeking employment even if the individual does not already have an offer of employment.14 The second right is to move freely within the territory of Member States for this purpose. The ECJ has consistently rejected the questioning of EU work seekers at intra Member State borders regarding the purposes of their movement. The third right is to stay in a Member State for the purpose of employment. This right also includes remaining in a host Member State after employment has ended so long as there are continuing rights engaged.15 As yet it is unclear when these rights end, but so long as there is a real chance that the individual will gain work in the Member State, his or her right to reside is assured. The final right is to remain in a host Member State after employment, which is a continuation of the right to remain to seek employment.16

11 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers’ COM (2013) 236 final. 12 M Vink, The Limits of European Citizenship (Palgrave McMillan 2005). 13 Case C-184/99 Grzelczyk [2001] ECR I-06193. 14 Case C-292/89 Antonissen [1991] ECR I-00745. 15 Joined Cases C-22/08 and C-23/08 Vatsouras [2009] ECR I-04585. 16 E Guild, Legal Elements of European Identity: Citizenship and Migration Law (Kluwer Law 2004).

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There are two limitations, one territorial the other occupational. Member States are permitted to limit the entry and residence of a national of another Member State to its territory on the grounds of public policy, public security, and public health (which can only be applied on first admission). The ECJ has consistently interpreted these limitations restrictively, as they diminish the underlying right of free movement. Most commonly pleaded by Member States seeking to expel EU national workers is public policy which includes criminal behaviour. The implementing legislation in respect of expulsion (originally Directive 64/221, later repealed with the introduction of Directive 2004/38 where the rules are now found) prohibits Member States from using expulsion to achieve economic ends. Thus Member States cannot expel nationals of other Member States simply because they are unemployed and claiming benefits. Where the ground is criminality, the individual needs not only to have been convicted by a duly constituted criminal court, but must also be a present and immediate threat to a fundamental interest of society. This is a high threshold which, sadly, is not always respected by all Member States. However, as the law on permissible expulsion, it provides substantial protection to workers and work seekers who are nationals of a Member State resident on the territory of another. The grounds of public security (ie terrorism) and public health have not been the subject of jurisprudence at the EU level. They do not seem to be used frequently to justify expulsion. The protection of EU workers from expulsion by a Member State appeared to be strengthened on the revision of rights contained in Directive 2004/38. A three-step approach was incorporated into the law: for the first five years, the worker is protected under the rules set out above. After five years the Member State must justify any attempt to expel an individual on the basis of serious grounds of public policy or security.17 After ten years’ residence in the territory of a host Member State, only imperative grounds of public policy may be used as the reason to commence expulsion proceedings against an EU national.18 However, the way in which the provisions have been interpreted by the ECJ has led to criticism. First, in the two leading cases,19 the Court has widened the meaning of national security from its rather narrow, intelligence and defence meaning to one which includes what might otherwise be considered general criminality.20 Secondly, the way in which the Court has interpreted the enhanced protection leaves questions about just whether there is greater protection against expulsion under the new test than under the old one.21 The second exclusion permitted to the Member States by Article 45 TFEU relates to the public sector. Free movement of workers does not apply to employment in public service. No secondary legislation has ever been adopted (by 2013) to define what this provision means. As a result, the questions what is public service, what is the scope of the exception, and how does it apply have fallen on the ECJ. Once again, following the principle behind restricting the scope of exceptions to free movement rights, it has

17

18 Case C-145/09 Tsakouridis [2010] ECR I-11979. Case C-348/09 PI [2012] OJ C200/2. 20 Tsakouridis (n 17); PI (n 18). See eg Case C-300/11 ZZ [2013] OJ C252/20. 21 D Kochenov and B Pirker, ‘Deporting the Citizens within the European Union: A Counter-Intuitive Trend in Case C-348/09, P.I. v. Overbürgemeisterin der Stadt Remscheid’ (2013) 19 Columbia Journal of European Law 369. 19

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defined the exception narrowly.22 Only where the post involves direct or indirect participation in the exercise of public authority and duties designed to safeguard the general interest of the state may it be restricted to nationals. Further, the criteria must be assessed on a case-by-case basis, taking into account the tasks and responsibilities covered by the post, according to the ECJ. The key change which the EU approach to labour migration just described inscribes into the Western European imagination towards the end of the twentieth century is that people have the right to move to sovereign states other than that of their nationality to seek employment, and that this is recognized as beneficial to the state as well as the individual. The labour migrant is entitled to have the objective of improving his or her life circumstances and those of family members without fearing that this motivation will be used against him or her as a reason to reject the application and expel the individual. Further, the free movement of workers as a labour migration paradigm means that the state is not entitled to exercise control over the individual as regards residence and employment unless the state can justify the interference on the basis of public policy, public security, or public health. The entitlement to move or not to move belongs to the individual.23 The state can only seek to interfere with that right where the state can justify its action on grounds over which it does not have interpretative control (that belongs to the ECJ). The outcomes of this rather radical approach are surprising. According to the EU’s statistical agency, in 2010, of an EU total population of over 500 million, only 12.3 million live in a Member State other than that of their underlying nationality.24 Bearing in mind the diversity of unemployment rates (according to Eurostat the lowest unemployment rates in January 2014 were recorded in Austria (4.9 per cent), Germany (5 per cent), and Luxembourg (6.1 per cent), and the highest rates in Greece (28 per cent in November 2013), Spain (25.8 per cent), and Croatia (18.8 per cent)), that the unemployed do not move is surprising.25 Third-country nationals form the largest group of non-nationals living in the Member States amounting to 20.2 million.

2. Those subject to transitional arrangements From six original Member States in 1957, the EU currently has twenty-eight Member States. The first enlargement in 1973 brought Denmark, Ireland, and the UK in. Although there were concerns about immigration, in particular of Black and Asian British nationals to France and the Netherlands,26 in fact the movements do not appear to have been substantial. In any event, no transitional restrictions were placed on the free movement of workers. The next enlargement, in 1981, brought Greece into

22 Case 152/73 Sotigiu v Deutsche Bundespost [1974] ECR 153; Case 149/79 Commission v Belgium [1980] ECR 3881. 23 Guild, Immigration law in the European Union (n 7). 24 K Vasileva, Statistics in Focus 34/2011 (Eurostat 2011). 25 Eurostat, ‘Unemployment Statistics’ accessed 14 March 2014. 26 W Böhning, The Migration of Workers in the United Kingdom and the European Community (Oxford University Press 1972).

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the EU. Fears of substantial movement of workers from Greece to other Member States led to the inclusion of a temporal restriction on the free movement of workers for seven years. This restriction did not affect the right of Greeks to move to other Member States immediately for other economic purposes such as self-employment. Further, it was accompanied by strict protections for Greek workers already admitted to the labour market of other Member States. The third enlargement, in 1986, of Portugal and Spain was similarly limited by a transitional arrangement against free movement of workers for seven years. As in the case of Greece, the self-employed were not subject to a limitation. The transitional restrictions were actually lifted a year early in light of German reunification. When Austria, Finland, and Sweden joined the EU in 1995, no transitional restrictions were applied. Ten states joined the EU in 2004. No transitional restrictions were placed on workers from the two island states, Cyprus and Malta, exercising their free movement rights as workers. For the other eight states (the so-called EU-8),27 transitional arrangements were included in the accession treaty whereby their nationals would be subject to national immigration law as regards movement of workers for the first two years, then a review would take place. Following the review, a further three years of restrictions were available to Member States. Where Member States feared a grave disruption to their labour market, they could apply a further two-year restriction to EU-8 nationals’ access to their labour market. In the event, most Member States lifted restrictions on EU-8 workers within three years of accession.28 The only states to use the final two-year period were Austria, Germany, and the UK. In 2007 Bulgaria and Romania joined the EU and their nationals were made the subject of the same restrictions as regards workers as the EU-8; these were finally lifted in the few Member States still applying them at the end of 2013.29 Croatia, which joined the EU on 1 July 2013, has yet again the same transitional provisions regarding workers as the EU-8 and Bulgaria and Romania. Future enlargements of the EU are also likely to include transitional arrangements as regards workers, except as regards Iceland.30 In respect of Turkey, the Commission suggested that long (and possibly indefinite) arrangements might have to be made.31 In terms of the political motivation of restrictions, protection of the Member States’ labour markets seems to be the driving force. The right of EU national workers to seek employment anywhere in the EU is premised on the idea that the EU has one labour market which is part of the internal market.32 However, transitional restrictions on free movement of workers are based on 27

Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovakia, and Slovenia. S Currie, Migration, Work and Citizenship in the Enlarged European Union (Ashgate Publishing 2008); K Burrell (ed), Polish Migration to the UK in the ‘New’ European Union (Ashgate Publishing 2009). 29 Commission, ‘Report on the Functioning of the Transitional Arrangements on Free Movement of Workers from Bulgaria and Romania’ COM (2011) 729 final. 30 Although these negotiations commenced in 2010, after a change of government in Iceland in 2013 they have been put on hold. 31 Commission, ‘Recommendation of the European Commission on Turkey’s progress towards accession’ COM (2004) 656 final. 32 C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart 2002). 28

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the opposite approach: that there is a segmented labour market, one belonging to each Member State. This is clear as workers subject to restrictions but who gain access to the labour market of a Member State applying restrictions acquire free access to the labour market of that Member State only after twelve months’ employment. Nationals of acceding Member States become citizens of the Union immediately on accession. They are entitled to move and reside anywhere in the Union on any ground other than employment. If they obtain authorization to take employment in any Member State applying restrictions, even after those restrictions must be lifted, the worker is limited to one Member State only—the one where he or she completed the twelve months’ employment. Thus, the practice of free movement of workers includes at its heart a deep ambiguity about the nature of the EU labour market, although this ambiguity is temporally limited to the length of the transitional arrangements.

3. Family members After access to the territory and labour market, family reunification is one of the overwhelming preoccupations of migrant workers. The right to live with family members in the host Member State engages all those who move for employment, whether young or old. When the original treaty was negotiated, it seems that the main interest in family reunification came from the Italian delegation. The right to family reunification was included in even the earliest directives applicable during the transitional period before 1968.33 In practice, it is third-country national family members of migrant EU nationals who form the source of some friction in a number of Member States. The reason for this is two fold: first, the group of family members with which an EU national has an entitlement to family reunification when he or she moves to another Member State as a worker is large. It includes spouses; registered partners (if recognized in the host state); direct descendants of either party who are under 21 and, if dependent, of any age; dependent relatives in the ascending line of either party.34 In addition, Member States are obliged to facilitate entry and residence of any other family member who, in the country from which they have come, are dependants or members of the household of the Union citizen with the primary right of residence or where serious health grounds strictly require the personal care of the family member by the Union citizen.35 Finally, there is also a facilitation obligation regarding partners with whom the Union citizen has a durable relationship duly attested.36 Where the EU national is a worker, the Member State cannot apply a sickness insurance requirement nor a resources requirement. The family is entitled to any social benefits which are available for the Member State’s own nationals under the principle of equal treatment in social and tax advantages. Similarly, these family members cannot be subject to a requirement to meet integration conditions either before or after arrival in the state. The family members also have immediate access to employment. The same rules apply to the Member State’s own nationals who have moved to reside to another Member State and then seek to return to their home Member State and be joined by 33 35

34 Guild, Immigration Law in the European Union (n 7). Directive 2004/38, Art 2(2). 36 Directive 2004/38, Art 3(a). Directive 2004/38, Art 3(b).

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third-country national family members.37 On 12 March 2014 the ECJ confirmed that while Directive 2004/38 does not apply to own nationals moving home after residing in another Member State and seeking to take home with them their third-country national family members, it must be applied by analogy.38 Similarly, and confirmed in a judgment on the same day, EU citizens who do not move to reside in another Member State but work regularly in another Member State are entitled to an analogous application of the directive regarding family reunification with third-country national family members.39 The sticking point for a number of Member States is that these rules are more generous than those they apply to their own nationals seeking family reunification with their thirdcountry national family members.40 This phenomenon is known as reverse discrimination and is problematic for Denmark, Ireland, the Netherlands, and the UK.41

III. Third-country Nationals Resident within the EU 1. Long-term resident third-country nationals In 1999, on revision of the EU treaties,42 the EU was given expanded competence to adopt legislation in the fields of visas, border controls, asylum, and immigration.43 Under this new competence, a number of measures had to be adopted within a fiveyear period (by 2004). A measure on long-term resident third-country nationals was not among those. However, it was nonetheless among the first the EU adopted under the heading of legal migration. Directive 2003/109 created the conditions under which third-country nationals are entitled to an EU status of long-term resident third-country national and the benefits which apply to holders of the status. According to the Directive, its personal scope includes all third-country nationals whose residence has not been formally limited.44 This limitation on scope is potentially problematic. While the original Directive excluded refugees and beneficiaries of subsidiary protection, an amendment in 2011 brought that group within the scope of the measure.45 37

Case C-370/90 Surinder Singh [1992] ECR I-04265; Case C-291/05 Eind [2007] ECR I-10719. Case C-456/12 O & B (ECJ, 12 March 2014). 39 Case C-457/12 S & G (ECJ, 12 March 2014). 40 A Walter, Reverse Discrimination and Family Reunification (Wolf 2008). 41 J Handoll, ‘Family Reunification after Metock’ in P Minderhoud and N Trimikliniotis (eds), Rethinking Free Movement of Workers: The European Challenges Ahead (Wolf 2009). 42 Denmark does not participate in any of the measures discussed in sections III and IV as a result of a protocol to the treaties. Ireland and the UK are entitled to choose whether they will opt in or out. By the end of 2011, they had chosen not to participate in any of the measures discussed in sections III and IV with one exception. The UK participates in Council Directive 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need the international protection and the content of the protection granted [2004] OJ L304/12. However, the UK has opted out of the re-cast. All intra-EU mobility provisions discussed here are subject to a requirement that the individual is not a threat to public policy, public security, or public health. 43 Now Arts 78 and 79 TFEU. 44 K Groenendijk, ‘The Long Term Residents Directive, Denizenship and Integration’ in A Baldaccini, E Guild, and H Toner (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart 2007). 45 Directive 2011/51 of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection [2011] OJ L132/1. 38

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As regards acquisition of the status, the most important conditions are that the individual has resided lawfully in a Member State for five years, has sickness insurance, and stable and regular resources. Member States are permitted to apply an integration measures requirement on the acquisition of the status. The main rights the Directive provides for third-country nationals, including the right to equal treatment in employment, apply only within the Member State where the status is acquired. This, once again, reinforces the impression that the EU consists of many labour markets, not one. However, in addition to the creation of the status, the Directive also aims at facilitating intra-EU movement of long-term resident third-country nationals. These provisions are contained in Chapter III of the Directive. Although Article 14 commences by stating that a long-term resident may reside in a second Member State to exercise an economic activity, a number of limitations are available to the Member States’ authorities to make access to the labour market difficult. First, Member States are allowed to examine their labour market and apply their national procedures regarding requirements for filling vacancies or for exercising economic activities. They may also give preference to EU nationals and to third-country nationals assimilated to the position of EU nationals, effectively family members, and thirdcountry nationals who reside legally and receive unemployment benefits in the Member State (Article 14(3)). If the Member State had quotas on third-country nationals’ access to their labour market when the Directive was adopted on 25 November 2003, they could maintain those quotas and apply them to these thirdcountry nationals as well. There is no automaticity in obtaining the right to reside and work in a second Member State for a long-term resident third-country national. The individual has to apply for a permit and prove that he or she has sickness insurance, stable and regular resources, and possibly also comply with integration measures if these were not applicable in the first Member State of residence (Article 15(2) and (3)). Finally, Member States are permitted to restrict a long-term resident from changing employment from that authorized in the residence permit for a period of twelve months (Article 21(2)).46 Clearly, as regards this group of persons, there are twenty-four quite different labour markets in the EU, though the boundaries between them are intended to be permeable. The European Commission issued its report on the implementation of the Directive in September 2011.47 The Commission notes that transposition by the Member States has been less than ideal and fails the objective of the measure. Some Member States are applying quotas of dubious conformity with the Directive. Others are applying income requirements which are higher than permitted by it. Clearly, intra-EU mobility for third-country nationals who do not enjoy a family relationship with a migrant EU national is substantially circumscribed.

This could also include reemployment for the first twelve months. Commission, ‘Report from the Commission to the European Parliament and the Council on the application of Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents’ COM (2011) 585 final. 46 47

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2. Highly qualified migrants On 25 May 2009, the EU finally adopted the first measure designed to admit thirdcountry nationals to the EU from outside the twenty-eight Member States. The so-called Blue Card Directive (Directive 2009/50) had to be transposed by the Member States into their national law by 19 June 2011 according to Article 23. It may seem somewhat surprising that the EU adopted a measure to allow third-country nationals to move around the EU and seek employment (see Directive 2003/109, mentioned in section III.1) in 2003 but did not manage to agree any rules on first admission of thirdcountry nationals for employment until six years later. This is undoubtedly the result of sensitivities in a number of large Member States about control over access by foreigners to their labour markets. It is worth recalling that in the Lisbon Treaty (which entered into force on 1 December 2009), a new provision was added. Article 79(5) places a limitation on the EU competence on labour migration (amongst others) whereby Member States are entitled to continue to determine the volumes of admission of third-country nationals to their territory (not elsewhere in the EU) for the purpose of seeking work. According to its preamble, the Directive is intended to contribute to the EU’s programme aimed at becoming the most competitive and dynamic knowledge-based economy in the world (preamble (3)). From this it is clear that the Directive reflects the intention of the legislator that the EU has only one economy, not twenty-eight. It is also intended to address labour shortages by fostering admission and mobility (preamble (7)). The use of the two terms is helpful as it provides some guidance on how one is to refer to immigration from outside the EU into the EU (admission) and movement of third-country nationals around the twenty-eight Member States for employment purposes (mobility). The mechanism by which these objectives, among others, are to be achieved is through the facilitation of admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as EU citizens. I will consider the rules under this Directive for first admission to the EU labour market in section IV; here I will only consider mobility within the EU for those already admitted. Article 18 provides that after eighteen months’ legal residence in a Member State, a person admitted to that Member State as a Blue Card holder may move to another Member State for the purpose of highly qualified employment. Highly qualified employment is defined as employment of a person who is performing genuine and effective work as an employee, paid and has adequate and specific competence as proven by higher professional qualifications (Article 2(b)).48 The second Member State is entitled to re-examine whether the conditions of high qualification and work are fulfilled and the individual is not entitled to commence work until so authorized (Article 18(2)). So, the objective of a common labour market for highly qualified migrants is not really achieved. While there is movement towards the objective,

48 In turn, higher professional qualifications are defined as meaning qualifications attested by evidence of higher education qualifications or by at least five years’ professional experience of a level comparable to higher qualifications and relevant in the profession or sector.

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Member States are still permitted to place substantial obstacles in the way of the Blue Card holder who seeks to exercise the mobility right.

3. Seasonal workers In July 2010, the Commission proposed a new Directive on seasonal employment aimed mostly at low-skilled migrants.49 The rationale behind the proposal was the need for seasonal workers within the EU, coupled with the aim of reducing irregular migration and the exploitation of workers by regulating legal migration.50 The Council adopted the Seasonal Workers Directive on 17 February 2014, with a two-and-a-halfyear implementation period. The Directive defines seasonal work as that which is dependent on the passing of the seasons (Article 3(b)), meaning an activity tied to a certain time of the year by a recurring event or pattern of events linked to social conditions during which required labour levels are significantly above those necessary for usually ongoing operations (Article 3(c)). A seasonal worker is a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily for the purposes of seasonal work, as defined above. The Seasonal Workers Directive places limits on the residence and movement of seasonal workers. The Directive only authorizes the seasonal worker to reside in the Member State that issued the authorization, and not throughout the EU (Article 22). Furthermore, seasonal workers may only remain for a maximum period, as set by each Member State, of between five and nine months in any twelve-month period (Article 14). After this period, the worker may stay on if a residence permit is issued under national law, so long as this is for purposes other than seasonal work. Member States are obliged to facilitate the re-entry of a third-country national admitted to a particular Member State as a seasonal worker at least once within the previous five years (Article 16). A seasonal worker is thus to some extent tied to the Member State which grants admission, both in terms of movement and for chances of re-employment. The Directive makes no provision, however, for those who consecutively carry out seasonal work in a particular Member State to acquire any rights of permanent residence. The rights granted to seasonal workers fall significantly short of equal treatment with EU citizens. Article 23 guarantees equal treatment at least in terms of working conditions, the right to strike, pay, social security benefits, public goods and services, and advice services on seasonal work and tax advantages. Member States are still able, however, to exclude access to family benefits and unemployment benefits; to limit education and vocational training to that which is directly linked to the specific employment activity; to exclude study and maintenance grants and loans; and to limit tax benefits to cases where the registered or usual place of residence of the family members of the seasonal worker for whom he or she claims benefits lies in the territory

49 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of seasonal employment’ COM (2010) 379 final. 50 S Peers, E Guild, D Acosta, K Groenendijk, and V Moreno Lax (eds), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, vol 2 (Martinus Nijhoff Publishers 2012) 179.

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of the Member State concerned. The European Network Against Racism, the European Federation of National Organisations Working with Homeless People, and the Platform for International Cooperation on Undocumented Migrants have criticized the failure of the Directive to extend equal treatment to these areas also.51

4. Refugees and beneficiaries of international protection A recast Directive adopted in 2011 replaces in part the 2004 Directive on qualification and status of refugees and subsidiary protection beneficiaries.52 The original Directive was adopted on 29 April 2004 (two days before ten Member States joined the EU). It covers two different cases—refugees as defined in the UN Convention Relating to the Status of Refugees 1951 and its 1967 Protocol (the Refugee Convention), and beneficiaries of subsidiary protection whose right to protection arises from multiple sources including the UN Convention against Torture 1989, the European Convention on Human Rights and elsewhere. The re-cast Directive defines persons recognized as refugees or granted subsidiary protection as beneficiaries of international protection. However, the Directive does not address the issue of intra-EU mobility. As far as the provisions of the Directive are concerned, beneficiaries of international protection have access only to the labour market of the state which recognized or granted their status. I will deal with this in section IV. They only acquire mobility rights if they can fulfil the conditions of the Long-term Residents Directive as it has been adjusted to include them.53

5. Researchers The admission to the EU of third-country national researchers is regulated by Directive 2005/71. It also covers intra-EU mobility, albeit in a rather cursory manner. Article 13 of the Directive provides that researchers admitted in accordance with it shall be allowed to carry out part of their research in another Member State. Where the researcher stays in another Member State for less than three months, he or she remains covered by the academic arrangements in the first Member State provided he or she has sufficient resources. Where the stay in a second Member State will last more than three months, then the second Member State may require the researcher to jump through most of the hoops which applied to him or her in the first Member State, including finding a host institution, obtaining a hosting agreement etc, which are described in section IV.

51 Joint NGO statement, Seasonal Workers Directive: Improvements for Treatment of non-EU Workers, But Not Enough to Prevent Exploitation 14 November 2013 accessed 14 March 2014. 52 Council Directive 2004/83/EC; Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L337/9. 53 Directive 2011/51.

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6. Family members of third-country nationals The EU legislator adopted a directive on the admission of third-country national family members of third-country nationals residing in the EU in 2003 (Directive 2003/86). It sets out the conditions for admission to the territory and access to the labour market of these persons. The provisions on first access to the labour market for these third-country nationals will be examined in section IV. The rules on intra-EU labour mobility for the family members of third-country nationals can be found in two different places—first, Directive 2003/109 on mobility rights of third-country nationals, and secondly, Directive 2009/50 on highly qualified migrants, both of which have already been discussed regarding the movement of the principal. I will deal here, however, with the intra-EU mobility rights of family members of both categories. Notably, the Seasonal Workers Directive does not grant any rights for family members of third-country national migrants and so will not be considered. The third-country national family members of third-country nationals resident in the EU get access to the labour market of a Member State other than the first one that admitted them depending on the movement of their principal (ie the third-country national who invited them to the EU in the first place). Article 16 of Directive 2003/109 provides that where a third-country national moves to another Member State under the Directive, those family members who had already joined him or her in the first Member State and who fulfil the conditions of Article 4(1) Directive 2003/86 are entitled to accompany or join the principal. The permitted family members are limited to spouses (one per principal only) and minor children (defined as below the age of majority of the host Member State and unmarried, but including adopted and custodial children). Member States may include wider family members to join a third-country national holding long-term resident status, but they are not required to do so. Member States are also permitted to require the family members (spouses and children) to show that they have stable and regular resources which are sufficient to maintain themselves without recourse to the social assistance of the state, or that the long-term resident has such resources and sickness insurance covering all risks in the second Member State (Article 16(4)(c)).54 The question of access to employment is fairly convoluted. Article 21(3) Directive 2003/109 provides that family members of a long-term resident third-country national who moves to a second Member State are entitled to the rights contained in Article 14 of Directive 2003/86 (family reunification) once they have their residence permits. Article 14 of Directive 2003/86 provides that these family members may have access to employment, but Member States may limit this to the same employment right as that of the sponsor or principal. Article 14(2) further provides that Member States may place conditions on access to employment for these family members (presumably including a ban) limited to twelve months. During that twelve-month period, the second Member State is entitled to examine the situation of its labour market before authorizing a family member to take employment.

54 K Groenendijk, R Fernhout, D van Dam, R van Oers, and T Strik, The Family Reunification Directive in EU Member States (Wolf 2006).

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The family members of highly qualified migrants who entered the first Member State in accordance with the provisions of Directive 2009/50 (Blue Card holders) are covered by Articles 18 and 19 Directive 2009/50. Only if the family was constituted in the first Member State may the family members move under these provisions to a second Member State with their principal. However, family members are entitled to move to a second Member State for the purpose of highly qualified employment after eighteen months of legal residence in the first Member State. There is no possibility of conditions or delay in access to the labour market, but there is a limitation to highly qualified employment. Family members of beneficiaries of international protection do not get any mobility rights to live and work in a second Member State until their principal acquires such a right under Directive 2011/51. Similarly, for family members of researchers moving between Member States, there are no provisions regarding labour market access. For family members of third-country nationals resident in one Member State and seeking to move to another Member State, the same limitations apply to access to the labour market as for their principal.

IV. First Access to the EU Labour Market: Access to One Member State Only 1. Highly skilled workers There are now two EU measures which directly provide for the admission of thirdcountry national workers to take up employment in a Member State: the Blue Card Directive and the Seasonal Workers Directive. The Commission has made a number of proposals for admission of other kinds of workers, such as intra-company transferees and trainees, but, by March 2014, neither had been adopted. Under the Blue Card Directive, highly qualified third-country nationals (see section III.2 for the definition) who fulfil the conditions set out in the Directive must be issued a Blue Card (Article 7). The scope of the Directive is limited in Article 3 to exclude anyone who is seeking or has sought international protection, researchers, third-country national family members of EU nationals, and those who have long-term residence status. It permits Member States to issue residence permits for any purpose of employment outside the Blue Card scheme (in which case intra-EU mobility does not apply—Article 3(4)). The criteria for admission include: a valid work contract for highly qualified employment; permission to exercise a regulated profession (if relevant); evidence of high qualification (or work experience); a valid travel document and visa application; and evidence of sickness insurance for all risks. Member States are permitted to apply limitations on the volume of admissions of third-country nationals under this category (Article 6). The individual who fulfils the criteria is entitled to a Blue Card and, in the event of rejection of the application, a right to procedural safeguards (Article 11). After five years’ work and residence, the Blue Card holder is entitled to a long-term residence permit under Directive 2003/109 (see section III.2), on which it is noted that he or she was a Blue Card holder (Article 17(2)). This labour migration measure treats the EU territory as twenty-five separate ones

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(three Member States do not participate),55 which only converge into one after five years, with a relaxation of rules after eighteen months (see section III).

2. Seasonal workers The Seasonal Workers Directive permits access to the EU labour market as a seasonal worker to third-country nationals who retain their principal place of residence outside of the EU. The Directive does not cover posted-workers or family members of EU citizens who have exercised their right of free movement. According to Article 2, an application for admission as a seasonal worker does not cover third-country nationals resident within the EU at the time of their application. This has been subject to criticism, in that the aims of the Directive might be better achieved if all legally resident third-country nationals could apply. In particular, it might prevent the exploitation of asylum seekers and reduce their burden on social assistance.56 The application for admission must include copies of a work contract or a binding job offer that includes details such as the place and time of work, the duration of employment, pay, and working hours (Article 5). The terms of the contract must be such that the seasonal worker will be able to maintain himself or herself without recourse to the Member State’s social assistance system. Furthermore, the application must provide evidence the seasonal worker has, or has applied for, sickness insurance and will stay in adequate accommodation that meets the general health and safety standards of the Member State. The European Association for the Defence of Human Rights warns that the requirement of a contract will enhance the role of intermediaries who already have considerable power. The only other alternative would be to come irregularly, or, after a first period of legal seasonal work, not return to their country of origin and risk overstaying irregularly.57 Under Article 7 of the Seasonal Workers Directive, the Member States still retain the power to determine the volumes of admission of third-country nationals entering for the purposes of seasonal work. Article 8 of the Directive also provides extensive grounds for the rejection of an application. An application shall be rejected when the entry conditions are not met or when there are attempts to obtain entry fraudulently and, if appropriate, where the employer has previously been sanctioned for illegal employment or undeclared work, the employer’s business is insolvent, or the employer has previously breached the obligations in the Directive. Member States may also reject an application if EU citizens or legally resident third-country nationals could fill the vacancy, if the employer failed to meets its social security and other obligations, if the worker previously infringed a decision on admission, or if the employer seeks to abuse the provisions of the Directive.

55

56 Denmark, Ireland, and the UK. See (n 42). S Peers and others (n 50) 180. European Association for the Defence of Human Rights, Employment of Third Country Seasonal Workers: A Useless Directive! Press Release 6 February 2014 accessed 14 March 2014. 57

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3. Researchers The first admission of researchers to the EU Member States is governed by Directive 2005/71. Researchers are defined as third-country nationals holding appropriate higher education qualifications which give access to doctoral programmes and who are selected by a research organization to carry out a project for which the qualifications are required (Article 2(d)). The application must be sponsored by a state-approved research organization which has a hosting agreement with the researcher (Article 6). The researcher must present the relevant documents to receive a visa. There are no provisions for the researcher to take employment, only to carry out research. Article 11 permits researchers to teach in accordance with national legislation, though this may be subject to a maximum number of hours. Researchers are entitled to equal treatment with nationals as regards working conditions including pay and dismissal (Article 12(b)). Once again, for researchers, the EU space is segmented and limited as regards labour market access.

4. Beneficiaries of international protection By the same competence which gave the EU power to adopt legislation in the field of immigration, power to adopt legislation on asylum was also extended to the EU institutions. The objective is to create a Common European Asylum System over a series of phases, which started in 1999. At the moment, the Common System is still one based on the principle of minimum standards. Thus Member States are entitled to maintain higher standards than those required by the measures in the System but must conform to at least the lowest standards. What interests me here is the content of that protection and specifically access to employment. In the time line of the consideration of an application for international protection, the status of an individual who has made a claim, and while the claim is under consideration by the state authorities, is that of an asylum seeker. According to the EU’s Reception Conditions Directive,58 Article 15 of the Re-cast Directive provides that, where a decision on an application has not been made within nine months of submission, the asylum seeker shall be given access to the labour market. This access is not unqualified, as a priority in the labour market for EU citizens is permitted. However, labour market access should not be withdrawn during appeal procedures if the first instance decision is negative. If the decision on the asylum application is positive, then the Qualification Directive applies to further labour market access. However, under the Reception Conditions Directive, it is apparent that labour market access is limited to the Member State where the asylum application is being considered.

58

Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 (Reception Conditions Directive); Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L180/96. The re-cast Directive must be transposed by 20 July 2015, at which time it will replace the original for all Member States except Denmark and Ireland, which never participated in the first place, and the UK, which will remain bound by Directive 2003/9.

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According to Article 26 of the Qualification Directive, Member States are obliged to authorize recognized refugees and subsidiary protection beneficiaries to engage in employed or self-employed activities subject to rules generally applicable to the profession or to the public service as soon as protection has been granted. Access to the labour market is a requirement under Articles 17–19 Refugee Convention as regards refugees.59 However, there is no clear counterpart as regards beneficiaries of international protection arising from other sources. The right to employment also includes the right to vocational training, workplace experience, and counselling services. Member States must facilitate full access. Beneficiaries of international protection are entitled to the protection of national law on remuneration, access to social security systems, and other conditions of employment. In the first Directive on the subject, there was the possibility for Member States to limit access to employment for beneficiaries of subsidiary protection (though not for refugees). When the Commission examined the practices of the Member States in applying the Directive, it discovered that the vast majority of Member States authorized access to the labour market to all beneficiaries of international protection. Only three Member States (Cyprus, Germany, and Luxembourg) applied a limitation as regards beneficiaries of subsidiary protection.60 Nonetheless, the Commission did find problems with the transposition of employment-related obligations relating to educational opportunities and the like in a number of Member States. When the Directive was renegotiated with the intention of harmonizing the rights of refugees and beneficiaries of subsidiary protection, a common minimum standard was reached. Thus for beneficiaries of international protection, again, the EU labour market consists of twenty-four separate segments, of which they will have access only to one.

5. Family members of third-country nationals Directive 2003/86 was the first substantive measure to be adopted after the EU legislator had been given the competence to make law in the field of immigration and asylum in 1999. It was heralded by the Commission as a substantial success, although in the legislative process it was required to return to the drawing board and submit a new substantially different draft three times before the directive successfully passed the Council (at that time the European Parliament did not have co-decision powers with the Council). First access to the EU for family members of third-country nationals is premised on the sponsor holding a residence permit issued by a Member State valid for at least one year and to have reasonable prospects of obtaining the right of permanent residence (Article 3).61 Those seeking international protection are A Edwards, ‘Part Four: Gainful Employment’ in A Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011). 60 Commission, ‘Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection’ COM (2010) 314 final. 61 Article 8 permits Member States to delay family reunification until the sponsor has stayed lawfully for two years in their territory, and there is a derogation where national law so provided at the time of adoption of a waiting period of three years. 59

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excluded, though family members of recognized refugees are included. As mentioned in section III, family members are limited to a spouse and children (with a fairly wide definition of children) who are minors under national law and unmarried. Member States may admit other family members but are not required to do so. The sponsor must have adequate accommodation for the family, sickness insurance in respect of all risks for the family members, and stable and regular resources sufficient to maintain the family without recourse to social assistance (Article 7). Member States are also permitted to require family members to comply with integration measures under national law (Article 7(2)). This seems to include integration measures which must be completed abroad before a visa will be issued. Once admitted to the host Member State, the family members gain access to employment which can be limited to the same access to employment as the sponsor (Article 14(1)(b)). This permission can be delayed for a maximum of twelve months, during which the Member State may examine the situation of its labour market before permitting employment of these family members. Further, employment may be restricted to first-degree family members. The admission of family members of recognized refugees is also covered by the Directive, but the conditions are relaxed specifically as regards the conditions of accommodation, resources, sickness insurance, and integration measures. A requirement that the refugee applies for family reunification within three months of his or her recognition may be applied, but not integration measures. Similarly, no residence requirement for the sponsor can be applied (Article 13). These family members enjoy access to employment in the same way as the third-country national family members of other third-country nationals. As their principal is permitted to take employment, so are they. According to the Commission’s report on the implementation of the Directive, some Member States, such as Austria, the Netherlands, Malta, and Germany, limit access to employment of family members exactly as stated in the Directive.62 This means there are three categories depending on the sponsor’s status—no access, access only with a work permit, or free access. Other Member States, including Estonia, Finland, France, and Luxembourg, do not impose restrictions. At the time of the report, the Commission noted that seven Member States used the twelve-month delay provision (including Austria, Cyprus, Germany, Greece, Hungary, Slovenia, and Slovakia). There are no provisions for the family members of researchers under Directive 2005/71 and the Seasonal Workers Directive to access employment.

V. Conclusions The EU has simultaneously both one and twenty-eight labour markets for the purposes of non-nationals seeking employment. One legal regime relates to nationals of EU Member States and their family members moving across intra-EU borders looking for and taking work which creates a fairly coherent single labour market. Here one can discern that EU legislation is operating to promote a single common EU labour market 62 Commission, ‘Report from the Commission to the European Parliament and the Council on the Application of Directive 2003/86/EC on the Right to Family Reunification’ COM (2008) 610 final.

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where nationals of any Member State accompanied by their third-country national family members can move freely and seek employment anywhere. The exceptions are limited to the nationals of states which join the EU where, for a period of time usually not exceeding seven years, their nationals’ access to employment can be limited by the other Member States. In general, the system applicable here is straightforward and easily understood by citizens of the EU and state authorities. EU legislation relating to third-country nationals who are not family members of EU nationals presents the investigator with a bewildering array of measures which seem to be divided up on the basis of principles which are unclear and overlapping. Third-country nationals who are admitted to the EU in accordance with national legislation of a Member State come under one set of rules regarding intra-EU labour mobility once they have completed five years’ residence in one Member State and fulfilled various conditions. In 2011, beneficiaries of international protection were finally added to this group. Highly qualified migrants admitted to any Member State under EU rules have rather qualified EU employment mobility rights after eighteen months’ work and residence in one Member State. Researchers have very limited employment mobility rights after admission to one Member State under EU legislation. Family members of any of these groups tend to follow the rule of their principal or are excluded from intra-EU employment mobility rights altogether (such as the family members of researchers). First admission to the EU labour market for third-country nationals coming from outside the EU is similarly subject to a wide diversity of conditions, requirements, and restrictions. Depending on what the individual is likely to be doing, his or her access to the territory and labour market may be facilitated or limited. Further, first admission of third-country nationals to EU territory is always limited to one Member State, even where that admission is regulated by EU law. Thus for the third-country national seeking to enter the EU for the first time, the EU labour market consists of twenty-eight different national markets, to which access is granted only to one, even if the same rules are applicable in twenty-four. Access to the labour market of more than one Member State is usually a benefit which the third-country national may acquire after a period of time—eighteen months for Blue Card holders, five years for long-term resident thirdcountry nationals, beneficiaries of international protection, and their family members. The nature of the EU labour market for third-country nationals is thus dependent on the passage of time. It commences as a highly segregated place divided into national labour markets with impermeable borders between them. But as time goes on, these borders begin to dissolve until the five-year mark, where they become passable, albeit subject to obstacles. At the time of writing in 2014, common rules on the access of third-country nationals to the EU labour market cover only some categories of persons, based on rather heterogeneous criteria, for instance the need for international protection, high qualification levels, researcher status, or family connection. Even these individuals are in the first instance only admitted to a single Member State. Other third-country nationals still rely on the national laws of one of the twenty-eight Member States for admission. Their migration status then remains limited to that one Member State which admitted them. However, they, too, will, in most cases, eventually gain access to the EU labour market. This will happen first through the acquisition of EU long-term

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resident status, provided that the individual qualifies. Then the restrictions to access to the labour market of the internal market will apply. Alternatively, the migrant may naturalize as a citizen of the host state, and thus becomes, him- or herself, an EU citizen with free movement rights. What is revealed from this analysis of the state of the EU’s internal labour market is that, for EU citizens, the Member States have by and large abandoned their claims to separate national labour markets, at least as far as access to employment of EU citizens and their family members is concerned. But when it comes to third-country nationals, Member States appear to be anxious to preserve their separate labour markets, even when the consequence is competition between Member States for some migrants that are deemed desirable. Once such migrants are admitted to the labour market of one Member State, they can remain limited to that state’s labour market or else be required to start an application again from zero in another Member State to gain labour market access.

7 Migration Status in Labour and Social Security Law Between Inclusion and Exclusion in Italy Silvana Sciarra and William Chiaromonte*

I. Introduction Over the last twenty years, southern European countries have become a major destination for international migration. Italy, a land traditionally of emigration and unemployment, has thus become a significant foreign labour importer, especially in its richer regions and towns. According to the Italian National Statistic Institute (ISTAT), in 2012 foreign nationals resident in Italy—both EU citizens and thirdcountry nationals—were about 4.4 million,1 and in addition it is estimated that there are about 540,000 undocumented foreigners. In the same year, about 2 million were regularly employed,2 while there are no reliable data on the number of irregular migrant workers. This rapid transformation represents a reality that needs to be tackled, due to its—by now structural—features. Migration status under Italian law for non-EU migrants has a significant impact on labour and social law.3 The purpose of this chapter is to highlight the main areas of intersection between migration, labour, and social security law in order to understand the degree of division, erosion, and even evasion of labour standards in relation to migrant workers. The legal conditions of migrant workers in Italy are liable to undermine labour standards and weaken the traditional role assigned to labour law, since migrant workers are often subject to lower standards of protection than those applicable to comparable non-migrant workers. Looking at the evolution of Italian immigration policy, we argue that the system demonstrates the hypocrisy in failing to acknowledge the realities of the Italian labour market and short-sightedness as to the benefits of immigration.4

* Silvana Sciarra is Professor of Labour Law and European Social Law at the University of Florence and William Chiaromonte is Researcher of Labour Law at the University of Florence. Sections I and II have been written by Silvana Sciarra, the remaining paragraphs by William Chiaromonte. 1 ISTAT, ‘La popolazione straniera residente in Italia—Bilancio demografico’ accessed 19 March 2014. 2 ISTAT, Rapporto annuale 2013. La situazione del Paese (Istituto nazionale di statistica 2013) 93. 3 W Chiaromonte, Lavoro e diritti sociali degli stranieri. Il governo delle migrazioni economiche in Italia e in Europa (Giappichelli 2013). 4 M Ambrosini, ‘Il futuro in mezzo a noi. Le seconde generazioni scaturite dall’immigrazione nella società italiana dei prossimi anni’ in M Ambrosini and S Molina (eds), Seconde generazioni. Un’introduzione al futuro dell’immigrazione in Italia (Edizioni Fondazione Giovanni Agnelli 2004) 20, points out, for

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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Section II provides an overview of recent development in Italian labour immigration policy. Section III examines the legal hurdles on access to the labour market in more detail. The basic feature of Italian immigration policy is identified as the mismatch between the legal hurdles on access to regular migration status for migrant workers and the structural demand for migrant workers in the Italian labour market. Sections IV and V foreground two developments that are resisting the restrictions. Section IV examines the role of the Italian courts, focusing on equal treatment between Italian and migrant workers in access to non-contributory social security benefits. This litigation allows us to investigate how migration status intersects with prohibited grounds of discrimination. Section V turns to the regional level. Local legislators have adopted measures that are inclusive of migrants, thereby strengthening and expanding regional competences, particularly in the field of social inclusion.

II. A Primer on Italian Immigration Policy The first point to make is the historical failure to regulate labour immigration and to provide for an effective immigration policy. Due to the fact that planning of entry quotas has been restrictive, irregular migration persists. Thus, the increase in numbers of irregular migrants is the result of the inadequate legal provisions, and a failure to regulate this social phenomenon properly.5 There has been a failure to acknowledge that irregular immigration is, at least in part, the result of the evident inadequacy of the system designated to regulate regular immigration.6 Relatedly, Italian law establishes significant hurdles to regular migration. Non-EU migrants must hold a contract of employment before entering Italy to seek work, and are obliged to get both an authorization to work and a residence permit. Work permits are not easy to acquire. They are issued subject to a strict quota system and are invariably temporary. They are normally issued for a maximum of nine months for short-term work, one year for a fixed-term employment contract, and two years for a standard employment contract. One could, paradoxically, say that immigration law acts as a strong disincentive to regular migration and working. By setting these strict requirements, migration law produces both regular and irregular migration status. The 2002 Bossi-Fini amendment to the Consolidated Law on Immigration of 1998 further increased the bureaucratic burdens for migrant workers seeking to work legally.7 The message sent by Parliament in this case carries with it highly symbolic values, linked to the xenophobic attitude of Lega Nord, the political movement founded example, that integration of second generations is a key element for the improvement of Italian labour market dynamics. 5 This is consistent with the larger European study on regularization coordinated by A Triandafyllidou, see CLANDESTINO Project, Final Report (23 November 2009); REGINE, Regularisations in Europe, Study on Practices in the Area of Regularisation in the Member States of the EU, Final Report (ICMPD 2009); A Levinson, The Regularisation of Unauthorized Migrants: Literature Survey and Country Case Studies (COMPAS 2005). 6 A Montanari, Stranieri extracomunitari e lavoro (Cedam 2010) 94; E Reyneri, ‘The Role of the Underground Economy in Irregular Migration to Italy: Cause or Effect?’ (1998) Journal of Ethnic & Migration Studies 313. 7 Law no 189/2002, so-called Bossi-Fini, after the two Members of Parliament who promoted it.

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by Umberto Bossi. That attitude was mixed with the approach of the right-wing parties, from which Gianfranco Fini drew inspiration, arguing for protectionist measures and for restricting the entry of third-country nationals. The Bossi-Fini Law aimed to reduce non-EU immigration, ostensibly in order to protect Italian workers. It also signalled a strong preference for temporary over permanent immigration. The irony is that, despite—or because of—the many formalities required, in particular the stipulation of an employment contract in order to obtain a residence permit, many immigrant workers are concentrated in the informal economy. To summarize the inconsistencies of Italian legislation, while migrant workers have become a structural feature of the Italian labour market, immigration law assumes that migrant workers would only be employed in limited circumstances. The consequence of this inconsistency is that Italian immigration policy frequently entails ex post regularization measures, in order to introduce elements of legality, principally for those employing migrant workers.8 Regularization, or even more evocatively in Italian ‘sanatoria’, entails permitting the employer to apply to transform the legal status of the irregular worker, in order to grant him or her permission to reside and work. Regularizations have been implemented four times since the adoption of the 1998 Consolidated Law on Immigration.9 For example, the 2009 regularization allowed Italian families employing irregular migrants to provide care for their children and elderly family members to regularize the status of those workers. The 2012 regularization, adopted at the same time as Italy implemented the EU Employer Sanctions Directive,10 was open to any employer of irregular migrants working full time.11 Italian immigration policy has taken further restrictive measures in the past six years, in the form of the so-called ‘security packages’. Again, measures relating to work and social integration have been omitted in favour of a strong emphasis on national security and public order. From 2008 onwards, ‘security packages’ were repeatedly introduced,12 all focusing on measures against irregular immigration and having as a common denominator restrictions on the legal status of migrants.13 In particular, Italy has criminalized illegal entry and residence. On conviction, irregular migrants are subject to a fine of between €5,000 and €10,000. Additional measures, ostensibly oriented to deter ‘illegal immigration’, were adopted, including a broad anti-smuggling

8 Amnesty International, Italy: The Regularisation Should Protect the Rights of Migrant Workers (Amnesty International 2012). 9 Consolidated Law on Immigration, Legislative Decree no 286/1998. This is the Consolidated Law on Immigration dealing with matters relating to entry, residence, treatment, and expulsion of migrants. It is still in force, albeit with significant modifications. It is referred to throughout simply as the ‘Consolidated Law on Immigration’. 10 Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. 11 Legislative Decree no 109/2012 of 16 July 2012. 12 Law no 125/2008; Law no 94/2009; Law no 217/2010. 13 Y Maccanico, ‘Italy Series of Defeats in Court for the “Security Package” ’ accessed 14 January 2014; E Çetin, ‘Exclusionary Rhetoric Expansionist Policies? Right-wing Parties and Immigration Policy-making in Italy’ (COMPAS Working Paper no 95 2012); M Ambrosini, ‘Immigration in Italy: Between Economic Acceptance and Political Rejection’ (2013) 14 Journal of International Migration and Integration 175.

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prohibition.14 In addition, the law provided for stricter sanctions against employers.15 The legislator also increased the bureaucratic hurdles on the grant and renewal of residence permits, requiring higher fees and a mandatory Italian language test for those wishing to apply for a long-term residence permit. The security packages, together with the other provisions enacted over the last few years, were designed to marginalize migrants and to weaken their social rights. The basic feature of Italian immigration policy remains the mismatch between the legal hurdles on access to work for migrant workers (both as dependent and selfemployed workers), and the structural demand for migrant workers in the Italian labour market. The next section examines those legal hurdles in more detail.

III. Admission to Territory and Access to Work Italian labour law requires equal treatment between Italian and migrant workers.16 The employer is required to pay even irregular migrant worker wages, and all the normal contributions and taxes normally due.17 In contrast, access to the labour market has always been regulated differently for non-EU migrant workers. Italian legislation on entrance to the national territory for reasons of work sets up stark differentiations between EU and Italian workers on the one hand and third-country nationals on the other. Once the third-country national worker is legally resident, that changes. The migrant worker is then entitled to equal treatment as regards fundamental rights and labour rights, as regards work ‘in all its forms and applications’,18 even in the case of unstable or precarious work. For third-country nationals, migration law determines access to work, which in turn determines their rights to equal treatment.19 Italian immigration policy reflects two contradictory assumptions. On the one hand, the integration of migrants, including access to health care, education, and housing, is at least formally supported.20 On the other hand, immigration law favours temporary migration, presupposing that at the end of their period of employment, migrant workers should return to the country of origin. Italian immigration policy operates at two levels. A centralized procedure at the national level sets admissions quotas, while local administrative authorities grant residence and work permits. In this section, we explain how these parallel systems work. Under the national procedure, the state determines the maximum admissions 14 For example, sanctions for those who promote, organize, finance, or carry out the transit of irregular migrants have been tightened (Law no 94/2009), and detention of irregular migrants in the so-called ‘Centres for identification and expulsion’ has been extended from sixty days to six months (Law no 129/ 2011). 15 Legislative Decree no 109/2012 implementing the Employer Sanctions Directive. 16 ‘The migrant present for any reason at the border or in the territory of the State is entitled to fundamental human rights provided by national law, international conventions and principles of international law generally recognized’: Art 2(1) Consolidated Law on Immigration. All translations of laws provided in this paper are the authors’. 17 Legislative Decree no 109/2012, Art 3. 18 Italian Constitution, Art 35(1). Furthermore, Art 2(3) Consolidated Law on Immigration states that ‘the Italian Republic guarantees equal treatment and full equality of rights with respect to Italian workers to all foreign workers and their families legally residing in its territory’. 19 20 Chiaromonte (n 3) 141–83. Consolidated Law on Immigration, Arts 34–42.

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quota. Every three years a programmatic document, taking the form of a Presidential decree, is to be issued setting out the general criteria for determining the permitted entry quota.21 These criteria entail a sectoral assessment of labour market shortages. Based on these general criteria, an annual decree is adopted setting the admissions quota,22 covering all legal entry and residence permits for reasons of work, for both dependent (including short-term) and self-employed workers.23 While the programmatic decree is to take into account sectoral shortages, the overall annual quota is not sectoral, but applies generally to admissions of labour migrants. Admissions are also included within the annual quota under the bilateral labour migration agreements discussed later. At the local level, labour migration is subject to a complex administrative procedure. Third-country national migrants must first obtain an entrance permit, and then, from the police,24 a residence permit. In addition, once a job offer has been received, a migrant worker relies on a request by the employer for authorization to work, which is issued by the local immigration office.25 Access to the territory depends on access to employment. This link, already in the Consolidated Law on Immigration, was strengthened by the Bossi-Fini law, which made entrance dependent on the existence of an employment contract. The workers’ legal status becomes, in this way, dependent on the employer. However, the termination of employment does not automatically invalidate the residence permit, which continues to be effective until its expiry.26 Workers dismissed or those who have resigned from their jobs can then obtain unemployment benefit, as well as searching for a new job in Italy, for the remaining period of validity of the permit. Admittedly, if migrant workers become unemployed, their residence permit is in jeopardy, so the right to unemployment benefit—even if available—may be practically ineffective. The administrative procedure requires the employer to apply for the work permit whilst the migrant is still residing outside the EU. The employment contract must include, in addition to working conditions, details of the accommodation for the migrant worker and a written commitment to pay the travel expenses of the migrant to return to the country of origin, at the end of the contract, if no renewal occurs.27 As for the accommodation, the employer is required to demonstrate that housing meets the parameters set by law on public housing. Following the submission of the request to the local immigration office, the employer has to arrange accommodation. As for travel expenses, they are to be fully covered by the employer or employers. Work permits are

21 The last programmatic document approved, however, dates back to the period 2004–2006, and this has resulted in a mismatch of the quota with the labour market realities. 22 These are known as ‘decreto flussi’. 23 Consolidated Law on Immigration, Art 3(4). 24 The Questure organize and manage all the activities of the State Police at local level. We refer to them as the ‘police headquarters’. 25 The Sportello unico per l’immigrazione is the entity responsible for the entire process of recruitment of foreign workers, and it is established in each province within the Questura. We refer to the Sportello unico per l’immigrazione throughout as the ‘local immigration office’. 26 This period may not be less than one year, except in the case of a residence permit issued for seasonal work: Consolidated Law on Immigration, Art 22(11). 27 Consolidated Law on Immigration, Art 5-bis.

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issued via embassies or consulates, so that the migrant workers can be issued with entry permits. Then, the third-country national enters Italy and signs the contract of employment. It is only after the formal stipulation of the employment contract that the Police Headquarters issues a residence permit for reasons of work, valid for the time indicated in the entrance permit, and for a maximum of nine months for short-term work, one year for a fixed-term employment contract, and two years for a standard employment contract. The residence permit is renewable. The renewal will be granted, upon request of the migrant, only if there are the same conditions required for the issue. The duration of the renewal cannot be higher than that of the permit initially granted. The permit may also be withdrawn, should the requirements for entry and residence in the territory of the state be missing. The Bossi-Fini law, like earlier legislation, modified the Consolidated Law on Immigration to further restrict immigration. The most relevant aspect is that the already cumbersome entrance procedures for migrant workers were aggravated by making entrance to the territory, permanent stay, and rights guarantees conditional on the lawful exercise of some form of working activity. On the other hand, the legislator showed no interest in integration policy and fundamental rights guarantees for thirdcountry nationals. The interest in protecting public order by controlling admissions is the most prominent feature of migration policy. As mentioned earlier, the paradox is that migration policy seems to prevent regular employment of migrant workers, whilst encouraging irregular migration. Several features of the legislation confirm this intuition. First, the law presupposes that migrants are recruited individually from abroad. Applications from migrants already living in Italy are not accepted. However, the law also seems to presuppose that recruitment is based on the employer’s direct knowledge of the migrant to be hired. This mechanism, precluding the direct encounter between labour offer and demand, generates irregular working in the vast majority of cases.28 In practice, it is common that a migrant resides irregularly in Italy, then returns to his country of origin, to return to Italy again, this time legally, in order to follow the procedure described. These inconsistencies partially justify recourse to frequent mass regularizations. The latter have become, over the years, the prevailing instrument to regularize migrant workers.29 A second notable feature is the Bossi-Fini law’s reintroduction of the so-called ‘economic needs test’. The test requires that employers attest by ‘the appropriate documentation’30 the unavailability of suitable Italian or EU workers to perform the tasks in question. Upon receipt of a request by an employer, the local immigration office communicates it through the national network of Employment Centres, in order to verify whether there are any Italian or EU workers interested in that job. This confirms the previously mentioned self-referential attitude of the legislator, who intervenes to regulate migration with a declared preference for Italian and EU workers. However, and this again is contradictory, there is a way to hire third-country nationals, A Viscomi, ‘Lavoro sommerso e immigrazione’ (2008) Il lavoro nella giurisprudenza 19. M McBritton, ‘Prestazione di fatto e lavoro immigrato’ (2010) Rivista giuridica del lavoro e della previdenza sociale II 551. 30 Law no 99/2013, Art 9(7) provided this additional requirement. 28 29

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as the requirement to attest that no Italian or EU worker is available is not an onerous one, and is easily circumvented in practice. The Bossi-Fini law also repealed the provision for individuals to sponsor migrants to seek work. Formerly, sponsors able to guarantee salary and accommodation were entitled to obtain—within the quota limits—authorization to allow third-country nationals into the labour market for one year with the objective of finding a job. Eligible sponsors were individuals, both Italian and foreign, legally residing in Italy; associations working in the field of immigration; trade unions; and local authorities, such as regions or municipalities. This regulation was repealed in 2002, and was replaced by a much weaker device intended to give migrants attending educational activities and training courses organized by various Italian associations in their country of origin, an advantage to enter the Italian labour market. The new provision, however, makes this initiative a mere possibility, dependent on promoters who can count on sound finances to support training programmes. The Italian Ministry of Labour has entered into several bilateral agreements with non-EU countries in order to regulate and manage labour migration, namely Albania, Egypt, Morocco, Moldova, Sri Lanka, and Mauritius.31 These agreements also aim to facilitate access to educational activities and training courses in the country of origin. The agreements envisage that would-be migrants who attend educational activities and training courses in their countries of origin may access work permits reserved to them under the general quota system set by the annual decree. This is a preferential quota system, which guarantees preferential access to labour visas for these countries. A peculiar characteristic of migration law is the introduction of the new ‘residence contract for dependent employment’.32 After entering the country and the beginning of the employment relationship, migrants obtain work permits, enabling them to reside and work legally in Italy. This particular kind of dependent employment contract raises serious doubts of constitutionality, in light of the principle of equality laid down in the Italian Constitution, because it discriminates between migrant and Italian workers. This form of contract places additional obligations on the employer, such as ensuring that particular accommodation will be available for the worker from the time the request for a work permit is filed, and payment of repatriation expenses at the end of the stay in Italy. If the employer fails to meet these obligations, the entire residence contract becomes null and void.33 Accordingly, the work permit will not be issued. We need to underline once more how this perverse mechanism places migrants in an irregular position, often arising out of the employer’s lack of compliance with these requirements. It also tends to discourage the hiring of thirdcountry national workers.

31 Albania 2 December 2008; Egypt 28 November 2005; Morocco 21 November 2005; Moldova 5 June 2011; Sri Lanka 18 October 2011; and Mauritius 20 September 2012. Source: Ministry of Labour website, last accessed 1 April 2014. 32 Consolidated Law on Immigration, Art 5-bis. On the ‘residence contract for dependent employment’, see L Calafà, Migrazione economica e contratto di lavoro degli stranieri (Il Mulino 2013) 109–27. 33 Italian Civil Code, Art 1418.

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IV. Access to Non-contributory Social Security Benefits The effective integration of migrants in the host country depends not only on the legal hurdles on access to the labour market and on a recognition of labour rights, but also— and more generally—on a comprehensive recognition of their social rights. In particular, full equal treatment in social protection for migrant workers is beneficial for migrants’ integration. In practice, claims for equal treatment in this domain depend on judicial recognition. Italian law explicitly provides for equal treatment in social security for Italians and legally resident migrant workers.34 The same principle is also guaranteed by international and EU law, but becomes weaker for non-contributory social security benefits, when compared with contributory social security benefits. The most important points of reference, at the international level, are the ILO Conventions on migrant workers35 and on the uniform application of social security systems.36 As far as EU law is concerned, relevant norms are Article 21 (the principle of non-discrimination) and Article 34(3) of the EU Charter of Fundamental Rights, which affirms ‘the entitlement to social security benefits and social services’ for third-country nationals legally residing and working in a Member State.37 The principle of equal treatment of EU citizens and legally resident third-country nationals with regard to contributory benefits is also guaranteed by EU legislation,38 which extends social security regimes to third-country nationals,39 as well as by cooperation agreements between the EU and several non-EU countries. Also, the EU Long-term Residents Directive,40 concerning third-country nationals who are long-term residents in a Member State, guarantees the principle of equal treatment with regard to social security, social assistance, and social protection,

34 Consolidated Law on Immigration since 1998, and furthermore in the Italian Constitution (Art 2 and Art 3), according to which Italian citizenship is irrelevant in terms of access to social security. However, if the migrant worker loses his job, then he no longer has a contract of employment and so becomes illegal if he can’t find a new job in the next year; this guarantee is likely to prove practically ineffective. 35 Migration for Employment Convention (Revised) 1949 (ILO No 97) 120 UNTS 70; Migrant Workers (Supplementary Provisions) Convention 1975 (ILO No 143) 1120 UNTS 323. 36 Social Security (Minimum Standards) Convention, 1952 (ILO No 102) 210 UNTS 131; Equality of Treatment (Social Security) Convention 1962 (ILO No 118) 494 UNTS 271. See V Ferrante, ‘Parità di trattamento e tutela previdenziale dei lavoratori immigrati: profili comparati’ in V Ferrante and L Zanfrini (eds), Una parità imperfetta. Esperienze a confronto sulla tutela previdenziale dei migranti (Edizioni Lavoro 2008) 122. These ILO Conventions were all ratified by Italy: see Law no 1305/1952 (ILO No 97); Law no 158/1981 (ILO No 143); Law no 741/1956 (ILO No 102); and Law no 657/1966 (ILO No 118). 37 R Nielsen, ‘The Charter of Fundamental Rights and Migrant Workers’ Welfare Rights’ in U Neergaard, R Nielsen, and L Roseberry (eds), Integrating Welfare Functions into EU Law. From Rome to Lisbon (DJF Publishing 2009) 97. 38 Regulation (EU) 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality [2010] OJ L344/1. 39 W Chiaromonte, ‘Mobilità intraeuropea e sicurezza sociale’ in L Calafà, D Gottardi, and M Peruzzi (eds), La mobilità del lavoro: prospettive europee e internazionali (Edizioni Scientifiche Italiane 2012) 138. See also S Giubboni, ‘La sicurezza sociale dei lavoratori che si spostano all’interno dell’Unione europea’ in S Sciarra and B Caruso (eds), Il lavoro subordinato (Giappichelli 2009) 585. 40 Council Directive (EC) 2003/109 concerning the status of third-country nationals who are long-term residents (2004) OJ L16/44.

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providing also that states can limit such benefits only to the essential ones.41 Finally, at the supranational level, the provisions of the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court, guarantee the right to access social security without regard to nationality. Of particular importance in that context are Article 14 and Article 1, Protocol 1, of the ECHR. The latter provides that the principle of non-discrimination contained in Article 14 also applies to social benefits, including non-contributory ones, because they can be included within the property rights that the Article protects.42 Furthermore, this position has been confirmed by the judges of the Strasburg Court in Gaygusuz v Austria43 and in subsequent case law.44 The principle of equal treatment is in tension with the national legislation providing for a detachment of contributory and non-contributory social security benefits. There is generally equal treatment in access to contributory social security benefits between migrant workers and Italian citizens, especially with regard to single benefits such as maternity benefits.45 As far as non-contributory benefits are concerned, however, migrant workers encounter difficulties in terms of equal enjoyment of such entitlements depending on their migration status, in particular the type of residence permit they have.46 Before describing briefly the Italian legislation on this topic, it is necessary to clarify what we mean by contributory and non-contributory social security benefits. Contributory social security benefits are, according to Article 38(2) of the Constitution, all the benefits granted by the state to workers ‘in case of accident at work, illness, disability, old age and involuntary unemployment’. Non-contributory social security benefits, in contrast, are, according to Article 38(1) of the Constitution, all the benefits granted at national or local level to all citizens and lawful resident ‘unable to work and lacking the resources necessary to live’. The original text of Article 41 of the Consolidated Law on Immigration had granted two categories of migrants access to non-contributory benefits, namely those with a long-term residence permit (which requires, in addition to certain income and/or health care requirements, legal residence in Italy for at least five years) and those with a residence permit of not less than one year. As a result of 2001 legislative changes,47 only those with a long-term residence permit, which depends on five years’ lawful

41 This measure, however, requires that the third-country national be entitled to permanent residence in the Member State, so it is meaningful in Italy only for migrants who have long-term resident status according to legislative decree no 3/2007, which has implemented the Long-term Residents Directive. 42 G Bascherini, Immigrazione e diritti fondamentali. L’esperienza italiana tra storia costituzionale e prospettive europee (Jovene 2007) 333. 43 Gaygusuz v Austria (1997) 23 EHRR 364. 44 Koua Poirrez v France (2005) 40 EHRR 2; Lucsak v Poland App no 77782/01 (ECtHR, 2 June 2008); Zeïbek v Greece App no 46368/06 (ECtHR, 9 July 2009); Si Amer v France App no 29137/06 (ECtHR, 29 October 2009); Carson et al v United Kingdom App no 42184/05 (ECtHR, 16 March 2010). See also M Dembour, ‘Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda’ (2012) HRLR 689. 45 W Chiaromonte, ‘Previdenza e assistenza sociale degli stranieri. Prospettive nazionali e comunitarie’ (2009) Lavoro e diritto 590. 46 L Torsello, ‘I diritti sociali degli stranieri nella legislazione italiana tra previdenza e assistenza’ in A Di Stasi (ed), I diritti sociali degli stranieri. Principi e disciplina in Italia e in Europa (Ediesse, 2008) 56. 47 Budget law 2001 (Law no 388/2000), Art 80(19).

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residence, may access such benefits. The question of the legitimacy of subjecting the grant of non-contributory benefits to this five-year residence requirement arises. EU law permits differentiations on the basis of length of residence, even for EU citizens, at least in some contexts, and emphasizes the concept of a ‘real link’ with the host state.48 Does this suggest that such a requirement is lawful when imposed on third-country nationals, or whether it should be treated as a violation of equal treatment, as enshrined in various domestic and international legal instruments? This question has repeatedly come before the Italian Constitutional Court,49 which requires that restrictions on access to welfare benefits must be justified.50 With reference to the five-year residence requirement, in particular, the Court affirmed at first that this condition is ‘not unreasonable’.51 In contrast, the European Court of Justice (ECJ) treated residency requirements for EU citizens as indirect nationality discrimination.52 However, the Constitutional Court later reversed its own case law, treating the five-year requirement as irrational to the extent that the benefit in question was ‘a fundamental right that guarantees the survival of the subject’.53 Such benefits had to be accorded to all migrants having a residence permit of less than one year. However, it seemed implicit that if the benefit in question was not regarded as ‘a fundamental right that guarantees the survival of the subject’, a long residence requirement could be imposed.54 The Court seems to have wavered on this point. For instance, concerning access to benefits in the Campania Region, it held that ‘the alleged need for a specific residence title to enjoy the social services is a restrictive condition that, obviously, goes (from a practical perspective) in the opposite direction to that indicated by this court’.55 In this case the Court referred to access to ‘social services’ in general, without reference to the ‘survival of the subject’ criterion. However, subsequent judgments have reiterated the basic needs element of the reasoning.56 Faced with the uncertainties of the Constitutional Court jurisprudence, lower courts have held that measures requiring periods of residence longer than originally envisaged by Article 41 of the Consolidated Law on Immigration should be deemed illegitimate. The lower courts have emphasized that the 2001 legislative changes are in contrast to the Constitutional provisions, as well as to EU law and other supranational sources. In particular, they continue to support the validity of the original Article 41, insisting that

48 See eg Art 24 of Council Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 in light of the Förster and Vatsouras case law of the European Court of Justice (Case C-158/07 Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-8507; Case C-22/08 Vatsouras and Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 [2009] ECR I-4585). 49 Chiaromonte (n 3) 232–42. 50 Constitutional Court, 2 December 2005, no 432. 51 Constitutional Court, 21 February 2008, no 32: in that case, the requirement was assessed as a condition to access to public housing in the northern region of Lombardia. 52 Case C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-06303 and Case C-527/06 Renneberg v Staatssecretaris van Financiën [2008] ECR I-07735. 53 Constitutional Court 26 May 2010, no 187. See also Constitutional Court, 12 December 2011, no 329. 54 A Guariso, ‘Diritto antidiscriminatorio, giudici di merito e welfare paritario’ (2011) Rivista critica di diritto del lavoro 533. 55 Constitutional Court, 21 February 2011, no 61; see also Constitutional Court, 18 January 2013, no 4. 56 Constitutional Court, 4 July 2013, no 172; Constitutional Court, 19 July 2013, no 222.

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for the granting of such benefits, the possession of a short-term residence permit is sufficient in addition only to the income and health care requirements.57 Furthermore, some lower courts disapplied domestic law on the basis that it violated the ECHR.58 The central issue remains the tension between the principle of equal treatment and distinctions based on migration status. If the criterion of citizenship is unsuitable to justify the difference in treatment, distinctions based on migration status, in particular imposing obligations of continuous and legal residence, should be regarded as the new frontier of prohibited discrimination. Given that Italian migration law induces periods of irregularity amongst migrants in Italy, imposing lawful residence tests should be regarded with suspicion.59

V. The Role of the Italian Regions in the Area of Social Integration of Irregular Migrants The Italian regions have resisted the restrictive developments at the national level by adopting measures to ensure social inclusion of migrants, including irregular migrants.60 In contrast, the central government, particularly when led by Silvio Berlusconi between May 2008 and November 2011, repeatedly tried to limit regional powers in this field. While these regional moves have been impressive, they inherently entail a risk of regional divergences. The central state has failed in its constitutional mission of reducing these differences. The Constitutional Court has facilitated the expansion of the region’s competence over migrant integration. In particular, it has interpreted the central state’s exclusive competence over immigration61 as only applying to measures regulating migrants’ conditions of entry and residence.62 Accordingly, regions are competent to regulate migrants’ access to education and health care (currently with the central state) and have a residual competence over welfare policies. The regions have adopted two contrasting approaches to migrant rights. Some only grant social rights to those third-country nationals residing legally in the territory of the region.63 In contrast, others have granted rights to migrants irrespective of whether their status is regular or irregular, but simply grant rights on the basis of residence.64 While granting rights on the basis of residence rights rather than migration status

57 Court of Ravenna, 1 October 2008; Court of Genova, 17 April 2009; Court of Bari, 18 May 2009; Court of Genova, 3 June 2009; Court of Vicenza, 7 August 2009; Court of Appeal of Perugia, 13 June 2012. 58 ECHR, Art 14, in conjunction with Art 1, Protocol 1. See eg Court of Ravenna, 16 January 2008. 59 A Guazzarotti, ‘Lo straniero, i diritti, l’eguaglianza’ (2009) Questione giustizia 100. 60 W Chiaromonte, ‘Welfare locale e immigrazione. Il contenzioso sulla legislazione regionale in materia di integrazione degli stranieri’ (2011) Giornale di diritto del lavoro e di relazioni industriali 657. 61 As provided by Art 117 of the Constitution (as amended following the Constitutional reform of 2001, Law no 3/2001). 62 M Vrenna, ‘Il ruolo delle Regioni e il riparto delle competenze in materia di integrazione’ (2010) La rivista delle politiche sociali 45. 63 Law no 5/2004 of the Emilia Romagna Region, Art 2; Law no 46/2004 of the Abruzzo Region, Art 2; Law no 10/2008 of the Lazio Region, Art 2. 64 Law no 29/2009 of the Toscana Region, Art 2; Law no 5/2005 of the Friuli Venezia Giulia Region, Art 2; Law no 32/2009 of the Puglia Region, Art 2; Law no 6/2010 of the Campania Region, Art 2.

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seems inclusive, a minority of regions use rigid residence requirements,65 which may lead to greater heterogeneity in migrant integration policies.66 Regional laws granting rights to irregular migrants set up constitutional frictions with the central state. The Presidency of the Council of Ministers has contested the constitutionality of regional laws that provide for upward derogations from national legislation67 as regards ‘urgent or otherwise essential health care for illness and injury’.68 The Constitutional Court, although it upheld their constitutionality, did not clarify the extent to which the regions may grant rights to irregular migrants. Its jurisprudence may be construed narrowly as only permitting regions to afford rights to a basic minimum of health care to irregular migrants, or more expansively.69 If the narrow reading prevails, this casts doubts on the constitutionality of some regional laws affording more extensive rights to irregular migrants.70 However, the wider reading invites further regional moves that are inclusive of irregular migrants, notwithstanding the restrictive tendency at the national level. The new division of competences between the state and the regions has not only enhanced the region’s role as regards migrant rights and integration, but also diminished the negative consequences associated with irregular migration status. We ought not, however, underestimate the risk of fragmentation of migrant status, when rights depend not only on residence permits, work permits, but also place of residence. Diverse regional politics can lead to what Maurizio Ferrera has described as ‘a vast process of territorial disintegration of social protection’,71 that is, stark regional disparities in migrants’ access to social rights.72 The problem would be partly solved if the state met its constitutional duty to ensure a uniform social minimum for all.73 However, the most urgent requirement is the clarification of the basic rights that are indispensable to guarantee migrants’ right to dignity.

VI. Conclusion The recent economic and financial crisis has undoubtedly affected migrant workers by accentuating inequalities. Lower demand for migrant workers seems to have reduced 65 G Tucci, ‘Principio di eguaglianza e discriminazione per nazionalità e cittadinanza: “bonus bebè” e “razzismo padano” ’ (2010) Rivista critica di diritto privato 677. 66 F Abbondante and S Prisco, ‘La condizione giuridica degli immigrati e le politiche degli enti territoriali tra integrazione e rifiuto’ in M Scudiero (ed), Stabilità dell’Esecutivo e democrazia rappresentativa (Jovene 2009) 773. 67 Consolidated Law on Immigration, Art 35(3). 68 Since Law no 13/2009 of the Marche Region. See also Law no 29/2009 of the Toscana Region, Law no 32/2009 of the Puglia Region, and Law no 6/2010 of the Campania Region. 69 Constitutional Court, 22 July 2010, no 269; Constitutional Court, 22 October 2010, no 299; Constitutional Court, 25 February 2011, no 61. 70 Like those of Toscana, Puglia, and Campania. 71 M Ferrera, Les nouvelles frontières du social. L’integration européenne et les transformations de l’espace politique de la protection sociale (SciencesPo Les Presses 2009) 267. 72 C Buzzacchi, ‘Cittadinanza e liveas’, in E Balboni (ed), La tutela multilivello dei diritti sociali (Jovene 2008) 348. 73 Art 117(2)(m) of the Constitution: ‘The State has exclusive legislative powers in the following matters: . . . determination of essential levels of provisions concerning civil and social rights that must be guaranteed throughout the national territory.’

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immigration.74 Nonetheless, the state maintains its restrictive stance. This chapter identifies as the main feature of Italian migration law the restrictive approach to granting migration status under migration law, and repeated recourse to ex post regularizations in order to permit insiders to employ migrant workers legally. As migration law has become more restrictive, ex post regularizations have become more frequent. The latest restrictive developments are increasingly punitive, with both irregular presence and working being criminalized. The Italian courts have resisted the restrictive legislative developments, seeking to ensure that at least some basic rights are accorded to migrants irrespective of their status. Similar inclusive moves have been made by some (but by no means all) regions, facilitated by the Constitutional Court’s interpretation of regional competences over migrant rights and integration. Nonetheless, these inclusive judicial and regional moves are by their nature piecemeal, episodic, and territorially limited. Without a secure migration status or citizenship, which only the central state may grant, migrants remain vulnerable to legal exclusion. Their rights as workers remain precarious, as long as their migration status is.

74 F Moressa, Gli stranieri: un valore economico per la società. Dati e considerazioni su una realtà in continua evoluzione (il Mulino 2012).

8 The Sectoral Regulatory Regime When Work Migration Controls and the Sectorally Differentiated Labour Market Meet Einat Albin*

I. Introduction The literature on migrants at work has pointed to the fundamentality of migration controls for shaping the contract of employment and the terms and conditions of work of migrant workers.1 It does not, however, explain variations in the regulation of migrants at work.2 The Israeli regulatory regime, for example, exhibits sharp differences in the legal situation of migrants, with the core distinction lying, so I claim in this chapter, in disparities between sectoral settings. I therefore argue that a fuller understanding of the regulation governing migrants at work can be reached through a sectoral focus. In this chapter, I point out this differential regulatory regime and conceptualize it, while offering three factors that explain the regulatory differences between sectors. I also discuss two challenges it poses for labour law. Such a viewpoint makes it possible to shift the discussion on labour law and migration from the statecentred prism to a sectoral one, and to observe the numerous actors operating in the processes of regulating migration and securing (or not) the labour rights of migrant workers, particularly the dominancy of private actors in these processes. It is also useful for understanding variations in the regulation of work migrants. Studies in the past few years have unravelled the interrelations between migration controls and labour rights. Labour law scholars have joined these discussions, engaging in the consequences that migration controls have for labour law and for the rights of migrant workers at work. It has been said that a new basic contract of employment has emerged for migrant workers in comparison to the citizen worker,3 and that laws

* Einat Albin is a Lecturer at the Hebrew University of Jerusalem. Thanks are due to Guy Mundlak, Guy Davidov, and to participants in the ‘Migrants at Work’ workshop held in Oxford University and in ‘The Labour Law Forum’ at the Hebrew University, for their comments on a previous draft. I also thank Idan Halili for her excellent research work. 1 Hammar has pointed out the distinction between immigration control and migration policy. The former regulates the entry and stay of migrants, whereas the latter is concerned with their integration into host societies. T Hammar, European Immigration Policy: A Comparative Study (Cambridge University Press 1985). 2 I take regulation to include regulation promoted by government authority, self-regulation, case law, and private regulation. 3 G Mundlak, ‘Workers or Foreigners? The “Foundational Contract” and Democratic Deficit’ (2003) 27 Iyunei Mishpat 423 (Hebrew).

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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governing the migration of workers institutionalize precariousness at work,4 leading to human rights infringements5 and ‘partial citizenship’ of migrant workers,6 placing them in a situation of democratic deficit.7 Claims have been made that national and international legal tools are ill equipped to deal with the precariousness that results from the interaction of migration policy and labour,8 and that there are particular concerns with the rights of undocumented migrants.9 States’ migration controls, it has been shown, are substantial for determining employment rights. While a rather state-centric prism has been adopted to understand the interaction of migration controls and labour law, more marginal attention has been devoted to the non-unitary aspects of the regulation of work migrants, particularly those resulting from the allocation of workers to certain sectors of activity. In the past few decades, a central feature of migration controls has become the allocation of workers to sectors, defined according to acts of production, provision of service, or occupation. The common explanation for the referral of migrants to certain sectors is market function, ie migrants are allowed to work in sectors where there is a low labour supply of citizens or residents—members of the society. Previous research has shown that such allocation, beyond market function, is also used to control the entry of people into a national state, to keep migrants in specific locations and thus supervise their stay and departure, and to fulfil employers’ needs.10 Additionally, it brings about sectoral divisions and segmentation, with consequences for the general labour market, particularly for those within the more disadvantaged sectors.11 Moreover, it restricts the free movement of migrant workers between sectors, locking them in the lower segments.12 The literature has pointed out that these activities are state-driven, intended to sustain the alienage of migrants, supervise their stay, and fulfil market demands. What I claim in this chapter is that such allocation has changed the regulatory regime. Looking deeper into sectoral differentiations, I argue that once migration

4 L Vosko, Managing the Margins: Gender, Citizenship, and the International Regulation of Precarious Employment (Oxford University Press 2010) Introduction, especially 9–12; J Fudge, ‘Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (2012) 34(1) CLLPJ 95. 5 Fudge (n 4). See also, M Dembour and T Kelly, ‘Introduction’ in M Dembour and T Kelly (eds), Are Human Rights for Migrants? (Routledge 2011) 1; V Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labour’ (2012) 34(1) CLLPJ 133. 6 7 Vosko (n 4). Mundlak (n 3). 8 Fudge (n 4); N Kountouris, ‘The Legal Determinants of Precariousness in Personal Work Relations: A European Perspective’ (2012) CLLPJ 101. 9 B Ryan, ‘The Evolving Legal Regime on Unauthorized Work by Migrants in Britain’ (2005) 27(1) CLLPJ 27; Dembour and Kelly (n 5); V Mantouvalou, Ch 20 in this volume. 10 M Ruhs, ‘Temporary Foreign Workers Programmes: Policies, Adverse Consequences and the Need to Make them Work’ (2003) 6 Perspectives on Labor Migration, Social Protection Sector, International Migration Programme 10 (International Labor Office 2003); B Anderson, ‘Migrations, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment and Society 300. 11 On segmentation, see C Craig, E Garnsey, and J Rubery, ‘Labour Market Segmentation and Women’s Employment: A Case Study from the United Kingdom’ (1985) 124(3) International Labour Review 267. See also J Peck, Work-Place: The Social Regulation of Labor Markets (Guilford Press 1996) 60–1. 12 The literature has termed this as ‘unfree labour’, see R Miles, Capitalism and Unfree Labor: Anomaly or Necessity? (Tavistock Books 1989). See also Fudge (n 4). For an interesting view on unfree labour as a continuum in work relations, see J Lerche, ‘The Unfree Labour Category and Unfree Labour Estimates: A Continuum within Low-End Labour Relations’ (Manchester Papers in Political Economy 2011).

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control policy comes together with the sectoral setting, a crucially important regulatory regime is created, which is sectoral in essence. I call this the Sectoral Regulatory Regime. It is important to emphasize that sectoral regulation is a central feature of labour law.13 In this sense it is not unique to sectors of work migrants. However, in an era of migration controls that allocate workers to particular sectors, the sectoral regulatory regime is strengthened due to altering power relations and the growth of sectoral divisions. This brings about reinforced sector-specific regulation in forms that are foreign to labour law and that pose challenges to its theoretical framework. Additionally, it reshapes previous sectors in the market according to those set by migration control policies and it changes the regulation of work migrants, making it more sectoral. An analysis of the sectoral regulatory regime is crucial once the referral of migrants to sectors gains dominance.14 The argument on the sectoral regulatory regime corresponds with another phenomenon discussed in the labour economic literature, ie the increased sectoral differentiation that typifies the macroeconomic changes of the past thirty years.15 Migration controls enter into this process and in the past few decades have been driven by sectorspecific considerations.16 The transformation of the demand for ‘guest workers’ from a general to a sectoral one changes power relations within societies, bowing to employers’ preferences and paving the way for particular union involvement at the sectoral level.17 As the literature points out, even though migration studies have traditionally concentrated on state activities and public policy,18 in practice, particularly in a sectorally differentiated regime, non-state actors and individuals are very central to shaping migration flows and the regulation of migrants in the host state. Generally, these private actors include organized interest groups, courts, ethnic groups, trade unions, local actors, and others.19 In this chapter I use the methodology of ‘law in action’, on the basis that through this viewpoint much can be learned about relationships and dynamics in the market. I focus on the Israeli national setting and, more particularly, on a change in migration control policy made in Israel a few years ago as a consequence of a Supreme Court decision, which declared that the binding of migrant workers to their employer is unconstitutional and should therefore be abolished and replaced.20 The judgment required the state to adopt new non-binding policies, and indeed, in the years following the decision new policies were adopted which were more sector-centric. I discuss the construction 13 E Albin, Sectoral Disadvantage: The Case of Workers in the British Hospitality Sector (DPhil thesis, Oxford 2010) Introduction and ch 1. 14 The allocation of migrants to certain sectors is not unique to Israel but also found in various countries around the world. On Britain, see Anderson (n 10) and also the sector-based scheme introduced in 2003. On the scheme, see: accessed 14 January 2014. On Canada, see Fudge (n 4). 15 G Menz and A Caviedes, ‘Introduction: Patterns, Trends, and (Ir)Regularities in the Politics and Economics of Labour Migration in Europe’ in G Menz and A Caviedes (eds), Labour Migration in Europe (McMillan 2010) 1. 16 17 Menz and Caviedes (n 15) 5. Menz and Caviedes (n 15) 6. 18 Menz and Caviedes (n 15). 19 G Lahav and V Guiraudon, ‘Actors and Venues in Immigration Control: Closing the Gap between Political Demands and Policy Outcomes’ (2006) 29(2) West European Politics 201. 20 Kav LaOved v The Government of Israel HCJ 4542/02. The case was litigated by the author.

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sector and the domestic care work sector. As shown in this chapter, the change in policy led to a different regulatory regime in each of the two sectors and to new forms of labour regulation that were foreign to Israeli labour laws. Based on that analysis, I conceptualize the sectoral regulatory regime. The challenge of conceptualizing the sectoral regulatory regime is to posit an explanatory process that integrates the various components that take part in shaping the regulatory process, and at the same time enables assessment of the role of these various components in the process of regulation. Here I offer three main factors that impact on its design. The first is the rules of the sector, meaning its structure and culture. The idea of the rules of the sector draws upon a view of sectors as fields,21 each of which has its own structure and culture that change over time, impacting the sector as well as those located within it.22 The second factor is agents operating in the sector—employers, trade unions, employers’ associations, non-governmental organizations (NGOs), private agencies, etc. The third and final factor is sector-sensitive system effects designed by the state and hence outside the control of the agents noted earlier.23 These include, for example, the provision of public services at low cost, such as care work for the disabled and the elderly, and processes of flexibility that lower incentives to invest in training and technology. The state is not absent from this regulatory regime. It determines the system effects, and it is a player in shaping migration regulation and labour legislation. However, the two latter have been intertwined with the three factors noted earlier, and accordingly altered, intensifying their sectoral form. The sectoral regulatory regime that has been created from the meeting of migration controls and the sectorally differentiated labour market poses challenges to labour law, two of which are discussed in this chapter. The first concerns the unitary approach to labour law, particularly labour-protection legislation, and the second the assignment to these private actors of legal responsibility towards the migratory workforce. The chapter is structured as follows: Section II discusses the interconnections between work migration policies and the sectoral setting, and introduces the theoretical view of the sector as it is used in this study for methodological purposes. Section III turns to Israeli migration controls policy and to the judgment of the Supreme Court regarding the binding policy. Section IV conducts an analysis of the symbiotic relationship between the new policy and arrangements at the sectoral level by looking at the way the court decision has impacted processes targeted at migrant workers in the construction and domestic care work sectors, respectively. Section V puts forward the idea of the sectoral regulatory regime that has been created from the meeting of migration controls and the sectorally differentiated labour market through a discussion

21 My thinking of the sector as a field has been much inspired by the writings of Bourdieu, including P Bourdieu, Outline of a Theory of Practice (Cambridge University Press 1977); P Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Harvard University Press 1984). 22 The notion ‘the rules of the sector’ is from Peck (n 11) and see also Albin (n 13) Introduction and Chapter 1. 23 On system effects, see M Ruhs and B Anderson, ‘Introduction’ in M Ruhs and B Anderson (eds), Who Needs Migrant Workers? Labour Shortages, Immigration, and Public Policy (Oxford University Press 2010) 1.

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on the three factors that explain it. Section VI points out two main concerns that this regime raises for labour law; and section VII concludes.

II. Work Migration Controls and the Sectorally Differentiated Labour Market Allocating migrant workers to particular sectors within the labour market is an element of many work migration control policies around the world. Countries adopting this policy often set and apply different pieces of regulation to each sector. The argument promoted in this chapter is that this brings together migration control policy and the sector, with its rules and the agents operating in it, leading to an interactive symbiotic and dynamic process. This process provides substantive power to private actors in the sector, and furthers sector-specific regulatory arrangements, having profound consequences for migrants, the labour market, migration law, and labour law. In order to develop this argument, this section of the chapter first outlines the literature on migration controls and labour law, and that on the sectoral labour market. It also presents the theory underlying my analysis of the sectoral setting. While migration controls are designed in response to economic claims of labour shortages and needs, studies have shown that their implications go beyond those aims. Bosniak’s groundbreaking work on citizenship offers the first step towards such analysis. Her work reveals that migration policy and migration controls make it possible to preserve the distinction between citizenship and alienage. Even though citizenship is understood to embody a commitment to equality as against subordination, it also represents an axis of subordination itself—targeted against the alien.24 The construction of alienage is accomplished through mechanisms aimed at preserving the idea of citizenship. Part of this is refraining from providing migrants with citizenship status, an act that not only differentiates migrants from members of a society, but also serves as an additional ‘axis of inequality’ and exploitation in the market.25 Vosko similarly has discussed the implications of migration policy and controls for the citizenship conception of work migrants, defining it as ‘partial citizenship’, meaning the gradual and selective extension of civil, political, and social rights to migrants.26 Both Bosniak and Vosko address the labour market in their arguments, showing how the ‘axis of inequality’ or ‘partial citizenship’ impacts on work relationships and the labour rights of work migrants, preserving their alienage while constructing and institutionalizing precariousness at work.27 This has also been illustrated by Anderson who discussed how migration controls produce particular work relationships and the precariousness of migrants through categories of entrance, the imposition of employment relations, and institutionalization of uncertainty.28 Categories of entrance not only determine who is eligible to enter (based on requirements of age, skill, country of origin, marital situation, etc), but also shape length of stay and employment. In this 24 L Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton University Press 2006) Introduction. 25 26 27 Bosniak (n 24) 112. Vosko (n 4). Bosniak (n 24) ch 5; Vosko (n 4). 28 Anderson (n 10).

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way they directly affect the employment relationship and the rights of workers. Employment relations are structured through particular patterns of work, such as false self-employment and subcontracting, statuses that result in the absence of labour rights or in limited rights. Additionally, fixed-term contracts are very common in the employment of migrants, as is the binding of workers to their employers, a practice that provides immense power to the latter. Lastly, immigration policies are key to the creation of legality, but at the same time they may produce illegality by setting exceptions, determining situations of rule breaking, and leaving grey areas. A state of insecurity is thereby produced and institutionalized for migrant workers, placing them in a more precarious position. Labour lawyers have joined these discussions. Mundlak, for example, has claimed that policies towards migrants influence the contract of employment of migrants, stating that they have a ‘foundational contract’, which constitutes three layers of difference between the migrant worker and the citizen worker.29 First, while citizen workers’ status is established upon a set of minimal rights, the status of migrant workers consists of partial rights, duties, and restrictions. Second, as opposed to citizen workers who, at least theoretically, can be involved in the negotiation of the terms and conditions of their employment, migrant workers have almost no say in determining their working circumstances. These are set beforehand by the Government. Third, the legal construction of citizen workers’ status is intended to interfere in the market. This is not the case in respect of migrants, whose situation is constructed through a view of their rights and obligations towards the state.30 As a consequence, while the citizen worker enjoys a protected status, the status of the migrant worker is binding and restrictive. The immense contribution of this line of studies is that it reveals the interconnection between the regulation of workers’ rights and migration controls and policy, and the various ways in which they affect one another, significantly pointing to their implications for work migrants. It captures migration as a process that alters previous arrangements in the market, while differentiating citizens and residents from migrants. In doing so, it poses an assumption that migration is a unitary experience, when, in fact, the regulation regarding migrants is diverse, both in migration law and in labour law. Differentiations exist in the regulation of migration and in migrants’ rights at work. I believe that these differentiations are correlated with the sectorally differentiated labour market and with another process discussed in labour economic literature, regarding the growth of sectoral divisions. Studies have shown that in the past few decades the demand for labour has become more sectoral. Ruhs has noted that one change is the emergence of ‘immigrant sectors’, meaning sectors that employ work migrants primarily or exclusively.31 Restrictions of the employment of migrants to certain sectors and occupations has led, or at least contributed, to the desertion of these sectors by native workers, creating segmentation in the market. Menz and Caviedes have pointed out that the politics of migration in Europe are driven by sector-specific considerations.32 They say that the system of 29 31

30 Mundlak (n 3) 431–2, 437. Mundlak (n 3) 431–2. 32 Ruhs (n 10). Menz and Caviedes (n 15).

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political economy in a given polity strongly shapes the type of labour migrants employers will be interested in, and that this has become sectoral. Countries began to incorporate large-scale labour recruitment policies in sectors such as construction, agriculture, hospitality, health care, and information technology. This change in the political economy not only affects policies, but also reconfigures power relationships within societies, with a considerable shift toward acceding to employers’ preferences.33 I claim in the chapter that while the allocation of migrants to certain sectors has been used to further promote the state’s migration controls—limiting their movement; shaping the foundational contract and depriving migrants of rights enjoyed by citizen workers, such as the rights to resign, choose employment, and negotiate terms and conditions of work;34 locating migrants in the lower labour market; and intensifying labour market segmentation35—after a period of time this policy has not only created migrant sectors, but also altered power relations between the state and actors in the sectoral setting. Once migration controls allocate migrants to particular sectors and continue to do so, it reinforces a sectoral regulatory regime. It can be said that today this regime defines migration law and the labour laws applying to migrant workers. It also leads to the creation of new forms of sector-specific regulation that preserve the alienage of migrants, while sustaining an axis of inequality. This unequal, non-unitary, private-actor-governed regulation, poses challenges to labour law theory. I aim in this chapter to conceptualize the sectoral regulatory regime while positing an explanatory process that integrates the various components that take part in shaping it. Such a conceptualization also enables us to assess the role of these various components in the process of regulation. I show that the rules of the sector, the actors operating in it, and system effects play a major role in constructing the situation with regard to migration, migrants, labour relations, and labour law. ‘Sectoral disadvantage’ is a helpful notion for analysing the role of the sector’s rules.36 Under this notion, the sector is viewed as a segment of the labour market, with its rules constituting its structure and culture. By rules I mean norms in the broader sense, including informal norms. These have been created by actors within the sector, by state policy, by global processes, etc, throughout history, and the activities of these agents continue to be embedded in these rules. The notion of sectoral disadvantage centres on two axes. The first axis is the ways in which sectoral rules affect workers in a specific direction of disadvantage. As noted, these rules are embedded in the history of the sector, but they also transform over time. They entail a culture that has developed in the past, but continues to change. Most importantly, their existence shapes work relationships and thus serves as another factor in the interaction of migration control policy with the sectoral labour market. Here, the various actors operating at the sectoral level, including the workers themselves, employers, trade unions, employers’ associations, and NGOs, play a key role in determining the sectors’ rules, while also being bound by them. This shapes the dynamic relationship between the actors and the state mentioned earlier, including the claims raised by these actors and their power. It can eventually explain the regulatory outcome. 33 36

34 Menz and Caviedes (n 15). Fudge (n 4). On ‘Sectoral Disadvantage’ see Albin (n 13) ch 1.

35

Ruhs (n 10).

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The second axis of sectoral disadvantage is the multi-layering of disadvantage, which can be traced and better understood through a sectoral focus, with the sector being viewed as a location through which a more holistic concern regarding disadvantage may be exercised. By accepting that disadvantage varies by sector, the sectoral viewpoint reveals the variations among workers within a national setting, cutting across the traditional categories of disadvantage discussed in the literature. It sheds light on divisions within the categories of men and women, low-wage workers and migrants, pointing out dissimilarities within these groups. In today’s rather diverse and unequal work domain, the unravelling of these variations and their causes is extremely important. This is the axis through which a better understanding of variations among the groups of migrants can be achieved. It offers an opportunity to assess how, despite the shared experience of migration, some migrants may be in a different position than others and, more importantly for this chapter, how the dynamic relationship with the state is continuously being shaped, creating differences among the groups of migrants. In the following sections I look at a change in migration control policy that took place in Israel after a Supreme Court decision from 2006 declared that the binding policy of migrants to their employers breached the rights of workers and should therefore be abolished and replaced. The discussion focuses on two sectors that were affected by the ruling and the change in policy—construction and domestic care work. Section III describes the policy and the court judgment, while section IV features the analysis of the two sectors mentioned earlier.

III. Israeli Work Migration Control Policy Migrant workers began entering the Israeli labour market in 1993 when the access of Palestinians from the occupied territories was restricted. Since then the number of documented and undocumented migrants has grown dramatically, with data showing that at the beginning of the twenty-first century they accounted for 10 per cent of the labour market.37 Migrant workers entered into four main sectors in Israel: construction, domestic care work, hospitality, and agriculture. In recent years, a migration control policy change was adopted, limiting the number of visas awarded to workers in hospitality. The entry of migrant workers into Israel was regulated by a specific work visa that stated their length of stay and the name of the employer for whom the visa was granted. Accordingly, work visas for migrants were given on condition that the work would be performed only for the employer named on the work permit and for the period of time stated in the visa. The employer was also responsible for the migrant’s departure from Israel at the end of his or her working period. Working for an employer not named on the permit meant a breach of it, as a result of which the worker would be considered ‘undocumented’, exposed to detention and deportation. This was called ‘the binding policy’, due to its construction of unfree labour movement from one employer to another. 37 D Gottlieb, ‘The Impact of Non-Israeli Workers on Employment, Wages and Inequality: 1995–2000’ (2002) 49 Quarterly Journal of Economics 694.

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Binding the migrant to her or his employer was stated by the Government to be the most effective way of controlling the migrant workers’ entrance into Israel, their stay in and departure from the country. But at the same time, the binding policy denied the freedom of migrant workers and diminished their market power, setting the platform for abuse by their employers. Employers used to hold the workers’ passports, restrict their movements, lock them within the household, not pay salaries, or pay wages below the level set in the Minimum Wage Law. Denial of the option of leaving their employers due to the binding policy also led to long working hours without extra pay and disgraceful living conditions. In addition, with migrant workers’ high dependence on their employers came sexual, physical, and emotional harassment, as well as abuse. Employers used violence towards their workers or treated them in other inhumane ways, such as denying them food or water. Migrants who were found staying or working in Israel not under their registered employer were automatically viewed as undocumented and sanctioned to deportation. There were also instances in which workers became undocumented without their knowledge. Employers tended to transfer their workers from one location to another, providing their labour force to others for pay. Eventually the work would be conducted for another employer, leaving the workers in a situation of illegality. The workers’ having to pay remittances to the agencies that brought them to Israel only made the situation worse. They needed earnings from their work in order to repay the debts they had incurred in their countries of origin and were afraid of being subjected to removal. By deciding to adopt this migration control policy, the Government not only controlled migrant workers, but also structured their precarious work situation. Binding workers to their employers was one layer within the foundational contract of migrant workers, which also included the provision of lower social benefits, restrictions on their ability to de facto form trade unions, and denial of the possibility of becoming members of the main Israeli trade union—the Histadrut—until the year 2010.38 Additionally, the terms and conditions of employment they were entitled to were hardly enforced.39 Most academic writings in Israel, NGO reports, and research conducted by the Bank of Israel and by the state’s comptroller, pointed to the binding policy as the main reason for the mass infringement of human rights.40 It is important to note that, in comparison to other binding policies in various national contexts that enabled movement in some circumstances, the Israeli policy was very strict, allowing a transfer to another employer in very rare circumstances and only in the domestic carework sector. Against this background, a petition was submitted to the Israeli Supreme Court by six human rights organizations in a case called Kav LaOved v the Government of Israel.41 The petition raised the following claims: the binding policy is illegal, since it breaches the workers’ right to dignity set out in the Basic Law of Human Dignity and Liberty,42 and it is a violation of labour rights, such as the right to resign. The main argument was that the policy slashes the migrant workers’ market power, because at 38 40 42

39 See Mundlak (n 3) 447–57, 472–6. Mundlak (n 3) 457–63. 41 For a summary of these, see Kav LaOved (n 20). Kav LaOved (n 20). Adopted in 1994.

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any stage, at any time of day, the employer can dismiss the worker, leaving him or her undocumented. At the same time, it gives the employer extensive power over the worker due to the worker’s high reliance on the employer for his or her earnings and legality of stay. In a situation where there is already increased inequality in market power between migrants and their employers, this policy made things worse, equivalent to a situation of modern slavery. The Supreme Court accepted the petition, ruling that the binding policy is an infringement of the natural right to freedom, of a person’s freedom of action and freewill.43 The Court stated that the policy deprives the workers of their bargaining power at its most basic level. Additionally, it stated that the policy attaches a severe sanction to the basic right of every worker to resign, and that this cannot be justified. The Court stressed that the binding created a new legal regime, foreign to labour law principles and to the basic purpose of the contract of employment, which is to sustain the worker’s economic existence and his or her dignity and liberty. Because dignity is a basic principle in Israeli constitutional law, especially since the Basic Law of Human Dignity and Liberty was adopted, and the right to dignity includes freedom of contract, freedom of movement, and a person’s free will, the court reached the conclusion that the binding policy breaches the rights set in that Basic Law of Human Dignity. Judge Cheshin even said that the binding policy is a modern form of slavery, noting that ‘the country pierced the ears of migrants to the doors of their employers’.44 The court declared the policy to be illegal and one that should be replaced, giving the ministry six months to offer an alternative. It took the state some time before it issued its revised migration controls for migrants in Israel, and the policy that was adopted was set according to the different sectors where migrants are employed. In 2007, what is termed the corporate policy was issued for migrants working in the construction sector, and in 2008 the agencies policy was issued for migrants working in the domestic care work sector. The next section describes the two policies that were applied in the construction sector and the domestic care work sector, respectively, and analyses the resulting dynamic and symbiotic relationship in both sectors and among actors in each sector and the state following the court’s decision.

IV. Migration Controls Change: Two Sectoral Perspectives The binding case led to sectoral migration controls in Israel, with the adoption of distinct programmes for the construction and domestic care work sectors.45 In addition, once these programmes were introduced into each sectoral setting, an interesting symbiotic process occurred, with different consequences for the workers, labour relations, migration policy, and labour law. In the following paragraphs, I will discuss

43

44 Kav LaOved (n 20) 26. Kav LaOved (n 20) 51. Even before this judgment, migration policy also had sectoral elements, but very minor ones. As noted earlier, migrant workers in the domestic care work sector had the possibility of transferring to another employer in limited circumstances, something that was denied to migrants in the other three sectors of construction, agriculture, and hospitality. 45

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these transformative processes, an understanding of which can be achieved only from a viewpoint that considers the history of the sector and its rules before the transformations occurred. Thus, each subsection begins with that history, lays out the sector’s rules, and continues with the analysis of the transformation and its implications.

1. The construction sector In the early days of the twentieth century, when Jews began settling in then-Palestine, the Zionist ethos of establishing a nation state for the Jews was fundamentally reliant upon the construction sector. During those years, to engage in construction work was a source of pride, dignity, and considerable respect to workers, and Jewish community members, skilled, educated, and motivated, worked in this sector.46 They were Jewish immigrants coming mainly from Europe. In those early days, workers in the sector were members of the Histadrut, a membership that provided them with political power. There was a unique connection between the socialist ideology, the building of the nation state, and the political power of those engaged in construction.47 This connection not only placed leaders of the construction sector in key positions in politics, but was also the reason why the sector was one of the first where collective agreements were made. Workers were not the only organized group in the construction sector. Construction craftsmen and corporations were also united in a few organizations. In 1949 these came together under the Association of Contractors and Builders in Israel.48 This has been the main employers’ association in the Israeli construction sector ever since. From the day it was established, the Association, which has more than 2,500 members (including a small number of very large corporations and many small companies and craftsmen), signed a number of collective agreements with the Histadrut regarding the terms and conditions of employment of the sector’s workforce. The main collective agreement in the sector was drafted and signed in 1968. It was voided in January 2010 and replaced by a new collective agreement that will be discussed further below. However, the fact that the construction sector was, and continues to be, a unionized sector is important. Many of those working in companies and for private employers in construction are covered by collective agreements or by extension orders.49 Still, despite its being a

46 Establishing the nation state through engagement in hard labour was the underlying ideology of the Zionist movement, specifically of B Katznelson and A Gordon. See Z Sternhell, Nation Building of a New Society? The Zionist Labor Movement (1904–1940) and the Origins of Israel (Am Oved Publishers Ltd 1995) 83–8. 47 H Dan, Unpaved Road (Tel Aviv 1963) chs 1–5. 48 The association’s name today is: Israel Builders Association Boney Ha’aretz. On the organization, see accessed 17 December 2013 (Hebrew). 49 Over the years, several extension orders have been issued by the Ministry of Labor, extending general collective agreements to the entire sector. On administrative extension orders, see G Mundlak, Fading Corporatism: Israel’s Labor Law and Industrial Relations in Transition (Cornell University Press 2007) ch 1. The extension orders in the early years of the agreement did not necessarily cover all those working in the sector. In the 1968 agreement it is stated that workers subject to the agreement are those treated by the Histadrut of Construction Builders. The meaning of the term ‘treated’ is unclear. From the discussion on the situation of Palestinian workers from the occupied territories, it is evident that this group was not covered by the 1968 agreement until 1970, and that migrants were also not included in the agreement until it was amended to include migrant workers in 2000. See the definition in s 1 of the general collective

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unionized sector, since the establishment of Israel as a state there has been a constant decrease in the prestige, stability, and terms of the construction workforce. A few causes may be mentioned for the transformation of the sector’s workforce from being proud and privileged to being located in precarious employment. The first is the growth in the extent of work patterns differing from the traditional employment model of full-time, long-term work. This has happened with the increase in construction companies and independent craftsmen, and the growth in subcontracting and selfemployment. The second cause is the loss of the workforce’s political power. This loss can be associated with several interconnected changes that occurred over the years, including the dominancy that other sectors have gained in the Israeli labour market; legal, political, economic, and social changes that impacted the political power of the Histadrut and its members;50 the growing segmentation of the labour market, which negatively affected construction; and the entry of other groups of workers into the sector. First were Jews from North African and Middle Eastern countries, then Arabs residing in Israeli territory after 1948,51 and afterwards Palestinians from the occupied territories. This is the third cause I wish to note. The story of the construction sector is also a story of the migration processes happening in Israel. Throughout history, the sector’s workforce was drawn from groups located in the lower segments of the market. This affected the pay levels of construction workers, entitlements to social benefits, bogus employment on a daily and casual basis, and the enforcement of rights.52 Additionally, some of these groups—citizen Arab workers and then Palestinians from the occupied territories—were not entitled to become members of the Histadrut.53 Moreover, and this is a crucial point, their employment enhanced ethnic segregation in the labour market, promoted the disadvantage of workers in the sector, and delayed technological advancement, entrenching the dependency of the sector on cheap labour.54 Segregation and cheap labour were institutionalized. Migrant workers entered into this setting, where the rules of the construction sector were already established. These rules were reinforced after their entry, mainly in connection with the binding policy. The Histadrut, the employers, and their association developed tight working connections over the years, determining the terms and conditions of employment while relying on cheap labour. Those cheap labourers, at least from a certain point in time, were not members of the Histadrut, and it does not seem to have seen itself as representing their interests. Additionally, the construction

agreement number 681255 between the Association of Contractors and Builders in Israel and the General Histadrut, concluded on 9 April 1968. 50 A good summary of these changes can be found in Y Cohen, Y Haberfeld, G Mundlak, and I Saporta, ‘Unpacking Union Density: Membership and Coverage in the Transformation of the Israeli IR System’ (2003) 22(4) Industrial Relations 692. 51 In 1969, 10.7 per cent of those working in construction were Jews from North African and Middle Eastern countries, 20.2 per cent were Israeli Arabs, and 45 per cent were Palestinians from the occupied territories. M Simyonov and N Lewin-Epstein, Hewers of Wood and Drawers of Water: Non-Citizen Arabs in the Israeli Labor Market (ILR Press 1987) 49. 52 See Kav LaOved, ‘Information Pamphlet’ (March 1993) (Hebrew). 53 R Ben-Israel, Labour Law Vol 1 (2nd edn, Open University Press 2002) 95–7. 54 D Bartram, ‘Foreign Workers in Israel: History and Theory’ (1998) 32 Int Migration Rev 303, 304, 308.

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sector had a few dominant and strong construction companies, alongside which worked many small companies and self-employed individuals, whose work depended on the subcontracting of particular assignments by the larger corporations. This culture was dominant in shaping work relationships within the sector. The entry of migrant workers into the sector and the application of the binding policy until 2007 made it possible to preserve those rules of cheap labour, lack of technological advancement, segmentation of work, etc. It was against this background that the corporate policy was set within the construction sector after the Supreme Court judgment. According to the corporate policy, workers are employed by corporations that receive a licence from the Government. Only a limited number of corporations are entitled to work in a sector, and they allocate workers to specific establishments within it. Most of these corporations are tied to the large companies that have worked in the Israeli construction sector for years. Workers wishing to move from one establishment to another are allowed to do so, and, once in three months, workers are permitted to request to move from one corporation to another. As a result of this policy, the situation of workers in the construction sector has improved on some levels. Mainly, there was a rise in the pay given to workers.55 Corporations receiving a licence to employ migrants are obliged to pay a level of wages higher than the national minimum. The level of pay as determined takes into consideration the extra working hours required from these workers. Furthermore, workers can move legally from one employer to another and from one corporation to another. In parallel, however, remittances paid to the agencies that bring these workers to Israel have increased.56 It is questionable whether the wage of workers indeed reaches the minimum when these are taken into consideration. Workers are still mistreated when they suffer accidents in the workplace.57 There are numerous complaints about the corporations themselves and their breaches of labour rights,58 the terms set for migrants under collective agreements are lower than those of Israeli IDholders, and until 1 March 2010 migrant workers were not entitled to become members of the Histadrut or form their own trade union.59 While the strong actors within the sector, in this case the employers and major construction companies, have found ways to preserve the rules of the sector, namely cheap labour, ethnic segregation, and patterns of subcontracting, the Histadrut was also a party to a collective agreement that located migrant workers in the lowest pay rank among several. This collective agreement was declared by the Israeli National Labour Court in November 2009 to be discriminatory and therefore void.60 In the amended collective agreement, signed in January 2010, there were no practical beneficial 55

Y Berman, Liberty Ltd (Hotline for Migrant Workers and Kav LaOved 2007) (Hebrew) 28–9. Berman (n 55). 57 In a report written by Kav LaOved, there are a few stories about workers injured at work that were not returned to their work and lacked satisfactory provision of health-care rights. See Kav LaOved, Activity Report on Chinese Workers (Kav LaOved 2008) (Hebrew). 58 Kav LaOved (n 57). The most significant complaint is of corporations holding back the wages they have to pay workers. See also Berman (n 55) 29–30. 59 See accessed 15 January 2014. 60 The Association of Contractors and Builders in Israel Ltd v The New Histadrut NLC 18/08 (unpublished). 56

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outcomes for migrant workers in construction. The rank under which migrant workers are employed set the level of pay at 4,350 NIS, which is the sum that employment corporations had to pay their workers in any case at that time, according to the corporate policy. Hence, the collective agreement did not benefit the workers in improving their terms and conditions of work, but does provide them, at least theoretically, with the protection of the Histadrut. From a law in practice perspective, then, it is evident how the rules of the sector impacted the shaping of sector-specific regulation, and the ways in which private actors within the sector took part in forming state-led regulation as well as their own private regulation in order to preserve the economic order of the sector. The corporate policy adopted the structure of the sector, which includes a few dominant contract companies and large numbers of independent contractors that are reliant on these companies for work. Now they are reliant on these companies for hiring migrant workers as well. The large corporations were involved in the design of the corporate policy and their interests governed the arrangement. Practices created over the years by these corporations as well as by the employers’ association and the Histadrut were maintained, reflected in the collective agreement from 2010. Here, the long-lasting relationship of the Histadrut with the employers’ association was active in sustaining the precarious position of migrants. Labour supply conditions have also had an impact due to the possibility of hiring undocumented Palestinians from the occupied territories in the sector, as well as attracting the young Israeli workforce to the sectoral setting. These features of the sector have had a substantial impact on the way work relationships were designed in the sector after the Supreme Court gave its decision. To these we should add state policy—no incentives were given by the state to promote technological advancements or to raise the pay for other workers to be employed in construction. Additionally, the policy of subcontracting and privatization strengthened the adoption of a policy based on the sector’s structure consisting of companies and independent contractors, as described earlier.

2. The domestic care work sector The story of care work in Israel is as old as that of construction. During Israel’s early years as a nation state, the Ashkenazi Jewish migrants from Europe employed Jewish women who had arrived from North African and Middle Eastern countries in household activities, creating segmentation within the labour market among both groups. In the 1950s, citizen Arab women were employed in cleaning, cooking, and caring for children, and, with the occupation of the Palestinian territories in 1967, Palestinians from the occupied territories began entering the sector as well.61 Most of these workers were not live-ins. People who are recognized today as being in need of domestic care, such as the elderly and the disabled, were either cared for by their family members and domestic help, or placed in institutions. The number of people 61 On this history, see G Mundlak and H Shamir, ‘Between Intimacy and Alienage: The Legal Construction of Domestic and Carework in the Welfare State’ in H Lutz (ed), Migration and Domestic Work: A European Perspective on a Global Theme (Ashgate 2008) 161.

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entitled to state support was low, and it was provided according to restrictive principles of selectivity.62 This all changed in the 1980s and 1990s, due to the recognition that large numbers of elderly people live in the community alone, changing social conceptions regarding institutions and the inclusion of the elderly and the disabled in the community, including community living, as well as the entry of migrant workers into the sector from 1993 onwards.63 As Mundlak and Shamir have shown, in the early days of the state and continuing today, care work in Israel performs a dual function of including those who would otherwise find themselves outside the labour market, while at the same time excluding them. It accomplishes that by two main mechanisms: stratification among Ashkenazi Jews, due to the fact that care work remains a woman’s chore, thereby maintaining gendered labour divisions; and segmentation between Ashkenazi women and others, such as Mizrachi Jewish women, Arab women, Palestinian women from the occupied territories, and, later, migrant women.64 Like other care work sectors in the world, the Israeli domestic care work sector was, and continues to be, characterized by personal work relationships between employers and workers.65 The employers are individuals; the chores are conducted within the household and often include intimate activities of care-giving and no definitive working time; the workers are women from ethnic minority groups or migrants, earning low wages, isolated from other workers, and scattered in private households across the country. Since its emergence, domestic care work has been largely informal, in the sense that written work contracts were rare, and employment relations tended to be based on oral agreements. Therefore, employment relationships are based on oral agreements and trust. These rules of the sector continued to apply with the entry of migrants into care work during the 1990s. As noted earlier, from 1993 onwards the Israeli Government approved the issuance of work permits for migrants. After their inclusion within the construction sector and later in agriculture, too, the Government admitted migrant workers from the Philippines, Romania, and Poland into the domestic care work sector. Permits were given for work with the elderly and the disabled, but undocumented work was performed in other situations, such as care for children and the household. A high percentage of migrants in the sector are live-ins, bearing the associated difficulties of working time, intimacy, isolation, low pay, etc. With the entry of migrants into the sector, its rules were further entrenched, due to the relationships being construed as including care workers within the household, while at the same time excluding them as aliens.66 The binding policy made the situation extremely difficult for the workers, since even in 62 M Ajzenstadt and Z Rozenhek, ‘Privatization and New Modes of State Intervention: The Long-Term Care Program in Israel’ (2000) 29 Journal of Social Policy 247, 252–3. 63 Ajzenstadt and Rozenhek (n 62) 253–4; see also Mundlak and Shamir (n 61). 64 Mundlak and Shamir (n 61) 163. 65 On the notion of ‘personal work relationships’ see E Albin, ‘From “Domestic Servant” to “Domestic Worker” ’ in J Fudge, S McCrystal, and K Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 231. Additionally, see the description of these relationships in various countries in A Blackett, ‘Introduction: Regulating Decent Work for Domestic Workers’ (2011) 23 Canadian Journal of Women and the Law 1. 66 Mundlak and Shamir (n 61).

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cases of abuse, neglect, sexual or physical harassment, exploitation by other family members, or other instances, the workers could not legally move to another employer. There was an administrative procedure that enabled some movement, but it was usually applied only when the employer died or when the worker was released by the employer. This was a fruitful platform for the violation of basic human rights. In those days, numerous stories of abuse, neglect, and discrimination of migrant domestic care workers by their employers and/or their family members reached NGOs in Israel, and these were brought before the court in the binding case. In September 2006, after the Supreme Court handed down its decision, the Israeli Government recommended the adoption of a new migration control policy towards migrant domestic care workers—the agencies policy—which was implemented in August 2008. According to the agencies policy, authorized private agencies with expertise in the field of domestic work are responsible for transporting domestic migrant workers to Israel on behalf of those for whom the state has approved the hiring of a migrant domestic worker, and for allocating them to their future employers. In contrast to the corporate policy in construction, here the employer remains the care recipient. The Government noted that the responsibility assigned to the agencies is intended to improve enforcement against middlemen that extort remittances from migrants, and at the same time to enable the movement of migrants from one employer to another through these agencies.67 This policy can also be seen as being informed by the type of relationship considered appropriate between the care provider and care recipient—an intimate and close relationship that should not include a third employing party. But what this sectorspecific policy resulted in was greater freedom of movement for migrant domestic care workers, due not only to the changes in migration control policy and accordingly in the foundational contract, but also to the activities of NGOs that raised awareness among workers regarding their rights. Data shows that after the judgment, these betterinformed workers tended to leave their workplace more easily than in the past.68 The claim has also been made that workers are now freer to move from employers that demand extensive care, such as children, the chronically ill, and people with severe disability, to places where work is easier.69 Furthermore, employers have reported that, due to the inadequate numbers of workers, those who were already working in Israel moved to households that offered higher pay.70 These stories show that when a change of policy meets the rules of the sector, workers may not only achieve greater freedom of movement, but also enjoy extensive freedom of contract, while increasing their ability to determine their place of work and conditions of employment (not necessarily pay, but the identity and physical condition of the care recipient). Technological advancement has also been of benefit, enabling 67 Administrative Procedure for Private Agencies: Bringing, Transferring and Caring for Migrant Care Workers (updated August 2011) (Hebrew). 68 Report, The Knesset Special Committee on Migrant Workers: Recommendations for a Policy Change in Regard to People in need of Domestic Nursing (August 2011) 38–9. 69 Protocols of Discussions in the Knesset, 19 December 2007, 2; 15 November 2010, 28. 70 Protocols of Discussions in the Knesset, 10 January 2011, 19–20; 2 March 2011, 19–20; 26 December 2011, 6.

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migrant domestic care workers to set up a website that gathers together stories of care workers in Israel, and which served as a basis for information on efforts to form a domestic workers’ trade union, established under the auspices of a rather new Israeli trade union—Koach LaOvdim.71 At first, it seemed that freedom of association had become more feasible in the context of the sector’s rules. The fact that there was no prior history of unionization in the sector—especially featuring neglect of the treatment of migrant workers—offered a setting for the entry of a new trade union. The new union offered a form of industrial citizenship aligned with ideas of membership, political agency, and direct participation.72 However, other obstacles resulting from the way work is arranged in the sector continued to be a hurdle to effective unionization—the workers’ isolation, their migratory situation, and further limitations that were eventually placed on them, as described later. Indicative of the transformation of the workers’ situation in the domestic carework sector is the response of the employers, who began taking steps to reverse the reality described, asking for a return to the binding policy. Efforts made by employers in this respect included filing a petition with the Supreme Court, in which they claimed that even though every person is entitled to his or her freedom, the case of domestic care work is an exception due to the vulnerability of the care recipients.73 Additionally, employers turned to the Knesset—the Israeli Parliament—requesting it to change the non-binding policy. This step was rewarded with success, leading to a law reform that limits workers’ movement among different regions of the country.74 In all activities taken by employers, they wanted to adjust the regulation to suit their interest in a personal and intimate work relationship, and to satisfy their dependency on migrant workers for care. Their interest in such regulation should also be attributed to the state’s welfare policy, which leans on twenty-four-hour care by low-waged workers. Only migrants can meet this structuring of care provision. This has become very evident in a recent judgment delivered by the Supreme Court in the case of Glutan.75 There, the court stated that domestic care workers are not covered by the Hours of Work and Rest Law, which requires payment for extra hours of work and strikes a balance between work and leisure. The decision was based on the claim that the purpose of striking a balance between work and leisure does not apply to this work arrangement of twenty-four-hour care.76 Additionally, the judges referenced the vulnerable situation of the care recipients and the costs that a judgment accepting payment for extra working hours would lead to, leaving the employers in a worse situation. The court’s decision regarding this

71

See accessed 15 January 2014. On the organizing process in the Israeli domestic care work sector, see G Mundlak and H Shamir, ‘Organizing Migrant Care-Workers: Industrial Citizenship and the Trade Union Option’ (2014) International Labor Review (forthcoming). 73 Doron v The Ministry of Interior Affairs HCJ 1834/09 (pending). 74 Arts 2(c) and 3A of the Entry into Israel Law (1952) (Amendment 2011). 75 Yulanda Glutan v The National Labour Court HCJ 10007/09 (unpublished). 76 See the main judgment by the President of the Supreme Court, Asher Grunis. 72

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protective piece of legislation applies, as the judges themselves declared, to the domestic care work sector alone. When the regulatory regime that was created in the construction sector after the Supreme Court decision is compared with that of the domestic care work sector, the differences between the two become very evident. Regulation in both leaned on the rules of the sector, and was also shaped by state policies regarding care, training, privatization, and subcontracting—what has been termed ‘system effects’, as discussed in section V. Private actors within each sector were dominant in constructing this regulatory regime in both sectoral settings. The forms of regulation in the two sectoral settings can be explained by three factors, namely the rules of the sector, agents operating in the sector, and sector-sensitive system effects, which I now turn to presenting.

V. A Sectoral Regulatory Regime Building on the insights from the previous discussion, in this section of the chapter I want to conceptualize the idea of the sectoral regulatory regime, while pointing to three main factors that affect its design: the rules of the sector; agents operating in the sector; and sector-sensitive system effects. I believe that even though the analysis centres on migration control policies and labour regulation in Israel, it is very much relevant to additional national contexts.

1. The rules of the sector The notion of the rules of the sector was introduced in section II of this chapter. It means the structure and culture of a sector, which have been established in a long historical process and have been transformed over time. The sector is hereby viewed as a field whose rules—norms in the broader sense, including informal norms—have been shaped by agents operating in the sectoral setting, as well as by state policy and institutions. But the sector as a field with its own rules has a recognized standing of its own, distinct from those who have taken part and of those who continue to take part in its creation. There are a few fundamental aspects of the sector rules, three of which I particularly want to point out: the type of work performed; work patterns and payment methods; and unionization.

i. Type of work performed While a sector is defined according to an act of production, occupation, or service, within each sector there is usually a dominant type of work that is performed. In other words, there is a dominant ‘nature of the work’ and general tasks that are viewed as necessary for fulfilling the job. In domestic care work that would be care, and in construction it is physical work. The type of work performed is associated with what is demanded from workers with regard to skills, patterns of work that seem most adequate, and work relationships with the employer, as well as with other actors, such as clients, which in some instances are seen as required alongside that type of work. All entail conceptions of the work and are not necessarily built on rational perceptions of

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the job. These conceptions eventually shape regulation. In the domestic care work sector, for example, it is assumed that care demands personal relations with employers. Thus, when migration controls met this sector, this feature determined the adoption of the agencies policy and the designation of the care recipient as the employer. The adoption of the corporate policy in construction was based on a different conception of the relationship needed for the type of work performed, leading to the establishment of corporations recognized as the employing entity, while it is accepted that they will be sending their employees to work elsewhere. In respect of labour regulation, the type of work presumed for work migrants led the Histadrut and the employers’ association to place them in the lowest rank of the collective agreement, and in domestic care work it shaped the court decision regarding the application of the Hours of Work Act. Hence, the rule regarding the type of work that is performed has affected the shaping of migration and labour regulation.

ii. Work patterns and payment methods Various causes explain the emergence of particular work patterns and payment methods within a sectoral setting. Some are related to employers’ view to profitability, managerial interests, and internal sectoral competition, local as well as global (like subcontracting or hiring through employment agencies); some are subject to workers’ requests in their own interest (like part-time work for mothers); and some result from the type of work performed in the sector (round-the-clock 24-hour care requires someone to do a night shift) and the culture of the sector (tip payment to waiters; stock remuneration in the high-tech sector; performance-related pay in strip clubs, etc). Like the type of work, work patterns and payment methods are historically embedded in the sector and change over time, and regulation is shaped by that history. In construction, the extensive use of subcontracting and the dominance of a few primary construction companies were essential in shaping the corporate policy. That policy’s problematic implications for workers and the precariousness that this pattern entails were not questioned by the policymakers. The court in Glutan discussing the domestic care work sector, where a 24-hour pattern of work has been common since migrants entered the sector, eventually promoted the adoption of a sector-specific decision, stating that the existing regulation of work time is not applicable to this work pattern. The work pattern itself and its necessity were accepted as is by the court.

iii. Unionization Unionization, or the lack thereof, within a sector can have varied implications for regulations applying to migrant workers. On the one hand, the unionization of a sector may lead to stronger protections for migrants. On the other hand, studies and reality have shown that unions have a conflicting attitude toward migrants, due to their moral obligation to their members and their interest in protecting the terms and conditions of work of the citizen or resident worker. Here, there are two main circles of solidarity affecting each other: one with the citizen or resident members; and the other with all those engaged in the activity of work—people captured by the term ‘industrial

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citizenship’. Wishing to protect their members and at the same time sustain ongoing and stable relationships with employers’ associations, unions might sign collective agreements that place migrant workers in a disadvantaged position, preserving their alienage and precariousness, as happened in the Israeli construction sector. When there is a lack of historical unionization, migrants can benefit from the possibilities of new attempts at organization, as seen in the domestic care work sector. Theoretically, they can be more involved in constructing the terms and conditions of their work. Here, the history of unionization is crucial, as are the unions’ size, power, public legitimacy, global connections, etc, which affect their activities in the sector. In the Israeli domestic care work sector, the characteristics of the new union, together with other features, such as the type of work and work patterns, left the workers in practice without effective union protection.

2. Agents operating in the sector The literature on growth in sectoral differentiations reveals the number of agents operating in the sectoral setting, beyond the state—employers, employers’ associations, trade unions, NGOs, courts, and others. The discussion in section III highlighted their role in regulating migration policy and labour rights. This role is substantive, and I wish to point here to a few important findings of the analysis. Employers exert pressure on governments, demanding work migrants and claiming they have no other alternatives. This claim by employers has been dismantled lately in the work of Ruhs and Anderson.77 These writers have shown that employers do not necessarily need migrant workers when they request them and, in cases where migrants are not viewed as the best option, employers have an alternative. Their alternatives include increasing wages or improving working conditions, changing the production process, relocating to countries where labour costs are lower, or switching to production processes that are less labour-intensive.78 Therefore, Ruhs and Anderson conclude that employers are central to determining that there is a need for migrant workers, for they continue to phrase their claims as if they have no other alternative. This is very much evident in the Israeli case study. Once it became highly difficult to obtain permits to hire Palestinians from the occupied territories in the construction sector, employers claimed they were in desperate need of migrants. In construction, the demand for migrants as cheap labour had an impact on the collective agreement, which in the past had regulated the terms and conditions of work for Palestinians and was altered once migrants were hired in the sector. However, the arrangement for migrants is based on similar provisions to those set previously for Palestinians from the occupied territories. Moreover, the claim of employers in the domestic care work sector in their lobbying to the Knesset to amend the law and limit the movement of migrants despite the Supreme Court judgement, and before the Courts, is that they have no alternative. An interesting finding of the study relates to the social location of employers. There was a difference in application of the respective policies in the construction and

77

Ruhs and Anderson (n 23).

78

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domestic care work sectors.79 When the employer was a member of a marginalized group, such as the elderly and disabled in the domestic care work sector, the power relations following the new agencies policy tilted in favour of migrants, enabling them to take action and claim their freedom more easily. In the Israeli domestic care work sector, that explains their more frequent movements and their attempts to unionize after the Supreme Court decision. This prompted action by employers that led to further sector-specific regulation in migration controls—the new regulation that limits movement among regions—as well as shaping labour laws. The marginal social location of employers has been noted by the Supreme Court in Glutan as legitimizing its decision to exclude domestic care workers from the Hours of Work Act. The literature has highlighted the implications of social location for work relationships, something that has also been noted regarding work migrants.80 Groups dubbed as more marginal in the economy are weaker in negotiating the terms and conditions of their work, in unionizing, and in their ability to affect political and legal processes. This promotes understandings of how work experience may be different for citizens and migrants. Social location is evident in the regulation of the situation of migrants, and of distinct groups of migrants, at the sectoral level, in court decisions, and in activities targeted at the state. The social location of construction workers—their masculinity and migratory status—serves as an explanation of the practice of shared accommodations, their exposure to health and safety risks, and their location in the lowest rank of the collective agreement. In the domestic care work sector, the migratory feature of the workers impacts regulatory decisions on their exclusion from labourprotective laws, including the recent Supreme Court decision in Glutan. There, the court favoured the interests of the citizen care recipient over the labour rights of domestic care workers, consistently stating the non-application of the judgment to work arrangements where similar dilemmas exist (in sectors where the workforce is composed of citizen workers).81 The discussion on the construction and domestic care work sectors has revealed that private actors are dominant in regulating the situation of migrant workers, and that such regulation varies according to the particular characteristics of these actors. In respect of employers there may be considerable variation: from private individuals to large firms, or even chains or franchises, as well as employers from disadvantaged groups, like the disabled and elderly, etc. The existence of employers’ associations has also been noted to be crucial, especially when these are active in the process of regulation, as in collective agreements or before regulators. Trade unions are also key to regulatory processes, and it is important to see whether or not unions exist in the

79

L Lamphere, P Zavella, and F Gonzales, with P Evans, Sun Belt Working Mothers: Reconciling Family and Factory (Cornell University Press 1993). The notion of ‘social location’ has made important contributions to studies on disadvantage, including labour law studies. It has been especially useful in discussing precarious work and the situation of women workers. See eg J Fudge and R Owens, ‘Precarious Work, Women and the New Economy: The Challenge to Legal Norms’ in J Fudge and R Owens (eds), Precarious Work, Women and the New Economy: The Challenge to Legal Norms (Hart 2006) 3; L Vosko ‘Precarious Employment: Towards an Improved Understanding of Labour Market Insecurity’ in L Vosko (ed), Precarious Employment: Understanding Labour Insecurity in Canada (McGill-Queens Press 2006) 3. 80 81 Vosko (n 4); Fudge (n 4). Glutan (n 75).

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sector, and whether or not they are powerful. What the discussion has shown is that, where migrants are concerned, a lack of unionization may at times provide a better platform for action than when a powerful union operates in the sectoral setting. NGOs are key actors, too. In some sectors they are much more involved than in others, and their involvement affects the shaping of the terms and conditions of work for migrants and the strategies adopted by migrants to further their claims. It is they who initiated and followed through on the binding case. NGOs might also be key actors in shaping regulation for private actors by representing workers in labour courts, providing them with legal advice and awareness of their rights, pushing towards political activity and organization, and by criticizing or aiding trade unions.82

3. Sector-sensitive system effects In their discussion on labour shortages, immigration, and public policy, Ruhs and Anderson point out that labour demand and supply are not generated independently of each other, but rather there is a ‘dynamic and mutually conditioning relation’ between them.83 I have already noted one of their central findings, namely that employers have alternatives to employing migrants. At the same time, they note that there are ‘system effects’, which are produced not necessarily by employers but mainly by other actors, such as the state. State policy in spheres beyond migration can impact employers’ alternatives to hiring work migrants. System effects also shape regulation. Moreover, many such effects are sector-sensitive in the sense that they are either relevant to particular sectors or have considerably more implications for some sectors than others. Take, for example, state policy regarding welfare. In Israel, that policy is based on the provision of 24-hour care by live-ins at home, with limited welfare payments being allocated to those in need of care. This welfare policy is thus sector-sensitive, for it is relevant to the domestic care work sector alone, and it is a system effect that was central to shaping the agencies’ policy, and also to the Glutan decision. Another example is the training possibilities offered to particular sectors, and incentives to technological development (or lack thereof). These, too, are sector-sensitive, and can alter production processes so as to become less labour-intensive and dependent on cheap migratory labour. The analysis performed earlier has shown how these examples of system effects affect regulation, particularly the design of the sector-specific migration policy based on low-waged workers, and the labour laws in both sectoral settings. When the findings from the previous section and the three factors just discussed are brought together, a conclusion emerges regarding the creation of a sectoral regulatory regime that affects migrants, work relationships, migration law, and labour law. Work regulation of migrants as well as migration control policy can be understood in light of these three factors. Additionally, and perhaps more crucially, due to the implications of a sector’s rules, the agents operating in it and sector-sensitive system effects, a process

82 On differences between NGOs’ activities and those of unions, see G Mundlak, ‘Human Rights and Labor Rights: Why Don’t the Two Tracks Meet?’ (2012) 34(1) CLLPJ 217. 83 Ruhs and Anderson (n 23) 16.

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ensues that alters power relations and changes the regulatory regime. When migration controls and the labour law of migrants become more sectoral, unified pieces of legislation become more obscure and begin to shift towards sector-specific regulation. This sector-specific regulation is foreign to current labour law theory because it entails an axis of inequality towards migrants, which is produced not only by the state, but also by various private actors. In this sense, it challenges the theory and idea of labour law. It contests labour-protective legislation, which is perceived to be unitary,84 and places the state in a more marginal position in determining policies, gives more power to private actors, and brings about differences between migrant workers. These outcomes should be further studied, assessed, and analysed with the growth of the emerging sectoral regulatory regime.

VI. The Sectoral Regulatory Regime and Labour Law The sectoral regulatory regime deserves serious consideration, for it poses a few challenges to labour law that should be carefully addressed, two of which will be discussed here. The first concerns the unitary conception of labour law, the second the assignment to private actors of responsibility towards work migrants’ rights at work. The discussion held hereunder only points out these challenges and does not aim in any way to tackle them rigorously.

1. The unitary conception of labour law Generally speaking, many countries have adopted a unitary rather than selective approach to labour law, particularly labour protective-legislation.85 Such is the case in Israel. Unitary labour law is based on two main justifications. One is equality—equal citizenship and equal worth—and the second is universality, like that of human rights.86 In Israel, the unitary approach to labour-protective legislation follows that of the British system, which was based on the rise of universality in the welfare state.87 The idea of universality in welfare regulation is entrenched in Marshall’s ideal of ‘equal citizenship’88 and on the principles of ‘self-respect and dignity’.89 According to Marshall, equal citizenship is a fundamental aspect of the modern liberal state. The basic assumption is that no person is inherently superior, simply as a person, to any other and thus entitled to specific rights and privileges. In order to achieve equal

84 Despite this perception, studies have revealed that the unity might be false. See M Freedland, The Personal Employment Contract (Oxford University Press 2003) 15–22. 85 On the pros and cons of unitary as opposed to selective labour-protective legislation, see G Davidov, ‘Setting Labour Law’s Coverage: Between Universalism and Selectivity’ (2014) Oxford Journal of Legal Studies (forthcoming). 86 For an elaborated discussion, see Albin (n 13) ch 1. 87 S Deakin and F Wilkinson, The Law of the Labour Market (Oxford University Press 2005) Introduction. 88 T Marshall, ‘Citizenship and Social Class’ in T Marshall, Class, Citizenship and Social Development (University of Chicago Press 1974) 71. 89 J Moon, ‘The Moral Basis of the Democratic Welfare State’ in A Gutman (ed), Democracy and the Welfare State (Princeton University Press 1988) 27.

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citizenship, three sets of rights should be acknowledged: civil rights; political rights; and the social rights of citizenship, the latter including minimum labour standards.90 On the one hand, acknowledging social rights of citizenship is important for making civil rights and political rights effective. On the other hand, it entails recognizing the ‘equal social worth’ of all members of society.91 Equal worth, as Moon notes, ‘goes beyond the idea of making civil rights effective by providing the resources necessary to their existence’.92 It also includes ‘a concern with social integration, or social solidarity, with promoting enough communality in the social experiences and ways of life of different sections of the society so that genuine equality of respect will be possible’.93 Citizenship based on equal worth is correlated with the ideas of dignity and selfrespect, another theme central to universal welfare regulations. The moral argument is that the basis of the democratic welfare state cannot be one of charity or altruism on the part of the more fortunate individuals. In a democratic society, as opposed to a hierarchical one, the self-respect of beneficiaries cannot be reconciled with the receipt of charity.94 While the unitary approach rests, in theory at least, on a very similar basis to that of welfare legislation, there is one major difference between the two fields. The idea of universalism in welfare is rooted in a specific national context, its boundaries usually set by the status of citizenship. However, the conflict between labour and capital— which in legal language is transformed into inequality of bargaining power or subordination—crosses countries and nations. In that respect, the unity of labour law is in some ways similar to the universality of human rights. This is the basic understanding that underlies the adoption of international labour regulations such as those promoted by the International Labour Organization (ILO) and those set in the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,95 but it is also part of the national concession of the unity that covers all workers, irrespective of their citizenship status. For that reason, at least theoretically and, of course, with differences between different national contexts, labour legislation is not conditional upon citizenship and applies to other participants experiencing subordination in the work force, like work migrants. This is the legal situation in Israel, or at least that was the legal situation before the decision in Glutan. The sectoral regulatory regime hinders those rationales. It furthers inequalities between workers, particularly between migrants and citizens. As opposed to some forms of selective legislation that are aimed at promoting equality by setting terms and conditions that will enable historically discriminated-against groups to enjoy levels of protection equal to other workers,96 in the two cases discussed in this chapter, as in most cases regarding work migrants, the sectoral regulatory regime works in the opposite direction. Going back to Bosniak’s terminology, it creates an ‘axis of 90 Marshall (n 88) 103. Marshall distinguished between minimum standard rights and other labour rights, situating the latter within a particular category of industrial citizenship, see 104, 122–3. 91 92 93 Marshall (n 88) 101. Moon (n 89) 43. Moon (n 89). 94 95 Moon (n 89) 35–6. 2220 UNTS 93, Arts 7 and 25. 96 On the justification for a selective approach in these circumstances, see Davidov (n 85) 20; E Albin and V Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) 41(1) ILJ 67.

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inequality’ towards migrants, breaking down the very idea of unitary labour law, which is not based on citizenship. While it can be said that labour laws, including labourprotective legislation, have never been hermetically unitary, in the past few decades the Israeli legislature and courts seem to have been intent on achieving that goal.97 More importantly, they did not differentiate between one sectoral setting where migrants are employed and other sectors. Then came Glutan, which is a step in the opposite direction. For the first time it was stated that a group of workers is not covered by labour-protective legislation, not in an act of the legislature, but as an interpretation of the Hours of Work Act. This is a landmark shift in the theory of Israeli labour law, which reflects the problems of the sectoral regulatory regime.

2. The responsibility of private actors Traditionally, labour laws have shaped responsibilities within a triangle of relations that includes states, employers, and workers.98 This traditional approach has been questioned with the transformation of the nation state and corporations in the process of globalization, giving rise to literature that discusses the responsibilities of global actors and institutions towards workers.99 Such literature is based on the premise that the moral commitment towards workers has not weakened, so the challenge that remains is how the protection and promotion of workers’ rights should be developed and shaped in this transformed regime. These contemporary debates, however, have focused narrowly on the national context and local private actors acting within it. The assumption is that the sovereign state will honour its commitments to workers, including migrants, by placing requirements on these local actors. However, once local private actors start to become very dominant, changing the role of the state internally, as seen from the discussion on the sectoral regulatory regime, a challenge emerges with regard to placing responsibility on these actors, too. For example, the collective agreement in the Israeli construction sector was drafted by the employers’ association and the trade union in a way that did not further the wages or other rights of migrants in the sector. There is no justification for this collective agreement when it is analysed from the viewpoint of the work migrants. What it did was enhance the disadvantage of work migrants in comparison to other workers. This agreement seems to have mainly benefited the trade unions’ citizen members, who were upgraded in the process to ranks higher than the one established for migrants. Despite this, the responsibility of the union in contributing to the creation

97 1987 signalled a change in the legal approach to workers in Israel, with the move away from a corporate unionized regime to a regime based on labour-protective legislation which adopted unitary terms, particularly a unitary minimum wage, with respect to all workers. See Mundlak (n 49), Introduction. Additionally, while most labour-protective acts in Israel exempt some groups of workers, the labour courts tend to interpret such exemptions in a very restrictive way, limiting the ability to exclude workers from the protection of these pieces of legislation. 98 Declaration concerning the Aims and Purposes of the International Labour Organisation 1944, 15 UNTS 40. 99 Through existing or proposed institutional arrangements, like corporate codes, provisions through international trade institutions, and the ILO.

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of an axis of inequality for migrants was neither noted, nor analysed, nor came before the courts. As noted earlier, trade unions might have conflicting attitudes towards work migrants, and in many instances their actions, which are intended to protect their citizen members, bring about disadvantage to the migratory workforce. Thought should be devoted to the placing of responsibility on unions in these circumstances, and what that responsibility involves. I am not saying that these other private actors should have the same responsibilities as employers or states. But just as contemporary thinking about the global order looks at the aims and functions of global institutions and corporations in theorizing responsibility,100 discussions in the national context should also extend to functions and roles in thinking about whether to apply responsibilities to private actors and what they should entail. In the case of trade unions, then, it may mean an obligation to adopt non-discriminatory practices towards migrants, and/or to provide them with effective representation.101 Trade unions are only one example among several. In an era of nation-state decline, amongst other things in its functioning with regard to migration controls and the terms and conditions of migrants’ rights within its borders, and when in parallel private actors gain dominancy, addressing their legal responsibilities alongside the responsibility of states becomes a more pressing issue.

VII. Conclusion With the allocation of workers to certain sectors having become part of many work migration controls around the world, the need to understand the regulatory regime that it creates has become acute. What this chapter has shown is that the link created between migration controls and the sectoral level reinforces a regulatory regime that is shaped by the rules of the sector, the agents operating in it, and sector-sensitive system effects. This regime is created through a symbiotic and dynamic process happening within the sector and among actors operating in the sector and the state. In this process, private actors play a central role within and beyond the sectoral setting, reproducing sectoral-specific regulation. The three factors presented in the chapter shed light on the diverse directions of regulation in a sector, and on the centrality of these private actors to determining the situation of migrants. Further research and thought should be devoted to the implications of the sectoral regulatory regime on the unitary idea of labour law, the role of private actors and the state, and the ways in which these can be addressed.

100 This is part of global justice theories that look at political or social connections between institutions and the outcomes of their activities to the placing of responsibilities. See T Pogge, ‘Eradicating Systematic Poverty: Brief for a Global Resources Dividend’ in T Brooks (ed), The Global Justice Reader (Blackwell 2008) 439; T Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103(1) Ethics 48. 101 I began thinking of these issues in E Albin, ‘Union Responsibility to Migrant Workers: A Global Justice Approach’ (2014) 34 (1) Oxford Journal of Legal Studies 133.

9 Migrants, Unfree Labour, and the Legal Construction of Domestic Servitude Migrant Domestic Workers in the UK Judy Fudge and Kendra Strauss* We recognise that the [Overseas Domestic Workers] ODW routes can at times result in the import of abusive employer/employee relationships to the UK. It is important that those who use these routes to bring their staff here understand what is and is not acceptable. So we will be strengthening pre-entry measures to ensure that domestic workers and their employers understand their respective rights and responsibilities. Key to this will be written terms and conditions of employment that are agreed by both employee and employer. But the biggest protection for these workers will be delivered by limiting access to the UK through these routes. We are restoring them to their original purpose—to allow visitors and diplomats to be accompanied by their domestic staff—not to provide permanent access to the UK for unskilled workers.1

I. Introduction In 2009, the UK Government passed a ‘slavery law’ that created, for the first time, an offence of holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour.2 Hailed as a victory by campaigning non-governmental organizations (NGOs), including Anti-Slavery International and Liberty, the arguments in favour of a criminal offence were illustrated by stories like one about Zari, a domestic worker.3 Brought to Britain by her ‘foreign’ employers, she had her passport confiscated, was forced to work very long hours for little pay, given no breaks or time off, confined to the house, and physically and sexually assaulted. Zari’s story is one that has become increasingly familiar in the media coverage of ‘modern slavery’.4 Zari came to Britain as a temporary migrant in the category of ‘domestic workers in private households’ (also known as the overseas domestic worker, or ODW, visa scheme), a status that facilitates the entry of non-EU citizens to work in UK households.

* Judy Fudge is Professor of Law at the University of Kent; Kendra Strauss is an Assistant Professor in the Labour Studies Program at Simon Fraser University. 1 Theresa May, HC Deb 29 Feb 2012 col 35WS. 2 Coroners and Justice Act 2009, s 71. 3 Anti-Slavery International, ‘Forced Labour in the UK: UK Government Backs New Slavery Law’ (Press Release 28 October 2009). 4 Newspapers including The Independent and The Guardian have provided sustained reporting on stories of domestic servitude and trafficking since at least 2009, as well as highlighting the legal issues and related work of NGOs in online blogs. See eg M Barcia, ‘Slavery is Far From Over’ The Independent (Blogs) and The Guardian ‘Modern-day slavery in focus’ online hub.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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The ODW scheme has unique characteristics when compared with others like the LiveIn Caregiver programme in Canada.5 A migrant domestic worker may only enter the UK with a non-British employer who has been granted the right to reside in the UK through a separate category, or with a returning UK expatriate. In other words, the programme is intended to make the UK attractive to wealthy transnational migrants (including diplomats, staff of foreign firms, and high net-worth individuals) by offering them scope to relocate not only themselves but also their households, which may include their paid domestic staff. It is precisely the type of exploitation suffered by Zari that has made this category of precarious migrant status an object of concern. Kalayaan, a migrant-run NGO that has long campaigned on behalf of (and provided services to) migrant domestic workers, states: ‘The isolated, dependant and unregulated nature of working in private households, combined with gender-based and racial discrimination means that domestic workers are vulnerable to exploitative practices’.6 The nature of the conditions of work are such that migrant domestic workers are not just vulnerable to exploitative practices, but to extreme exploitation, which has been characterized as modern slavery and/or servitude. The hard-won ability to change employers, until recently a feature of the ODW scheme, is seen by Kalayaan as an essential counterweight to this risk of extreme exploitation. The Government’s removal in 2012 of the right to change employers, one of a number of changes to the overseas domestic worker visa, has therefore been framed by Kalayaan as a ‘return to slavery for migrant workers’.7 Yet, as we will demonstrate, changes to the immigration controls for migrant domestic workers have been legally and discursively shaped by the broader criminalization of slavery, trafficking, forced labour, and servitude in ways that allowed the UK Coalition Government’s Home Secretary Theresa May (quoted in the opening passage) to justify them with two interrelated claims. On one hand, the Government claims that trafficking legislation provides sufficiently robust protections for migrant domestic workers against extreme exploitation such that labour rights (like the right to change employers) are unnecessary. On the other hand, and in keeping with the broader aim of drastically reducing non-EU net migration, May’s comments illustrate the Government’s position that stemming the flow of migrant domestic workers into the UK best prevents abuse. How, we ask in this chapter, did the political discourses of slavery, trafficking, and forced labour become the justification for stripping the ODW visa of its key protective rights and the route to settlement? We argue that analysing the political discourses of modern slavery, forced labour, and trafficking alongside the processes of legal characterization that have accompanied them shows that the legal process has produced overlapping jurisdictions—of criminal, immigration, human rights, and labour law— with differing associated techniques of governance. The process of legal characterization 5

G Pratt, Working Feminism (Temple University Press 2004); D Stasiulis and A Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (University of Toronto Press 2005); J Fudge, ‘Global Care Chains, Employment Agencies and the Conundrum of Jurisdiction: Decent Work for Domestic Workers in Canada’ (2011) 12 Canadian Journal of Women and the Law 235. 6 Kalayaan, Justice for Domestic Workers at accessed 23 June 2014. 7 Kalayaan (n 6).

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does not only have ‘vertical’ effects relating to levels or scales of jurisdiction; it also has ‘horizontal’ effects that relate to the ways in which different jurisdictions—criminal law and human rights law in the case of trafficking, for example—have elective affinities. We describe these effects in relation to forces that attract or repel; the regulatory approaches associated with trafficking discourse, for example, tend to repel and marginalize other forms of regulation designed to promote labour rights and managed migration. The chapter is divided in four sections. Section II explores the unfree nature of migrant domestic work, focusing on three dimensions: its political economy; its interrelation with the gender division of labour and the status of the household; and its particular modalities over time and in place. Section III examines the legal construction of domestic servitude in the UK through an analysis of approaches to modern slavery, trafficking, and forced labour. We conclude by outlining the implications of our analysis of the importance of legal characterization for debates about the best methods of preventing the extreme exploitation of migrant domestic workers.

II. Migrant Domestic Workers and Unfree Labour Nandita Sharma has pointed out, in relation to the Canadian state, how in the latest period of capitalist globalization (often defined pace the loss of national state sovereignty), it is the foreignness of both certain forms of capital and certain workers that becomes framed as the key problem of neoliberalism.8 ‘Within this framework, not only is the relationship between national states and capitalists obfuscated, but the fortification of national state boundaries comes to be seen as necessary for the protection of “society” . . . [with] profound effects in relation to the organization of national labour markets’.9 National labour markets are socially constructed in and through the relations between capital, labour, and the state, which crystallize into durable institutional structures that are simultaneously sites of struggle.10 In capitalist societies these institutions are also sites in which the capacity to rule is organized and technologies of governance—including legal technologies—are legitimized. Sharma argues that these processes occur in such a way that power is abstracted and categories come to stand for the people whose lives are ordered by them; the citizen-Self and the foreign-Other are constructed in legal-juridical space as well as the ideological space of the nation state in ways that are vital to the ability of ‘rulers to rule’.11 One of Sharma’s key insights is that these processes do not, as orthodox and Marxist political economists claim, function solely through the process of commodification that produces the ‘free’ wage labourers who are the engines of the production of value. Sharma points to the ways in which particular national economies are constituted in and through the simultaneous inclusion of foreign migrant workers in labour markets, and their exclusion from the nation as citizens. In this way her work, through its

8 N Sharma, Home Economics: Nationalism and the Making of ‘Migrant Workers’ in Canada (University of Toronto Press 2006). 9 Sharma (n 8) 5. 10 J Peck, Work-Place: The Social Regulation of Labor Markets (Guilford Press 1996). 11 Sharma (n 8) 54–5.

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engagement with race and gender, extends scholarship of the last several decades that has sought to highlight the centrality of unfree labour to contemporary capitalism and conceptualize freedom/unfreedom as a spectrum rather than a binary.12 Unfree migrant labour, then, describes when a worker is unable to enter the labour market (of the receiving country) through a process of ‘free’ contract, but his or her labour power is nevertheless commodified. More recent definitions, for example of forced labour, also recognize that unfreedom can occur when a worker initially enters freely into an employment situation, but is deceived about the nature and conditions of work and/or is forced to remain in that relationship through coercion.13 Neither situation precludes the payment of a wage; many forms of unfree labour and forced labour are in fact done in exchange for some form of payment. Slavery in all its forms, bonded labour, and other forms of forced labour are thus subsets of unfree labour that involve coercion of various kinds upon, during, or prior to, the initiation of the work relation. They occur on a spectrum of unfreedom that not only encompasses a range of forms and relations of commodification and exploitation, but a variety of individual work relations that are not static across time or in place.14 Migrant domestic workers are a special group within this broad typology of unfreedom.15 In relation to initiation, they are a priori unfree in the sense that unfreedom is endogenous to the migrant domestic worker status in most cases. Migrant domestic workers are rendered unfree at the moment of contract by virtue of the restrictive conditions imposed by their precarious migrant status, which is often constructed by the state. The state thus creates the conditions under which such unfreedom leads to extreme exploitation by employers. For example, most migrant worker visa programmes encompass restrictions on how workers are employed, where they may reside (often within the employer’s home), if and by what means they may obtain permanent residence or citizenship, and under what conditions (if any) they can be joined by dependants. In some cases their passports are confiscated on arrival.16 Many programmes also set out conditions of termination of the contract of employment that are different for domestic migrant workers than for other types of workers and which

12 K Skrivankova, ‘Between Decent Work and Forced Labour: Examining the Continuum of Exploitation’ JRF programme paper (Joseph Rowntree Foundation 2010); G LeBaron, ‘Unfree Labor Beyond Binaries: Insecurity, Social Hierarchy, and Labor Market Restructuring’ (2013) International Journal of Feminist Politics, DOI: 10.1080/14616742.2013.813160; K Strauss, ‘Unfree Labour and the Regulation of Temporary Agency Work in the UK’ in J Fudge and K Strauss (eds), Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work (Routledge 2014). 13 B Andrees and P Belser (eds), Forced Labour: Coercion and Exploitation in the Private Economy (Lynne Rienner Publishers 2009). 14 Skrivankova (n 12). 15 A Bakan and D Stasiulis, ‘The Political Economy of Migrant Live-in Caregivers: A Case of Unfree Labour’ in P Lenard and C Straehle (eds), Legislated Inequality: Temporary Labour Migration in Canada (McGill-Queens University Press 2012); B Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford University Press 2013); J Fudge and D Parrott, ‘Placing Filipino Caregivers in Canadian Homes: Regulating Transnational Employment Agencies in British Columbia’ in J Fudge and K Strauss (eds), Temporary Work, Agencies and Unfree Labour: Insecurity in the New World of Work (Routledge 2014). 16 The ILO defines the confiscation and withholding of travel documents as an indicator of forced labour. International Labour Office, ‘ILO Indicators of Forced Labour’ (ILO 2012).

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result in deportation: if they leave their employer, for instance, or if they become pregnant. As Abigail Bakan and Daiva Stasiulis highlight, the reasons for the particular constitution of the unfreedom of this group of migrant workers relate, at least in part, to the political economy of waged domestic labour in a globalized market.17 The increase in women’s labour force participation, falling fertility rates, increasing life expectancy, changes in family structure, a shortage of public care, and the increasing marketization of care create demand for migrant domestic workers. On the supply side, economic trends such as growing inequalities between high- and low-income countries and insecurity, vulnerability, and instability due to economic crises combine with the gendered nature of reproductive labour to increase the numbers of women who migrate in order to obtain paid work.18 Remittances are crucial for the survival of households, communities, and the state in a number of developing countries, as exporting workers is one key means by which governments cope with unemployment and foreign debt.19 Through the intersection of categories of social difference such as race, class, gender, citizenship, and sexuality, precarious migrant status is assigned to foreign domestic workers in ways that structure their unfreedom and privilege the social reproduction of some groups over others.20 These relations do not, however, mark a migrant domestic worker as a slave, nor do they cement unfreedom as an attribute or identity of the worker (it is not the ontological state of the worker). Rather, it is an attribute of the work relation and of related multi-level structures that arise from, and shape, the operation of social and economic power, the institutionalization of labour markets, and thus the desire and ability of employers to exploit workers and appropriate surplus across the labour market. Unlike the case in many sectors, the employer of a domestic worker is an individual or household, not a firm, although agencies play an important role in both placing migrants and providing domestic and care services. Thus, the second dimension of the unfreedom of domestic migrant workers is where they work—and often live. The household is understood in ‘advanced’ capitalist economies as a separate domain from the workplace, as the private sphere. A defining characteristic of the work performed by migrant domestic workers is that it takes place within the home, the private domain of the family, where women’s unpaid work is invisible and not economically valued. The boundaries between home/market and public/private are deeply inscribed in contemporary legal doctrines, discourses, and institutions.21 For migrant domestic workers, their employers’ household is their workplace, and it is also usually their home—both the UK and Canadian programmes require that workers live in (which is unique to this group; domestic workers from within the EU at least nominally have the choice to live out). The live-in requirement 17

Bakan and Stasiulis (n 15) 215–16. L Benéria, ‘The Crisis of Care, International Migration, and Public Policy’ (2008) 14 Feminist Economics 1. 19 R Rodriguez, Migrants for Export: How the Philippines Brokers Labor to the World (University of Minnesota Press 2010); S Sassen, ‘Global Cities and Survival Circuits’ in B Ehrenreich and A Hochschild (eds), Global Woman: Nannies, Maids and Sex Workers in the New Economy (Henry Holt 2002) 39. 20 21 Bakan and Stasiulis (n 15). Fudge (n 5). 18

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provides an extraordinary set of constraints even where the legal right to change employers exists. It also limits employment-related legal protections, since many do not extend to the private domain or, if they apply, are difficult to enforce.22 The final, important aspect of the unfreedom of migrant domestic workers is that it is temporally and spatially varied and specific. In the UK, domestic labour has historical roots in the concept of menial service, which fell somewhere between contractual freedom and paternalism.23 Contemporary discourses of servitude and slavery have roots in both this tradition and in abolitionist movements that sought to outlaw the trade in African slaves whilst simultaneously embedding relations of unfree labour that were of a different type and order than chattel slavery. Bakan and Stasiulis’ use of modalities is useful in this context. It signifies structural and systemic processes that operate at multiple scales and produce different time-and-place specific relations and institutions of unfree labour.24 The fact that the UK overseas domestic worker visa only allows non-UK migrants to bring household staff with them for a limited period relates to the pool of available EU and accession country labour; the contemporary modality of unfree migrant domestic labour in the UK is therefore different than in, for example, Canada, which is not part of a regional free market in labour comparable with the European single market. Migrants are thus highly vulnerable to extreme exploitation in ways that are directly related to the context-specific social and political construction of the category of migrant worker. Here unfreedom is legally constructed by the state in combination with the legal and economic power of capital. Yet it is also crucial to understand the ways in which the state both constructs unfreedom for some workers and in some cases seeks to ameliorate it. In this sense the state is liable to capture by, but not reducible to, fractions of capital, and normative characterization is a legal process with social and cultural, as well as economic, dimensions.

III. The Legal Construction of Domestic Servitude 1. Modern slavery Beginning in the mid-1990s, advocacy groups in the UK invoked ‘domestic servitude’ and ‘modern slavery’ to bring attention to the exploitative conditions of migrant domestic workers from countries outside the EU who entered the UK with business people, diplomats, tourists, and returning British residents who employed them. These workers did not have an independent route of entry in order to fill labour market shortages in the UK. Nor were they assessed in order to determine their contribution to the UK; their entry was completely dependent upon that of their employer. Under the UK immigration regime, these workers suffered a double form of unfreedom: in order to maintain their status as lawful migrants, they not only had to work for the employer 22 D McCann, ‘New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms’ (2013) 34 Comparative Labor Law and Policy Journal 167. 23 E Albin, ‘From “Domestic Servant” to “Domestic Workers” ’ in J Fudge, S McCrystal, and K Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 231. 24 Bakan and Stasiulis (n 15).

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who sponsored them, they were required to reside in the homes of their employers, which was also their place of work.25 The modern slavery slogan embedded the campaign to end migrant domestic workers’ unfreedom in broader social and legal scripts, which simultaneously advanced and limited the campaign to obtain a more secure migrant status and better labour standards for migrant domestic workers. Bridget Anderson explains how gendered and racialized stereotypes of victims—poor women from the Third Word—permeated the anti-slavery discourse, as did the tropes of ‘evil foreigners importing slavery’ and a heroic state upholding ‘British values of freedom and democracy’.26 By invoking slavery, human and labour rights advocates sought to engage a powerful legal obligation; in international treaty and customary law, slavery is both erga omnes and part of jus cogens; however, its scope is quite narrow.27 They endeavoured to stretch the legal meaning of slavery to include forms of work-related exploitation endured by migrant domestic workers. They also sought to use international and European human rights instruments to chisel away at the immigration controls that made migrant workers vulnerable to exploitation. The newly elected Labour Government responded to the complaints of modern slavery by granting migrant domestic workers from third countries the right to change employers if they suffered abuse at the hands of their sponsoring employer, allowing family members to accompany them, and providing them with a route to settlement. In 2002, this scheme was formally incorporated into the Immigration Rules as the Overseas Domestic Workers Visa Scheme. Only domestic workers who had been employed for a year or more in the house of their employer or a connected household were eligible to apply for a visa, they were required to work as domestic workers, and they were not entitled to recourse to public funds while in the UK.28 Moreover, under UK employment laws, domestic workers were (and continue to be) excluded from a number of labour standards, including maximum weekly working time, restrictions on the duration of night work, occupational health and safety legislation, and, if they reside in their employer’s home and are ‘treated as a member of the family’, the minimum wage.29 If they are not ‘legal’ migrants, they are not able to enforce their contractual or statutory rights on the ground that their employment relationship is illegal.30

25 For the history of the campaign in the UK to obtain a visa programme for domestic workers, see B Anderson, Doing the Dirty Work (Pluto 2000) ch 6. Au pairs, who are young people, predominantly women, from specified European states, are subject to a different migration regime. See Anderson, Us and Them? (n 15) 168–72. 26 B Anderson, ‘Mobilizing Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ (2010) 33 Ethnic and Racial Studies 60. 27 A Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2009) 50 Virginia Journal of International Law 789, 798. 28 Anderson, ‘Mobilizing Migrants’ (n 26) 67. Domestic workers in diplomatic households suffer additional restrictions, see S Mullally and C Murphy, ‘Migrant Domestic Workers in the UK: Enacting Exclusions, Exemptions and Rights’ (2014) 36 Human Rights Quarterly 397. 29 National Minimum Wage Regulations 1999, SI 1999/584, reg 2(2); Working Time Regulations 1998, SI 1998/1833, reg 19; Health and Safety Act 1974, s 51. 30 Zarkasi v Anindita and Tse Tan [2012] UKEAT/0400/11, [2012] ICR 788; Hounga v Allen [2012] EWCA Civ 609; [2012] IRLR 685. An appeal from the latter decision is before the UK Supreme Court, see A Bogg and T Novitz, ‘Race Discrimination and the Doctrine of Illegality’ (2013) 129 LQR 12.

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2. Trafficking In 2006, the Labour Government announced that it was abolishing the ODW scheme as part of its overhaul of the immigration system, which was designed to promote the immigration of desirable and high-skilled migrant workers through the introduction of a ‘points system’.31 Instead of invoking modern slavery, this time domestic workers advocacy groups such as Kalayaan and human rights organizations opposed the change by raising the fear that the restrictions on domestic workers’ entry into and employment in the UK could make them vulnerable to being trafficked.32 Since the visa scheme for overseas domestic workers was introduced, trafficking had both eclipsed and incorporated modern slavery as the focus of political attention and the preferred legal characterization of the exploitation of migrants. In the late 1990s, destination countries in Europe, North America, and Australia identified migrant smuggling as a security threat and the issue quickly moved ‘from the margins to the mainstream of international political concern’.33 In the process, ‘human trafficking, an obscure but jealously guarded mandate of the UN’s human rights system, had been similarly elevated and . . . unceremoniously snatched away from its traditional home’ and placed in the context of migration, public order, and organized crime.34 The key international instrument adopted was the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (known as the Trafficking Protocol), which supplements the UN Convention against Transnational Organized Crime (2000).35 While prostitution was the cynosure of the anti-trafficking campaign, the Protocol adopted a broad definition of trafficking, which included the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. It also drew inspiration from the anti-slavery conventions and the instruments against forced labour of the International Labour Organization (ILO).36 The Trafficking Protocol was widely ratified and it had a cascading effect, which resulted in the adoption of a very uniform anti-trafficking framework across the world.37 Although the framework is composed of three elements—prevention, prosecution, and protection—most countries emphasized the criminal and immigration law elements, which put human rights on the back step.38 The UK was no exception. Moreover, until 2012, when the UK Government adopted the EU Directive on Trafficking, 2011, it focused exclusively on the cross-border aspect of trafficking.39 The 31 This announcement came two years after the enlargement of the EU to include eight new Member States (known as the EU-8), many of which had lower wages and living standards than the older Member States. The UK was one of only three Member States that allowed EU-8 nationals immediate access to its labour market. 32 33 Anderson, ‘Mobilizing Migrants’ (n 26) 70. Gallagher (n 27) 790. 34 Gallagher (n 27) 790. 35 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (adopted 15 November 2000, entered into force on 25 December 2003) 2237 UNTS 319 (the Trafficking Protocol). Another protocol dealt with smuggling, see Protocol against Smuggling of Migrants by Land, Sea and Air (adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 480. 36 Gallagher (n 27); H Shamir, ‘A Labor Paradigm for Human Trafficking’ (2012) 6 UCLA Rev 76, 85. 37 38 Shamir (n 36) 78. Gallagher (n 27) 812. 39 The Government enacted provisions in the Protection of Freedoms Act 2012 which are designed to address trafficking that occurs entirely within the UK.

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Sexual Offences Act 2003, which came into force on 1 May 2004, established wideranging offences of trafficking of people into, within, or from the UK for sexual purposes. Prohibitions specifically relating to trafficking for labour and organ exploitation were provided in the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The UK also targeted employers who employed undocumented migrants, which led to a conflation of trafficking with ‘illegal’ migration.40 Under the Immigration, Asylum and Nationality Act 2006, employers who employ illegal migrants are subject to a civil penalty, or, if they knowingly employ illegal migrants, a maximum penalty of two years’ imprisonment and unlimited fine. While the UK simply adopted the trafficking paradigm that prevailed in international legal instruments, its approach to the wide range of European legal instruments that could be used to mitigate migrant domestic workers’ unfreedom was selective. In 2005, the Council of Europe adopted a Convention on Action against Trafficking in Human Beings, which emphasized the protective dimension of a comprehensive approach to trafficking.41 The Convention built upon the Parliamentary Assembly’s earlier condemnations of domestic slavery and domestic servitude, which had called for a charter of rights for domestic workers.42 It obliged Member States to take steps to protect the human rights of victims of trafficking and to set up a specific monitoring mechanism. However, it did not address the specific problems of migrant domestic workers. In 2007, the UK announced that it would ratify the Council of Europe Convention and it published an Action Plan on Trafficking, which specifically linked its fight against trafficking to the bicentenary of the legislation abolishing the slave trade in the British Empire.43 Thus, the Plan reinforced the tropes of foreign victims, foreign villains, and the British state as saviour in the fight against trafficking. However, it also endorsed a human rights framework for dealing with the victims of trafficking and broadened the focus of anti-trafficking initiatives beyond sex exploitation to forced labour. After ratifying the Convention in 2009, the Government established the National Referral Mechanism (NRM), a framework enabling statutory agents like the police, local authorities, and the UK Border Agency, together with third-sector organizations such as Kalayaan and the Salvation Army, to identify victims of trafficking and provide them with appropriate support.44 A key mandate of the NRM was to forge closer links between the immigration service and law enforcement. But, at the same time as the UK Government ratified the Council of Europe Convention Against Trafficking, it opted out of two EU directives, one that would enable victims of trafficking to become permanent residents and another that

40

Anderson, Us and Them? (n 15) 141. Council of Europe Convention on Action against Trafficking in Human Beings 2005. The Convention came into effect in 2008. 42 Council of Europe Parliamentary Assembly, Domestic Slavery (Report 9102 2001) 149; Council of Europe Parliamentary Assembly, Domestic Slavery: Servitude, Au Pairs and Mail-Order Brides (Recommendation 1663 2004). 43 Home Office, UK Action Plan on Tackling Human Trafficking (2007) 4, referring to the 1807 Slave Trade Act. 44 Serious Organised Crime Agency, ‘National Referral Mechanism’. 41

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would provide undocumented migrant workers with the right to recoup unpaid wages.45 Significantly, the Labour Government was able to adopt an approach to human rights that positioned trafficking as an integral part of border controls and reinforced a criminal law jurisdiction, while it avoided labour law and immigration initiatives that could be seen as ‘rewarding’ breaches of immigration legislation. Moreover, the emphasis on trafficking meant that the police were unlikely to investigate claims of abuse in situations in which the domestic worker’s status was lawful or she had ‘colluded’ with her employer in entering the UK.46 Kalayaan’s use of trafficking to describe what might happen if the ODW visa scheme was revoked shaped the Labour Government’s response to the campaign to preserve the ODW visa scheme.47 When the Government implemented the new immigration regime in 2008, it agreed to postpone the abolition of the ODW scheme for two years until it completed its review of the national anti-trafficking strategy.48 However, the problem was that trafficking not only framed domestic workers’ unfreedom in a particular way, it also reinforced the use of the criminal law and border controls as the solution. While Kalayaan and other groups endeavoured to extend the meaning of unfreedom to include migration controls, trafficking was generally, albeit mistakenly, equated with illegality and irregularity. Stereotypes portraying domestic workers as victims and their employers as villains were virtually unavoidable, as they are an essential element of the trafficking frame.49 Although resort to European human rights norms and instruments helped to dismantle some of the problems with the trafficking approach to labour exploitation, in the UK human rights norms were unable to uproot the legal construction of migrant domestic workers’ unfreedom from a trafficking paradigm, which remained firmly planted in the criminal law, which, in turn, made it difficult to graft to a labour regulation approach.

3. Forced labour One of the key limitations in using the laws against trafficking to assist migrant domestic workers is that trafficking requires a specific action—recruitment, transfer, harbouring, or receipt of persons; the offence is not designed to outlaw forced labour per se, but to criminalize it when movement is involved.50 Thus, human rights advocates turned to Article 4 of the European Convention on Human Rights (ECHR), which provides that 45 Council Directive (EC) 2004/81 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [2004] OJ L261/19; Council Directive (EC) 2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. 46 The Anti-Trafficking Monitoring Group, ‘The Wrong Kind of Victim? One Year On: An Analysis of UK Measures to Protect Trafficked Persons’ (June 2010) 35. 47 Anderson, Us and Them? (n 15) 175. 48 Anderson, ‘Mobilizing Migrants’ (n 26) 72. 49 J Bhabba, ‘Border Rights and Rites: Generalisations, Stereotypes, and Gendered Migration’ in S Walsum and T Spijkerboer (eds), Women and Immigration Law: New Variations on Classical Feminist Themes (Routledge Cavendish 2007) 22. 50 This is one of three elements of the definition of trafficking; the other two are the means (the threat or use of force) and the purpose (exploitation).

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(1) no one shall be held in slavery or servitude, and (2) no one shall be required to perform forced or compulsory labour, which was invoked to characterize the exploitation of domestic workers as forced labour and domestic servitude. The European Court of Human Rights’ 2005 decision in Siliadin v France broke new ground; the Court ruled that Article 4 gave rise to positive obligations on states, it relied on international legal instruments, specifically the ILO’s convention on forced labour, to interpret the meaning of compulsory and forced labour in the ECHR to include domestic servitude, and it implicated immigration controls in the construction of unfreedom.51 Siliadin illustrates how legal construction at the micro-level in a multi-scalar regulatory context can have broader meso- and macro-level effects. But, while Siliadin has been celebrated as an object lesson of the capacity of human rights law to address, both symbolically and practically, labour abuse,52 it also reveals the limitations and biases in this approach. The facts of Siliadin instantiated all of the stereotypes about domestic servitude— vulnerable women from ‘backward’ countries who lack agency and who are exploited by foreigners uneducated in the ways of their enlightened host country until the deserving victims are rescued by good Samaritans. The applicant, a Togolese national, was fifteen years old when she was brought to France on a tourist visa, where she was ‘lent’ to her ‘employers’ to perform domestic work in their home. Siliadin worked without respite for approximately fifteen hours per day over several years without receiving wages or being sent to school, without identity papers, and without her immigration status being regularized, and she slept in the children’s bedroom.53 After she escaped, with the help of the Committee Against Modern Slavery she initiated civil actions claiming compensation for unpaid wages, other employment-related entitlements, and psychological harm, and a criminal action against the couple for whom she worked for subjecting her to ‘working or living conditions which were incompatible with human dignity by taking advantage of that individual’s vulnerability or state of dependence’.54 Although Siliadin received compensation through the civil process and her immigration status was regularized, her employers were acquitted of the criminal charges. Consequently, she complained to the Strasbourg Court that French criminal law ‘did not afford her sufficient and effective protection against the “servitude” in which she had been held, or at the very least against the “forced and compulsory” labour which she had been required to perform’.55 The European Court of Human Rights interpreted the reference to compulsory and forced labour in Article 4 in light of the definition provided in Article 2 of the ILO’s Convention against Forced Labour: ‘forced or compulsory labour’ shall mean ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.56 According to the Court, the question was whether in Siliadin’s case there had been forced or compulsory labour. Although the Court acknowledged that she ‘was not threatened by a “penalty”, the fact

51

Siliadin v France (2006) 43 EHRR 16. V Mantouvalou, ‘Modern Slavery: The UK Response’ (2010) 39 ILJ 425, 430. 53 54 55 Siliadin (n 51) [11]. French Criminal Code, Art 224–14. Siliadin (n 51) [3]. 56 Siliadin (n 51) [30]. Citing Convention concerning Forced or Compulsory Labour 1930 (ILO No 29) 59 UNTS 55. 52

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remains that she was in an equivalent situation in terms of the perceived seriousness of the threat’, noting that ‘she was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police’.57 Having found that she was subjected to forced labour, the Court went on to consider the second condition, whether she was also held in servitude or slavery.58 Interpreting ‘servitude’ as ‘an obligation to provide one’s services that is imposed by the use of coercion’ and linking it to a lack of personal autonomy, the Court, emphasizing, once again, Siliadin’s status as a minor and referring to her working conditions, isolation, living conditions, and her precarious migration status, concluded that she was held in servitude.59 The final matter before the Court was whether France had met its positive obligation under Article 4. The Court found that the criminal law provisions did not deal specifically with slavery, servitude, and forced or compulsory labour, observing that ‘in the instant case, the applicant, who was subjected to treatment contrary to Article 4 and held in servitude, was not able to see those responsible for the wrong doing convicted through criminal law’.60 Consequently, the Court imposed a positive obligation on the state to create bespoke legislation to outlaw forced labour and servitude. In the UK, Siliadin fuelled efforts by the human rights groups Liberty and AntiSlavery International to press for the creation and enactment of a new criminal law offence that specifically targeted forced labour without the need for any elements of trafficking. Although the Labour Government initially demurred, claiming that there already existed criminal law provisions outlawing such activities, when new clauses aimed at criminalizing servitude and forced labour were introduced during the House of Lord’s consideration of the Coroners and Justice Bill, it recanted. However, it substituted its own provisions for those drafted by the human rights groups, arguing ‘that a slightly different approach is preferable’, one which drew on ‘the offence of trafficking for such purposes without the requirement that the person has been trafficked’.61 Section 71 of the Coroners and Justice Act 2009, which came into effect in 2010, creates an offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour.62 Significantly, section 71 does not specifically define slavery, servitude, or forced or compulsory labour, referring instead to Article 4 of the ECHR and, thereby, delegating the responsibility for defining the scope of the offence to the European Court of Human Rights. The European Court of Human Rights has used Siliadin to expand its conception of forced labour to include a broad range of labour exploitation and to take account of the specific features of domestic servitude. In CN v UK, which arose before the UK enacted the specific offence of forced labour, the applicant was a woman from Uganda fleeing sexual violence, who, with the assistance of a relative, travelled to the UK on a false passport.63 Once in the UK, CN’s relative confiscated her passport and referred her to 57

58 59 Siliadin (n 51) [118]. Siliadin (n 51) [120]–[121]. Siliadin (n 51) [122], [124]. 61 Siliadin (n 51) [145]. HC Deb 28 October 2009, col 182. 62 The maximum penalty (on conviction on indictment) is fourteen years’ imprisonment and/or a fine. 63 CN v UK (2013) 56 EHRR 24. See also Kawogo v UK App no 56921/09 (ECtHR 3 September 2013), where the applicant, a Tanzanian national who came to the UK in 2006 with her employer on a domestic worker visa, claimed that the failure to penalize forced labour and servitude breached the state’s positive obligations under Article 4 and Article 8. In OGO v UK App No 13950/12 (ECtHR, 8 March 2012), a 60

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an agent who ran a business supplying carers. The agent, who received CN’s wages and shared them with her relative, sent CN to work as a live-in care giver, where she worked very long hours with little time off. After she escaped, CN applied for asylum, which was refused. Her complaints to the police were dismissed on the ground that she was not trafficked and that there was no legislation pertaining to domestic servitude when trafficking is not a factor.64 She brought a claim to the European Court of Human Rights, arguing that the lack of a specific offence of forced labour or domestic servitude made the police investigation inadequate and, thus, the UK had failed to meet its positive obligation under Article 4. Remarking on the similarity of CN’s circumstances to Siliadin’s, ‘the only notable differences being that the applicant was older than Siliadin and that it was an agent and not her employers who she claimed was responsible for her treatment contrary to Article 4’, the Court held that the UK had failed to meet its procedural duty to investigate forced labour.65 It went on to elaborate that ‘domestic servitude is a specific offence, distinct from trafficking and exploitation, which involves a complex set of dynamics and both overt and more subtle forms of coercion, to force compliance’.66 The Court concluded that, because there was no specific offence of domestic servitude, the UK authorities were unable to give due weight to factors—such as CN’s allegation that her passport had been taken, that her wages were not kept for her, and that she was explicitly and implicitly threatened with denunciation to the immigration authorities—that the ILO had identified as indicators of forced labour.67 There are two clear benefits of characterizing migrant domestic workers’ unfreedom as domestic servitude. First, although the crime of forced labour has not resulted in many prosecutions, it should stop the police from fixating on a domestic worker’s migration status when investigating whether or not she has been a victim of labour exploitation.68 Second, it allows for explicit reference to the ILO’s forced labour indicators, which can be used to advance a sophisticated appreciation of factors that undermine workers’ choice. However, there are a number of detriments. Since forced labour is embedded in a criminal law approach, there are jurisdictional constraints, such as principles of culpability and requirements of proof, that impose limits on the type of abuse that will attract sanction. The criminal law jurisdiction also limits the remedies available to migrant domestic workers. For example, while CN was successful in obtaining damages (€8000) and costs (€20,000) from the Strasbourg Court, the Court did not order the UK to regularize her immigration status or to pay her back wages.69 As long as the UK ensures that officials investigate allegations of trafficking and forced labour, which is

Nigerian woman who was subjected to domestic servitude in her home country and then subsequently trafficked to the UK, claims that, among other things, the UK’s failure to identify her as a victim of trafficking and its refusal to grant her asylum breached Article 4. 64 65 66 67 CN (n 63) [29]. CN (n 63) [72], [76]. CN (n 63) [80]. CN (n 63). 68 There were only twelve prosecutions under s 71 in 2011–12. Inter-Departmental Ministerial Group on Human Trafficking, First annual report of the Inter-Departmental Ministerial Group on Human Trafficking (Cm 8421, October 2012) 32. For examples of the problem with policing practice under the trafficking legislation, see the earlier discussion of CN and the Anti-Trafficking Monitoring Group (n 46). 69 CN (n 63) [94].

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now specifically prohibited, the Government will have met its obligations under Article 4 of the ECHR. An alluring avenue of redress for migrant domestic workers is to attempt to expand the factors that go to a finding of ‘menace of penalty’ to include immigration controls. The European Court of Human Right’s 2010 decision in Rantsev v Cyprus and Russia, a case that dealt with trafficking for the purpose of sexual exploitation, has made this strategy more appealing because the Court clearly implicated the Cypriot visa regime as contributing to the breach of Article 4.70 The Court went beyond a criminal investigation and prosecution approach to trafficking to consider the extent of a Member State’s obligations to provide commercial regulation and immigration rules that deter trafficking.71 Noting the stinging criticisms of the cabaret artiste visa scheme by the Council of Europe Commissioner for Human Rights and the Cypriot Government’s failure to act on these criticisms, the Court found ‘that the regime of artiste visas in Cyprus did not afford to Ms Rantsev a practical and effective protection against trafficking and exploitation’ and that this scheme amounted to a violation of Article 4.72 But, at the same time as this case opens the door to arguments that immigration controls contribute to forced labour,73 it is also important to be attentive to the specificities of the case, which involved a young Russian women who was recruited to work in a cabaret and whose visa required cabaret owners and managers ‘to lodge a bank guarantee to cover potential future costs associated with artistes which they have employed’.74 It was this aspect of the visa, not the requirement that the employer notify the immigration authorities when the migrant worker left her employment, that the Court found problematic. Ms Rantsev’s death, fourteen days after arriving in Cyprus, combined with the clear understanding that the cabaret artiste visa and cabaret industry are part of sex tourism, and the failure of Cypriot police to anything to assist her in escaping her employer—indeed, they assisted her employer in restraining her— contributed to the Court’s findings that Cyprus was in violation of Article 4.75 The trafficking/forced labour paradigm tends to reinforce the view that migrant domestic workers’ exploitation is the result of morally culpable individuals who should be publicly vilified, rather than systemic and institutional features of state policies and practices relating to immigration and labour regulation. Thus, a human rights approach that hinges on the international instruments against forced labour and trafficking tends both to skew attention towards the worse cases of abuse and to transpose the stereotypes that dominate the public discourses around slavery and trafficking into the discussion of 70

71 Rantsev v Cyprus and Russia (2010) 51 EHRR 1 [293]. Rantsev (n 70) [200]. Rantsev (n 70) [101], [102], [292]. 73 Mantouvalou (n 52) 429–30, advocates an ‘integrated’ approach to the interpretation of Article 4 that would draw upon the findings and reports of other human rights agencies that the provisions offered in the pre-2012 ODW visa system were important protections against trafficking and forced labour to argue that the post-2012 visa system violated Article 4. Adopting such an approach, the Supreme Court of Israel struck down an immigration control that did not permit migrant domestic workers to change employers as violating the worker’s dignity and autonomy. Kav LaOved et al v The State of Israel [2006] (Isr) Case No 4542/02. 74 Rantsev (n 70) [292]. 75 Rantsev (n 70) [292]–[300]. For a critique of the Court’s legal reasoning, see J Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 Human Rights Law Review 546. 72

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forced labour. Litigators and advocates will often select the most egregious cases of abuse and the most sympathetic victims in order either to win the case or to create a precedent. Thus, the legal system itself tends to reinforce the use of stereotypes even by advocates for migrant domestic workers. The cases of domestic servitude that have come before the European Court of Human Rights have generally involved African nationals as victims and non-European employers, reinforcing the idea that domestic servitude is a custom of certain countries or cultures.76 Referring to data collected by the UK’s NRM, the InterDepartmental Ministerial Group on Human Trafficking, which is the UK’s national rapporteur under the EU Directive on Trafficking, reported that the largest number of potential victims of trafficking for the purpose of domestic servitude come from West Africa, although the majority of domestic workers admitted under the ODW visa scheme come from India, Indonesia, and the Philippines.77 However, it offered no discussion of why, given the nature of immigration controls and policing practices, that referrals to the NRM may reflect biases in detecting cases of domestic servitude. Worst yet, the NRM data was used to justify abolishing the ODW visa on the ground that it will reduce the risk of abusive relationships developing in this visa category, ignoring the fact that in the majority of the cases involving domestic servitude before the European Court of Human Rights, the workers had an irregular status and did not enter under the ODW scheme.78

4. Migration controls: victims, foreigners, and the British state A crucial feature of Kalayaan’s approach to trafficking was its linkage of employers’ coercion and abuse of workers to the UK’s proposed immigration legislation.79 It argued that ‘removal of any option to challenge or leave an abusive or exploitative employer is in direct contravention to the Home Office stated policy to protect victims of trafficking and to stop trafficking “at source”’.80 This approach to trafficking, which identifies restrictive immigration controls as contributing to the exploitation of migrant domestic workers, was adopted by the House of Commons Home Affairs Committee. In its 2009 Report to Parliament on human trafficking in the UK, it recommended that the ODW visa scheme be extended beyond the two years the Government had promised.81 A constellation of international and European human rights bodies have also identified the link between restrictive immigration controls and the exploitation of migrant workers.82 None of these findings or reports is binding on the UK Government, although 76

Siliadin was Togolese, CN was from Uganda, Kawogo from Tanzania, and OWO from Nigeria. Inter-Departmental Ministerial Group on Human Trafficking (n 68) 75; Home Office, UK Border Agency, ‘Employment Related-Settlement, Tier 5 and Overseas Domestic Workers’ (June 2011). 78 Home Office (n 77). The exception is Kawogo, who entered the UK under an ODW visa. 79 Anderson, ‘Mobilizing Migrants’ (n 26) 71. 80 Anderson, ‘Mobilizing Migrants’ (n 26) 71. 81 House of Commons Home Affairs Committee, The Trade in Human Beings: Human Trafficking in the UK (2008–09, HC 23-I) 26. 82 UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland (A/HRC/14/30/Add.3, 16 March 2010) 15, 16 and recommendation at paras 60–61; G Shahinia, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences (UN Doc A/HRC/15/20, 18 January 2010) para 96; UN Committee on Migrant Workers, General Comment No 1 (CMW/C/GC1, 23 February 77

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they can, as we have seen with the European Court of Human Rights interpretation of Article 4, have an indirect legal effect by influencing the interpretation of binding international and European legal instruments. Intent on closing the UK’s borders for work and settlement to all but the wealthiest and most highly skilled third-country nationals, and citing polling data indicating public support for its position, the Coalition Government issued a consultation document in June 2011 on employment-related migration.83 The Government proposed either to abolish the route for ODWs in private households or to restrict residence to a six-month period as a visitor only, or twelve months where accompanying a Tier 1 (high value) or Tier 2 (skilled workers) migrant, with no possibility of extension, no right to change employers, restrictions on accompanying dependants, and no right to settlement.84 These proposals mirrored the changes proposed, and then postponed in the face of criticism, by the Labour Government in 2006.85 Two types of rationales were offered for these proposals: closing the border to lowskilled workers who were considered to be of little economic value to the UK; and ending the abuse of migrant domestic workers. Although the numbers of ODW visas issued ranged from between 12,500 in 2006 to 15,350 in 2010, and few ODW visa holders sought settlement in the UK, the Government emphasized that there had been a 34 per cent increase in settlement in 2010 over 2009 for a total of 1,060.86 Describing the ODW visa scheme as ‘more generous than EU countries’, it suggested that in light of its restriction on skilled workers it would ‘be counter intuitive to retain a route into the UK labour market for low skilled domestic workers via the private household route’.87 Most remarkably, the Government turned the argument that abolishing the ODW scheme would lead to more trafficking on its head, invoking the documented cases of employer abuse of domestic workers admitted under the visa as a reason for abolishing it.88 It pointed to the NRM for identifying victims of trafficking as providing a means to respond to the exploitation of overseas domestic workers that did not exist when the right to change employer was introduced, noting that from April 2009 to December 2010, there were 219 referrals for domestic servitude.89 One of the Government’s key challenges was to find a way to align its goals of closing UK borders to unskilled third-country nationals with keeping them open to wealthy migrants. While it dismissed concerns that the proposed changes would have a negative economic impact by deterring desirable immigrants who employed domestic workers from entering the UK as unsupported by evidence, it hedged its bet by allowing that ‘there may be a case for arrangements which would allow a highly skilled or skilled migrant to be accompanied by their overseas-based domestic staff for up to a year to ease the transition to life in the UK and allow time for recruitment from the UK labour market’.90 If the route for domestic workers remained, protections for genuine 2011) para 21; Report of the European Union Agency for Fundamental Rights Agency, Migrants in an Irregular Situation Employed in Domestic Work: Fundamental Rights Challenges for the European Union and its Member States (Publications Office of the European Union 2011) 19. 83 84 Home Office (n 77) 11, 12. Home Office (n 77) 12–13. 85 86 HC Deb 10 May 2006, col 101–107 WH. Home Office (n 77) 29, 31. 87 88 Home Office (n 77). Home Office (n 77) 29, 31. 89 90 Home Office (n 77) 31. Home Office (n 77) 30.

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victims of trafficking would be combined with strengthened pre-entry requirements in order to minimize the possibility of abusive or exploitative employer/employee relationships being imported into the UK. The release of the visa reform proposals at the same time as the Government announced its decision to abstain from voting on the ILO’s Domestic Worker’s Convention, which provides a comprehensive set of labour standards for domestic workers, exemplifies the Coalition Government’s determination to separate trafficking from a labour regulation approach to the problem of the exploitation of migrant domestic workers.91 The UK Government simply ignored the recommendations and reports of the international and European human rights bodies that identified immigration controls of the type it was proposing as part of the problem, holding fast to an anti-trafficking paradigm that strengthened border controls and deployed the criminal law, and, in the process, reinforced stereotypes that abuse of domestic workers was a foreign and not British problem. A range of human rights groups and advocates for migrant workers defended the ODW visa. Kalayaan challenged many of the assumptions upon which the Government’s proposals were based. It countered the argument that the ODW visa resulted in large numbers of low-skilled workers crowding the British labour market by highlighting the fact that less than 5 per cent of migrant domestic workers who were eligible to apply for settlement after five years in the UK went on to do so.92 Kalayaan consistently stressed the significance of the right to change employers as the most important shield against abuse, referring to Home Office data that from January 2003 to August 2010, 969 out of 2,378 (or 41 per cent) of migrant domestic workers cited abuse and exploitation as the reason for changing their employer.93 It also complained that the anti-trafficking mechanisms failed adequately to identify migrant domestic workers who are trafficked. Not only did the police fail to take domestic workers’ complaints of trafficking seriously, about two-thirds of the workers Kalayaan identified as trafficked refused to be referred to the NRM, preferring instead to look for new employment, which they were able to do under the terms of the ODW visa.94 In February 2012, the Government announced that instead of abolishing the ODW visa, it would limit its duration to a maximum of six months, with no extensions, or until the employer leaves the UK, whichever was sooner. Domestic workers would be prohibited from bringing dependants with them (unless they came as visitors), and, while in the UK, from changing employers, switching immigration categories, or applying for settlement.95 Allowing even a narrow route for domestic workers was a concession to attract desirable immigrants, who, after a six-month grace period, would then be required to recruit domestic help, possibly through an agency from amongst

R Williams, ‘Coalition Refuses to Ratify UN Measure Protecting Domestic Workers’ The Guardian (15 June 2010); ILO, Convention Concerning Decent Work for Domestic Workers (2011). 92 M Lalani, Ending the Abuse. Policies that Work to Protect Migrant Workers (Kalayaan 2011) 24. 93 Lalani (n 92) 18. Kalayaan also suggested that the number of workers experiencing abuse was likely to be higher, given their reluctance to complain to the Home Office. 94 95 Lalani (n 92) 29. Lalani (n 92) 15. 91

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UK or EU workers in the UK labour market.96 The Government justified the prohibition against changing employers by referring both to data indicating that up to 60 per cent of employer changes were not related to abusive employment conditions, and to the availability of other forms of protection, such as the NRM mechanism to identify and support victims of trafficking, the prohibition against slavery, forced labour, and domestic servitude, and ‘the backstop of domestic workers being able to return to their country of origin’.97 It estimated that immigration controls requiring the employer to provide written terms and condition of employment as well as a commitment to pay minimum wage would result in a 10 per cent to 30 per cent fall in volumes of eligible ODWs.98 The rules for migrant domestic workers changed on 6 April 2012.99 The Government has remained steadfast that ‘the best way to address abuse of overseas domestic workers in the UK is to restrict access for such workers’.100 When confronted with a report by the Salvation Army that it had witnessed an increase in domestic servitude after the visa changes came into effect, the Home Office replied that the most effective way to tackle the problem ‘is to better identify and support victims and target the criminal gangs behind trafficking, not blaming immigration controls’.101 Meanwhile, as the Coalition Government was restricting the route for third-country national domestic workers to enter the UK to work in private households, it was both easing the requirements for nationals from Bulgaria and Romania (the A2 countries) to take on that work by no longer requiring them to have an employer obtain a work permit as a condition of obtaining an authorization to work in the UK and extending by two years the requirement for them to have a work authorization.102 Although the aim behind this exemption for a work permit is to provide a supply of domestic workers to work in private households, it is unclear whether this supply will fill the demand that was previously met through the ODW visa scheme. Unlike third-country domestic workers who enter under the ODW scheme, by the end of April 2013 it will not be possible either to tie A2 nationals to a single employer or to confine them to working in a private household. As EU citizens, they will have the legal freedom to seek

96 HC Deb 29 February 2012, cols 35WS, 26WS; Home Office, UK Border Agency, ‘Statement of Intent, Changes to Tier 1, Tier 2, and Tier 5 of the Points Based System; Overseas Domestic Workers; And Visitors’ (29 February 2012) 15. 97 Home Office, Impact Assessment, ‘Changes to Tier 5 of the Points Based System and Overseas Domestic Worker Routes of Entry’ (IA No HO0053, March 2012) 17. 98 See Immigration Rules, 159 A (v). 99 Immigration Rules, 159 A to 159 H. The rules relating to domestic workers employed in a diplomatic household differed in two respects: the duration of the visa was tied to the length of the diplomatic posting and these domestic workers are able to sponsor dependants. 100 This was the Minister of State for Immigration’s response to a question raised in the House of Commons about the recommendations of the Organization for Security and Co-operation in Europe’s Special Representative and Co-ordinator for Combating Trafficking in Human Beings for a visa regime for domestic workers that allows them to change employer and leads on to permanent settlement. (Organization for Security and Co-operation in Europe, Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude (Occasional Paper series no 4, 2010). HC Deb 15 March 2012, col 372W.) 101 P Peachey, ‘More Women Forced into Slavery after Change to Immigration Law’ The Independent (3 February 2013). 102 Home Office, UK Border Services, ‘Work Permits and Accession Worker Cards’.

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employment in sectors and types of employment that are less likely to result in domestic servitude.

IV. Conclusion Through the analysis of the criminalization of slavery, human trafficking, and forced labour, and changes to the UK ODW visa scheme, we have attempted to illustrate how an approach that focuses on migrant domestic workers’ unfreedom by placing the obligation on the state to criminalize employer conduct is compatible both with a human rights approach and with the erosion of labour and migration rights. Our approach has drawn on epistemological and analytical traditions of both law and the social sciences. Through foregrounding legal interpretation to shed light on the legal characterization of domestic servitude, we have argued that the moral force of human rights may reside in its articulation with a criminal law approach;103 it may not be possible, therefore, to invoke claims of modern slavery and trafficking to boost labour rights. By highlighting the political economy of migrant domestic labour and the related, unique (economic, political, and social, as well as legal) dimensions of unfreedom, we have sought to explore the ways in which processes of jurisdiction and related technologies of governance ‘overspill’ the legal domain in ways that have resonance beyond the specific example of the UK’s overseas domestic worker programme. In other words, as an example of a political strategy, the move to mobilize discourses of trafficking, slavery, and forced labour was initially successful insofar as it preserved (during the reign of the Labour Government ) both the ODW programme and the right to change employers. As Bridget Anderson has noted: In order to make this claim for exceptional rights as migrants, that is, to be incorporated into the immigration rules, but not incorporated into mainstream immigration for employment regulation, the campaign highlighted the specificities of domestic work and of migrant domestic workers as being . . . vulnerability to physical abuse and exploitation. This was tactically extremely successful. Had domestic workers initiated a joint campaign with fellow migrants calling for an end to visa sponsorship and the rights of all migrants to change employers, the likelihood is they would still be campaigning. Public images seized on images of abusive male employers, and this also generated considerable parliamentary support.104

Yet in the longer term, the process of legal characterization associated with this political strategy resulted in a situation in which the Coalition Government could claim that protections and sanctions offered by the criminal offences of trafficking, forced labour, and domestic servitude meant that employment rights and a path to settlement for migrant domestic workers were no longer needed. As we have shown, the trafficking discourse has an elective affinity with traditional (civil and political) forms of human rights, and both are hegemonic and mutually

103 V Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor’ (2013) 34 Comparative Labor Law and Policy Journal 133, 164. 104 Anderson, Us and Them? (n 15) 174.

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reinforcing when it comes to combating modern slavery. The problem is that, rather than serving as the basis for an integrated approach to human rights that encompasses economic and social rights, these regulatory approaches tend to repel and marginalize other forms of regulation designed to promote labour rights and managed migration. ILO indicators of forced labour, for example, have less legal ‘force’ than criminal offences because they are not directly justiciable. An approach to legal claims that understands different jurisdictions as simply additive does not account for how differences in legal characterization not only attract and repel particular jurisdictions and technologies of legal governance, but how this process creates path dependence in approaches (legal and political). Thus an initial focus on trafficking makes the criminalization of slavery, domestic servitude, and forced labour a ‘natural’ political and legal outcome in contrast to an approach that endorses new or more robust labour and employment rights. Forces that attract and repel jurisdictions include social relations; when a moral script or political discourse acquires legal meaning it may, in the process of assigning legal jurisdiction, ‘overspill’ in ways social actors find difficult to control. Trafficking, slavery, and forced labour deploy the technology of the criminal law, and the goal is as much to punish villains, as it is to protect victims. Commenting on the Modern Slavery bill, which was published in December 2013 with broad, crossparty support, the Home Secretary, Theresa May, stated: The bill will simplify legislation, toughen sentences for slave drivers, and enable the courts to restrict activity where individuals may be at risk. This will mean that more traffickers are pursued, disrupted and brought to justice. The bill will also create an anti-slavery commissioner who will galvanise law enforcement’s efforts to tackle modern slavery.105

In this punitive context, it also becomes easy to portray as the solution to the exploitation of migrant domestic workers a strategy to close borders to ‘low skilled’ workers. It was the strategic focus on the exploitation of third-country domestic workers admitted under the ODW scheme rather than all migrants, including those from the EU, which allowed domestic servitude to be seen as a foreign problem. Both the law and the state create borders, between jurisdictions, between nation states, and between categories of people within a territory. There is permeability (in the sense that migrants might gain citizenship rights, and approaches to trafficking might mobilize both criminal and human rights law), but in our present moment, such permeability is constrained by the economic and immigration policies that privilege the mobility and social reproduction of the rich. While the ODW programme is small in terms of the numbers of migrants admitted under it, it is symbolic of this politics and illustrative of how technologies of legal governance are mobilized in its cause.

105 HC Deb 19 July 2011 col 107WS. May asked Labour MP Frank Field to lead a public debate about ways of ending modern slavery in the UK, and after hearing evidence hearings, Field’s report, Establishing Britain as a world leader in the fight against modern slavery: Report of the Modern Slavery Bill Evidence Review, was published the same day as the bill.

10 Migrant Labour in the United States Working Beneath the Floor for Free Labour? Maria Ontiveros*

I. Introduction The United States has developed a regulatory system for workers designed to protect basic rights in the workplace. The system should set the floor for all workers. Unfortunately, migrant workers in the United States labour under very different conditions than those afforded other workers. They labour beneath the floor set for workers in America. The United States policy of exploiting labour from outside her borders, begun in slavery and continuing through current immigration policies, directly affects migrant labour. This chapter examines the intersection between migration law and labour law in the United States and argues that migrants in the US labour beneath a floor for free labour in a manner that violates prohibitions against slavery and involuntary servitude found in the Thirteenth Amendment to the US Constitution. Section II of this chapter describes the basics of US regulation of migrant labour, detailing protections given workers individually and collectively, as well as the categories of migrant labour in the United States. Section III identifies six problem areas for migrant labour under this system. It addresses the lack of protection for discrimination based on migrant status, undocumented workers, visa workers, agricultural workers, domestic workers, and collective action issues. Section IV argues that the current treatment of migrant labour has created a class of workers who labour beneath a floor for free labour, in violation of the US Constitution.

II. US Regulation of Migrant Labour This section provides the background information needed to understand the problems presented for migrant labour in the United States. It begins by describing, in general, the existing labour regulations. Then it describes the various categories of migrant labour present in the United States.

1. General US labour regulations The United States has created a comprehensive system for providing protection for workers consistent with its free market principles. This system provides some protection to individual workers and some protection for workers to act collectively to * Maria Ontiveros is Professor of Law at the University of San Francisco School of Law.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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negotiate their own terms and conditions of employment. This domestic system is sometimes in tension with international norms, arguably falling beneath the requirements of various treaties. Section II focuses on the domestic system only. Comparisons with international norms will be discussed in section IV.

i. Individual protection In the United States, the dominant approach to employment security is characterized by modified ‘at will’ employment.1 Under the most traditional definition of at will employment, an employer had the right to terminate an employee for a good reason, a bad reason or for no reason. Currently, US law restricts an employer’s ability to terminate employment for certain bad reasons, but still allows the termination of employment for a good reason or for no reason. The prohibited reasons for termination include discrimination based on membership in specified protected classes and for termination in violation of public policy. Under federal law, the protected classes are race, colour, sex, religion, national origin, age (over forty), and disability.2 Several states have additional protected categories, such as sexual orientation, marital status, and political activity. These types of discrimination are also prohibited in hiring and in setting other terms and conditions of employment. In addition, an employer may not terminate employment when the termination would violate certain public policies. For example, whistle-blower legislation prohibits an employer from firing an employee in retaliation against an employee who has reported violation of federal laws, such as those involving financial securities or occupational health. Through the use of common law, state courts have used tort principles to penalize employers when they have discharged a worker for refusing to engage in unlawful conduct or for exercising a constitutional or statutory right, such as refusing to commit perjury to protect an employer, refusing to drive a commercial vehicle without a commercial licence, or complying with a summons for jury duty. Legislation and common law work together to provide a patchwork of protection in this area.3 Federal law also provides for certain basic labour standards. The law requires a minimum hourly wage to be paid and provides for an overtime premium when an employee works in excess of forty hours a week or eight hours a day (with some variation allowed).4 Further, the law provides for protection of minimum health and safety standards in the workplace.5 The Thirteenth Amendment to the United States Constitution, ratified in 1865, includes a prohibition against slavery and involuntary servitude. To give effect to the Amendment, the legislature passed the Anti Peonage Statue of 1867, which banned ‘the voluntary or involuntary service or labor or any 1 M Ontiveros, ‘Female Immigrant Workers and the Law: Limits and Opportunities’ in D Cobble (ed), The Sex of Class (ILR Press 2007). 2 Civil Rights Act of 1964, title VII (covering race, sex, colour, national origin, and religion); Age Discrimination in Employment Act 1967 (covering age); Americans with Disabilities Act 1991 (covering disability). 3 W Corbett, ‘An Outrageous Response to “You’re Fired!” ’ (2013) 92 North Carolina Law Review 17, 41. 4 5 Fair Labor Standards Act 1938. Occupational Safety and Health Act 1970.

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persons as peons, in liquidation of any debt obligation or otherwise’ and reached beyond the prohibition of chattel slavery and involuntary servitude found in the Amendment.6 The Anti Peonage Statue was amended by the Trafficking Victims Protection Act in 2000, 2003, and 2008 to penalize those who extract labour through force, fraud, coercion, threats, or abuse of the legal process.7 These statutes reach labour extracted through threats of serious harm, including physical, non-physical, psychological, financial, or reputational harm; provide a civil cause of action for victims; and include threats of deportation as an abuse of the legal process.

ii. Collective protections United States law also provides a statutory framework for certain employees to form labour unions. The National Labor Relations Act (NLRA) protects an employee’s right to engage in ‘protected concerted activity for mutual aid and protection’. So long as an employee is covered by the statute and follows its framework, the employee may not be terminated for his or her concerted activity. An employer may not terminate an employee for attempting to form a union, must not interfere with the formation of a union, and, once a union has been elected by the employees, must negotiate in good faith with it. The union negotiates over wages, hours, and terms and conditions of employment for members of the bargaining unit. Union-negotiated collective bargaining agreements typically provide higher wages, better benefits, and improved job security relative to unorganized workers. Most unionized workers may not be discharged unless the employer can prove that it had ‘just cause’ for the dismissal.

2. Categories of migrant or immigrant labour in the United States There are three types of migrant or immigrant labour present in the United States: lawful permanent resident aliens; visa or guest workers; and undocumented workers. Documented resident workers (DRW) are non-citizens with the right to live and work in the United States. Although there are a few job categories which require US citizenship, most jobs are open to these workers. They have mobility between jobs, consistent with their skills and the demand for their labour. Visa or guest workers are migrants who come to the United States to perform certain jobs for which they have received immigration authorization. The largest guest worker programmes cover agricultural workers (under H2A visas), technical or engineering workers (under H2B visas), nurses (under H1C visas), and nannies or au pairs (under J1 visas).8 For most of these jobs, an employer must provide evidence that the immigrant labour is necessary because they cannot find domestic workers to perform the job. When a worker enters on a guest worker visa, he or she only has the right to

6 A Sofer, ‘Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage’ (2012) 112 Columbia Law Review 1607, 1616–19. 7 M Ontiveros, ‘A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers’ (2012) 27 Wisconsin Law Journal, Gender and Society 133, 147–8. 8 Ontiveros, ‘A Strategic Plan’ (n 7) 138.

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remain in the United States while employed in that particular job for that particular employer. If an employee quits or is fired, he or she must return home. These workers are considered migrant, not immigrant, by the Immigration and Customs Enforcement Agency within the Department of Homeland Security. There is not an expectation that these workers will remain in the United States or become citizens. Undocumented or unauthorized workers are those workers who do not have the legal right to work in the United States. Employers are not allowed to hire these workers. To ensure compliance with this law, every employer must complete a form (I-9) when it hires a new employee. To complete the form, the employer must verify the employee’s identity and his or her work authorization (through a social security card, work visa, etc). Although this system should theoretically mean that no unauthorized workers are employed, the reality is different. Employers can comply with the law and still employ undocumented workers by accepting false documents, so long as they look reasonably genuine. Workers may also obtain work in other ways. Sometimes, an employee begins a job with authorization but the authorization expires during the term of employment. Some employers do not fill out the required paperwork because they perceive the penalty for violating the law as low, relative to the benefit of employing undocumented workers, or because they know that the workers can easily be discharged before being discovered because a few days’ notice is generally given before a compliance inspection can be completed.9 In 2010, the number of undocumented immigrants in the United States stood at approximately 11 million or 3.7 per cent of the population, including 8 million undocumented workers (or 5 per cent of the workforce).10 As of 2012, the number rose to 11.7 million; with some variation, the number has been between 11 and 12.2 million since 2005.11 Unauthorized workers are concentrated in certain industries, such as agriculture, domestic work, maintenance and grounds keeping, construction, and food services.12 Most unauthorized workers are also unauthorized immigrants, meaning that they do not have the legal right to be present in the United States. If their immigration status is discovered, they are subject to deportation.

III. Problem Areas for Migrant Labour The labour law system described earlier does not operate to fully protect migrant workers in the United States. Sometimes problems arise because statutes exclude migrant workers from protection. In other cases, US courts interpret statutes to limit protection for migrants. Other times, problems arise because the sectors where migrants are most likely to be employed are excluded from protection. Finally,

9 M Ontiveros, ‘Immigrant Workers and the Thirteenth Amendment’ in A Tsesis (ed) The Promises of Liberty (Columbia University Press 2010). 10 J Passel and D Cohn, Unauthorized Immigrant Population: National and State Trends (Pew Research Center 2010). 11 J Passel, D Cohn, and A Gonzalez-Barrera, Population Decline of Unauthorized Immigrants Stalls, May Have Reversed (Pew Research Center 2013). 12 J Passel and D Cohn, A Portrait of Unauthorized Immigrants in the United States (Pew Hispanic Center 2009) 15.

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problems can arise from the reluctance of migrant workers to assert their rights because their migrant status makes them vulnerable to deportation.

1. Migrant status discrimination not prohibited by federal law United States anti-discrimination law only prohibits an employer from discriminating against or making employment decisions based upon certain criteria: race, colour, sex, religion, national origin, age (over 40), and disability. An employer is free to take into consideration any characteristic not on the list when making employment decisions. Significantly, migrant status is not included on the list of protected categories. Therefore, an employer is free to refuse to hire someone based on their migrant status as long as that decision does not have a disparate impact on members of a protected class or is not used as a pretext to cover discrimination against members of a protected class. Under US anti-discrimination law, criteria which have a disparate impact may still be allowed if the employer can show that the requirement is job-related for the position in question and consistent with business necessity. In 1972, civil rights advocates brought a case arguing that discrimination based on citizenship status violated the anti-discrimination statute’s prohibition against discrimination based on national origin. In Espinoza v Farah Mfg,13 Cecilia Espinoza, a legal permanent resident, married to a US citizen, and in the process of becoming a US citizen herself, applied for a job as a seamstress with Farah Manufacturing. Farah produced shirts, trousers, and other apparel, and was the largest employer in El Paso, Texas, which is near the Mexican border.14 Ms Espinoza was not hired because Farah had a policy of only hiring US citizens. Even with this requirement, almost the entire Farah workforce was of Mexican descent. Most had ancestors who originally came from Mexico, while others had been born in Mexico but had become US citizens. Ms Espinoza sued under Title VII, arguing that discrimination based on citizenship constituted discrimination based on national origin. She reasoned that a preference for US citizens inherently discriminated against people not from the United States, thus constituting intentional discrimination based on national origin.15 Alternately, she argued that a citizenship requirement had a disparate impact on people based on their national origin because people not from the United States were less likely to be citizens than those from the United States, since the US has a policy of birth right citizenship. The United States Supreme Court had recently held that neutral policies which have a disproportionate impact on members of a protected class and which are not justified by business necessity violate the employment discrimination statute.16 The United States Supreme Court rejected both of these arguments and created a bright line rule that discrimination based on citizenship status is analytically distinct from discrimination based on national origin. It found that intentional discrimination

13

Espinoza v Farah Mfg [1973] 414 US 86. M Ontiveros, ‘Building a Movement with Immigrant Workers: The 1972–74 Strike and Boycott at Farah Manufacturing’ (2011) 15 Employee Rights and Employment Policy Journal 479. 15 In the United States, this type of discrimination is called ‘disparate treatment’. 16 Griggs v Duke Power [1971] 401 US 424. 14

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based on national origin occurs when an employer discriminates against individuals from a particular country (or whose ancestors came from a particular country) because of animus towards that nationality. It reasoned that the defendant had no such animus against those of Mexican descent because it hired a workforce almost exclusively of this nationality. With respect to the disparate impact argument, it found that the requirement did not have a disparate impact on people of Mexican descent (again because of the high proportion of employees of Mexican descent). Since Espinoza, courts in the United States have uniformly held that discrimination based on citizenship status is not discrimination based on national origin. Discrimination based on migrant status more generally would also be seen as analytically distinct from discrimination based on national origin and not prohibited under Title VII. One federal anti-discrimination law, the Immigration Reform and Control Act of 1986, does prohibit discrimination on the basis of citizenship; however its provisions are limited in several ways. First, it only covers discrimination in hiring and discharge decisions, not other types of discrimination such as harassment or wage disparities. More importantly, its provisions only protect citizens and intending citizens, defined as individuals who apply for naturalization within six months of the date on which they become eligible to apply for citizenship. In other words, permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination.17 Otherwise, employers in the United States may take citizenship and migration status into account in making decisions about whether to hire a person, how much to pay them, and how to treat them on the job.

2. Undocumented workers When an undocumented worker is performing work as an employee, the vast majority of courts and administrative agencies have held that she is protected under all federal labour and employment laws. So, for example, an undocumented worker may not be discriminated against because of her sex, race, religion, national origin, age, or disability status. She must be paid the applicable minimum wage and overtime premium for her work. She has the right to engage in protected concerted activity without being fired. A minority of courts have found to the contrary, arguing that since an undocumented worker does not have the legal right to contract for employment, these statutory protections do not apply.18 There are, however, two problems for undocumented workers in receiving full protection under these statutes: a court-ordered limitation on remedies for some statutes; and fear of deportation. In 2002, the United States Supreme Court ruled that undocumented workers may not receive the full remedies available to other workers under certain statutes. In the case of Hoffman Plastic Compounds, Inc. v National Labor Relations Board,19 an undocumented employee was fired for union-organizing activity. 17

Immigration and Nationality Act 1952, s 1324b. M Ontiveros, ‘Immigrant Workers’ Rights in a Post-Hoffman World: Organizing Around the Thirteenth Amendment’ (2005) 18 Georgetown Immigration Law Journal 651, 656–8. 19 Hoffman Plastic Compounds, Inc. v National Labor Relations Board [2002] 535 US 137. 18

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In most cases, the National Labor Relations Board (NLRB) (the administrative agency that enforces the NLRA) orders an employee who is discharged for engaging in protected activity to be reinstated to his former position and be given back pay (full wages and benefits) covering the time between the discharge and reinstatement. In Hoffman, the NLRB did not order reinstatement because the employee did not have the legal right to work in the United States; however, it did award him back pay. The United States Supreme Court reversed the order and stated that the NLRB did not have authority to award back pay to undocumented workers. It reasoned that such an award would conflict with the intent of the immigration laws prohibiting employment of undocumented people and would serve as an incentive for undocumented people to come to the United States and seek work. The Court did confirm that the employer had violated the NLRA and ordered it to post an order promising not to discriminate in the future, arguing that this remedy best balanced the intent of the immigration laws with the policies of the labour statute. Since Hoffman, courts and administrative agencies have extended similar reasoning to cases brought under the anti-discrimination laws. Undocumented workers are protected from discrimination, but they may not receive the remedies of reinstatement or back pay.20 Cases for wage violations (failure to pay minimum wage or overtime premiums) are generally treated differently. Since the cases are being brought for work already actually performed, courts and administrative agencies require employers to pay employees the wages they should have earned under the applicable statutes.21 The outcome of Hoffman is problematic for several reasons. First, it severely decreases the deterrent function of the labour and employment laws when applied to undocumented workers. Employers essentially receive no monetary penalty for retaliatory or discriminatory behaviour. This has the possibility of leading to more discrimination against undocumented workers and of severely hampering their participation in union-organizing efforts. Second, the lack of potential monetary sanctions actually makes undocumented workers less expensive for employers to employ than documented workers. Contrary to the Court’s reasoning in Hoffman, this increases the incentive for employers to hire undocumented workers and frustrates the purpose of the immigration laws. Finally, it means that undocumented workers are not fully compensated for their injuries, as compared to documented workers.22 A two-tier system of workplace justice is established under Hoffman. Undocumented workers also have difficulty receiving full protection of the labour and employment laws because they fear deportation. If an undocumented employee participates in union activity or complains about workplace conditions (discrimination, wage violations, safety, and health issues), the employer may report the worker’s immigration status to the US Immigration and Customs Enforcement (ICE), resulting in deportation. This creates a huge disincentive for undocumented employees to

Ontiveros, ‘Immigrant Workers’ Rights’ (n 18). Ontiveros, ‘Female Immigrant Workers’ (n 1) 241. 22 M Ontiveros, ‘To Help Those Most in Need: Undocumented Workers’ Rights and Remedies Under Title VII’ (1993–94) 20 New York University Law Review and Social Change 607. 20 21

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participate in concerted activity or complain about labour violations.23 The US Government has tried to address this problem by requiring its administrative agencies to not inquire about immigration status and to not report unauthorized status to ICE when receiving complaints and conducting investigations. Employers, however, can and do contact ICE on their own. In addition, the mere threat of ‘calling immigration’ is often enough to prevent undocumented workers from asserting their rights under the statutes.

3. Guest or visa workers Most guest or visa workers lose their right to work in the United States and their right to stay in the United States if they quit their job because their visas are tied to a job with a particular employer. Unlike other workers in the US economy, they cannot leave a bad situation and take a better job. As a result, these immigrants are constrained in their ability to use ordinary free market forces to demand decent wages and fair working conditions. This situation also harms regular domestic workers who compete with visa workers because employers know that they can hire visa workers more cheaply and treat them worse. Regular domestic workers either must accept similar employment conditions themselves or go without employment. In this way, employers use guest workers to lower the floor which would otherwise be set by the free market. Guest workers also have a fear of deportation that constrains their ability to receive full protection of labour and employment laws. If a visa worker complains about workplace conditions or becomes involved in union activity and is fired, the worker no longer has the right to stay and work in the United States because their visa-specific employment has been terminated. Therefore, very few visa workers file complaints challenging workplace conditions or discrimination.24 In response, the United States has created two new visa categories which allow some immigrant workers to stay in the United States after filing a complaint. The U and T visas allow victims of trafficking or other serious crimes that cooperate with law enforcement to apply for permanent residency. Unfortunately these visas are limited in number and are only available to complaints alleging certain types of extreme criminal activity.25 Finally, guest workers may be subject to illegal employment practices that run foul of anti-trafficking laws.26 Some workers who arrive in the US on guest worker visas find themselves at the mercy of their employers, held against their will, and unable to quit and leave the country, even if they want to. Cases exist where employers have confiscated a guest worker’s passport and refused to return it to the employee until work has been completed. In other cases, allegations have been made that employers threaten a worker or a worker’s family member in their home country with physical harm if the worker leaves. Many times these employers have financed the worker’s Ontiveros, ‘Female Immigrant Workers’ (n 1) 240–1. M Ontiveros, ‘Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs’ (2007) 38 University of Toledo Law Review 923, 938. 25 Ontiveros, ‘A Strategic Plan’ (n 7) 154–5. 26 Ontiveros, ‘A Strategic Plan’ (n 7) 151–3; Ontiveros, ‘Female Immigrant Workers’ (n 1) 246–8; K Kim, ‘Psychological Coercion in the Contest of Modern-Day Involuntary Labor: Revisiting United States v Kozminski and Understanding Human Trafficking’ (2007) 38 University of Toledo Law Review 941. 23 24

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travel to the United States or charge the worker living expenses and then refuse to let the worker leave until these expenses have been repaid. Finally, there are cases where employers have physically restrained such workers behind locked gates or doors. Although these types of abuses may happen to other immigrant workers, the guest worker system seems particularly susceptible.

4. The agricultural sector The agricultural sector disproportionately employs migrants in all categories: authorized migrants, undocumented migrants and guest workers, and migrant agricultural workers face the problems described earlier. Migrant workers in the agricultural sector face some additional unique problems.27 First, agricultural workers are specifically excluded from the National Labor Relations Act, so they do not have a protected right to engage in collective action. In most states, agricultural employers may fire workers if they try to form unions. Second, the minimum wage laws have been modified so that there is no required hourly minimum wage or overtime premium. Employers may use a piece rate system instead. Finally, much of the agricultural sector uses a model where hiring of workers and workplace supervision is done through a system of farm labour contractors. The contractor system makes it more difficult for agricultural workers to protect their workplace rights because the contractor may not be financially stable or as accountable.

5. Domestic workers Like the agricultural sector, domestic workers are disproportionately migrant workers (authorized, undocumented, and guest workers) and suffer all the problems that have been described. Domestic workers are also specifically excluded from protection under the National Labor Relations Act. There are additional unique problems for domestic workers.28 First, the anti-discrimination laws only apply to employers who employ fifteen or more employees. Many domestic workers who work for individual families fall outside this protection and therefore can be discriminated against. Second, the employment laws only protect those workers categorized as ‘employees’ and do not cover workers who qualify as ‘independent contractors’. Often, domestic workers are considered to be independent contractors and so are not guaranteed minimum wages, overtime, or other types of workplace protection.

6. Collective action When migrant workers seek to organize into labour unions in the United States, they encounter a variety of problems. First, two of the major sectors in which they work (agriculture and domestic work) are excluded from protection. Second, some employers who are facing an organizing effort that includes many undocumented migrants 27 28

Ontiveros, ‘Female Immigrant Workers’ (n 1) 238–40. Ontiveros, ‘Female Immigrant Workers’ (n 1) 238–40.

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will either threaten to call or will actually call ICE to arrange for a workplace raid. This can have the effect of stopping the organizing campaign. In one study of over 1,000 union representation election campaigns, these threats appeared in 7 per cent of all campaigns, in 41 per cent of campaigns in immigrant-dominated workforces, and in half of the campaigns involving workplaces with a majority of undocumented workers.29

IV. Migrant Labour—Working Beneath the Floor for Free Labour Section one of the Thirteenth Amendment to the United States Constitution proclaims that ‘neither slavery nor involuntary servitude . . . shall exist within the United States’. Section two gives Congress the power to enforce the amendment with appropriate legislation. Although passed in 1864 to end the system of chattel slavery at the heart of the United States Civil War, the Amendment is more than a historical footnote. The legislative history of the amendment, the interpretation and use of its enabling legislation, and the social understanding of the amendment show that it creates a constitutional policy requiring a minimum floor for free labour within the United States. As the United States Supreme Court said in Pollock v Williams: the undoubted aim of the Thirteenth Amendment as implemented by the Anti Peonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States . . . [I]n general, the defense against oppressive hours, pay, working conditions or treatment is the right to change employers. When the master can compel and the labourer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression of working conditions and living standards affects not only the labourer under the system, but every other with whom his labor comes in competition.30

Unfortunately, because of the problems noted earlier, migrant workers in the United States too often work beneath that floor for free labour. When they do, the employer’s actions or the state policy arguably violate the Thirteenth Amendment and should be struck down. Each of the problems identified for undocumented workers has implications under the Thirteenth Amendment analysis described earlier. The exclusion of migration or immigration status as a protected category means that immigrants as a group may be singled out for inferior treatment and discriminated against in the workplace. This violates the Thirteenth Amendment by creating a group of legally exploitable workers who, in practice, tend to be racial minorities, without the political power of citizens, 29

K Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing (Economic Policy Institute Briefing Paper No 235, 2009) 12. 30 Pollock v Williams [1944] 322 US 4, 17–18. For a discussion of the legislative history and its intent to create a floor for free labour, see L VanderVelde, ‘The Labor Vision of the Thirteenth Amendment’ (1989) 138 University of Pennsylvania Law Review 437; L VanderVelde, ‘The Thirteenth Amendment of our Aspirations’ (2007) 38 University of Toledo Law Review 855.

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and who are treated as inferior or ‘other’ by society as a whole. Although their treatment is not as bad as the treatment of human beings held in chattel slavery prior to the Civil War, this exclusion replicates the system by creating a caste of workers who may legally be treated differently because of a characteristic unrelated to their ability to do their job and runs foul of the broad purpose of the Thirteenth Amendment.31 Internationally, many treaties prohibit discrimination on the basis of migrant status.32 The International Labour Organization (ILO) has identified discrimination on the basis of migrant status as a violation of human rights.33 The ILO conclusion is based on the worldwide history of discrimination against migrants and the way it has been used to violate the human rights of workers, including the treatment of Roma and Chinese rural migrants. The United Nations has appointed a Special Representative on International Migration to address the issue, recognizing the importance of addressing it as an ‘economic’ issue.34 Discrimination against migrant workers, based on their migrant status, clearly affects their economic rights, their human rights, and their civil rights in ways similar to systems of slavery or involuntary servitude. The treatment of undocumented workers also violates the Thirteenth Amendment by creating a group of workers without recourse for violations of their workplace rights.35 They labour beneath the floor set for free labour because they fear deportation if they complain and are not allowed to receive those remedies available to other workers. As a group, they are excluded from access to the courts to enforce basic workers’ rights, as well as citizenship rights, civil rights, and human rights. These are the types of rights which were denied to chattel slaves. In the United States, the Supreme Court has said that the Thirteenth Amendment bans not only slavery but also the ‘badges and incidents of slavery’, which could include these rights.36 Internationally, when the Inter-American Court of Human Rights reviewed the Hoffman case, it found that the exclusion of undocumented workers from full protection, including equal access to courts, violated fundamental human rights and workers’ rights.37 The Thirteenth Amendment is implicated in a slightly different way for visa or guest workers.38 Their situation can be more clearly analogized to involuntary servitude because their ability to leave an undesirable work situation is so strongly circumscribed. 31 Ontiveros, ‘Immigrant Workers and the Thirteenth Amendment’ (n 9) 282. See also R Zietlow ‘Free at Last! Anti-Subordination and the Thirteenth Amendment’ (2010) 90 Boston University Law Review 255 (demonstrating how the Amendment was meant to create a broad grant of anti-subordination, civil, and economic equality, and inclusion for African Americans). 32 R Smith, ‘Prosecute, Prevent, Protect: Migrant Labor, Forced Labor, and Human Rights’ in J Gross and L Compa (eds), Human Rights in Labor and Employment Relations: International and Domestic Perspectives (LERA 2009) 164. 33 M Ontiveros, ‘Employment Discrimination’ in Gross and Compa (n 32) 210. 34 35 Smith (n 32). Ontiveros, ‘A Strategic Plan’ (n 7) 139–43. 36 Ontiveros, ‘Immigrant Workers and the Thirteenth Amendment’ (n 9) 286–7; Ontiveros, ‘Immigrant Workers’ Rights’ (n 18) 673. 37 Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 InterAmerican Court of Human Rights Series A No 18 (17 September 2003). See also Ontiveros, ‘Immigrant Workers and the Thirteenth Amendment’ (n 9) 678–9; Smith (n 32) 165–6. 38 Ontiveros, ‘A Strategic Plan’ (n 7) 143–6.

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When a guest worker cannot complain about poor working conditions or leave an unfair work situation because their visa will be revoked and they will be deported, they lose the ability to quit required by the Thirteenth Amendment. This situation also pulls down the working conditions of free, non-visa workers, which was one of the problems of slavery and involuntary servitude identified by the drafters of the Thirteenth Amendment and discussed by the US Supreme Court in Pollock. Finally, those guest workers who cannot quit because their employers have confiscated their passports, threatened their families, or used physical force to prevent them from leaving are clearly working in a system of involuntary servitude as defined by the US antitrafficking statutes. The exclusion of domestic and agricultural workers from labour and employment law protection further illustrates the link of migrant worker treatment and the Thirteenth Amendment. The legislative history of the statutes shows that these workers were specifically excluded from protection under the labour standards laws because they were primarily African-Americans who were performing the same tasks which chattel slaves performed prior to the American Civil War.39 The racial nature of the exclusion found in the Congressional debates and connection to the history of these occupations in the American south support the argument that the creation of a caste of workers labouring beneath the floor for free labour violates the Thirteenth Amendment. Finally, the difficulty which migrants encounter when trying to organize into labour unions is a small example of the difficulties which American workers face when trying to form unions. Commentators have argued that the ability to form unions is one of the rights guaranteed to free labour under the Thirteenth Amendment.40 Under this analysis, restrictions on the ability to strike and engage in other concerted activity, which apply to all workers, violate the Thirteenth Amendment. Specifically excluding migrant-dominated industries such as agriculture and domestic work and using threats of immigration raids to dissuade organizing further interfere with migrant workers’ Thirteenth Amendment rights. The legislative history of the exclusion of these two industries from the National Labor Relations Act reveals the exclusion’s origin in racial discrimination and the institution of slavery.41 International law also equates the right to engage in collective workplace action as a human rights violation.42

V. Conclusion The United States regulatory system to protect workers cannot be read in isolation from the Thirteenth Amendment to the US Constitution which prohibits slavery and

39 M Linder, ‘Farm Workers and the Fair Labor Standards Act: Racial Discrimination in the New Deal’ (1987) 65 Texas Law Review 1335. 40 J Pope, ‘Labor’s Constitution of Freedom’ (1997) 106 Yale Law Journal 941, 6; J Pope, ‘The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921–1957’ (2002) 102 Columbia Law Review 1. 41 J Perea, ‘The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act’ (2011) 72 Ohio State Law Journal 95. 42 T Novitz, ‘Workers’ Freedom of Association’ in Gross and Compa (n 32) 123.

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involuntary servitude. The Amendment provides the backdrop for understanding the importance of workplace protection in the United States and its interpretation. Analysing the treatment of migrant workers in the context of the Thirteenth Amendment provides additional insights about the need to give them equal protection under the statutory labour laws. Although this analysis is relatively new in the United States (and varies from the analysis of forced labour under international law), it is beginning to provide a useful mechanism to protect migrant workers in the United States.

11 Enforcement of Employment Rights by Migrant Workers in the UK The Case of EU-8 Nationals Catherine Barnard*

I. Introduction Migration is a highly politicized issue in the UK, and the role of migrant workers particularly sensitive. In a speech given after a prominent anti-migrant campaign orchestrated by the Coalition Government,1 Chris Bryant MP, an opposition shadow minister, attempted to reframe the migration debate by focusing on employers’ tendency to exploit migrant workers, in preference to hiring local workers and investing in their skills and training. Bryant said: Now, many employers say they prefer to take on foreign workers. They have lots of get up and go, they say. They are reliable. They turn up and they work hard. But I’ve heard examples from across the country where employers appear to have made a deliberate decision not to provide training to local young people but to cut pay and conditions and to recruit from abroad instead, or to use tied accommodation and undercut the minimum wage. It may be the case, as some have argued, that many young people discount hospitality or care industries as beneath them, but in many other countries a job in a hotel is not a dead end or a gap year stopgap but the start of a rewarding career. Tourism is one of our largest industries and yet I have heard horror tales of hotel management deliberately cutting hours of young British workers and adding hours to migrant workers

* Catherine Barnard is Professor of European Union Law and Employment Law at the University of Cambridge and a fellow of Trinity College. The author would like to thank Cathryn Costello, Amy Ludlow, and Louise Merrett for their comments. 1 BBC, ‘Home Office Vans: Unite Union in Race Hatred Query’ BBC News (2 August 2013); BBC, ‘Immigrant Spot Checks: Equality Watchdog Investigates’ BBC News (3 August 2013). House of Commons, Early Day Motion 488 (2013), reads: ‘That this House deplores the recent Home Office poster campaign running in UK Border Agency offices in Glasgow and London advising people seeking advice to go home; believes that this poster campaign is an insensitive and ineffective way of dealing with illegal immigration and is unlikely to encourage voluntary returns; notes that this is not the only instance of this type of campaign following the heavily criticised vans carrying similar messages; further notes that charities and non-governmental organisations (NGOs) have expressed their concerns about the campaign; further believes that this scheme is likely to undermine its stated aims whilst creating an environment of fear; and urges the Government to halt immediately this pilot scheme and to work with local authorities, community groups and NGOs to encourage voluntary returns in a more effective, liberal, sympathetic and humane manner.’

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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who do not complain about deductions from earnings that almost certainly take people below the minimum wage.2

Political debate trades on the ambiguity of the term migrant. The focus of this chapter is on one, more privileged, category of migrant, namely EU nationals, whose legal right to work and live in the UK is secure. Chris Bryant’s speech was mainly referring to the employment of migrant workers from the EU-8 countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia), which acceded to the EU in 2004.3 Unlike a number of Member States, the UK, then under a Labour Government, did not impose restrictions on the admission of workers coming from the EU-8 states, apart from the requirement to register under the Workers Registration Scheme. Over a million EU-8 workers, taking advantage of their rights under the EU Treaties, arrived in the UK after 2004. The Labour Party now says that its open door policy in 2004 was a mistake,4 and it imposed transitional restrictions in 2007 on Bulgarians and Romanians (EU-2) coming to the UK as workers.5 The arrival of such a large number of migrant workers has changed the face of the UK’s labour market. Some employers—possibly the ‘vast majority’6—have treated these workers with respect and have tried to meet their legal obligations to them. However, there is now considerable evidence that some employers, especially agencies in the food-processing sector, are violating migrant workers’ labour rights under UK law.7 This raises questions about social justice towards often vulnerable migrant workers. It also means that responsible employers find it difficult to compete with rogue employers. More generally, it has led to the perception that migrant workers are undercutting national workers and are thus, effectively, denying national workers jobs. This is a highly explosive allegation, especially at a time when there are over two million unemployed in the UK. The aim of this chapter is not to examine whether EU-8 migrants are indeed ‘taking British jobs’.8 Instead, it seeks to understand which employment law applies to migrants working in the UK (UK rules or those of the state of origin?). It then asks, where UK rules do apply, what happens if migrant workers are denied their employment rights? The evidence indicates that this question is particularly pertinent for EU-8 nationals. Do they enforce those rights? If they do, then fears about undercutting and exploitation of vulnerable workers are less serious than would first appear. If they do 2 Speech given by Chris Bryant, Shadow (Labour) Immigration Minister, 12 August 2013. ‘The Staggers’, Chris Bryant’s speech on immigration: full text The New Statesman (12 August 2013). 3 The celebrity chef, Jamie Oliver, is an example of an employer who uses migrant workers. He is reported as saying ‘My restaurants would shut without migrants’, The Daily Telegraph (28 August 2013). For empirical research on this, see M Ruhs, ‘Greasing the Wheels of the Flexible Labour Market: East European Labour Immigration in the UK’ in J Smith-Bozek, Labour Mobility in Europe (Centre for European Policy Analysis 2007). 4 Bryant (n 2). 5 They were, however, able to come to the UK under Art 21 TFEU, provided they were self-sufficient, or as self-employed persons under Art 49 TFEU. 6 Citizens Advice Bureau, Give us a Break (April 2011) 4 accessed 10 July 2014. 7 See reports discussed in section III. 8 For a simple explanation of the so-called ‘lump of labour fallacy’, see P Krugman, ‘Lumps of Labour’ The New York Times (7 October 2003).

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not, then concerns about the (mis)treatment of these migrants are justified and prompt the further question as to how their rights could be better protected in practice. This question about effective enforcement of legal rules has long been the focus of research in the field of discrimination law; this chapter uses some of the insights from discrimination law to help understand the issues of the enforcement of employment protection law by migrant workers. The chapter is structured as follows. Section II examines the EU and UK rules determining which law applies to migrants working in the UK. This complex but important question is often not tackled by the tribunals, as the cases considered for this chapter demonstrate. Section II shows that generally UK rules apply to migrant workers (and the tribunals seem to assume that is the case). However, which specific UK rules apply depends on the classification of the individual: as an employee, worker, or professional. The self-employed are generally excluded from employment law protection. Section III looks at the existing literature documenting the experience of migrant workers in the UK. This evidence suggests that a number of employers and agencies are not complying with key provisions of UK labour law or are trying to avoid the application of UK labour law altogether by labelling the individual as ‘self-employed’. Section IV then examines the extent to which migrant workers are enforcing their rights. There are a number of bodies to whom complaints can be made, but the most important in practice are the employment tribunals (ETs), the UK’s specialist labour courts. The question then is: how many migrant workers are actually bringing cases before ETs, what are those cases about, and how successful are EU-8 nationals before tribunals? As this chapter will show, this question is, in fact, difficult to answer because there are no publicly available data on how many ET claims have been brought by EU-8 nationals, let alone data on the subject matter of those claims or their outcome.9 By contrast, most Employment Appeal Tribunal (EAT) decisions are reported, and, for the purposes of this chapter, searches were made on the relevant databases for evidence of cases involving EU-8 nationals. The searches revealed only fourteen appeals involving EU-8 nationals in the period 2005 to 2012, about two a year (as compared to the 2,000 or so appeals the EAT receives annually). From this, it will be argued that very few migrant workers are actually enforcing their rights through the tribunal system. Admittedly, further empirical research needs to be undertaken to verify that finding; this is the subject of a subsequent project. However, the decided EAT cases are examined to consider the extent to which their subject matter reflects the findings in sections II and III. If, as it would seem, few EU-8 nationals are using the tribunal system, despite the evidence that employers are not respecting their rights, this gives support to the view that some employers of migrant workers are taking advantage of migrant labour, to the detriment of the workers themselves and to the good employers in the field. This suggests that for workers in sectors highlighted as particularly problematic, a different enforcement regime is necessary, a regime which would benefit not only EU-8 migrant 9 This has been confirmed by an FOI request: accessed 10 July 2014.

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workers but also third-country national workers, who usually do not enjoy the protection of EU law, and other UK and EU workers working alongside them. This issue is considered at the end of section IV. Section V concludes.

II. The Employment Rights of EU Migrants 1. Introduction There were 1,134,711 approved main applicants for the Worker Registration Scheme from EU-8 nationals between May 2004 and April 2011.10 The majority (62 per cent) were Polish, with Lithuanians comprising 11 per cent and Slovaks 10 per cent. The majority of approved applicants were aged 18 to 24 (43 per cent) or 25 to 34 (38 per cent).11 Those approved under the Worker Registration Scheme were entitled to work as ‘workers’ under Article 45 TFEU.12 This was the main route for migration of EU-8 nationals. A number of migrants also came to the UK as self-employed persons under Article 49 TFEU (and as the case studies cited in section III show, a number of migrants working for British agencies were recruited as self-employed persons). Others came as ‘posted workers’ under Article 56 TFEU and the Posted Workers Directive 96/71 (PWD).13 Data on those coming as posted workers are scarce.14 The classification of individuals under EU law—as workers, self-employed persons, or posted workers—is important to determine in what capacity they move and what rights they enjoy under EU law (section II.2.i). A related and potentially overlapping question is what legal regime applies to the migrants. This is a complex matter, raising issues of both EU and UK law (section II.2.ii).

10 The Worker Registration Scheme operated from 1 May 2004 to 30 April 2011. The scheme required workers from the EU-8 states to register with the Home Office, as a way of monitoring the impact of EU enlargement on the UK. Workers had the right to come to the UK and work where they chose, although it was—and still is—only after twelve months’ habitual residence, for which they must actually be in work, that they gain an entitlement to benefits like Working Tax Credit, Child Tax Credit, Child Benefit, Housing Benefit, Income Support, and Pension Credit. There were 96,641 applications for tax-funded incomerelated benefits from EU-8 nationals between May 2004 and April 2011; the majority (68,810 or 71 per cent) were disallowed on failing the Right to Reside and Habitual Residence Test. 11 Home Office, Briefings: Immigration Statistics October–December 2011: European Economic Area (2012) accessed 10 July 2014. 12 Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77; Art 45 TFEU; Regulation (EU) 492/2011 of 5 April 2011 on freedom of movement for workers within the Union (codification) [2011] OJ L141/1. 13 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [1997] OJ L18/1. 14 There is an absence of statistics on the numbers of posted workers in the UK. Mark Hall, responding to a Eurofound survey, says data provided by the UK’s Office for National Statistics relates to the second quarter of 2008 only, based on an ad hoc question for Eurostat which was asked only for this quarter. Therefore data is unavailable for any previous years. Between April and June 2008, 181,209 people came to the UK from another country to work for the same company that already employed them. The sectors most affected were real estate, financial intermediation, manufacturing, and hotels. See M Hall, UK: Posted Workers (European Industrial Relations Observatory 2010).

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2. EU law i. Classification of the individual EU law distinguishes between workers, the self-employed, and posted workers. Workers are essentially dependent labour. In Lawrie-Blum,15 the Court of Justice of the European Union (CJEU) said that the essential feature of an employment relationship is that ‘for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’. In subsequent cases the Court has made clear that the individual must be engaged in a ‘genuine and effective’ economic activity which is not on such a small scale as to be ‘purely marginal and ancillary’.16 By contrast, Article 49 TFEU concerns independent labour, namely the selfemployed.17 As the CJEU said in Gebhard:18 the concept of establishment within the meaning of the Treaty is therefore a very broad one, allowing a [Union] national to participate, on a stable and continuous basis, in the economic life of a Member State other than his state of origin and to profit therefrom, so contributing to social and economic penetration within the [Union] in the sphere of activities as self-employed persons.

Article 49 TFEU allows the self-employed to establish themselves permanently in another Member State. However, Articles 56 and 57 TFEU allow the self-employed and companies temporarily to provide services in another Member State. For labour lawyers, this situation is of particular relevance where EU-8 companies provide services in the EU-15 states, bringing with them their own (EU-8) ‘posted’ workforce19 to fulfil the particular contract.20

ii. Which law applies? Having established the different capacities in which an EU national can migrate, the next question is what labour law regime applies to these migrants in their different capacities: the law of the home state or of the host state? As far as individual employment contracts are concerned, the detailed rules as to which law applies are contained in the Rome I Regulation on the law applicable to contractual obligations.21 15

Case 66/85 Lawrie-Blum v Land Baden-Wurttemberg [1986] ECR 2121. Case 53/81 Levin [1982] ECR 1035, para 17. The CJEU held that the rules relating to free movement of workers also applied to part-time workers, even where they earn less than the minimum wage of a particular Member State. 17 Case C-221/89 R v Secretary of State for Transport ex p Factortame [1991] ECR I-3905, para 20. 18 Case C-55/94 Gebhard [1995] ECR I-4165, para 25. 19 For an example, see the case of Italian and Portuguese workers being posted to the UK to fulfil a building contract at the Lindsey Oil Refinery. This eventually led to the Lindsey Oil Refinery dispute: C Barnard, ‘British Jobs for British Workers: The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market’ (2009) 38 Industrial Law Journal 245. 20 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet [2007] ECR I-11767; Case C–346/06 Dirk Rüffert v Land Niedersachsen [2008] ECR I–1989. 21 Regulation (EC) 593/2008 of 18 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6. 16

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This envisages two situations: (1) where the parties have chosen the applicable law; and (2) where they have not (see Figure 11.1). Where the parties have not chosen the applicable law, Article 8(2) of the Rome I Regulation says: To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.

So, in the case of a Polish worker who has come to the UK as a migrant worker under Article 45 TFEU but without a choice of law clause in his contract, Article 8(2) says that UK law22 will be the objectively applicable law. This means that he or she will enjoy the same terms and conditions of employment as UK workers, a requirement also specified in the non-discrimination principle found in EU primary and secondary legislation (subject to the limitations of personal, temporal, and material scope laid down by UK law considered in section II.3.ii).23 However, in the case of a Polish worker temporarily posted to the UK by a Polish company under Article 56 TFEU,24 the position is different. Again, two situations need to be distinguished: (1) where the posted worker is directly employed by the company doing the posting; and (2) where the posted worker is directly employed by an EU-8 agency and the agency provides the services of the Polish staff to users in the UK. In both cases, Article 8(2) of the Rome I Regulation indicates that the objectively applicable law is Polish. However, the position under the Rome I Regulation must be read subject to the PWD, as interpreted by the CJEU,25 and the position differs in respect of the two situations. In the first situation (the posted worker is directly employed by the company doing the posting) the host state (the UK) must apply its rules to posted workers, but only in the areas exhaustively laid down in Article 3(1) PWD. Article 3(1) covers only restrictions on working time, minimum rates of pay, conditions of hiring out of workers, health and safety, protection of pregnant workers and those who have recently given birth, and equality legislation. In order to apply its domestic law in this area, the host state must also satisfy the detailed demands of Articles 3(1) and 3(8) PWD, which require that the rules must be laid down by law or, in certain circumstances, collective agreements.26 If the host state does not satisfy these requirements, the default position is that only the rules of the Rome I Regulation are applicable and so home state rules (Polish law) will apply. 22

The term UK law will be used throughout for simplicity. Labour law statutes apply to England, Wales, and Scotland (eg Employment Rights Act 1996, s 244); they are also mirrored in Northern Ireland. 23 See legislation cited at n 11. 24 According to the 36th Recital of the Rome I Regulation, work is regarded as temporary if the employee is expected to resume working in the country of origin after carrying out his tasks abroad. 25 See especially Laval (n 20); Rüffert (n 20); Case C-319/06 Commission v Luxembourg [2008] ECR I-4323. 26 There are two limited exceptions to this provision (Arts 3(7) and 3(10)), but Laval (n 20) makes it clear that these exceptions provide little room for manoeuvre for the host state.

law of host state applies (Art 8(2) Rome I)

workers

but host state must apply its laws in the areas listed in Art 3(1) PWD

law of home state applies (Art 8(2) Rome I)

directly employed by posting undertaking

failing which, as for directly employed posted worker

host state may choose to extend the laws it applies to temporary workers (Art 3(9) PWD)

agency employer posting directly employed agency worker to user undertaking

posted workers

choice not specified

law of host state applies

country of choice (Art 8(1) Rome I) but subject to Art 8(2) Rome I

workers

but host state must apply its laws in the areas listed in Art 3(1) PWD

law of home state applies

Art 8(2) Rome I

but probably only in those areas listed in Art 3(1) PWD following Laval

may mean some laws of host state apply

may mean some laws of host state apply

Art 21 Rome I public policy

country of choice (Art 8(1) Rome I) but subject to:

posted workers

Art 9(2) Rome I mandatory rules

choice specified

Fig. 11.1 EU law rules on the applicable law for EU migrants

classification of individual migrant

whether choice made by the parties

choice of law

see also Temporary Agency Work Directive 2008/104 and derogations in Arts 5(2)–(4)

host state may choose to apply the laws it applies to temporary workers (Art 3(9) PWD)

agency employer posting directly employed agency worker to user

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In the second situation (where the posted worker is directly employed by an agency in the EU-8 state), Articles 1(3)(c) and 3(9) PWD say that, provided there is an ‘employment relationship’ between the temp agency and the worker during the period of the posting,27 the host Member State may provide that the agency must guarantee temps the same terms and conditions as are applied to ‘temporary workers’ in the host state. For the UK this would mean the posted staff will benefit from The Agency Work Regulations,28 which require that the agency worker enjoys equal treatment with the user’s workers in respect of pay, working time, rest periods and breaks, night work, annual leave, and time off for antenatal appointments. However, Regulation 7 expressly excludes the benefit of the equal treatment principle for the first 12 weeks of employment of the temp by the user.29 So far we have considered the situation where the contract does not specify the applicable law. Where, on the other hand, the parties have chosen the applicable law (which they are permitted to do under Article 3 of the Rome I Regulation30), Article 8(1) of the Rome I Regulation provides it is the chosen law that governs the individual employment contract. However, Article 8(1) continues that the choice of law may not have the result of depriving the employee of the protection afforded to him under Article 8(2). So, where a Polish employer sends an individual to the UK as a worker under Article 45 TFEU, or where a British employer hires a Polish worker, and they have chosen Polish law to govern the contract, the chosen law will be Polish but the objectively applicable law will be UK law because the choice cannot deprive the worker of the protection afforded under UK law. By contrast, where a Polish employer, posting Polish workers to the UK under Article 56 TFEU, has chosen Polish law to govern the contract, the chosen law will be, and the objectively applicable law is likely to be, Polish. However, as discussed earlier, this is subject to the provisions of the PWD which require the host state to apply its rules in those areas listed in Article 3(1) PWD. In conclusion, under EU law, workers migrating under Article 45 TFEU will usually be subject to UK law. Workers posted under Article 56 TFEU may also be subject to UK law, but only where the UK rules have complied with Articles 3(1) and 3(8) PWD, failing which, home state (eg Polish law) will apply. The position is, however, somewhat different under UK law.

3. UK law i. Choice of law As we have seen, where there is no choice of law clause in the migrant worker’s contract, Article 8(2) of the Rome I Regulation says that UK law will be the objectively

27

If there is no employment relationship between the agency and the temp, then the temp may well be considered self-employed, in which case he or she is not, in principle, entitled to any employment rights. 28 The Agency Work Regulations 2010, SI 2010/93. 29 The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 do not apply to agency workers: Reg. 19. 30 Article 3 provides: ‘A contract shall be governed by the law chosen by the parties.’

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applicable law. However, in the case of posted workers, the home state law will be the objectively applicable law, subject to the provisions of the PWD. Where there is a choice of law clause in the contract, the courts will enforce it unless it has the effect of depriving the employee of the protection afforded to him under Article 8(2) of the Rome I Regulation. Despite the position under EU law, the UK adopts its own approach, which is, in essence, territorial. It applies all of UK labour law to everyone working in the territory. This position is compatible with EU law for migrants working under Article 45 TFEU. However, it is in breach of EU law in respect of posted workers since, as we have seen, the PWD envisages that the host state will apply its law to posted workers but only in those areas listed in Article 3(1) PWD.31 However, the relatively long service periods required for certain rights means that posted workers enjoy less protection under UK law than would first appear. So what conditions, then, does UK law lay down for individuals, including migrants, to be entitled to employment protection under UK law?

ii. Classification of the individual and the rights they enjoy The particular employment protection enjoyed by individual migrants depends on their status. This is the question of the personal scope of a provision. UK employment law generally distinguishes between employees, workers, and the self-employed. The Employment Rights Act 1996, section 230(1) says that an ‘employee’ is ‘an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment.’ ‘Contract of employment’ is defined by section 230(2) as ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.’ There is voluminous case law on the precise meaning of the term ‘employee’ but generally it covers those who are fully integrated into the employer’s business, whose activities are controlled by the employer, and who depend on the employer to provide them work which they are obliged to carry out.32 Employees enjoy the full range of employment protection (eg maternity leave, paternity leave, sick leave, protection against unfair dismissal, redundancy), provided they have satisfied: (1) the temporal scope of the legislation, ie they have worked for the relevant period (eg two years to claim a redundancy payment or to claim unfair dismissal); and (2) fall within the material scope of the provision (eg they have been dismissed—a term with a technical meaning—in order to claim unfair dismissal). In the Employment Rights Act 1996, section 230(3) defines ‘workers’ as including employees (as described in the previous paragraph) but also an individual who has

For a legal explanation as to how, see C Barnard, ‘The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law’ (2009) 38 Industrial Law Journal 122. 32 See eg Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 (QB) 515 (MacKenna J); Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 (CA) 623 (Stephenson LJ); Carmichael v National Power [1999] UKHL 47, [2000] IRLR 43. 31

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entered into or works/worked under ‘any other contract . . . whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’. In other words, ‘worker’ is a broader category than ‘employee’ and covers those who work under a contract of personal service but do not provide that service in the capacity of a professional or independent business. The courts have recognized that some individuals who describe themselves as self-employed might in fact be workers for the purpose of the legislation.33 The principal rights enjoyed by workers are those under the National Minimum Wage Act 1998, the Working Time Regulations 1998 (which includes annual paid leave), the Public Interest Disclosure Act 1998, and the Parttime Work Regulations 2000. It is likely that the UK law definition of worker overlaps with the EU law definition of workers. The equality legislation applies to a still broader category of individuals: it covers not just employees and workers, but also, according to the Equality Act 2010, section 83(2), those employed under ‘a contract personally to do work’. In other words it will cover, for example, those working as professionals, such as solicitors. Generally, the self-employed—that is those with a contract for services—enjoy no employment protection (unless they can argue that, despite the fact the contract says they are self-employed, this does not reflect the reality of the situation and they are, in fact, workers34). However, the Health and Safety at Work Act 1974, section 53(1) imposes certain obligations on employers to the self-employed, to include an ‘individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others’.35 Agency workers are in a particularly invidious position. Many have a contract for services with the agency (ie they are self-employed). The courts have been reluctant to find that they are employees of either the agency or the user undertaking, as Consistent Group v Kalwak shows (considered in section IV.4).36 For this reason, some legislation, notably the Working Time Regulations 199837 and the National Minimum Wage Act 1998,38 makes express provision for agency staff to ensure that whatever their legal classification they are protected by the relevant provisions.

33

See eg Autoclenz v Belcher [2011] UKSC 41. Autoclenz (n 33). For an assessment of the importance of this ruling for migrant workers, see A Bogg and T Novitz, Ch 19 in this volume. See also B Anderson, M Ruhs, B Rogaly, and S Spencer, Fair Enough? Central and East European Migrants in Low-wage Employment in the UK (COMPAS Report 2006) accessed 10 July 2014. 35 Clause 1 of the Deregulation Bill 2013–14 makes amendments to s 3 of the Health and Safety at Work Act 1974 to exempt from health and safety law those self-employed persons who have no employees and who do not conduct a prescribed undertaking. 36 Consistent Group v Kalwak [2008] EWCA Civ 430, [2008] IRLR 505, applying James v Greenwich [2008] EWCA Civ 35, [2008] ICR 545 (although cf Dacas v Brook St Bureau [2004] EWCA Civ 217, [2004] ICR 1437). 37 Working Time Regulations 1998, SI 1998/1833, reg 36. 38 National Minimum Wage Act 1998, s 34. 34

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4. Conclusion While EU law contains detailed provisions as to which rules (home or host state) apply to which individuals (migrant workers/posted workers), the UK applies its labour law to everyone in its territory, irrespective of their nationality and length of residence.39 Instead, UK law filters out potential claimants using other mechanisms, in particular using a restricted personal, temporal, and material scope. Nevertheless, migrant workers who are employees with (generally) two years’ service have full employment protection under UK law; migrant workers who are workers have at least the benefit of, most importantly, the national minimum wage and limits on working time and the right to paid annual leave. The question, then, is to what extent are migrant workers/posted workers actually enjoying the protection of the rights conferred on them by EU and UK law? As the next section shows, in some sectors at least, the answer is: they are not.

III. Are Workers Actually Enjoying their Rights? In his speech, Chris Bryant MP referred not only to discrimination in favour of EU nationals in terms of hiring, but also to the growing body of anecdotal evidence of discrimination and mistreatment of migrant workers once in employment. This view is supported by other sources. For example, the Citizens Advice Bureau (CAB), a UK charity which provides free, independent advice on individuals’ rights, provides examples of discrimination experienced by migrant workers which have been brought to its attention.40 These include the case of two Polish students who were found work on a farm by an agency that arranged work for foreign students. The wages paid were below the Agricultural Wages Board rates and when they complained, they were dismissed and required to leave the accommodation that went with the job. Another case concerned a migrant worker dismissed from his job in a restaurant without explanation. He did not receive the contractual one week’s notice or pay in lieu, nor was he given the proportional holiday pay to which he was entitled. Given the shortage of money, he returned to his home country. Most tellingly for our purposes, the CAB notes ‘[c]onsequently, he was unable to take his case to an Employment Tribunal due to the cost and administrative difficulties of trying to handle the tribunal from abroad’.41 These examples have now been backed up by more rigorous empirical research.42 For example, the Equality Commission for Northern Ireland carried out a study of

39 Advisory, Conciliation and Arbitration Service, Migrant Workers: Your Responsibilities as an Employer at accessed 10 July 2014, makes the need for equal treatment for migrants explicit: ‘The basic rule of thumb when recruiting new staff is that you should treat migrant workers in exactly the same way as British workers. Migrant workers working in the UK enjoy exactly the same protection from discrimination as their British counterparts.’ 40 CAB, Home from Home? Experiences of Migrant Workers in Rural Parts of the UK, and the Impact on Local Service Providers (CAB, December 2005). 41 CAB, Home from Home? (n 40) 8. 42 See also S McKay, M Craw, and D Chopra, Migrant Workers in England and Wales: An Assessment of Migrant Worker Health and Safety Risks (Health and Safety Executive Research Report Series RR502 2006).

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treatment in the recruitment sector in 2010.43 It found that more than half of migrant workers had used the recruitment sector, and recruitment agencies reported a high proportion of migrant workers registered with them, in some cases more than 80 per cent. Of those participating, 60 per cent of migrant workers reported experiencing difficulties with pay. For example, one migrant worker recounted: ‘We have trouble getting holiday pay from the agency. They don’t want to speak to us about it. They said that if we don’t like it we could always go back home.’ Finding fees have also been a problem. One migrant worker said: ‘We paid €600 to the agency (in their own country) and then £500 to a contact in the UK who said he would get us work documents. We never got these. We knew only we would be doing unskilled work in Belfast. We work on a farm and the job is not what we expected.’44 Under UK law it is a criminal offence for an employment agency to charge individuals a fee for finding them work.45 Scott, Craig, and Geddes’ study for the Joseph Rowntree foundation into forced labour amongst migrant workers in the food industry also reveals abuses. It was based on in-depth interviews with sixty-two migrant workers (mainly Polish, Chinese, Latvian, and Lithuanian) across five locations (London, Liverpool, South-West England, Lincolnshire, and East–Central Scotland).46 Its findings included accounts of potential breaches of employment protection law in the case of EU-8 nationals: • Threats and bullying—migrants often felt bullied and ‘treated like livestock’ (Zhanna, 42, woman, Latvian). Being undervalued and treated as a commodity sometimes translated into racism and sexism. Polish workers in Scotland were called ‘F***n Polish’ (Henry, man, 30, Polish) by fellow UK workers. • Disciplining through dismissal—three very questionable forms of discipline were: to avoid paying workers; threatening dismissal if workers refused overtime; dismissal when workers became ill or pregnant.47 All created acute precariousness 43 Equality Commission for Northern Ireland, The Role of the Recruitment Sector in the Employment of Migrant Workers: A Formal Investigation (Equality Commission for Northern Ireland 2010). 44 Equality Commission for Northern Ireland, The Role of the Recruitment Sector, p 5. 45 Employment Agencies Act 1973, s 6. This provides: ‘(1) Except in such cases or classes of case as the Secretary of State may prescribe— (a) a person carrying on an employment agency shall not request or directly or indirectly receive any fee from any person for providing services (whether by the provision of information or otherwise) for the purpose of finding him employment or seeking to find him employment; (b) a person carrying on an employment business shall not request or directly or indirectly receive any fee from an employee for providing services (whether by the provision of information or otherwise) for the purpose of finding or seeking to find another person, with a view to the employee acting for and under the control of that other person; (c) a person carrying on an employment business shall not request or directly or indirectly receive any fee from a second person for providing services (whether by the provision of information or otherwise) for the purpose of finding or seeking to find a third person, with a view to the second person becoming employed by the first person and acting for and under the control of the third person. (2) Any person who contravenes this section shall be guilty of an offence and liable— (a) on conviction on indictment, to a fine; (b) on summary conviction, to a fine not exceeding the statutory maximum.’ 46 S Scott, G Craig, and A Geddes, Experiences of Forced Labour in the UK Food Industry (Joseph Rowntree Foundation 2012). 47 The original text says three very questionable forms of dismissal were: to avoid paying workers; if workers refused overtime; when workers became ill or pregnant, but this does not make grammatical sense. So the language has been adapted to reflect the substance of the findings.

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among migrants and acted as disciplining tools. One worker recalled the agency’s reaction when she told them she was pregnant: ‘I . . . spoke to him and he promised me that he will look for easy work for me. He gave me my last salary . . . I asked them directly: “What shall I do now? Have you dismissed me? Do I need to look for another job?” . . . He replied: “No, no. Everything is fine. I am looking for another job for you.” They just could not tell me that they are dismissing me.’ (Zinaida, woman, 24, Lithuanian). • Non-/under-payment of wages—this was remarkably common, and migrants seemed unable to get back pay they were owed. A popular tactic was to deduct a few hours’ pay each week. • Underwork/indebtedness—labour market intermediaries (LMI) recruited even when work was scarce, because they charged workers fees for finding work, however limited, and/or for travel, accommodation, and other bills. The more workers they had, the more charges they could levy; it could be in LMIs’ interests to provide workers with just enough hours to pay these charges. This left migrants with no spare money to escape. • Deductions/charges—gangmasters commonly charged for getting migrants work: ‘We paid X £250 each for providing work for us . . . It was for the opportunity to work . . . She did not request money straight away. We started to work, earned some money and then she demanded £250 from each person. If you do not pay, you would sit without work.’ (Nina, woman, 50, Lithuanian). As we saw previously, this is a criminal offence. • Documentation abuses—some workers had their passports retained for ‘safekeeping’; even more lacked in-work documentation such as contracts and payslips. This summary does not reveal the legal nature of the employment relationship between the interviewees and their employers. Some were clearly agency workers and so should have been entitled at least to the minimum wage and to working time protection, including paid leave. They should not have been charged finding fees. Others may well have been direct employees, in which case they should have enjoyed much greater employment protection. Most comprehensive has been the Equality and Human Rights Commission (EHRC) inquiry into the meat and poultry processing sector which uncovered widespread evidence of the mistreatment and exploitation of migrant and agency workers.48 The EHRC found that one-third of the permanent workforce and over two-thirds of agency workers in the industry were migrant workers. At one in six meat processing sites involved in the study, every single agency worker used in the past twelve months was a migrant worker. The summary of the report said: • Seven out of ten workers said they thought they were treated badly in factories or by agencies because of their race or nationality. • Physical and verbal abuse were not uncommon, with a fifth of workers interviewed reporting being pushed, kicked or having things thrown at them by line 48 EHRC, Inquiry into Recruitment and Employment in the Meat and Poultry Processing Sector (EHRC 2010).

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managers; over a third of workers interviewed said they had experienced, or witnessed, verbal abuse, often on a daily basis. Workers also reported being refused permission to take toilet breaks, and subsequently urinating or bleeding on themselves at the production line. • A quarter of those interviewed said they had witnessed mistreatment of pregnant workers, such as the instant dismissal of agency workers who had announced they were pregnant. Pregnant women were also forced to continue to undertake work that posed risks to their health and safety, including heavy lifting and extended periods of standing. For the purposes of this chapter the most telling conclusion was that: Despite finding their experience in the workplace distressing and degrading, nearly one third of workers endured this treatment without complaint both because of fears that their work would be terminated as a result and that it would affect their goal of securing stable employment. These workers also had little knowledge of their rights or how to make complaints.49

This prompted the EHRC to conclude that the supermarkets had an important role in supporting and monitoring their suppliers. However, it found that the ethical auditing systems used by supermarkets were not uncovering the mistreatment and that more action was needed.50 In anticipation of this finding, the supermarket group Asda announced an agreement with the union Unite to tackle discrimination against migrant workers in its UK meat and poultry factories. Asda now requires its twentynine suppliers ‘to stop the practice of paying migrants less than indigenous employees for the same work and to eradicate the culture of bullying and harassment that has characterised much of the industry’.51

IV. Are Migrant Workers Enforcing their Rights? 1. Introduction The accounts in section III paint a bleak picture, especially in the food processing sector, of a number of employers and agencies not respecting UK employment rights, despite their legal obligations to do so if those migrants are workers (under EU law) or employees or workers (under UK law) (see section II). But what are the individuals doing to enforce their rights? There is no general labour inspectorate in the UK, but there are various bodies to whom individuals can make complaints and which do have general inspection powers. For example, a unit within HM Revenue and Customs, with the powers to issue enforcement orders, enforces the National Minimum Wage.52 Similarly, the right not to have to work more than forty-eight hours a week (on Cited in F Lawrence and K McVeigh, ‘“I’m not a slave, I just can’t speak English”—life in the meat industry’, The Guardian, 13 March 2010 accessed 10 July 2014. 50 EHRC, n 48, 39–40. 51 F Lawrence, ‘Asda and Unite to Tackle Migrant Discrimination’ The Guardian (4 March 2010). 52 National Minimum Wage Act 1998, s 19. 49

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average) is enforced by the Health and Safety Executive; rules governing the conduct of employment agencies are enforced by the Employment Agency Standards Inspectorate; and rules governing the conduct of licensed gangmasters are enforced by the Gangmaster Licensing Authority.53 The latter regulates those individuals that supply labour or use workers in the fields of agriculture, horticulture, shellfish gathering, and food processing and packaging. It has powers to enter premises and examine documents, to enter under force with a warrant with a power to search and seize, and to exchange information with other bodies. Although access to these bodies is now through a single Pay and Work Rights Helpline, which can refer the case to the relevant enforcement agency, there is no guarantee that the agency will take up a particular individual’s claim.54 Furthermore, the agencies’ remit does not cover all employment rights, notably non-discrimination rights, contractual rights, and claims of unfair and constructive dismissal. So in these cases, and the cases where the enforcement agency has not intervened, the individual has to fall back on the ET system. This raises the question whether migrants actually have a right to bring their claims before the ETs. The Brussels Regulation provides that an employer domiciled in a Member State may be sued either in the courts of that Member State or in the courts for the place where the employee habitually carries out his work, or last did so, unless an agreement on jurisdiction is made after the dispute arises.55 In respect of migrant workers, it is thus likely that they will sue in the UK courts.56 Under UK Regulations, the respondent or one of the respondents must carry on business in England and Wales.57 So under both EU and UK law, migrant workers employed by an employer carrying on business in the UK are likely to be able to bring a claim before an ET in the UK.58 A system based on complaints to a tribunal has major limitations, limitations which have long been recognized in the discrimination field. As Fredman succinctly puts it:59 Firstly, reliance on an individual complainant to bring an action in court puts excessive strain on the victim both in terms of resources and personal energy. Litigation is lengthy and costly. Secondly, victim-initiated litigation means that the courts’ intervention is random and ad hoc. Many individuals, particularly non-unionised ones, are unable to pursue their claim. The result is that a large number of cases of discrimination go unremedied. 53 A description of the powers of these bodies can be found in V Mantouvalou, Study on Labour Inspection Sanctions and Remedies: The Case of the United Kingdom (ILO Labour Administration and Inspection Programme 2011). 54 HMRC’s enforcement policy is outlined at . They do not specify how many claims they receive and how many they follow up. 55 Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 (the Brussels Regulation), Arts 19 and 21. 56 The position in respect of posted workers is more difficult. In respect of matters listed under Art 3(1) PWD, courts have jurisdiction over posted workers under Art 6 PWD. By implication, Art 6 will not apply in respect of matters falling outside Art 3(1). This means that the tribunals will have to fall back on the Brussels Regulation. 57 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, reg 19(1). 58 See further L Merrett, ‘The Extra-territorial Reach of Employment Legislation’ (2010) 39 ILJ 355. 59 S Fredman, Making Equality More Effective: The Role of Proactive Measures (EU Gender Equality Network 2009) 10.

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Two further limits can be identified: as the case studies in section III show, those who might bring legal proceedings to enforce their rights may be threatened with dismissal. Further, any remedy is personal to the complainant and retrospective. The amount is unlikely to deter the perpetrator or make it worth the victim’s while to pursue a case, an issue now exacerbated by the introduction of fees for bringing cases before a tribunal (this is considered in section IV.3). Further, the individualized nature of the remedy means that any litigation is unlikely to lead to deeper structural/institutional change by the employer. Nevertheless, a system based on complaints to tribunals does have its advantages. In particular, it does not require official permission for individuals to bring a claim: they can choose to do so themselves. Further, individuals who are successful will get a remedy, usually compensation. So the question, then, is: how many EU-8 migrants are bringing claims before the ETs?

2. Research method It is difficult to assess the extent to which migrant workers use the tribunal system to enforce their rights, as there are no publicly available data on how many ET claims have been brought by EU-8 nationals, let alone their subject matter or the outcome. The 2003 Survey of Employment Tribunal Applications (SETA)60 does not identify the nationality or ethnic origin of claimants. The 2008 SETA categorizes claimants according to both their nationality and their country of birth. However, it refers only to three categories: UK, Ireland, and ‘other’, making it impossible to discern the nationalities within the ‘other’ category. The 2008 SETA indicates that the ‘other’ category are underrepresented as applicants overall. They comprise 12 per cent of the workforce (according to the Labour Force Survey), but only 7 per cent of cases. Looking at the country of birth criterion, 86 per cent of claimants were born in the UK, and 1 per cent were born in Ireland, while 13 per cent were born outside of the UK. This is broadly in line with the workforce as a whole. However, the foreign born are overrepresented in cases on race discrimination, (19 per cent) and Wages Act cases (17 per cent). For the purpose of this chapter, the ‘other’ category is not sufficiently disaggregated to identify EU-8 nationals, but it is striking to see that those ‘other’ who did bring cases mainly brought cases for race discrimination and Wages Act claims (claims for wages outstanding). This was also reflected in the EAT cases considered in section IV.4. The absence of SETA data is compounded by the fact that it is not possible to do a search of a database of full ET decisions because no such global database exists. The position is different in respect of the EAT.61 The latter’s decisions are reported on several platforms, either on its own website, on BAILII (British and Irish Legal Information Institute) and Westlaw. Unlike BAILII and Westlaw, the EAT’s own website does not allow for searches by word, so focusing on cases from 2004 (the year of the EU-8 enlargement) to 2012 (the latest year for which full data was available 60 B Hayward, M Peters et al, Findings from the Survey of Employment Tribunal Applications 2003 (Employment Relations Research Series No 33 2004). 61 Appeals to the EAT can only be made on points of law.

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at the time this research was being conducted62), the searches were conducted via BAILII and Westlaw, using the words ‘Poli’, ‘Polish’, ‘Poland’ and similar for the other EU-8 countries. The EAT (and, where further appealed, Court of Appeal) judgments were then read and their facts examined for relevance to this project. The results may not be a comprehensive list of all the appellate cases involving EU-8 nationals because, as the EAT website makes clear: ‘Not all judgments are transcribed’ and not all transcribed judgments are put up on the web.

3. Results of the research With these limitations in mind, we turn now to examine the results of the research. There were fourteen appeals involving EU-8 nationals in the period 2005–12. Putting this in context, in 2011–12, the EAT received 2,170 appeals (and disposed of 2,220 appeals), and 2,050 receipts and 2,000 disposals in 2010–11.63 So on the basis of about 2,000 or so appeals a year, giving about 14,000 appeals in total for the years 2005–12, the fourteen involving EU-8 nationals is tiny (about two a year). This suggests that either: (1) a number of EU-8 migrants bring cases to ETs but, if they lose, very few appeal to the EAT; or (2) very few bring claims to the ET in the first place (from which an appeal is then possible but only on points of law). While further empirical research is necessary to decide which of these alternatives is correct, it seems more likely that few EU-8 nationals bring claims in the first place, a view supported by research by the CAB. The CAB identifies various factors (complexity, stress, delay) that deter many workers from using the tribunal system.64 It is also likely that the introduction of fees in the tribunal system in July 2013 will act as a further deterrent,65 albeit there is the possibility of fee remission.66 So what can we learn from the few appeals that have been brought? They do reveal something about the profile of EU-8 nationals in the tribunal system, the types of work they are doing in the UK, the conditions they are working in, and the rights they allege have been infringed. As the next section shows, there is a correlation between the legal complaints raised and the sectors in which those complaints arise and the sectors identified as problematic by the research cited in section III. 62

The empirical research was conducted during the summer of 2013. Ministry of Justice, Annual Tribunals Statistics, 2011–12 (Ministry of Justice 28 June 2012). 64 CAB (n 6) 4. Specifically, it notes that government-commissioned research has shown that only half of those who experience a problem at work seek advice, and only two in five of these take action. And one academic survey of low-paid, non-unionized workers found that fewer than one in forty of those who had been mistreated at work brought an employment tribunal claim. More generally, there is a widespread consensus that the employment tribunal system is increasingly complex, legalistic, and adversarial. This makes the pursuit of an employment tribunal claim an especially daunting prospect for pregnant women, new and lone parents, carers, migrant workers, those with mental health problems, and other vulnerable individuals lacking the time, skills, and/or energy to prepare and present their case. 65 In the first full quarter after the fee regime was introduced (Oct–Dec 2013), claims were down by 79 per cent: Ministry of Justice, Tribunal Statistics (quarterly): October to December 2013 (Ministry of Justice 13 March 2014). 66 Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893. Fee remission has been granted in just 5.5% of the 9,305 single claims and 1,519 multiple claims issued between 29 July and 31 Dec. 2013, as compared to the 31% predicted by the MOJ: accessed 10 July 2014. 63

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4. The cases heard on appeal to the EAT i. The cases heard This section contains a brief summary of the nature of the appeals involving EU-8 nationals and the nationality of those involved. Unsurprisingly, the largest number of appeals involved Polish nationals, since they form the largest groups of EU-8 migrants. A number of cases involved race discrimination. In Dziedziak v Future Electronics Ltd,67 the EAT upheld a finding of race discrimination by the ET as the employer could not explain its conduct. The burden of proof shifted when the claimant was singled out among persons from other nationalities and advised not to appeal in her mother tongue. In Procek v Oakford Farms Ltd,68 the ET originally rejected the race discrimination claim, considering it had no jurisdiction because the claimant said the grievance was informal, but the EAT overturned this as the grievance fell within the statutory procedures. Finally, in General Mills (Berwick) Ltd v Glowack,69 the EAT overturned a finding of race discrimination as the disparity of treatment between workers was objectively justified. The remaining cases raised a variety of issues. In Oleksak v Atlanco Ltd,70 a Polish agency worker appealed the ET’s rejection of his case for failure to disclose documents relating to whistle-blowing activity supposedly contributing to his dismissal. The EAT upheld the appeal, finding the refusal to hear the case disproportionate given there were other allegations of unfair dismissal. In Driving Edge Limited v Gietowski,71 a finding of dismissal for trade union activities was overturned because the ET had failed to consider the respondents’ procedures. Hiero v Change-work Now Ltd 72 involved a claim for disability discrimination, originally rejected by the ET, but remitted given evidence to suggest substantial and long-term impairment such as to amount to a disability. In Wojnarowicz v Moto Hospitality Ltd,73 a Polish worker complained of sexual harassment but did not put in a grievance, fearing threats to his safety. While there appeared to be some difficulty determining the issues, the grounds eventually elucidated were denied because they had not been raised before the ET. Consistent Group v Kalwak74 involved appeals against a finding that Polish agency workers were employees. The Court of Appeal eventually remitted these cases. Finally, Davis v Pyrz75 involved a dispute between a Polish domestic worker and her employer over wages. From each of Slovakia, Hungary, and Latvia there was only one case before the appellate courts, two from Lithuania but no appeals by Estonian, Czech, and Slovenian nationals. Bouzir v Country Style Foods Ltd 76 involved claims of both race and religious discrimination. While the ET found there had been the latter, on appeal, the EAT found the ET had erred regarding the former, due to a failure to properly consider where the burden of proof should lie. In Kestutis Kristapaitis v Thistle Seafood Limited,77 the EAT rejected an appeal (alleging incompetent interpretation, contradictions by the ET, and 67 69 71 73 74 75

68 [2012] UKEAT/0270/11/ZT. [2008] UKEAT/0049/08/DA. 70 [2011] UKEAT/0139/11/ZT. [2006] UKEAT/0445/06/DM. 72 [2008] UKEAT/0444/07/RN. [2011] UKEAT/0474/08/RN. [2010] UKEAT/0315/10/JOJ. [2007] UKEAT/0535/06. Later appealed to the Court of Appeal, see n 82. 76 77 [2007] UKEAT/0304/06/MAA. [2011] EWCA Civ 1519. [2009] UKEATS/0033/09.

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a failure to call witnesses) against a decision of no monetary award for unfair dismissal. In Kulikaoskas v MacDuff Shellfish77a the EAT upheld the ET’s decision to reject the Claimant’s claim for associative sex discrimination (he argued that he was dismissed because of the pregnancy of his partner). In Jury’s Inn Group v Tatarova,78 the appeal concerned the award ordered by the ET after it found automatic unfair dismissal. Finally, in Jones v Ann Corbin T/A Boo,79 the appeal led to the remittance of the decision to another ET, as the judge had originally erred in failing to consult the wing members when refusing an adjournment.

ii. Assessment From this summary of the case law, the following six observations can be made. First, the largest number of claims came from those working in the food processing sector (Oleksak, Bouzir, Kestutis Kristapaitis, Kulikaoskas, Kalwak). This lends support to the findings of the EHRC and Joseph Rowntree Foundation research (considered in section III) that this sector has been particularly problematic.80 Secondly, agency workers have faced particular problems (see eg Gietowski (although the claim did not relate to the fact he was an agency worker, indeed he seems to have been treated as an employee of the agency) and Kalwak).81 The facts of Kalwak82 were particularly stark and show the problems that some agency workers have experienced.83 The facts were summarized by Rimer LJ in his judgment in the Court of Appeal. While in Poland, the claimants arranged for Consistent, an agency, to place them in work. They came to England at the end of April 2005, when Consistent accommodated them in a house in Liverpool, and then, after ‘they came under attack from local people’, they stayed in a budget hotel in Wrexham. Each claimant signed a contract written in both English and Polish. This contract made it clear that they were self-employed—in an attempt to avoid employment protection legislation84—albeit whether the contract reflected the reality of the situation was the subject of the litigation. Rimer LJ continued that:85 Following the signing of the documents, the claimants were accommodated in a house in Crewe. There were already six Poles there who were working for WCF [the user]. The [ET] Chairman found that each week a total of £56.40 was deducted from their pay for accommodation and cleaning, with a right to increase it on two weeks’ notice. He found that little (if any) cleaning was done. The day after arriving at Crewe, the claimants were taken to WCF’s Winsford factory where they were medically checked 77a

78 79 UKEATS/0062/09/BI. [2010] UKEAT/0295/10. [2011] UKEAT/0504/10/RN. It is also the UKs most migrant-dominated sector: See C Rienzo, Migrants in the UK: An Overview (Migration Observatory 2013). 81 The nature of the respondent in Hiero is not clear. 82 Consistent Group v Kalwak [2008] EWCA Civ 430. 83 See, generally, L Barmes, ‘Learning from Case Law Accounts of Marginalised Working’ in J Fudge, S McCrystal, and K Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 320. 84 As Elias J elegantly put it in the EAT in Kalwak [2007] IRLR 560, para. 57: ‘The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.’ 85 Para 9. 80

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to ensure that they were sufficiently healthy to work in meat packing. They started work as meat packers at the factory on 6 May 2005. The Chairman referred, in less than three lines, to the evidence of Ms Bachorska, the test claimant, evidence which he accepted. Since those findings were the basis for a central element of his decision, I quote them in full: ‘3.20 Ms Bachorska wanted to work many hours. But sometimes she wanted time off. When she asked for it, it was refused. In practice, she had to work when required.’ The Chairman further found there ‘was some talk’ of the claimants joining the Transport and General Workers’ Union, but Consistent told them it consisted of bad people and they were discouraged from joining. Eventually, the claimants gave two weeks’ notice under the contract terminating what the Chairman referred to as ‘their employment’ (the ‘Term’ provision provided for such notice). His finding was that they were then told that they would finish work the next day and that they had to leave the accommodation immediately. He found that Consistent had ensured that they registered themselves as self-employed persons with the Home Office.

The question arose in the case as to legal status of the individuals for the purposes of their claims for certain employment rights. The ET found they were in fact employees; the EAT dismissed the employer’s appeal; the Court of Appeal remitted the case to another ET to consider their employment status.86 So far our examination of the EAT cases has considered sector of activity and legal status. The third point these cases reveal is that, as the earlier research had suggested, there are risks to individuals making complaints about bad treatment by an employer, albeit the facts of the cases showed the situation to be more complex than would first appear. For example, in Oleksak, the claimant alleged he had been dismissed for whistle-blowing because he had made a protected disclosure to the Polish embassy about the fact that the agency87 had retained his passport and those of other workers. However, the ET had dismissed the claim due to his failure to produce the relevant documents. This was upheld on appeal, albeit that his appeal was allowed against the ET’s rejection of his other complaints. In Gietowski, the claimant had alleged to the Daily Mail newspaper that he and fellow workers had been refused rest breaks and toilet breaks. However, on investigation by the agency and the user (the supermarket chain Tesco), no evidence was found of this and the claimant was dismissed for gross misconduct. The ET found that he had been dismissed for trade union activities. This was overturned on appeal. Fourthly, various decisions (Oleksak, Gietowski, and also Wojnarowicz) highlight another problem found in the cases involving EU-8 nationals: the inability of the claimants to represent themselves effectively, due in part to language difficulties (see especially Oleksak). They also failed to present the relevant paperwork/evidence at all or in a timely way (Oleksak, Glowacki) or identify the issues with clarity (Wojnarowicz). The statutory procedures introduced in 2004 (now repealed),88 requiring inter alia an 86

Bogg and Novitz (n 34). The facts of the case suggest the employer was an agency, but it described itself as providing flexible human resource solutions on an international basis. 88 The Employment Act 2002 (Dispute Resolution) Regulations 2004, SI 2004/752. These were repealed in 2008. 87

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individual to issue a grievance before bringing, for example, a claim for constructive unfair dismissal (failing which the tribunal would be denied jurisdiction), proved a particular stumbling block (Wojnarowicz, Procek). In this respect there is evidence that the EAT took a light-touch approach to the requirements laid down by the Regulations (Procek). More generally, the cases provide evidence of the EAT doing its best to accommodate the needs of the EU-8 claimants and the steps taken by the EAT to assist the claimants are often referred to in the judgments (eg Wojnarowicz). Fifthly, the claims brought by the individuals covered unfair dismissal, sex, race, disability and religious discrimination, sexual harassment, and the national minimum wage. This largely coincides with the EHRC/Joseph Rowntree research indicating that these topics proved particularly problematic, albeit that in these fourteen cases there was only one claim under the Working Time Regulations. Most striking, from the perspective of section II of this chapter, is that there was no evidence of any discussion of whether UK law actually applied or whether the British courts even had jurisdiction. In all cases it seems to have been assumed. This tends to confirm that notions of the territoriality of UK labour law are firmly embedded in the UK system. The only discussion of jurisdiction89 related to the domestic question of whether the individual was an employee, worker, or, as the paperwork claimed, self-employed (see especially Kalwak, discussed earlier). Finally, the EU-8 claimants enjoyed a relatively high level of success in their cases. The claimants’ appeal was allowed, at least in part, in Oleksak, Gietowski, Hiero, Procek, Pyrz. The respondents lost their appeal against a finding in favour of the claimant, at least in part, in Dziedziak (on the unfair dismissal issue, albeit a nil award, applying Polkey, was also upheld, and race discrimination). The relatively positive outcomes for EU-8 nationals before the EAT in the fourteen cases considered tends to suggest that EU-8 nationals do not face prejudice in the tribunals; rather, as the CAB suggested (see section III), they have to surmount too many obstacles to bring a legal claim in the first place. A similar phenomenon has also been identified more generally in the discrimination field.90 This tends to suggest that EU-8 migrants either put up with the bad treatment, because they cannot afford to do otherwise, or vote with their feet and leave their employment and look for a job elsewhere, or return to their home country. In other words, using Hirschman’s analysis,91 they use exit (sometimes forced through dismissal), rather than voice.

5. Alternative remedies So what can be done to assist EU-8 migrant workers—and by implication other migrants and vulnerable national workers—to enforce their rights? We have seen how the EHRC investigation into the meat processing sector prompted Asda to improve the monitoring of its suppliers; ethical auditing is certainly one way forward. The CAB has come up with another proposal: that the Pay and Work Rights Helpline, which currently can channel complaints to enforcement bodies, should be replaced by 89 91

90 On the problems with the use of this term, see Merrett (n 58). See Fredman (n 59). A Hirschman, Exit, Voice and Loyalty (Harvard University Press 1970).

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a Fair Employment Agency (FEA) and provided with the powers and resources both to secure individual workers their key statutory rights that rest on questions of fact, and to tackle the illegal practices of rogue employers more generally.92 They suggest an incremental approach, proposing that the right to paid holiday, ‘one of the most straightforward and readily verifiable workplace rights, but also one of the most commonly abused, accounting for 11 per cent of all calls made to the Pay and Work Rights Helpline—could be a very good one with which to start’. Building on this, the powers of any such FEA could be accompanied by a pyramid of enforcement, called for by Fredman et al in the equality field. An enforcement pyramid would involve soft first responses to non-compliance, such as discussion and negotiation. If this were not successful, a compliance order would ensue. Only if this further step fails are fines or other judicially enforced sanctions contemplated.93 The establishment of an FEA may help provide the institutional support that is currently lacking for migrant workers.94 Collective support national workers can enjoy—through trade union membership—is notably absent for migrant workers. Trade unions have tried to reach out to the migrant community.95 However, generally migrants do not join UK trade unions—in part because of the temporary nature of their stay, in part because, as we have seen in Kalwak, employers may discourage membership. The Government has not responded to the CAB’s proposal: so far it has only established a fair employment enforcement board to drive progress on effective collaboration between enforcement agencies and focused on ensuring compliance with the national minimum wage.96

V. Conclusions An alternative remedial system, such as a Fair Employment Agency, would have the combined benefit of providing a non-judicial avenue of redress for migrant (and local) workers whose employment rights are being denied, while at the same time helping to address the perception that migrants are undercutting national labour standards. Richard Sennett, a leading sociologist, points out that for centuries, Europe and North America have branded ‘the Foreigner’ as a large, frightening presence on whom people can project all sorts of anxieties, including about job loss.97 This can be seen, too, in Chris Bryant’s speech, cited at the beginning of this chapter. Bryant is unclear as to which migrants he is talking about: those EU-8 nationals migrating lawfully to the UK under Articles 45, 49, or 56 TFEU and their family members, economic migrants from non-EU states with permission to enter the UK and to work under UK law, or 92

93 CAB (n 6), 10. Fredman (n 59) 7. It might also help fulfil the UK’s obligations under Dir 2014/54/EU on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement of workers (OJ [2014] L128/8). 95 See eg TUC, TUC and Polish Trade Unions Sign Protocol to Support Polish Workers in the UK (24 September 2008) accessed 10 July 2014. 96 See eg BIS, The National Minimum Wage Compliance Strategy (March 2010) accessed 10 July 2014. 97 R Sennett, The Culture of the New Capitalism (Yale University Press 2006) 166. 94

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asylum seekers. In this way, despite his concern for labour rights, Bryant’s speech may be criticized for engaging in the rhetorical move that Sennett castigates.98 Bryant repackages ‘migrants’ as a threat, yet the bulk of whom are, using Sennett’s words, ‘tax-paying workers doing work cleaning hospitals and sweeping streets’ and, as this chapter points out, food processing, which native Brits seem to eschew. Sennett concludes by reminding us that in this debate ‘it does not register that persecuting those close-by weak outsiders does little to make one’s own job secure’,99 especially if the job done by the migrant is not one you would do yourself. A simple but effective legal mechanism such as a Fair Employment Agency will not address the decades of prejudice and suspicion against foreigners, even where they are legally working in the UK. However, it would recognize that, in the name of social justice, migrant workers need employment protection in the same way as domestic workers, and that good employers need protection against the rogue practices of their fellow employers.

98

Sennett (n 97) 166.

99

Sennett (n 97) 167.

12 The Right of Irregular Immigrants to Back Pay The Spectrum of Protection in International, Regional, and National Legal Systems Elaine Dewhurst*

I. Introduction At the heart of the debate over the protection of labour rights of irregular immigrants, the right to back pay is a central question: if an irregular immigrant is breaching the immigration law of the state, should that irregular immigrant be entitled to the protection of that state’s labour laws? There are at least three possible responses to this important question. First, the response could be negative, in which case the irregular immigrant will not be entitled to the protection of labour laws. This will be referred to in this chapter as the ‘non-protection approach’. Secondly, the response might be somewhere in the middle, in that the irregular immigrant will be entitled to the protection of the labour laws of the state, but the state will not protect the irregular immigrant from the consequences of their irregularity, such as detection, detention, and deportation, which might arise when the irregular immigrant attempts to enforce these labour law protections. This will be referred to as the ‘protection with consequences approach’. Finally, the response might be entirely positive. The irregular immigrant may be entitled to vindicate their labour rights, with a practical enforcement method available to mitigate any fear of potential detection of irregularity, possible detention, and/or deportation. This will be referred to as the ‘full protection approach’. The state’s approach to this issue depends on how it conceptualizes the relationship between immigration law and labour law. The ‘non-protection approach’ views immigration law and labour law as having different concerns and being fundamentally disconnected from one another. The ‘protection with consequences approach’ views immigration law and labour law as having some common objectives, but ultimately protects the immigration law objectives at the expense of labour law objectives. The ‘full protection approach’ views immigration law and labour law as fundamentally connected and as having mutually compatible goals. This chapter, first, analyses each of these approaches to the protection of the right to back pay,1 the rationale for the development of such approaches, and the impact of such approaches on irregular immigrants, employers, and states. Secondly, the chapter * Dr Elaine Dewhurst is a Senior Lecturer in Employment Law at the University of Manchester. 1 The right to back pay has been chosen for two reasons: first, such a right (the right to equal pay for work completed) is one of the most fundamental labour rights; and secondly, this right is also one of the most common rights protected across legal regimes and so is ripe for comparison.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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will examine the approaches adopted at an international, regional, and national level with a view to determining the most common approaches at each specific level and with a view to predicting the future development of the law on this question. The chapter concludes that the most common approach generally is the ‘protection with consequences approach’, but that a move towards the ‘full protection approach’ is discernible at an international level, despite the fact that very little guidance as to how such a move should be developed is provided. At a regional level, the ‘protection with consequences approach’ currently prevails and moves towards a ‘full protection approach’ have not yet been made. Similar trends can be noted at a national level, although there are extreme examples at both ends of the spectrum, with some jurisdictions firmly wedded to the ‘non-protection approach’, while the ‘full protection approach’ is operating rather successfully in other jurisdictions. The move towards a ‘full protection approach’ is the most desirable solution. However, this will require a great deal of effort at an international, regional, and national level, not only to fully embrace the concept of the fundamental connection between immigration and labour law, but also to develop practical ways of ensuring the successful implementation of the ‘full protection approach’.

II. Protection of the Right to Back Pay: Approaches, Rationale, and Impact An examination of the protection of the right to back pay under different legal systems, whether international, regional, or national, reveals that there are, in general, three approaches to such protection: the ‘non-protection approach’; the ‘protection with consequences approach’; and the ‘full protection approach’. This section of the chapter will contrast the content of these approaches, their underlying rationales, and the impact of each on irregular immigrants, the employer, and the state.

1. The ‘non-protection approach’: definition, rationale, and impact Application of the ‘non-protection approach’ in any legal system essentially means that the irregular immigrant will not be entitled to claim the protection of labour laws to enforce their rights, including their right to back pay. Normally, the law provides that as the irregular immigrant is not legally entitled to work in the state, they are also not entitled to claim the protection of the labour laws. This approach can be developed through the implementation of distinct statutory provisions or through the operation of generic common law doctrines such as the doctrine of illegality.2 The rationale for the development of such an approach is based on a variety of factors, including ensuring that irregular immigrants do not profit from their actions, that illegal contracts are not given legal effect, and, most importantly, ensuring that irregular immigrants are punished for their actions, which will hopefully act as a deterrent to other 2 The application of this doctrine in the United Kingdom and Ireland is discussed further later in section III.3.i. See further Law Commission, Illegal Transactions: The Effect of Illegality on Contracts and Trusts (Law Com CP 154, 1999) 86, for an overview of the operation of this doctrine in the UK.

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irregular immigrants considering working in such a jurisdiction.3 It is submitted that at the core of this reasoning is a fundamental disconnect between immigration law and labour law. Where the ‘non-protection approach’ operates, it is assumed that the main purpose of immigration law is to prevent and deter irregular immigration. The main purpose of labour law is to protect workers against abuse by employers. Where the ‘non-protection approach’ exists, the provision of labour rights, such as the right to back pay, to irregular immigrants would not be considered to act as a deterrent or to prevent irregular immigration, but is considered as having the opposite effect of encouraging irregular immigrants by the promise of labour law protections. Therefore, immigration law and labour law are considered to have objectives that are entirely at odds with and disconnected from one another. The difficulty with this approach is that it has significant negative impacts on irregular immigrants. The irregular immigrant has no protection from labour law violations or even exploitation. Should irregular immigrants attempt to enforce their labour law rights, they will be denied access to justice to establish and remedy the violations they have suffered. As a result, irregular immigrants are vulnerable and may be exposed without protection to grave labour law abuses, even in cases where irregular immigrants are unaware or not responsible for their irregularity. On the other hand, the lack of labour law protections, such as the right to back pay, means that irregular immigrants are cheap to hire from an employer perspective.4 The unscrupulous employer can essentially breach labour law by hiring irregular immigrants at pay which is less than the minimum wage, at pay which may be considered to be exploitative, or even in some cases for no pay at all. At the same time, the employer has none of the administrative costs of hiring a regular worker, such as complying with immigration law and making social security payments. Admittedly, in most jurisdictions it is illegal for an employer to hire an irregular immigrant. However, where the penalties are low (small fines or short prison sentences) or where the enforcement and detection mechanisms are weak, this is a small risk for an unscrupulous employer who wishes to gain the competitive advantage of hiring cheap workers. From the state perspective, then, the application of the ‘non-protection approach’ based on this fundamental disconnect between immigration law and labour law, may, in fact, be counterproductive. While many states believe that such an approach will discourage irregular immigration, this may not be the case.5 Irregular immigrants are not generally attracted by the availability of labour law protections, but will be attracted

3 For a detailed analysis of the rationale for such an approach, see E Dewhurst, ‘The Right of Undocumented Workers to Outstanding Remuneration under the EU Sanctions Directive: Rethinking Domestic Labour Policy in a Globalised World’ (2011) 13(4) EJML 389. 4 T Butter and M Verhagen, Exploitative Labour Relations and Legal Consciousness of Irregular Migrant Workers in the Netherlands (University of Amsterdam 2011) 30. 5 In response to the European Migration Network, ‘Ad-Hoc Query on the Payment of Back Wages to Foreign Illegal Workers Returned to their Country of Origin’ (18 January 2010), the UK reiterated the position that the introduction of provision for back pay of any outstanding remuneration to illegally employed foreign nationals ‘could encourage some illegal workers to work in the knowledge that even if they are identified and removed from the UK they will still be paid in full’.

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by the availability of employment.6 Where employers are willing to take the risk of hiring an irregular immigrant to gain a competitive economic advantage, this will open up avenues of employment for irregular immigrants, attracting them to the state. Viewing labour law and immigration law as more closely connected, by ensuring the protection of labour rights, would reduce the incentive for employers to hire irregular immigrants, who would become more costly as a result of the protection of their labour rights. This would in turn reduce the availability of employment in a state and in turn reduce the level of irregular immigration. Therefore, the ‘non-protection approach’ is based on a misconception as to the connected objectives of immigration law and labour law, and has the effect of reducing human rights protection for irregular immigrants, exposing such vulnerable workers to exploitative employment conditions, increasing the availability of employment for irregular immigrants with unscrupulous employers, and potentially increasing the level of irregular immigration in a state.7

2. The ‘protection with consequences approach’: definition, rationale, and impact Another response to the heated question as to whether an irregular immigrant should be entitled to rely on the labour law protections available in a state is a middle ground between a ‘full protection approach’ and a ‘non-protection approach’. This middle ground can be referred to as the ‘protection with consequences approach’, as it essentially provides that irregular immigrants are entitled to the protection of labour laws in a given state, but not protected from the consequences of enforcing those rights. The consequences of such enforcement include detection of their irregular status by the immigration authorities as a result of coming forward to enforce their employment rights, which include potential detention and deportation. While this may seem like an eminently sensible approach, as it fulfils both the dual objectives of protecting labour rights while also ensuring the prevention of irregular immigration as required by immigration law, the reality is not as simple. The ‘protection with consequences approach’ does recognize that labour law and immigration law are connected, but the chilling effect of being exposed to the consequences of irregularity undermines the protective effect of the approach. The rationale for this approach appears to stem from a recognition that it is important to protect labour rights of irregular immigrants and to ensure that employers are not unjustly enriched at the expense of irregular immigrants, but also to ensure that the objectives of immigration law are met. These objectives include deterring and preventing irregular immigration, so it is assumed that irregular immigrants, who are breaching immigration law, should be exposed to the full rigours of immigration law.

6 S Carrera and E Guild, ‘An EU Framework on Sanctions against Employers of Irregular Immigrants: Some Reflections on the Scope, Features and Added Value’ (2007) 140 CEPS Policy Brief 1, 5. 7 See R Garcia, ‘Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labour Laws’ (2002–2003) 36 UMJLR 737, 743.

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The impact of this approach on irregular immigrants is not much different to the ‘non-protection approach’ because of the chilling effect of being exposed to the authorities and to its potential consequences. Under this approach, irregular immigrants can claim labour law rights. However, on entering the legal system, their irregular status will be revealed, so they risk being subjected to immigration law penalties for their actions. Therefore, many irregular immigrants will not claim their labour law rights, as this would expose them to the risk of detection by the authorities, detention, and deportation. Therefore, the ‘protection with consequences approach’ provides very little temporal protection for irregular immigrants in employment, leaving them in a vulnerable position. Their employer will normally be aware that they are unlikely to assert their employment rights for fear of detection. Admittedly, a positive aspect of this approach for immigrants is the fact that once immigrants come forward to the authorities, they should be able to make any labour law claim which they could have made during their employment, including a claim for back pay. At least the irregular immigrant will be able to make some claim arising out of the exploitative conditions they have suffered in the past. From an employer perspective, the ‘protection with consequences approach’ does have some deterrent effect. While the irregular immigrant does not have an effective right to enforce their labour law rights during their irregularity, the fear that the irregular immigrant might become known to the authorities and later seek compensation for the breaches of their labour rights may deter employers from hiring such workers. However, the reality is that most irregular immigrants will wish to avoid detection by the authorities, and may accordingly be reluctant to enforce their labour rights. So while an employer may fear the potential longer-term consequences, the competitive advantages of hiring an irregular immigrant will outweigh this risk in many cases. Therefore, from an employer perspective, the difference between operating in a state which operates a ‘non-protection approach’ and a state which operates a ‘protection with consequences approach’ is limited. States which operate a ‘protection with consequences approach’ recognize that there is a connection between immigration law and labour law. Labour law protections are essential to protecting the human rights of irregular immigrants. They also increase the cost of such workers, thus reducing the employers’ incentive to hire them. However, states which impose a ‘protection with consequences approach’ also view the strict imposition of immigration law as essential to the deterrence and prevention of irregular immigration. Imposing the consequences of irregularity on immigrants is considered essential to deterring irregular immigration. However, this can leave labour law practically unenforceable, due to lack of legal assistance,8 the unavailability of the irregular immigrant to prove the claim or provide security for legal costs due to the fear of expulsion or voluntary return,9 and the difficulty of proving the employment relationship existed.10 As a result, the protection of labour law is extremely limited and the benefits of enforcing labour laws are seriously reduced. States, therefore, do not benefit from the potential deterrent effects of connecting labour law and immigration law. 8 10

Butter and Verhagen (n 4) 30. Butter and Verhagen (n 4) 32.

9

Butter and Verhagen (n 4) 31.

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3. The ‘full protection approach’: definition, rationale, and impact As its name suggests, the ‘full protection approach’, provides full protection of all labour rights, including the right to back pay, for irregular immigrants. However, not only are the labour law rights theoretically enforceable, such rights are also practically enforceable in such a way which does not expose the irregular immigrant to the consequences of their irregularity. The rationale for the development of such an approach stems from two sources. First, it is considered important to protect the human rights of all persons within the jurisdiction of the state, including labour law rights. Secondly, there is the economic incentive rationale which provides that the provision of rights to irregular immigrants will increase their potential cost to employers, acting as a disincentive to employers to hire such workers and thereby reducing the availability of employment in a destination state which acts as a pull factor for irregular workers. The full protection approach does not envisage a conflict or tension between immigration law and labour law. Rather it views immigration law as ‘hand in hand, with the policies’ of labour law.11 Unlike the ‘non-protection approach’, the ‘full protection approach’ recognizes that the provision of the full protection of labour laws to irregular workers ‘helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegally alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the [National Labor Relations Act] in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened’.12 This importance of this interconnection between immigration and labour law from the perspective of tackling irregular immigration should not be underestimated. The alternative of disconnecting these two bodies of law and prioritizing immigration law over labour law is that there will be ‘a “perverse” incentive to encourage further illegal immigration’.13

III. International, Regional, and National Approaches to the Protection of the Right to Back Pay The type of approach to the protection of the right to back pay varies between international organizations, regional systems, and, naturally, from state to state. While generally at an international level, some form of protective approach is evident, there is evidence of ‘non-protection approaches’ at both regional and national levels. At all three levels (international, regional, and national), the ‘protection with consequences approach’ is the most common model adopted, although there is evidence, particularly at an international level, of a distinct move towards the ‘full protection approach’. 11 Patel v Quality Inn [1988] 11th circuit 846 F2d 700 [704] (Vance J). See also Singh v Jutla (2002) 214 F Supp 2d 1056, 1058–59 (Breyer J). 12 Sure Tan Inc v NLRB (1984) 467 US 833 [893]. See also Singh (n 11) [1058]. 13 O Beatty, ‘Workers’ Compensation and Hoffman Plastic: Pandora’s Undocumented Box’ (2011) 55 St LULJ 1211, 1212.

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1. The international approach to the protection of the right to back pay Internationally, protection for certain labour rights, including the right to back pay, of irregular immigrants can be found in the instruments of the United Nations (UN),14 and the International Labour Organization (ILO).15 With regard to the right to back pay, both the UN and the ILO Conventions protect this particular right to various extents. However, whether this protection is limited (‘protection with consequences approach’) or full (‘full protection approach’) will depend on whether these instruments, and the interpretation of these instruments, insist upon the practical and effective enforcement of these rights or whether the consequences of irregularity can still be visited upon the irregular immigrant if they attempt to enforce their labour rights. This section illustrates that while both the UN and the ILO protect certain labour rights, particularly the right to back pay, only the UN has been insisting upon the development of a ‘full protection approach’. However, despite the positive preference for the ‘full protection approach’ emanating from the UN, little guidance is given to states as to how such a ‘full protection approach’ is to be realized, and in the absence of such guidance the realization of a ‘full protection approach’ will remain limited.

i. The UN approach At an international level, an analysis of the UN human rights instruments reveals that it has moved over the years from a ‘protection with consequences approach’ to a ‘full protection approach’. Prior to the adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) in 1990,16 there was evidence that a ‘full protection approach’ was envisaged, although not explicitly enshrined in the relevant instruments. An examination of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) reveals that there is protection of the right to equal pay for equal work and for just and favourable remuneration for all persons (which would include a right to claim for back pay),17 including ‘undocumented non-citizens’.18 There is no express evidence in the text of ICERD as to whether ICERD recognizes merely a ‘protection with consequences’ as opposed to a ‘full protection approach’. However, the response of the Committee on the Elimination of Racial Discrimination (CERD) to state party reports reveals that while it may not be expressly stated, a ‘full protection approach’ to the right to back pay is envisaged. For example, the concluding 14 In particular the Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of Discrimination Against Women (ICEDAW), and the International Convention on the Rights of Migrant Workers and Members of Their Families (ICRMW). 15 In particular, Migrant Workers (Supplementary Provisions) 1975 (ILO No 143) 1120 UNTS 323. 16 Entered into force on 1 July 2003 (No 39481) signed by 34 states and ratified by 45. It was adopted by GA Resolution 45/148 on 18 December 1990. To date, no EU Member State has ratified the treaty. 17 ICERD, Art 5(e)(i). 18 CERD, General Comment No 30 on Discrimination Against Non-Citizens (10/01/2004) clarifies that ‘undocumented non-citizens’ fall within the scope and protection of ICERD.

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observations of CERD on the report of the United States noted the ‘low wages’ of irregular immigrants and recommended that the US should take all necessary measures to ensure ‘effective protection and remedies’ for irregular immigrants.19 This reference to ‘effective protection and remedies’ indicates a preference for the ‘full-protection approach’, as it is advocating protection which is not limited by the chilling effect of certain consequences for the irregular immigrant. Similarly an examination of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reveals that while there is no express reference to a ‘full protection approach’, such an approach can be implied from the interpretation of ICESCR by the Committee on Economic, Social and Cultural Rights (CESCR). Article 7 of the ICESCR protects the right to just and favourable conditions of work including the right to remuneration, which includes the right to fair wages and equal remuneration for work of equal value without distinction of any kind.20 The CESCR in General Comment No 20 on non-discrimination in economic, social, and cultural rights specifically refers to the fact that nationality and legal status should not bar access to the protection of rights under the ICESCR.21 This has been reiterated in its concluding observations on state party reports.22 While no reference is made as to the effectiveness of this right, it is to be assumed that similar to ICERD, effective protection, as opposed to limited protection, is the norm. Other international instruments, such as the UDHR,23 the International Covenant on Civil and Political Rights (ICCPR),24 and the International Convention on the Elimination of All Forms of Discrimination against Women (ICEDAW) also protect the right to back pay on equal terms and the concept of effective protection of such rights has also been further elaborated.25 While the general calls for equal rights remain,26 there have been further calls for a more developed protection for irregular immigrants. For example, the UN Human Rights Committee (HRC) have called on Belgium to ensure protection for the right to an effective remedy for irregular immigrants which is ‘jeopardized by the fact that police officers are obliged to report their presence’ at court.27 This would suggest that while the UN instruments are not expressly advocating a ‘full protection approach’, such an approach can be implied into the concept of ‘effective protection’ which is central to the implementation of such instruments.

19 CERD, Seventy-second session Geneva, 18 February–7 March 2008 Consideration of Reports Submitted by States Parties Under Article 9 of the Convention—Concluding observations of the Committee on the Elimination of Racial Discrimination United States of America, 28. See also Italy, CERD, A/56/18 (2001) 53, 316. 20 ICESCR, Art 7(a)(i). 21 CESCR, General Comment No 20 (42nd session 2009) para 30. See also, Committee on the Elimination of All Forms of Racial Discrimination on Non-Citizens, General Comment No 30 (2004). 22 Germany, ICESCR, E/2002/22 (2001) 97, 681 and Republic of Korea, ICESCR, E/2002/22 (2001) 45, 215, 222, 227, 228, 230, and 248. Dominican Republic, ICESCR, E/1998/22 (1997) 43, 233. 23 24 25 UDHR, Art 27. ICCPR, Art 7. ICEDAW, Art 11. 26 Spain, CERD, A/59/18 (2004) 32, 171–3; Spain, ICESCR, E/2005/22 (2004) 34, 230–1 and 247–8. 27 Belgium, ICCPR, A/59/40 vol. I (2004) 56, 72(4), 72(5), 72(11), 72(14), 72(15), 72(17), 72(21)–72(23), and 72(25); Russian Federation, ICESCR, E/2004/22 (2003) 64, 487–90.

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The ICRMW itself recognizes that irregular migrant workers are entitled to equal treatment in terms of remuneration,28 and the Committee on Migrant Workers (CMW) has consistently encouraged states to fully implement Article 25.29 In the first ever General Comment made under the ICRMW, the Committee highlighted the problem of ‘low salaries, and late payment or non-payment of salaries’30 among domestic migrant workers and encouraged states to ensure ‘migrant domestic workers should be able to access courts and other justice mechanisms without fear of being deported as a consequence’.31 This essentially enshrines the ‘full protection approach’ in the provisions of the ICRMW, despite no express reference to such an approach in the ICRMW itself. While, particularly with the advent of the ICRMW, the right to back pay for irregular immigrants is secured in most UN human rights instruments, whether the express text of such instruments advocate a ‘protection with consequences approach’ or a ‘full protection approach’ is unclear. However, the rhetoric of the committees would suggest that a ‘full protection approach’ is to be preferred. However, one of the major limitations in this regard is the lack of guidance given to state parties to the instruments as to how such an approach can be achieved in practice.32

ii. The ILO approach In a similar manner to the UN instruments, the express wording of ILO Convention No 143,33 one of the main instruments dealing with the rights of immigrant workers, including in certain cases the rights of irregular immigrants, does not immediately reveal the type of approach adopted or advocated by the ILO. A literal reading of Article 9 of ILO Convention No 143, which protects the right to back pay, would indicate that it supports a ‘protection with consequences approach’ to the protection of the right to back pay for irregular immigrants. Article 9(1) provides that, without prejudice to immigration laws, the irregular immigrant shall ‘enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits’. There are two significant indications in this section which reveal a ‘protection

28 ICRMW, Art 25. Interestingly there have been no reservations on Art 25. For more detailed commentary on the impact of this Convention on the rights of migrant workers, see L Bosniak, ‘Human Rights, State Sovereignty and the Protection of Migrant Workers under the International Migrant Workers Convention’ (1991) 25(4) IMR 737; R Bohning, ‘The ILO and the New UN Convention on Migrant Workers: The Past and Future’ (1991) 25(4) IMR 698; J Lonnroth, ‘The International Convention on the Rights of Migrant Workers and Members of their Families in the Context of International Migration Policies: An Analysis of 10 Years of Negotiation’ (1991) 25(4) IMR 710; S Hune and J Niessen, ‘Ratifying the UN Migrant Workers Convention: Current Difficulties and Prospects’ (1994) 12 NQHR 393; T Basok, ‘Counter-Hegemonic Human Rights Discourse and Migrant Rights Activism in the US and Canada’ (2009) 50 IJCS 183; J Klaaren, ‘Human Rights Protection of Foreign Nationals’ (2009) 30(1) IMR 82; J Fudge, ‘Precarious Migration Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (2012) 34 CLLPJ 95. 29 See Mali CMW/C/MLI/1 (12 August 2005) 24; Mexico, CMW/C/Mex/CO/1 (20 December 2006) 26(a). 30 CMW, General Comment No 1 on Migrant Domestic Workers, CMW/C/GC/1, 13(e). 31 32 33 CMW (n 30) 13(e). Bosniak (n 28) 760. ILO No 143.

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with consequences’ approach. First, Article 9(1) specifically makes reference to immigration laws and that Article 9(1) operates without prejudice to such laws. Therefore, it is to be assumed that Article 9(1) effectively prioritizes the immigration law concerns of states while at the same time insisting on some level of protection for irregular immigrants. Secondly, the reference to ‘past employment’ and the possibility of ‘expulsion’ referred to in Article 9(3) implies that the irregular immigrant who is seeking to assert a right to back pay will already have left employment at the time of making such a claim and will potentially have already come to the attention of the authorities. Therefore, the wording of ILO Convention No 143 would suggest that a ‘protection with consequences approach’ is being adopted by the ILO which fails to provide ‘meaningful and substantive protection’ for irregular immigrants.34 There is no reference to the effective protection of the right to back pay as exists in the UN context, neither is there any guidance as to how such an approach could be adopted. In order to ensure a move to the ‘full protection approach’, as has occurred in the UN context, the ILO would need to interpret ILO Convention No 143 as ensuring effective and practical, as opposed to merely theoretical, protection for irregular immigrants.

2. The regional approach to the protection of the right to back pay While the international systems tend to fluctuate between the ‘protection with consequences approach’ and the ‘full protection approach’, the regional systems tend towards the ‘protection with consequences approach’, which probably reflects the general approaches of the majority of the state parties to such regional systems and also reflects deference to state sovereignty in the area of immigration law. While the issue of labour rights for irregular immigrants has not been addressed expressly by the majority of regional systems, the Inter-American Court of Human Rights (ACtHR) has addressed this question directly and has affirmed a protective approach, albeit a ‘protection with consequences approach’. Regional systems which have not addressed this question directly should attempt to clarify their position on the labour rights of irregular immigrants, as often the texts of many regional instruments are either silent on the issue or unclear. This section of the chapter will examine the approaches adopted by the European, Inter-American, African, Arab, and the Association of Southeast Asian Nations (ASEAN) regional systems. It will conclude that in general a ‘protection with consequences approach’ is preferred and advocated by most regional systems and that, similar to protections at an international level, more express reference and guidance as to the measures required to ensure practical and effective enforcement of labour rights is necessary if a ‘full protection approach’ is to be adopted.

34 A Stevens, ‘Give me Your Tired, Your Poor, Your Destitute Laborers Ready to be Exploited: The Failure of International Human Rights Law to Protect the Rights of Illegal Aliens in American Jurisprudence’ (2000) 14 EILR 405, 425. For more detailed analysis of ILO No 143, see R Cholewinski, ‘Human and Labor Rights of Migrants: Visions of Equality’ (2008) 22(2) GILJ 177.

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i. The European approach When examining the protection of the right to back pay at a European regional level, both the protections under Council of Europe (COE) law and under EU law must be considered. At the Council of Europe level, there are two significant instruments to be considered: the European Convention on Human Rights (ECHR) and the European Social Charter (ESC). Two issues must be considered under the ECHR. Do irregular immigrants fall within the scope of the ECHR and what rights guaranteed under the ECHR would protect a labour right such as the right to back pay? In response to the first question, the ECHR provides that state parties must ‘secure to everyone within their jurisdiction the rights and freedoms’ defined in section I of the ECHR.35 This has been held to include irregular immigrants. Irregular immigrants have successfully relied on the ECHR in both national courts and before the European Court of Human Rights (ECtHR).36 Secondly, while the ECHR does not generally protect labour rights, it does prohibit forced or compulsory labour,37 guarantees the right to an effective remedy,38 and protects the right to equality (both as a stand-alone right,39 and as a right which is linked to the rights protected under the ECHR).40 Therefore, it would appear that the ECHR, while limited in the rights which it protects, does protect certain rights, and a right to back pay might arise under the equality provisions or under the right to an effective remedy (where such a remedy was denied at the national level). However, while there is provision for the theoretical protection of rights, there is no guarantee in the ECHR which would protect the irregular immigrant from the consequences of irregularity. This is also evidenced in the case law. For example, in the case of Siliadin v France,41 the irregular immigrant had already come to the attention of the authorities before she made her claim based on Article 4 ECHR. No practical protection from the consequences of irregularity is advocated by the ECHR. For now, it may be assumed that a ‘protection with consequences’ approach is in operation under the ECHR regime. The lack of protection of irregular immigrants under the ESC does not stem from the lack of express protection of the right to back pay,42 as is the case under the ECHR, but from the fact that the ESC only expressly applies to those immigrants that are lawfully resident or regular.43 However, the Committee on Social Rights has held that in certain cases, irregular immigrants might fall within the scope of the ESC. So, for example, the failure of the French Government to provide irregular immigrant children with a right of access to health care was in violation of the ESC, despite the fact that the ESC would appear to expressly exclude such immigrants from its scope.44 The Committee on Social Rights adopted a purposive interpretation of the ESC and held that in the circumstances of the particular case before it, concerning the right to health, which is

35

36 ECHR, Art 1. See Siliadin v France (2006) 43 EHRR 16. 38 ECHR, Art 4. ECHR, Art 13. 39 ECHR, Protocol 12, Art 1. It should be noted that the ratification level for this particular protocol is very low. 40 41 42 43 ECHR, Art 14. Siliadin (n 36). Protected by ESC, Art 4. ESC, Preamble. 44 International Federation of Human Rights Leagues v France Complaint No 14/2003. 37

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‘connected to the right to life itself and goes to the very dignity of the human being’ and which impacted ‘adversely on children’, the ESC could be read to have application to the situation of irregular immigrant children.45 However, it is unclear whether the Committee on Social Rights intended this decision to ensure protection for all irregular immigrants under the ESC or whether this decision is limited to its own facts, concerning children (a particularly vulnerable group) and the right to health (which was held to be linked to the right to life and the dignity of the human person). Therefore, in order for the ESC to provide some measure of protection for irregular immigrants to back pay, it is arguable that the Committee on Social Rights would have to be assured that the protection of the right to back pay was connected to the dignity of the human person. Only in such circumstances would it appear that a protective approach would be developed. Even then, this could only be described as a ‘protection with consequences approach’, as it would only appear to theoretically protect the right to back pay. If the Committee on Social Rights were to decide that irregular immigrants generally did not fall within the ESC, then it is clear that a ‘non-protection approach’ would be in operation. The protection under the EU legal system is much clearer and unequivocally adopts a ‘protection with consequences approach’. Protection of the right to back pay is provided to all irregular immigrants expressly by the EU Employer Sanctions Directive.46 This Directive provides for a right to back pay, but reiterates the fundamental foundation of EU migration policy that irregular immigrants should be returned to the country from which they originate.47 Article 6 requires Member States to ensure that employers are liable to pay any back pay, an amount equal to any taxes and social security contributions the employer would have paid had the irregular immigrant been legally employed, including penalty payments for delays and administrative fines, and, where appropriate, any cost arising from sending back payments to the country to which the irregular immigrant has returned or has been returned.48 The level of pay to which the irregular immigrant is entitled is at least as high as the relevant laws relating to minimum wage, by collective agreement or in accordance with established practice in a particular industry, unless either the employer or the employee can prove differently.49 A significant problem with this Directive is the fact that it is not applicable in three of the twenty-seven EU Member States. Denmark, by virtue of Articles 1 and 2 of the Protocol on the position of Denmark, is not taking part in the adoption of 45 International Federation of Human Rights Leagues (n 44) [30]. See also for more information on this decision and its implications in the EU context, R Romero-Ortuno, ‘Access to Health Care for Illegal Immigrants in the European Union: Should we be Concerned?’ (2004) 11 EJHL 245. For more information on the right to health and irregular immigrants in international law, see M Ruiz-Casares, C Rousseau, I Derluyn, C Watters, and F Crépeau, ‘Rights and Access to Health Care for Undocumented Children: Addressing the Gap Between International Conventions and Disparate Implementation in North America and Europe’ (2010) 70(2) SSM 329. 46 Council Directive (EC) 2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24 (Employer Sanctions Directive). 47 See Council Directive (EC) 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98, which is based on the recognition that it is ‘legitimate for Member States to return illegally staying third-country nationals’ (Recital graph 7). 48 Employer Sanctions Directive, Art 6(1)(a)–(c). 49 Employer Sanctions Directive, Art 6(1)(a).

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the Directive and is therefore not bound by it or subject to its application.50 Similarly, the UK and Ireland have decided to opt out of the Directive.51 More fundamentally, while there is a theoretical right to back pay under the Directive and a right to enforce this theoretical right, the informal status of the irregular immigrant and the consequences of detection will have a chilling effect on irregular immigrants and prevent them from enforcing this right in any practical way.52 Therefore, at a European regional level, certain obstacles exist to the development of a ‘full protection approach’ and it is more common for regional instruments to advocate for a ‘protection with consequences approach’. Some of the obstacles to the development of a ‘full protection approach’ to the right to back pay include the potential exclusion of irregular immigrants from the scope of the legal instrument,53 the limited rights protected by those instruments which do protect irregular immigrants,54 and the lack of initiative and guidance so as to ensure the possibility of practical, as opposed to theoretical, enforcement of such rights.55

ii. The Inter-American approach Across the Atlantic, a somewhat more robust approach to the protection of the right to back pay can be identified, albeit that a ‘protection with consequences approach’ still prevails. The American Convention on Human Rights (ACHR) protects ‘every human being’ within the jurisdiction of a state party.56 While not expressly recognizing a right to back pay,57 the right to equality has been successfully invoked to protect the right of all irregular immigrants to the same labour rights as nationals and regular immigrants.58 Therefore, the ACHR clearly advocates a protective approach. However, this protective approach is not a ‘full protection approach’ and the ACtHR has interpreted the ACHR as endorsing the ‘protection with consequences approach’ to the protection of labour rights. In an Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (the Opinion),59 the ACtHR had to decide whether an American state could discriminate against irregular immigrants in the implementation of labour laws, whether legal status was a necessary condition for an American state to respect and ensure the right to equality, and whether it could be considered that the denial of one or more labour rights based on the legal status of the immigrant was compatible with the obligations of an American state to ensure non-discrimination and the equal, effective protection of the law.60 In answer to these questions, the ACtHR reiterated the 50

51 Employer Sanctions Directive, Recital, 39. Employer Sanctions Directive, Recital, 38. Butter and Verhagen (n 4) 30; Clandestino Project, Undocumented Migration: Counting the Uncountable. Data and Trends Across Europe (European Commission, 2009) 19. 53 54 As is the case under the ESC. As may be the case under the ECHR. 55 56 As is the case under the Directive. ACHR, Arts 1(1) and 1(2). 57 Although this right is expressly protected by the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ‘Protocol of San Salvador’, Art 7(a). 58 Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 InterAmerican Court of Human Rights Series A No 18 (17 September 2003). 59 Advisory Opinion OC-198/03 (n 58). 60 For a more detailed analysis of this case, see S Cleveland, B Lyon, and R Smith, ‘Inter-American Court of Human Rights Amicus Curiae Brief: The US Violates International Law when Labor Law Remedies are Restricted Based on Worker’s Migrant Status’ (2002–2003) 1 SJSJ 795; B Lyon, ‘Inter-American Court of 52

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fundamental importance of the principle of non-discrimination and considered that states should abstain ‘from carrying out any action that, in any way, directly or indirectly, [was] aimed at creating situations of de jure or de facto discrimination’.61 In addition, states were obliged ‘to take affirmative action to reverse or change discriminatory situations that exist in their societies to the detriment of a specific group of person’.62 As regards the application of such principles to immigrants, the Court noted specifically the vulnerable situation of immigrants and held that legal status was not a prerequisite for that state to ‘respect and ensure the principle of equality and non-discrimination’.63 In an effort to assure states that their sovereignty over migration policy was secure, the ACtHR also reiterated that the protection of the principle of non-discrimination did not mean that states could not ‘take any action against migrants who do not comply with national laws’.64 In relation to the protection of labour rights, the ACtHR stated that a person ‘who enters a State and assumes an employment relationship, acquires his labor human rights in the State of employment, irrespective of his migratory status’65 and that the ‘migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment’.66 Therefore, irregular immigrants cannot be discriminated against in the protection of their labour rights because of their irregular status.67 Moreover: [the] State is obliged to respect and ensure the labor human rights of all workers, irrespective of their status as nationals or aliens, and not to tolerate situations of discrimination that prejudice the latter in the employment relationships established between individuals (employer-worker). The State should not allow private employers to violate the rights of workers, or the contractual relationship to violate minimum international standards.68

Therefore, the protection of rights is paramount. As to whether this protection is consequential or amounts to full protection, the Court noted that irregular immigrants must be able to resort to state mechanisms for the protection of their rights. However, the Court did not go further than this ‘protection with consequences approach’ and noted that even though ‘an undocumented migrant worker could face deportation, he should always have the right to be represented before a competent body’.69 So while it is important that irregular immigrants have a right of access to justice, this right does not have to protect the irregular immigrant from the consequences of potential detection, detention, and deportation. Human Rights Defines Unauthorized Migrant Worker Rights for the Hemisphere: A Comment on Advisory Opinion 18’ (2003–2004) 28 NYUJLSC 547; G Meneses, ‘Human Rights and Undocumented Migrants Along the Mexican-US Border’ (2003–2004) 51 UCLALR 267; S Paoletti, ‘Human Rights for all Workers: The Emergence of Protection for Unauthorised Workers in the Inter-American Human Rights System’ (2004) HRB 5; S Cleveland, ‘Legal Status and Rights of Undocumented Workers: Advisory Opinion OC-18/03’ (2005) 99(2) AJIL 466. 61 62 Advisory Opinion OC-198/03 (n 58) 102–3. Advisory Opinion OC-198/03 (n 58) 104. 63 64 Advisory Opinion OC-198/03 (n 58) 118. Advisory Opinion OC-198/03 (n 58) 118. 65 66 Advisory Opinion OC-198/03 (n 58) 133. Advisory Opinion OC-198/03 (n 58) 134. 67 68 Advisory Opinion OC-198/03 (n 58) 136. Advisory Opinion OC-198/03 (n 58) 148. 69 Advisory Opinion OC-198/03 (n 58) 159.

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The opinion of the ACtHR on this matter is the only express discussion on this particular issue at a regional level. The ACtHR were confident in their assertion that the right to equality protects the labour rights of irregular immigrants and that irregular immigrants should have access to justice to enforce such rights. However, it is regrettable that the ACtHR did not go further and advocate for a more ‘full protection approach’ which would protect labour rights both theoretically and practically. There was certainly scope to do this within the opinion and the opinion is an opportunity lost in this respect.

iii. The African approach The African Charter of Human and Peoples’ Rights (ACHPR), provides that ‘every individual’ is entitled to protection against non-discrimination and shall have the right to receive equal pay for equal work.70 The Charter, therefore, does not suffer from the problems associated with the European regional protections in that it clearly includes all persons, regardless of their legal status,71 and provides a clear protection of the right to back pay under its provisions. Unfortunately, the ACHPR does not go further than a mere theoretical protection of such rights and there is no express or implied references which would indicate anything more than a ‘protection with consequences’ approach. Evidence of a commitment to the ‘protection with consequences approach’ can be identified in an opinion of the African Commission on Human and Peoples’ Rights, prompted by a complaint by non-governmental organizations (NGOs) on behalf of individuals who had been deported. In that communication, the African Commission noted expressly that it did not ‘wish to call into question nor is it calling into question the right of any State to take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide’. It was ‘however of the view that it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the Charter and international law’.72 This statement reflects a commitment to the ‘protection with consequences approach’. While the Commission was affirming that irregular immigrants have rights and that they should have the right to assert these rights before the competent courts, the irregular immigrant will not be protected from the consequences of such action due to the inherent sovereignty of the state to determine and enforce immigration law. Therefore, while the African regional approach does not suffer from the obstacles inherent in other regional instruments, it once again expressly adopts a ‘protection with consequences approach’ with little regard to the practical impact of such an approach.

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ACHPR, Arts 2 and 15. Complaints have been made by groups representing irregular immigrants before the Commission for Human and Peoples’ Rights. See Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de l’Homme and Others v Angola, African Commission on Human and Peoples’ Rights, Communication No 159/96 (1997). 72 Union Inter Africaine (n 71) 20. 71

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iv. The Arab approach The Arab Charter on Human Rights (Arab Charter) suffers from some of the same problems faced in the European regional context. While there is no doubt that the Charter applies to irregular immigrants, there is no specific provision relating to right to fair or just remuneration. However, there is a particular provision on equality,73 which, if arguments similar to those made in the Inter-American system are made, would be sufficient to protect the right to back pay of an irregular immigrant as long as the state in question also protected that right for other groups of workers. There is no express reference to a ‘full-protection approach’ and therefore it must once again be assumed that the Arab Charter advocates for a ‘protection with consequences approach’.

v. The ASEAN approach In the Asian context, the ASEAN has developed a human rights declaration, the ASEAN Human Rights Declaration (AHRD) which, though not legally binding, appears to have a broad application and to protect both the right to equality and the right to just and favourable conditions of work.74 However, given the non-binding nature of the declaration and the fact that there have been no statements as to whether the rights should be protected absolutely or whether the consequences flowing from making a claim based on the AHRD would fall on the irregular immigrant, it must be assumed that the protection afforded by the AHRD is merely a ‘protection with consequences approach’. Of more relevance to this particular issue might be the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, which does oblige migrant-receiving states to ‘provide migrant workers, who may be victims of discrimination, abuse, exploitation, violence, with adequate access to the legal and judicial system of the receiving states’.75 While there is a clear attempt here to ensure access to the legal system, there is no express reference to the fact that this access must not expose irregular immigrants to the consequences of their illegality. This once again reinforces the implication that the ASEAN regime does not offer a ‘full protection approach’ but instead offers human rights protection with the caveat that certain consequences will flow where the irregular immigrant does access the judicial system to enforce their rights.76

3. The national approach to the protection of the right to back pay At a national level, the approaches adopted by states are even more diverse and range from non-protection of the right to back pay, to full protection. However, the majority 73

74 Arab Charter, Art 2. AHRD, Arts 2 and 27(1). ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, Art 9. 76 For more information on the ASEAN human rights regime, see J Chavel, ‘Social Policy in ASEAN: The Prospect for Integrating Migrant Labour Rights and Protection’ (2007) 7(3) GSP 358; Y Ginbar, ‘Human Rights in ASEAN: Setting Sail or Treading Water?’ (2010) 10(3) HRLR 504. 75

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of states studied for this chapter appeared to adopt a rather consistent ‘protection with consequences approach’, clearly reflecting the difficulty states have with connecting immigration law and employment law concerns.

i. The ‘non-protection approach’ in national legal systems A ‘non-protection approach’ can be identified in a number of jurisdictions such as Ireland,77 the UK,78 Australia,79 and China.80 A useful example is the case of Ireland, where the non-protection approach has been most recently solidified in Irish law by a decision of the Irish High Court.81 As is the situation in the UK,82 employment rights in Ireland are granted by Statute to all employees, usually defined as persons working under a contract of employment.83 Therefore, the existence of a valid contract of employment is essential to ensure the protection of rights. Where there is an illegality found in the contract, the worker will not be defined as an employee and as such will not be entitled to the full range of employment rights usually reserved for employees. Where the ‘mere making of [the contract] is a legal wrong’,84 where, for example, it is contrary to the terms of a Statute,85 the result is that the contract will be declared to be unenforceable.86 Where immigrants are found to be working in violation of immigration laws in Ireland,87 both the employer and the worker are operating in contravention of a statute.88 77 See Lewis v Squash Ireland Ltd [1983] ILRM 363; Hussein v Labour Court [2012] IEHC 364 (currently under appeal to the Supreme Court). 78 See Hounga v Allen [2014] UKSC 47, discussed by A Bogg and T Novitz, Ch 19, 371. 79 See Work Cover Corporation (San Remo Macaroni Co Pty Ltd) v Liang Da Ping (1994) 175 LSJS 469; Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312; (1998) 153 ALR 439; Australia Meat Holdings v Kazi [2004] 2 Qd R 458. For more discussion of this topic, see A Reilly, ‘Protecting Vulnerable Migrant Workers: The Case of International Students’ (2012) 25 AJLL 181. See also R Guthrie and R Taseff, ‘Dismissal and Discrimination: Illegal Workers in England and Australia’ (2008) 24 IJCLLIR 51. 80 However, this does not mean that the individual would not have a right to restitution of any back pay owed to them under the existing labour contract, merely that statutory rights, such as equal pay or minimum wage, would not be forthcoming. The Supreme People’s Court in China has interpreted existing labour legislation to mean that irregular immigrants, working without a work permit, will not be entitled to the protection of China’s labour laws. See Fourth Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in Trial of Labour Dispute (1 February 2013). 81 See further E Dewhurst, ‘The Gap between Immigration and Employment Law in Ireland: Irregular Immigrants Fall through the Cracks’ (2013) 10(1) IELJ 11. 82 See G Treitel, The Law of Contract (11th edn, Thomson Sweet & Maxwell 2003) 393. Mogul Steamship Co v McGregor, Gower & Co [1892] AC 25; [1891–4] All ER Rep 263 [39] (Lord Halsbury). Cf M Furmston, G Cheshire, and C Fifoot, Law of Contract (14th edn, Lexis-Nexis UK 2001) 425. 83 See eg Unfair Dismissals Act 1977 (Ireland), s 1; Employment Equality Act 1998 (Ireland) as amended by Equality Act 2004 (Ireland), s 2; Carers Leave Act 2001 (Ireland), s 2; Parental Leave Act 1998 (Ireland), s 2; Maternity Protection Act 1994 (Ireland), s 2; Terms of Employment (Information) Act 1994 (Ireland), s 1. 84 Treitel (n 82) 393; Mogul Steamship (n 82) [39] (Lord Halsbury). Cf Furmston, Cheshire, and Fifoot (n 82) 425. 85 See the Irish decision of Lewis (n 77). 86 Furmston, Cheshire, and Fifoot (n 82) 425. 87 As noted in H Collins, K Ewing, and A McColgan, Labour Law: Text and Materials (Hart 2001) 70, contracts entered into in contravention of immigration legislation are void ab initio. 88 In Ireland, the Employment Permits Act 2003 (Ireland), s 2 (as amended by the Employment Permits Act 2006 (Ireland), s 2), makes it a criminal offence for a migrant worker to be employed without an employment permit and for an employer to employ a migrant worker without the requisite employment permit.

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The decision in the case of Hussein v Labour Court is a clear example of the operation of the ‘non-protection approach’ in Ireland.89 Mr Younis, a Pakistani national, was hired by Mr Hussein in 2002 to work in his restaurant in Ireland. At some stage, Mr Younis became an irregular immigrant due to the expiration of this work permit. Mr Younis alleged before a Rights Commissioner, and later before the Labour Court, that he was exploited at the hands of his employer and alleged that he had suffered an underpayment of wages, excessive working hours, and had received no annual leave. The Labour Court awarded Mr Younis compensation in excess of €90,000. However, his employer, sought to have the decision set aside on the grounds that as Mr Younis was an irregular immigrant he did not have legal standing to make these claims. The High Court had to consider the interplay between immigration law and labour law in this case. The High Court held that under immigration law Mr Younis was an irregular immigrant. Therefore, under employment law, while Mr Younis was clearly a worker, he was an illegal one, as he did not have permission to work in Ireland. Based on this reasoning, Hogan J in the High Court held that as the ‘Oireachtas must be taken to have intended that a non-national employee to whom the prohibition applies (ie non-EU and non-EEA nationals) automatically commits an offence if he or she does not have a work permit irrespective of the reasons for that failure necessarily has implications so far as the civil law is concerned, in that such a contract of employment must also be taken to be void’.90 He also held that it would ‘scarcely be a sensible construction of the [immigration law] if it is admitted that such a contract is expressly prohibited by statute and yet the courts permitted administrative bodies such as the Labour Court to give appropriate remedies to the parties as if the contract were perfectly lawful’.91 With these considerations in mind, the High Court held that the Rights Commissioner and the Labour Court could not lawfully entertain the claim of Mr Younis because of the illegality of his contract of employment.92 Hogan J described the outcome of the case as ‘inescapable on the application of established legal principles’, despite the obviously unsatisfactory nature of the result which was to effectively sanction the ‘most appalling exploitation’ of Mr Younis and to provide ‘no effective recourse’ for such exploitation.93 It is hoped that the Supreme Court, on appeal, reassess this overly harsh interpretation of the illegality doctrine. The decision in this case highlights the impact of the ‘non-protection approach’ and a disconnect between immigration and labour law on irregular immigrants, who may suffer extreme exploitation and yet have no judicial recourse against their unscrupulous employer, on employers, who are effectively immune from any claims by their employees who are irregular immigrants, and on the state, which is allowing a situation to subsist in which irregular immigrants will be attracted to the state by the available employment offered to them by unscrupulous employers.

89 92

Hussein (n 77). Hussein (n 77) [21].

90

Hussein (n 77) [16]. 93 Hussein (n 77) [23].

91

Hussein (n 77) [17].

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ii. The ‘protection with consequences approach’ in national legal systems The ‘protection with consequences approach’ is, by far, the most common approach adopted by national legal systems. It may be adopted as a result of case law, as has been the case in New Zealand,94 South Africa,95 Brazil,96 Mexico,97 and Greece;98 or as a result of legislative initiatives by national parliaments, as is to be the case in South Africa,99 and as has been the case in Germany,100 France,101 and Poland.102 An example of a jurisdiction which has developed the ‘protection with consequences approach’ through case law is Greece. Although Greek immigration law provides that it is illegal to employ an immigrant who does not have permission to be employed in the state,103 the Greek Supreme Court has held that the labour law regime applies to all immigrants regardless of their legal status.104 In a seminal case involving two irregular Albanian farm workers in Greece, the claimants (once they obtained regular status) successfully sued their employer for failing to pay overtime pay and the minimum wage during both their regular and irregular employment in the state. The case illustrates the fact that in Greece, labour rights are applicable to all workers regardless of their legal status. However, the fact that both workers waited until they had obtained regular status to make a claim highlights the chilling effect of the ‘protection with consequences approach’. Clearly, neither immigrant wished to bring their irregular status to the attention of the authorities and preferred to wait until their status was regular before they enforced their labour law rights. States have also achieved the ‘protection with consequences approach’ through the implementation of legislation to that effect. In Germany, immigration law criminalizes

94 See Kahn v Harun Ali t/a Mod Fab (2002) 6 NZELC 98. See R Rudman, New Zealand Employment Law Guide (CCH New Zealand Limited 2009) 363. 95 See Discovery Health Ltd v CCMA & others (CLL Vol 17, April 2008) as an example of a case in which an irregular immigrant has been allowed to enforce his employment rights. See also C Bosch, ‘Can Unauthorised Workers be Regarded as Employees for the Purposes of the Labor Relations Act?’ (2006) 27 ILJ 1342. 96 The Superior Labour Court in 2010 held that despite the non-existence of a work permit and the irregular nature of the employee, the worker was still entitled to enforce their employment rights. See J Mello, ‘Hiring People Without Valid Work Permit in Brazil’ The Brazil Business (22 August 2012). 97 Articles 1 and 33 of the Mexican Constitution guarantee equal protection for all migrants. 98 K Tzilivakis, ‘Greek Supreme Court ruling sends a strong message to unscrupulous employers’ (2007) 1 Global Eye on Human Trafficking. See also Decision No 1148/2004 of the Greek Supreme Court. 99 Legislation to due to come into effect in South Africa shortly. See Employment Services Bill 2013, s 8(4), which provides that an employee ‘who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or contract of employment against his or her employer or any person who is liable in terms of the law’. 100 See BGB, s 134; Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung (SchwarzArbG) s 3 no 9e. See N Cyrus, ‘Aufenthaltsrechtliche Illegalität’ in Deutschland: Sozialstrukturbildung— Wechselwirkungen—politische Optionen: Bericht für den Sachverständigenrat für Zuwanderung und Integration (Oldenburg 2004) 70. See also M Kupiszewski and H Mattila, ‘Addressing the Irregular Employment of Immigrants in the European Union: Between Sanctions and Rights’ (IOM and ILO July 2008) 27. Arbeitsförderungsgesetz (AFG), s 229.1, See also P Martin and M Miller, ‘Employer Sanctions: French, German and US Experiences’ (2000) 36 IMP 20. 101 Code du Travail, Arts L5521-8 and 8251–1, in conjunction with Art L8252-2. 102 103 Polish Labor Code (Dz U 1998 r Nr 21 poz 94) Art 2. Law 3886/2005. 104 Tzilivakis (n 98). See also Decision No 1148/2004 of the Greek Supreme Court.

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both the employer and irregular immigrant for illegal employment.105 However, the labour law provides expressly for a protection of the right to claim for back pay despite the illegality of the employment contract.106 Therefore, there is a clear protection of labour rights, including the right to back pay, in Germany. However, a complaint to enforce this right must be made to the Labour Court, which is obliged to report instances of irregular employment to the relevant authorities as long as such notification does not outweigh the vital personal interests of the people involved.107 This provision has a clear chilling effect on claims by irregular immigrants and has been criticized for turning the ‘law courts into additional auxiliary staff of the control bodies’, requiring ‘them to evaluate whether or not vital personal interests forbid a transfer of data’.108 Therefore, Germany exemplifies a legislatively enshrined ‘protection with consequences approach’. The ‘protection with consequences approach’ and the recognition of a connection, albeit tentative, between immigration and labour law, is the most common approach found in states, even though it has the effect of preventing irregular immigrants from reporting breaches of their labour rights temporally, of immunizing employers, to a certain extent, from claims by irregular immigrants, and of reducing the ability of the state to effectively tackle irregular immigration.

iii. The ‘full protection approach’ in national legal systems As is the case with international and regional systems of protection of the right to back pay, the ‘full protection approach’ is the least common approach at a national level, despite the positive impact such an approach has on irregular immigrants and on the state. Where it has been implemented, this has usually been achieved by the courts through an interpretation of the existing labour legislation and in furtherance of a desire to ensure the protection of labour law, particularly the right to back pay, and to ensure the effective implementation of immigration law. One useful example of where the right to back pay has been successfully fully protected is the case of the US.109 The courts in that jurisdiction have repeatedly held that full protection of the Fair Labor Standards Act 1938 (which protects the right to back pay) is extended to all workers regardless of their legal status. While there have been some concerns that the Supreme Court decision in the Hoffman case essentially barred irregular immigrants from making a claim for back pay, this case has subsequently been distinguished by other cases taken under the Fair Labor 105

106 See AFG s 229.1. See also Martin and Miller (n 100). BGB, s 134. SchwarzArbG, s 3 no 9e. 108 See Cyrus (n 100) 70. See also Kupiszewski and Mattila (n 100) 27. 109 This does not hold for all labour rights. See Hoffman Plastic Compounds v National Labor Relations Board (2002) 535 US 137, as discussed in S Haque, ‘Beyond Hoffman Plastic: Reforming National Labor Relations Policy to Conform to the Immigration Reform and Control Act’ (2004) 79 CKLR 1357; M Lopez, ‘The Place of the Undocumented Worker in the United States Legal System After Hoffman Plastic Compounds: An Assessment and Comparison with Argentina’s Legal System’ (2005) 15(2) IICLR 301. See also R Blum, ‘Labor Standards Enforcement and the Realities of Labor Migration: Protecting Undocumented Workers after Sure-Tan, The IRCA and Patel’ (1988) 63 NYULR 132. See further the discussion by M Ontiveros, Ch 10 in this book. 107

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Standards Act 1938.110 It is now well established that irregular immigrants can recover back pay based on the idea that a claim for back pay is a claim for wages ‘the worker actually earned but was not paid’.111 This view is also supported by the US Department of Labor, which has stated that it will fully and vigorously enforce the Fair Labor Standards Act.112 There ‘is now consensus among the courts, before and after the Immigration Reform and Control Act and after Hoffman, that undocumented workers are entitled to Fair Labor Standards Act wage and hour enforcement remedies, including backpay, which is unpaid wages for work already performed’.113 Therefore, the case law has established unequivocal theoretical protection for the right to back pay. The question then remains whether this theoretical protection can be practically enforced without the irregular immigrant being subjected to the consequences of their irregularity. In the US, it has been established that not only should the irregular immigrant have a right to make a claim in public without coming to the attention of the authorities, in order to avoid the consequences of their irregularity, but irregular immigrants should also be protected from an unscrupulous employer who may decide to retaliate against an irregular worker and report them to the immigration authorities. The courts in the US have developed different strategies to ensure access to the judicial system without exposing the irregular immigrant to the consequences of their irregularity, such as denying access to discovery of the immigration status of the claimant during trial.114 Retaliation by the employer is also discouraged through the provision of damages to irregular immigrants who suffer retaliation from their employers. The statutory basis for the award of such damages can be found in the Fair Labor Standards Act 1938, which provides that it is unlawful for ‘any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act’.115 The effect of the development of the full protection of labour laws and the acknowledgement of the fundamental connection between immigration law and labour law in the US has been to ensure theoretical and practical protection for irregular immigrants, to discourage employers from hiring such immigrants and to serve to assist immigration law in its efforts to reduce irregular immigration.

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Singh (n 11) [1061] (Breyer J). R Smith and A Sugimori, ‘Undocumented Workers: Preserving Rights and Remedies after Hoffman Plastic Compounds v NLRB’ (2007) National Employment Law Project 9. 112 US Department of Labor, ‘Employment Standards Division: Application of US Labor Laws to Immigrant Workers: Effect of Hoffman Plastic Decision on Laws Enforced by the Age and Hour Division’ (Fact Sheet No 48, 2002). 113 Lopez (n 109) 316. See also Blum (n 109) 135. A Lewinter, ‘Hoffman Plastic Compounds v NLRB: An Invitation to Exploit’ (2003) 20 Georgia State University Law Review 509, 525. 114 See eg the case of Flores et al v Albertson (2002) US Dist. LEXIS 6171 (CD Cal 2002) and Lin et al v Donna Karan International Inc. (2002) 207 F Supp 2d 191, where the courts denied requests for discovery of the immigration status of the claimant on the grounds that the release of such information is more harmful than relevant. The court in Liu noted: ‘Even if the parties were to enter into a confidentiality agreement restricting the disclosure of such discovery . . . there would still remain the danger of intimidation, the danger of destroying the cause of action and would inhibit the plaintiffs in pursuing their rights.’ Lopez (n 109) 316. 115 Fair Labor Standards Act, s 215(a)(3). 111

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IV. Conclusion This chapter has outlined three different approaches to the protection of the right to back pay at an international, regional, and national level. It has examined the rationale for the development and subsistence of each approach and has also analysed the impact on irregular immigrants, employers, and states of the adoption of each approach. At the core of the decision to adopt anything less than a protective approach (whether full or consequential) is a fundamental misconception of the intimate connection between immigration law and labour law objectives. Their objectives can work together to achieve a solution which protects the labour rights of irregular immigrants and meets the state’s objective of reducing irregular immigration.116 The ‘protection with consequences’ approach, while identifying a limited or tentative connection between immigration and labour law, places immigration law concerns ahead of labour law objectives. As a result, it effectively undermines the objectives of both. Only the ‘fullprotection approach’ achieves the real benefits of embracing the connection between immigration law and labour law. At an international level, both the UN and the ILO expressly advocate a ‘protection with consequences approach’, although the UN has moved beyond this model to a more ‘full protection approach’ in its interpretation of the UN human rights instruments. The UN has achieved this move through interpreting the concept of ‘effective protection’ to include the ability of the irregular immigrant to assert their theoretical rights in a practical way without being affected by the consequences of their irregularity. It is recommended that the ILO should also consider interpreting its protections in a similar way to aid in the development of a ‘full protection approach’. It is also recommended that the UN provide more guidance to state parties as to the manner in which a ‘full protection approach’ can be effectively achieved. Regionally, the most common approach adopted is the ‘protection with consequences approach’ and none of the regional systems have yet expressly embraced or advocated a ‘full protection approach’. Only in the inter-American context has the issue of the rights of irregular immigrants been expressly addressed, and there are a number of obstacles to the full protection of labour rights, particularly the right to back pay, in many of the regional systems. These obstacles include a failure to include irregular immigrants within the scope of the legal instruments (as is the case with the ESC), a lack of legally binding human rights instruments (as is the case in the ASEAN region), a failure to protect labour rights altogether or to protect specific labour rights (as is the case with the ECHR), a failure to address the concern of irregular immigration during the interpretation of specific provisions of the human rights instruments (as is the case with the Arab Charter), and a failure to provide guidance or incentives to move towards a ‘full protection approach’ (as is the case with the EU Directive, the ACHPR, and the ACHR).

116

630.

S Murray, ‘Hoffman, Its Progeny and the Status of Undocumented Workers’ (2011) 11 WLR 615,

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At a national level, the variety of approaches to the issue of the right to back pay for irregular immigration increases, although the ‘protection with consequences approach’ still finds favour amongst the majority of states. At the extremes, the ‘non-protection approach’ has found favour in a limited number of states (such as Ireland, the UK, Australia, and China) and the ‘full protection approach’ has found favour in the US. All other states have developed a version of the ‘protection with consequences approach’, either through the interpretation of labour laws by the courts or through legislative developments. Movements towards a ‘full protection approach’ are possible, even in states which adopt the ‘non-protection approach’, through the recognition and protection of labour rights for all persons equally and the development of initiatives to protect irregular immigrants during access to justice. However, this will first require national, regional, and international legal systems to recognize and accept the fundamental connection between immigration and labour law objectives and the manner in which immigration and labour law can work together to protect the human rights of irregular immigrants while simultaneously deterring irregular immigration to a state.

13 Employer Checks of Immigration Status and Employment Law Bernard Ryan*

I. Introduction This chapter will address the employment law implications of checks by employers on the right to work under immigration law of potential and current employees.1 Its theme is that there is a structural tension between employer duties to the state under immigration law and their obligations to workers under employment law. The core difficulty is that immigration law tends to be absolute in nature, as workers generally either do or do not have the right to be employed by the employer in question. By contrast, in recognition of both the reality and the diversity of employment relationships, employment law generally holds employers to standards of reasonableness in their treatment of potential and current employees. The chapter as a whole will show how difficult it can be to interpret employment law obligations when immigration law duties upon employers are in play. The argument of the chapter will be developed as follows. Section II will outline the legal penalties in Britain upon those who employ workers who lack permission to work under immigration law. Section III will consider the potential role of a right to work and of discrimination law when employers conduct checks on immigration during recruitment. Section IV will address the two legal issues concerning checks during the employment relationship: whether discrimination law constrains such checks, and whether suspension of the employee is possible when the outcome of any such checks is uncertain or negative. Finally, section V will consider the implications of the law of unfair dismissal for employer decisions to terminate the employment relationship because of an employee’s apparent lack of a right to work. Throughout the chapter, it will be assumed that employers will seek to comply both with their legal obligations deriving from the law on employer penalties, and with their legal duties to employees. It will also be assumed that employers potentially have autonomous business reasons for wishing to ensure that their potential and current employees have a secure legal right to work. For that reason, the focus will be on ‘employer checks’ in a general sense, including employer practices which seek to check an individual’s entitlement to work, and employer decisions concerning potential or actual employees which follow those checks.

* Bernard Ryan is Professor of Migration Law at the University of Leicester. 1 The term ‘employment law’ is used here to include obligations under discrimination law which concern employment relationships.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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II. Employer Penalties in British Immigration Law The Asylum and Immigration Act 1996 was the first piece of legislation in Britain to specifically penalize employers who hired workers who lacked permission to work under immigration law.2 In comparative terms, Britain was a relatively late adopter of the principle of employer penalties. For example, employer penalties were introduced in France and Germany in 1972, and a requirement for such sanctions was included in the ILO’s Migration for Employment Convention of 1975.3 In 1976, the European Commission proposed a Directive making employer penalties obligatory for the then nine Member States, but found itself blocked by Britain’s opposition.4 The United States introduced employer penalties with the Immigration Reform and Control Act 1986.5 Provision for employer penalties was also included in the United Nations Migrant Workers Convention, which was agreed in 1990 and came into force in 2003. More recently, EU Directive 2009/52 requires employer penalties of most EU Member States, and specifies in detail the form that they are to take.6 The 1996 Act relied upon criminal penalties alone, and therefore required a criminal standard of proof. That approach was associated with a low level of prosecution activity, with only twenty-five convictions under the 1996 Act in the period between 1998 and 2004.7 To obviate the need for a criminal prosecution, a new system of ‘civil’ employer penalties was legislated for by the Immigration Asylum and Nationality Act 2006 and the Immigration (Restrictions on Employment) Order 2007.8 That scheme came into force on 29 February 2008, for employees commencing employment on or after that date. Under the civil penalty scheme, where an immigration official finds an apparent breach of the rules, the employer is issued with ‘notice of liability’ to a fine. There is a maximum fine of £10,000 per worker, which is reduced for first and second offences, where the employer has made partial checks, and where the employer has cooperated with the Border Agency.9 The onus is on the employer to object to the fine, 2 For a discussion, see B Ryan, ‘Employer Enforcement of Immigration Law after Section Eight of the Asylum and Immigration Act 1996’ (1997) 26 ILJ 136. 3 See P Martin and M Miller, ‘Employer Sanctions: French, German and US Experiences’ (ILO International Migration Paper 36 2000) 7–32; and Migrant Workers (Supplementary Provisions) Convention 1975 (ILO No 143) 1120 UNTS 323, Article 6. 4 See Commission, ‘Proposal for a Council Directive on the harmonization of laws in the Member States to combat illegal migration and illegal employment’ (Communication) COM (76) 331 final; Commission, ‘Proposal for a Council Directive concerning the approximation of the legislation of the Member States, in order to combat illegal migration and illegal employment’ (Communication) COM (78) 86 final; Statement by Home Office Minister Shirley Summerskill, House of Commons Debates (24 June 1977, cols 1995–2003). 5 Discussed in Martin and Miller (n 3) 33–52. 6 Council Directive (EC) 2009/52 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24 (Employer Sanctions Directive). The Directive applies to the twenty-four EU member states other than Denmark, Ireland, and the United Kingdom. 7 Based on Home Office, Control of Immigration: Statistics—United Kingdom 2000 (Cm 5315, November 2001), Table 7.5 and Home Office, Control of Immigration: Statistics—United Kingdom 2004 (Cm 6690, November 2005), Table 6.5. 8 Immigration Asylum and Nationality Act 2006, ss 15–25; Immigration (Restrictions on Employment) Order 2007, SI 2007/3290. 9 The maximum fine is set out in the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2008, SI 2008/132. The possible reductions are set out in UK Border

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or to its amount, to the UK Border Agency or on appeal to a county or sheriff court.10 In practice, the introduction of civil penalties led to a step-change in the extent of penalization of employers. Between 29 February 2008 and the end of 2012, a total of 8,169 penalty notices had been issued to employers.11 Under both the 1996 and 2006 statutory frameworks, employers have been liable for a penalty only if they have actually employed someone who lacks permission to work. The purpose of checks of documents is to provide an employer with a defence should an employee’s lack of permission come to light. There is no legal obligation on the employer to check anyone’s immigration status, and accordingly no legal bar to the employer’s ‘taking their chances’ that an employee is entitled to work. The position in the UK may be contrasted with that in the United States, and under the EU’s 2009 Employer Sanctions Directive, each of which includes a specific employer duty to make checks of status.12 The 1996 list of documents that employers could rely upon for their statutory defence was comparatively broad, and therefore implied less of a constraint upon employers.13 For example, the list included official documents bearing a national insurance number, even though that number did not necessarily prove a current right to work. The list also left open the possibility of impersonation, as many of the listed documents—again, including official documents bearing a national insurance number—lacked a photograph. In response to concerns that the list was too open, an amendment in 2004 meant that the only documents that could be relied upon without further proof were passports, identity documents, and immigration documents which contained a photograph.14 In other cases, specified combinations of two documents were required. That modified approach was retained when civil penalties were introduced under the 2006 Act. The introduction of the civil penalty scheme tightened the requirements concerning employer checks in two respects. Firstly, re-checks of documents are now required in some circumstances. Under both the 1996 and 2006 Acts, the employer’s defence has depended upon a check being made before the employment relationship commences.15 Agency, Comprehensive Guidance for Employers on Preventing Illegal Working (November 2010) appendix F. The Government has announced its intention to amend secondary legislation in 2014 to introduce new maxima of £15,000 for a first breach, and of £20,000 for further breaches: Home Office, Strengthening and Simplifying the Civil Penalty Scheme to Prevent Illegal Working: Consultation Document (July 2013) paras 28 and 29. 10 Immigration Asylum and Nationality Act 2006, ss 16–17. The Government has proposed that the making an objection to the Secretary of State should be a pre-condition to the right of appeal to a court: see Home Office, Consultation Document (n 9) paras 47 and 48. That proposal is included in the Immigration Bill, which is before Parliament at the time of writing (2013–2014 House of Commons Bills 110, clause 39). 11 Based on written answer given by Immigration Minister, Mark Harper, House of Commons Debates (10 April 2013, col 1147W). 12 For the United States, see Immigration and Nationality Act 1952, s 274A(a)(1)(b). In the case of the European Union, Article 4(1) of the Employer Sanctions Directive provides that ‘Member States shall oblige employers to: (a) require that a third-country national before taking up the employment holds and presents to the employer a valid residence permit or other authorisation for his or her stay’. 13 Immigration (Restrictions on Employment) Order 1996, SI 1996/3225. 14 Immigration (Restrictions on Employment) Order 2004, SI 2004/755. 15 Asylum and Immigration Act 1996, s 8(2)(a) and Immigration (Restrictions on Employment) Order 2007, Articles 3(2) and 5. The requirement to make a check prior to the employment is problematic where the business is subsequently transferred to a new owner, who risks being exposed to liability for any failure on the part of the initial owner. For this reason, the UK Border Agency allows a defence by a new owner

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Under the civil penalty scheme, in addition, re-checks of status are required where an employee has not presented evidence of a long-term right to work. Within the implementing legislation of 2007, ‘List A’ documents are those which do show a long-term right to work, mainly because they demonstrate possession of a European Economic Area (EEA) nationality, permanent residence deriving from EU law, or indefinite leave based on British law. Where List A documents are presented, an employer may rely upon the statutory defence for the remainder of the employment relationship.16 In contrast, documents which give evidence of a right to work which is limited in time are covered by ‘List B’, and protect the employer only for twelve months from the date on which the document was presented.17 A further change which the Government plans will see the general twelve-month rule removed, and its replacement by a requirement to re-check an individual’s right to work on the date that the previous immigration permission expires.18 Secondly, the requirements concerning the content of checks and records are tighter under the civil penalty scheme. The 1996 Act simply required an employer to retain a copy of the key parts of passport or identity document, or of the whole of the document in other cases.19 In addition to requiring a copy to be made on much the same basis as before, the legislation implementing the civil penalty places the following specific obligations upon the employer: to take ‘all reasonable steps to check the validity of the document’, to satisfy themselves that any photograph is of the person concerned, to satisfy themselves that any date of birth given is ‘consistent with the appearance’ of the person concerned, and to take ‘all other reasonable steps’ to check that the person ‘is the rightful owner of the document’ in question. These changes must be thought to have increased the likelihood that employers will query documents presented to them. Under both the 1996 and 2006 schemes, an employer has remained liable, irrespective of any checks, where they know that a worker is employed without permission. The 1996 Act provided that the statutory defence was unavailable where an employer ‘knew that . . . employment of the employee would constitute an offence under this section’.20 The use of the past tense in that Act suggested that the principle was intended to apply only at the point of hiring. It followed that an employer did not commit an offence if they made a bona fide check on status prior to hiring, and only thereafter acquired knowledge that an individual did not have, or no longer had, a right to work. Under the 2006 Act, it is stated that employer knowledge ‘at any time during the period of the employment’ that a person lacks permission to work precludes the employer’s reliance upon the statutory defence to the civil penalty.21 Such knowledge also exposes an employer to a specific criminal offence, as the 2006 Act provides that ‘a person . . . commits an offence if he employs’ another person, ‘knowing that’ the other person where they make a check within twenty-eight days of the transfer of a business: UK Border Agency, Full Guide for Employers on Preventing Illegal Working in the UK (May 2012) 73. 16 Immigration (Restrictions on Employment) Order 2007, Article 3. 17 Immigration (Restrictions on Employment) Order 2007, Article 4. 18 Home Office, Consultation Document (n 9) paras 44–46. 19 Immigration (Restrictions on Employment) Order 1996, Schedule, Part III. 20 Asylum and Immigration Act 1996, s 8(3). 21 Immigration Asylum and Nationality Act 2006, s 15(4).

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lacks permission to work, or to accept the employment in question.22 This use of the present tense implies that the criminal offence may be committed at any stage of the employment relationship.23 A final point is that, in cases where there may be an ongoing immigration application, assistance to employers is provided by the Employer Checking Service (ECS) administered by UK Visas and Immigration. Confirmation of an individual’s permission to work through the ECS is a precondition to the employer’s statutory defence where the employer relies upon a worker’s certificate of application as a non-EEA family member.24 Reliance upon the ECS is also required where the worker produces a registration card showing that they are an applicant for international protection with permission to take employment.25 A third case is that of individuals who apply for fresh leave under the Immigration Act 1971 before an initial period of leave has expired. In those circumstances, the initial leave, and any rights of employment which derive from it, are deemed to continue until the application is resolved, and any related appeal rights are exhausted.26 Where a worker claims that they have made an application for fresh leave, employers may use the ECS to check the status of any application or appeal.27 Given the inherent difficulty of ensuring up-to-date information concerning applications and appeals, the ECS must, however, be considered an imperfect system.

III. Employer Checks During Recruitment Two categories of legal question raised by employer checks of immigration status during recruitment are discussed in this section. Firstly, are there duties upon employers to recognize the right to work of certain employees? Secondly, which employer practices concerning checks are incompatible with discrimination law?

1. Is there a legally enforceable right to work? When an employer checks immigration status during a recruitment process, is the employer under any general duty to recognize a worker’s legal entitlement to work, or to take reasonable steps to investigate it? At the domestic law level, there appears to be no basis for any such obligations. While the common law has historically recognized a right to pursue a lawful trade or occupation, it has done so only in relation to those

22

Immigration Asylum and Nationality Act 2006, s 21(1) (emphasis added). The 2006 Act also introduced the possibility of a sentence of imprisonment for the criminal offence: Immigration Asylum and Nationality Act 2006, s 21(2). This is given particular relevance by the provision in the 2006 Act that, where an officer of a body corporate consented to, or connived in, the employment of workers who lacked permission, both the individual and the corporate body are guilty of an offence: Immigration Asylum and Nationality Act 2006, s 22. A similar provision had also been included in the 1996 Act but without the sanction of imprisonment: Asylum and Immigration Act 1996, s 8(5). 24 Immigration (Restrictions on Employment) Order 2007, List B, point 3. 25 Immigration (Restrictions on Employment) Order 2007, List B, points 4 and 6. 26 Immigration Act 1971, s 3C. 27 See Employer Checking Service accessed 17 March 2014. 23

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who seek to regulate its practice.28 That principle does not extend to individual employers, who remain free at common law to refuse to hire for any reason.29 If there is an exception, it concerns persons with directly effective rights to work which flow from EU law—ie the nationals of other European Economic Area states and Switzerland,30 the family members of such persons,31 certain Turkish nationals and their resident family members,32 and refugees and beneficiaries of subsidiary protection.33 As these rights are vertically directly effective, it is arguable that there is a duty on public employers to respect individuals’ right to work. Moreover, in the specific case of the right to work of EU citizens, the Treaty provision in question is horizontally directly effective, so that the same duty also applies to private employers.34 To the extent that an EU law right to work is legally enforceable as such, it might be possible to rely upon it against an employer who had either refused to recognize that right, or had refused to accept the evidence for it presented by the individual. Alternatively, it might be possible to claim that an employer had taken insufficient steps to confirm the right to work which the individual had claimed. In either case, the difficulty is to reconcile EU law rights to work with the requirements of the 2006 Act and its implementing legislation. If the civil penalty system, taken as a whole, provides sufficient possibility for persons who are entitled to work under EU law to prove their entitlement, it is arguable that an employer should not have to go further. That would mean a compromise position whereby EU law rights to work were enforceable within the terms of the 2007 Order, but not beyond it.

28 The leading statement of the principle is that of Lord Denning in Nagle v Fielden [1966] 2 QB 633; 644–5: ‘The common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the governance of it.’ 29 For a discussion of the absence of a common law remedy for non-hiring, see B Hepple, ‘A Right to Work?’ (1981) 10 ILJ 65, 73. 30 See Article 45 of the Treaty on the Functioning of the European Union (TFEU) [2010] OJ C 83/47; Article 28 of the Agreement on the European Economic Area [1994] OJ L 1/3 and Article 7(a) of the EU–Swiss Agreement on the Free Movement of Persons [2002] OJ L 114/6. 31 In relation to these family members, see Article 23 of Council Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 (Citizens Directive); Council Decision 158/2007 of 7 December 2007 amending Annex V (Free movement of workers) and Annex VIII (Right of establishment) to the EEA Agreement [2008] OJ L124/20 and Article 7(e) of the EU–Swiss Agreement on the Free Movement of Persons [2002] OJ L114/6. 32 Turkish nationals acquire an unrestricted right to take employment after four years’ lawful employment in a Member State, and their family members acquire the same right after five years’ lawful residence: Article 6(1) and Article 7 of Decision 1/80 of the EEC–Turkey Association Council, available at accessed 17 March 2014. 33 Article 26 of the 2004 Qualification Directive (Council Directive 2004/83/EC, [2004] OJ L 304/12) confers an unrestricted right to work upon refugees. In the case of beneficiaries of subsidiary protection, it provides that member state’s labour market situation ‘may be taken into account . . . for a limited period of time to be determined in accordance with national law’, but the United Kingdom has not made use of this option. The option has been removed in most other Member States: see Article 26 of the recast Qualification Directive of 2011 (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9). 34 Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-04139.

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2. Avoiding discrimination The limited possibility for legal rights to work to constrain individual employers means that the more important question in practice is whether employer attempts to comply with immigration law fall foul of discrimination law. First, what if an employer differentiates in the nature of the checks imposed upon persons who are—or claim to be—in different categories? Secondly, what if an employer uses any information they obtain to favour some immigration statuses over others? In either case, the central question is whether employers discriminate on grounds of nationality. Under domestic law, that category of discrimination was previously prohibited for all employers by the Race Relations Act 1976, and is now contrary to the Equality Act 2010. In addition, nationality discrimination by employers is likely to be prohibited under EU law to the extent that the right to work in question is directly effective (discussed earlier), ie for all employers in the case of EU citizens, and for state employers alone in the case of other persons with an EU law right to work.35

i. Differences in checks We saw in section II that British legislation does not set out a specific obligation upon employers to check any individual’s permission to work. The absence of such an obligation has been offset by official statements, throughout the period since employer penalties were introduced, that ‘[t]he best way to ensure that you do not discriminate is to treat all applicants in the same way at each stage of the recruitment process.’36 Since 1999, that position has been supported by a statutory duty on the Home Secretary to publish a code of practice on compliance by employers with race discrimination law as they seek to meet their obligations under employer penalties legislation.37 While a breach of the Code by an employer does not lead to legal liability, it is stated in the legislation that such a breach ‘may be taken into account by a court or tribunal’. The Code is therefore potentially relevant in proceedings concerning alleged discrimination. In general, Article 18 TFEU prohibits discrimination on grounds of nationality ‘within the scope of application of the Treaties’. Beyond that, Article 24 of the Citizens Directive provides for equal treatment with nationals of the Member State at issue ‘within the scope of the Treaty’, for EU citizens and their family members who are lawfully resident. The benefit of that rule extends to nationals of other EEA states by virtue of the Decision of the EEA Joint Committee 158/2007 amending Annex V (Free movement of workers) and Annex VIII (Right of establishment) to the EEA Agreement. Article 7(a) of the EU–Swiss Agreement on the Free Movement of Persons requires ‘equal treatment with nationals in respect of access to, and the pursuit of, an economic activity’, though without being clear whether it extends to their family members. There is no equivalent general statement in the legislation applicable to Turkish nationals and their family members, or that applicable to refugees and beneficiaries of subsidiary protection. 36 See Home Office, Prevention of Illegal Working: Guidance for Employers (Home Office 1996) 3; UKBA, Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working (UKBA February 2008) para 7.3. 37 A code of practice was first required by the Asylum and Immigration Act 1996, s 8A, as a result of an amendment made by the Immigration and Asylum Act 1999. The current provision for the code is s 23 of the 2006 Act. 35

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In the conduct of employer checks, it appears self-evident that overt distinctions on the basis of nationality amount to direct discrimination. An example might be where an employer first asked each applicant their nationality, and then investigated the right to work only of those who did not claim British (or EEA) nationality. Alternatively, an employer might make assumptions about nationality from someone’s appearance, accent, name, etc, and only ask for proof of the right to work from those assumed not to be British (or EEA) nationals. Despite the apparently elementary nature of the conclusion that overt distinctions amount to direct discrimination, the Court of Appeal reached a different view in the pre-employer penalty case of Dhatt, decided in 1990.38 That concerned an Indian national who had been refused employment, despite having indefinite leave and an unrestricted right to work, after an employer required proof of the right to work only of those who did not declare a (then) European Economic Community (EEC) nationality. The Court of Appeal held that the employer’s policy did not breach the Race Relations Act 1976 as, through immigration legislation, Parliament had placed persons with an EEC nationality in a different position to others. Accordingly, in the language of the 1976 Act, the ‘relevant circumstances’ of the two groups were not the same.39 The reasoning in Dhatt must be thought suspect even as the law stood at that time. In the absence of a statutory requirement upon employers to ensure that their employees had permission to work, it was not clear why someone who claimed to be an EEC national was in a different position to a person who did not possess such a nationality. In Dhatt, the judges offered two different reasons—that an employer had a ‘general responsibility’ or ‘public duty’ to ensure compliance with the law by their employees, and that the employer risked criminal liability as an ‘aider or abettor’ of the employee’s criminal offence if they did not do so.40 While each of those arguments explained why an employer might legitimately check job applicants’ permission to work, neither appeared to justify differences of treatment on grounds of declared nationality within those checks. Once the employer had decided to check permission to work, the ‘relevant circumstance’ was that of being a job applicant, and there was no obvious rationale for exempting some applicants from the need to produce evidence, solely on the basis of the nationality they declared. In any event, the subsequent introduction of employer penalties is a further reason to doubt the approach taken in Dhatt. Even though the legislation concerning employer penalties does not technically require checks, its effect is that employers should take responsibility for the permission to work of all employees. It is for that reason that provision is made within the secondary legislation for British and other EEA nationals to prove their nationality or right to work. Employer penalty legislation must be thought inconsistent with the notion that those who claim an EEA

38

Dhatt v McDonalds Hamburgers Ltd [1991] ICR 238. The case is treated here as concerned with recruitment, although the applicant was in fact suspended and dismissed soon after starting employment. 39 See Race Relations Act 1976, s 5(4). For the corresponding language in the current Equality Act 2010, see s 23(1). 40 In Dhatt (n 38) Neill and Stocker LJJ advanced the former theory (247 and 249) while Staughton LJ favoured the latter (252).

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nationality are in a different position from those who do not, in relation to proof of entitlement to work.

ii. Favouring certain immigration statuses A further set of questions concern the outcome of employer checks within the recruitment process. If an employer were to differentiate on grounds of nationality as a result of the checks, then that would presumably amount to prohibited direct discrimination under the Equality Act 2010. What, though, if an employer favoured or disfavoured workers with certain immigration statuses, as evidenced by the immigration documents they produce?41 In general, favouring those with secure immigration statuses would tend to favour British and other EEA nationals. Conversely, favouring those with less secure immigration statuses would tend to favour other nationalities. Where an employer had a policy of doing either, there would be a risk of indirect discrimination, as the policy would involve the application of ‘a provision, criterion or practice’ which placed certain nationalities at a ‘particular disadvantage’, and the central question would be whether the policy was objectively justified.42 The UK Visas and Immigration guidance on discrimination and employer checks states only that employers should not favour applicants who produce List A documents over List B documents, as persons in the latter category might be able to extend their entitlement to work in Britain.43 The guidance does not, however, contain any general statement of principle that all statuses are to be treated as equally valid by employers. Neither does it explain why favouring some documents over others may breach discrimination law. A general approach to the question of indirect nationality discrimination in the recruitment process may, however, be derived from the Employment Appeal Tribunal (EAT) decision in Osborne Clarke Services v Purohit in 2009.44 That concerned an Indian national whose application for a training contract had been rejected, because of the employer’s policy of not considering applicants for whom a work permit would be required. The EAT firstly found that the policy put non-EEA nationals at a particular disadvantage. It went on to uphold the employment tribunal’s finding that the policy lacked objective justification, as it was based on the ‘conjecture’ that a work permit would not be obtained, if applied for. In the EAT’s words ‘in the absence of any evidence as to dialogue with the UKBA [UK Border Agency] or any attempts to apply 41 For example, a study in 2008 found that some recognized refugees faced difficulty in proving a right to work to employers, apparently because they could not produce passports: Migrant Rights Network, Papers Please: The Impact of the Civil Penalty Regime on the Employment Rights of Migrants in the UK (Migrant Rights Network 2008) 14–15. 42 Equality Act 2010, s 19. Note that, in the case of indirect nationality discrimination, the Race Relations Act 1976, s 1(1)(b) previously applied only to employer practices which amounted to a ‘requirement or condition’. For a discussion of justification of indirect favouring of British or EEA nationalities by employers, see B Ryan, ‘Transnationalism and Labour Law: The “British Jobs” Protests of 2009’ in M Moreau (ed), Before and After the Economic Crisis: What Implications for the ‘European Social Model’? (Edward Elgar 2011) 81–2. 43 UKBA, Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working (UKBA February 2008) para 7.5. 44 Osborne Clarke Services v Purohit [2009] UKEAT/0305/08/ZT.

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for a permit [the firm] did not begin to establish the level of evidence that is required to prove a justification on an objective basis.’45 While Osborne was concerned with someone who did not have current permission to work in Britain, it is also relevant where an employer wishes to favour those with more secure immigration statuses over others. The implication of the ruling is that an employer cannot avoid a finding of indirect discrimination by relying upon generalizations as to the greater cost of employment of such a person with such a status. Instead, the employer would have to show a genuine need for someone with the requisite immigration status, and also why it could not be expected that a sufficient immigration status to meet that genuine need would be obtained. Conversely, favouring workers with less secure statuses is unlikely to be defensible in the same way. Even if an employer expected that workers with weaker statuses might require lower wages, or be more productive, it is hard to see that those considerations could provide an acceptable justification for the purposes of discrimination law.

IV. Checks During the Employment Relationship The next topic to be addressed is the legal position where an employer decides to investigate an individual’s immigration status after the employment relationship has begun. Two issues are examined here: selection for employment checks during the employment relationship, and suspension pending the resolution of the individual’s position, where they do not establish a current right to work to the employer’s satisfaction.

1. Selection for checks Employers who are familiar with immigration law must be thought likely to consider making employment checks during the employment relationship, at least in relation to workers who commenced employment on or after 29 February 2008, and who have previously presented List B documents. The employer may also contemplate checks on some or all of their other employees, in order to avoid differential treatment among them, or because of the organizational desirability of certainty about all employees’ immigration status. The question to be addressed here is how an employer who is considering in-employment checks can avoid falling foul of the discrimination law principles examined in section III. In order to comply with discrimination law, one option for the employer is to make checks on none of their employees after employment begins. That approach of course exposes the employer to liability where a List B document was initially presented by a post-29 February 2008 employee. It may be, however, that very few post-29 February 2008 employees present List B documents to begin with, or that very few employees who present List B documents remain for more than one year. From a legal perspective,

45

Osborne (n 44) [22].

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one advantage for an employer of re-checking no-one is that, without differentiation, no breach of discrimination law is possible. For an employer who wishes to make checks after the employment relationship has begun, discrimination law presumably requires equivalent checks on all post-29 February 2008 employees who previously presented List B documents. Even if neutral criteria are used, selection within this group is likely to favour some nationalities over others, and therefore to risk indirect nationality discrimination, as there is no apparent objective justification for such differentiation. It does appear acceptable for an employer to check only those hired on or after 29 February 2008 who previously presented List B documents. While that approach would tend to favour EEA nationals over others, it would presumably be capable of justification with reference to the employer’s purpose of avoiding liability under the civil penalty scheme. More difficult issues arise where an employer makes checks of immigration status during the employment relationship which include employees for whom this is not required under the civil penalty scheme. From the perspective of discrimination law, one option for an employer is presumably to make an equivalent check on the immigration status of all their employees. This could take the form, for example, of a check on all employees at a given point in time, or of a check at equivalent intervals within each employment relationship. While such a system of checks might seem excessive—and might have questionable motives—there cannot be a breach of discrimination law if there is no differential treatment. By contrast, the employer might fall foul of discrimination law where they checked the status of only some of those for whom checks were not required under the civil penalty scheme. If such a selection were based on appearance, ethnicity, or nationality it would presumably amount to direct race discrimination. Alternatively, if the selection were based on an individual’s previously demonstrated immigration status, it would risk indirect nationality discrimination, as it would tend to favour EEA nationals, without apparent justification. It is only where the selection criteria were unrelated to prohibited grounds or to immigration status that the employer might avoid liability under discrimination law. For example, an employer might operate post-employment checks of employees in some occupations, but not in others. Even then, if the effect were to favour some nationalities over others, an objective justification linked to an employer need would have to be identified.

2. Suspension If an employer has made an immigration check during the course of employment, what if they are not satisfied with the evidence of a current right to work provided by a given employee? As we saw in section II, once an employer ‘knows’ that a post-29 February 2008 employee lacks the right to work, they lose any protection from a civil penalty and commit a criminal offence. Against that background, an employer who is not satisfied may consider suspending or dismissing the employee. The legal position concerning suspension is examined here, while dismissal is addressed in section V.

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i. The possibility to suspend Suspension after an unsatisfactory immigration check might serve a variety of purposes. An employer might have a genuine doubt as to whether the employee has a right to work or not, which they wish to investigate further. Alternatively, the employee might claim to be temporarily unable to provide any of the documents required under the civil penalty system, so that suspension provides an opportunity for those documents to be obtained. A third possibility is that suspension might allow an employee to improve their immigration status—perhaps with the assistance of the employer—for example, by leaving the UK and making an entry clearance application in an immigration category with a right to work. Finally, suspension creates an opportunity for consideration of the employer’s final decision, if evidence of a current right to work cannot be provided, and there is no immediate prospect of providing it.46 From a legal perspective, a key question is the status of the employment relationship during an immigration-related suspension. It is arguable that, during a suspension, the employment relationship is neither continuing nor terminated.47 In the immigration context, the particular advantage of suspension to the employer is to give them protection from the consequences of any ‘knowledge’ that they may acquire of an employee’s lack of status. That in turn implies that any such knowledge need not necessarily lead to the termination of the employment relationship, but may instead permit other solutions to be found. The employer’s power to suspend the employment relationship for immigration status reasons is regulated by the contract of employment. Express contractual provision for such a suspension must be thought unlikely, so that any employer power will be based on an implied term of the contract. In employment law, the general test of implied terms is that they should reflect the nature of the employment relationship.48 Contemporary immigration law exposes both employers and employees to liability if an individual is employed without a right to work.49 It is also significant that employees typically have more information about their immigration status, and more control over its proof, than do their employers. For both reasons, it might be thought to follow that employees are under an implied contractual duty to take reasonable steps to prove their continuing right of work, if required. By extension, employers must have the power to suspend where they have reasonable doubts concerning the individual’s status.

46 Suspension in an immigration context is analogous to what Freedland has termed ‘precautionary suspension’. That involves ‘the suspension of workers from work . . . while allegations of evidence of misbehaviour are under investigation, or while the process of deciding whether they are to be disciplined or dismissed is taking place’: M Freedland, The Personal Employment Contract (Oxford University Press 2003) 471. 47 In Freedland’s analysis (Freedland (n 46) 465) a period of ‘contractual suspension’ usually involves ‘the transformation of the personal employment contract from the mode or state of contractual employment into the mode of being between periods of contractual employment, or sub-employment mode. Essential to this idea is the notion that the personal employment contract is transformed but not terminated when it moves into this sub-employment mode.’ 48 See S Deakin and G Morris, Labour Law (6th edn, Hart Publishing 2012) 263–4. 49 Employer civil and criminal liability was discussed in section I. An employee who works without permission is likely to commit an offence under the Immigration Act 1971, s 24, which prohibits illegal entry, overstaying, and breach of condition of immigration leave.

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ii. Payment during suspension Payment during an immigration-related suspension raises further complex issues. On the one hand, employees with a right to work may legitimately object to being denied their wages. Their objection will be especially compelling where any difficulty with proof of a legal right to work is due to circumstances out of their control—such as the immigration authorities’ delay in issuing the required document(s)—or is due to the employer’s failure to accept the evidence of a right to work which has been presented. On the other hand, employers may consider it illogical to suspend an employee with pay when that person either does not have a right to work, or has failed to take reasonable steps to prove that they do so. The legal position concerning payment during an immigration-related suspension has arisen in two cases before the EAT in recent years. The first was Kurumuth, in which the EAT delivered its full judgment in March 2011.50 That concerned a Mauritian national employee who had been suspended without pay because of doubts about her immigration status. The employee actually had a legal right to work, because of an unresolved appeal against a refusal to extend her leave to remain, but was dismissed after a failure to provide evidence of that right to the employer. The employment tribunal rejected a claim under the contract for payment during the period of suspension. When an appeal against the tribunal decision was considered within the EAT’s case management procedure, the judge (HHJ Peter Clark) concluded that the claim to payment during suspension had a ‘reasonably arguable prospect of success’, and the point was later conceded by the employer.51 The chair of the EAT which heard the appeal, HHJ McMullen, agreed that ‘while the Claimant was employed, she could not be suspended without pay.’52 (The unfair dismissal claim in the case is considered in section V.) The second case was the September 2011 decision in Okuoimose.53 That concerned a Nigerian national who was entitled to live and work in the UK as the spouse of an EEA national exercising free movement rights. When she commenced employment, her passport confirmed her right of residence as the family member of an EEA national, but later she failed to provide evidence of the extension of that right, and was suspended from employment. When UKBA then indicated to the employer that it could find no record of her having an ongoing application for a residence document, the employer dismissed her. In fact, the worker had by then applied for a residence card as the family member of an EEA national, and when UKBA issued her a ‘certificate of application’, the employer rescinded the dismissal. The claim in the case was for the wages that would have been paid during the period of suspension. In approaching that question, HHJ McMullen started from the proposition that the applicant had at all times had a right to work in the UK, by virtue of EU law and implementing Regulations. It followed in his view that the contract of employment was not tainted by illegality, and that the wages she was denied through suspension were ‘unlawfully deducted’, and could be recovered.54

50 51 53 54

Kurumuth v NHS Trust North Middlesex University Hospital [2011] UKEAT/0524/10/CEA. 52 Kurumuth (n 50) [4]. Kurumuth (n 50) [18]. Okuoimose v City Facilities Management [2011] UKEAT/0192/11/DA. See Employment Rights Act 1996, s 13.

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One question which may be asked of Okuoimose is which workers are covered by it. The EAT ruling is open to the narrow reading that it only concerns workers with a directly effective right to work under EU law (discussed earlier). It is at least arguable that these workers are in a special position, because their right to work is not conditional on the issuing of any document. Limiting the principle of payment during suspension in this way is, however, open to the objection that—as we saw in section II— no worker with a right to work is legally required to produce a document as evidence of that entitlement. The rationale in Okuoimose therefore appears applicable to all workers who are suspended for immigration reasons, but who actually have a right to work: ie all such workers should be able to claim payment for periods of suspension. That conclusion is moreover supported by the EAT’s understanding of the matter in Kurumuth, which was not an EU law case. Whichever view is taken of its scope, the ruling in Okuoimose is open to criticism for having focused on the employee’s right to work, rather than on the implied terms of the contract of employment. One difficulty with that approach concerns those without a right to work, who would not then have a right to be paid during suspension. In most situations, an employer will, however, be unable to know in advance which category a given worker about whom there are doubts is in. A different solution potentially emerges if we ask which implied terms flow from the nature of contemporary employment relationships. Given the combination of employer’s duties under immigration law and employees’ need for income security, it is arguable that all workers whose right to work is in doubt should be contractually entitled to payment during any immigration-related suspension.55 A second problem with reasoning from the right to work concerns the possibility that the suspension may have occurred because of—or may have been prolonged by— the employee’s failure to take reasonable steps to prove their right to work to the employer. (The facts in each of Kurumuth and Okuoimose illustrate the general point.) Here, the problem with a focus on the right to work alone is that it may absolve the employee of any responsibility for proof. In contrast, within a contractual logic, it is arguable that an employee ought to take reasonable steps to prove their entitlement to work. Employers will, however, struggle to know which employees have not behaved unreasonably. Given the employee’s need for income security, the conclusion under the contract is likely to be that all suspended employees should continue to be paid. An employer who considers that the employee has behaved unreasonably in relation to proof can instead have recourse only to dismissal.

V. Dismissal Immigration checks after employment has commenced may eventually lead to dismissal. Two legal scenarios are examined here: dismissal after an error as to the individual’s right to work, and dismissal after a correct assessment that the individual lacks such a right. 55 It should be noted that the doctrine of illegality (discussed in section V) precludes an employee without a right to work from bringing a legal claim based on the contract of employment. That doctrine goes to enforceability, however, rather than the initial question of entitlement under the contract.

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1. Right to work cases: dismissal in error The question of dismissal in error for immigration-related reasons was first addressed by the EAT in 1980, in Bouchaala.56 That concerned a Tunisian national who had been dismissed after the Department of Employment had both refused an extension of his working visa and advised the employer that continued employment was illegal. After the dismissal, the Home Office wrote to the employer correcting its advice, as the applicant had previously been granted indefinite leave by an immigration officer. When the employee claimed unfair dismissal, the employer argued that the dismissal was justified by the need to avoid the contravention of a statutory duty.57 The EAT rejected that argument, reasoning that the ‘statutory duty’ justification was only available if continued employment would actually have been illegal. But it went on to conclude that the employer’s genuine belief that there was ‘an enactment prohibiting further lawful employment’ fell within the concept of ‘some other substantial reason’, which was capable of justifying a dismissal.58 It therefore rejected the employee’s appeal against the decision of the industrial tribunal which had found the dismissal to be fair. The reasoning in Bouchaala was followed by the Court of Appeal in November 2007 in Klusova, albeit with a different outcome.59 The applicant was a Russian national whose right to work was based upon an application for fresh leave. Before her immigration application was resolved, the employer dismissed her, after having been incorrectly advised by an office of the Immigration Service that the applicant no longer had a right to work. The employer sought to argue that the dismissal was justified under the ‘statutory duty’ heading, as continued employment would have been an offence under the 1996 Act. The first-level employment tribunal, however, had concluded that the worker had been entitled to work, and the Court of Appeal upheld the tribunal’s finding. Having lost on that point, the employer was unable to succeed under the ‘some other substantial reason’ heading, as the employer had not followed the mandatory statutory procedure then in force.60 Essentially the same conclusion was reached by the EAT in Kelly v University of Southampton in December 2007.61 That case concerned a US citizen for whom a work permit had been obtained for five years, but who had initially been granted leave to remain in the UK for only four years. Because she did not make an application for fresh leave until after her initial leave had expired, her initial leave was not extended automatically, and she was dismissed. On close examination of the statutory material,

56

Bouchaala v Trusthouse Forte Hotels [1980] ICR 721. Then Employment Protection (Consolidation) Act 1978, s 57(2)(d) and now Employment Rights Act 1996, s 98(2)(d). The ‘statutory duty’ justification covers legal obligations upon either the employer or the employee. 58 See the then Employment Protection (Consolidation) Act 1978, s 57(1) and now the Employment Rights Act 1996, s 98(1). 59 Hounslow LBC v Klusova [2007] EWCA Civ 1127, [2008] ICR 396. 60 Employment Rights Act 1996, s 98A, in force from 1 October 2004 to 5 April 2009. 61 Kelly v University of Southampton [2007] UKEAT/0295/07/ZT, [2008] ICR 357. 57

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however, the continuing validity of the work permit meant that her employer was not liable for the criminal offence set out in the 1996 Act.62 Accordingly, the EAT found that the employer was unable to rely upon the ‘statutory duty’ justification for dismissal. Here, too, because the employer had not followed the statutory dismissal procedures, it could not rely upon the ‘some other substantial reason’ ground for dismissal. A final case to consider under this heading is the EAT decision in Kurumuth, to which reference was made in section IV. The employment tribunal there had concluded that the employer’s decision to dismiss an employee who failed to give evidence of their right to work was substantively fair. The tribunal had also held that the dismissal was procedurally unfair, as the employer had dismissed the employee summarily once it concluded that there was no evidence of a right to work. Each of these findings was endorsed by the EAT.63 The outcome in Kurumuth concerning procedural unfairness is of particular significance, as the dismissal there came after the repeal of the statutory provision for automatic procedural unfairness which had been decisive in Klusova and Kelly. The legal position is therefore again much as it was in Bouchaala—ie an employer’s genuine mistake is not covered by the ‘statutory duty’ ground, but may be classed as ‘some other substantial reason’. If the employer wishes to rely upon that ground, the substantive fairness of the dismissal will be assessed by an examination of the reasonableness of that incorrect belief. In particular, the contribution of the immigration authorities, the employer, and the employee to that conclusion will be especially relevant. The employer will also have to show that the dismissal was procedurally fair, in the sense that the employee was given an opportunity to make representations after a decision to dismiss was taken. At the least, such a procedure ought to provide an opportunity (or a further one) for an employee to demonstrate that they are entitled to work.

2. Dismissal where there is no right to work A different set of questions arises where an employer dismisses the employee after correctly concluding that they lack a current right to work. This subject was addressed in a coda to the judgment in Kelly. After having found that the applicant there could not have been dismissed for ‘statutory duty’ reasons, the EAT offered three reasons why a dismissal for that reason need not always be a fair one. The first was that the employee’s lack of permission to work might have ‘resulted from some past conduct or omission of the employer’.64 Secondly, a dismissal might be unreasonable ‘because something [could] readily be done in the future to remedy the position’.65 That was the position in Kelly itself, as, by the time of the dismissal, the employee had applied for 62 Section 8(1) of the 1996 Act permitted the strict rule requiring the employee to have permission under immigration law to be relaxed by statutory instrument. That had been done by Schedule 1, para 3 to the Immigration (Restrictions on Employment) Order 1996 and Article 3(3) of the Immigration (Restrictions on Employment) Order 2004, according to which the employer did not commit an offence if the employee was ‘permitted to work under the Immigration Rules’. Note that there is no equivalent provision in the current legislation on civil penalties. 63 64 65 Kurumuth (n 50) [12]. Kelly (n 61) [57]. Kelly (n 61) [62].

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indefinite leave with the employer’s support.66 Thirdly, it might be appropriate to take certain procedural steps before a dismissal was finalized, particularly ‘where the illegal state of affairs is disputed, or is technical, or arises from some kind of oversight which can be remedied by the time an [internal] appeal would have been heard.’67 In the EAT’s assessment, that case gave clear examples of procedural breaches, as the University had initially given the applicant a period of grace to resolve her immigration position, before then changing tack and dismissing without either a warning or a hearing.68 The doctrine of illegality is, however, a complicating factor in this context. The common law principle that an individual may not rely upon their own wrongdoing is taken to preclude claims under the contract of employment by workers who lack permission to work under immigration law.69 Accordingly, if a worker who lacks permission to work is dismissed, however arbitrarily, the current legal starting-point is that they cannot bring a claim of unfair dismissal. The legal position as regards dismissal claims appears unaffected by Hounga v. Allen, in which the Supreme Court permitted discrimination claims arising out of an employment relationship, notwithstanding illegality in the formation of the relationship, if there were elements of trafficking and forced labour.70 If the illegality rule continues to operate within employment law, it is conceivable that it might one day be relaxed in the kinds of circumstance discussed in Kelly—ie where the employer is at fault, or steps could readily be taken to remedy the situation, or the breach of the rules is technical in nature. For that reason, it is not irrelevant to speculate on the application of unfair dismissal law to a person without a current right to work.

VI. Conclusion On the evidence of this chapter, employer checks of immigration status have thrown up new and difficult questions within employment law. While plausible answers to many of these questions have been outlined by the courts, or may be deduced from general principles, room for uncertainty remains. At the recruitment stage, it is unclear how much weight is to be given to rights to work flowing from EU law, and also how far an employer may favour those with more secure immigration statuses. During the employment relationship, there are doubts as to the limits to employer selectivity in checks of current permission to work, and also in relation to the payment of employees who are suspended. In the event of dismissal, the more difficult issues concern those who lack a right to work: should they, too, have procedural or substantive protection in appropriate cases? Legal questions arising out of employer penalties and checks are likely to continue to be a feature of employment law. At the policy level, there is no apparent pressure 66

67 68 Kelly (n 61) [66]. Kelly (n 61) [65]. Kelly (n 61) [66]. A recent example is Zarkasi v Anindita and Tse Tan [2012] UKEAT/0400/11/JOJ. For a discussion of the doctrine of illegality in the employment context, see B Ryan, ‘The Evolving Legal Regime on Unauthorized Work by Migrants in Britain’ (2005) 27 Comparative Labor Law and Policy Journal 27, 43–8. 70 [2014] UKSC 47. Lord Wilson (with whom Lady Hale and Lord Kerr agreed) suggested that the public policy against trafficking and forced labour ‘might conceivably’ permit a claim for unpaid wages, but avoided making an equivalent statement in relation to claims concerning dismissal (para 24). In his separate judgment, Lord Hughes (with whom Lord Carnwath agreed) did not endorse even the modest opening proposed by Lord Wilson, stating that ‘Miss Hounga’s contractual claims have rightly not been pursued’ (para 54). 69

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for a reversal of the civil penalties introduced in 2008, or for removal of the de facto obligation to re-check the status of many workers which they imply. At the same time, the share of foreign-born workers within the labour force has increased, from 7 per cent at the time employer penalties came into force in 1997, to 15 per cent by the end of 2013.71 If employer checks remain, and are applied to a highly diverse workforce, further clarification and adaptation of employment law principles by courts and tribunals seems unavoidable.

71 The Labour Force Survey shows that 7.3 per cent of the employed population were foreign-born in the first quarter of 1997, as compared to 14.7 per cent in the fourth quarter of 2013. This figure covers men aged 16–64 and women aged 16–59, and includes both employees and self-employed. For a discussion of these trends, see C Rienzo, Migrants in the UK Labour Market: An Overview (Migration Observatory, August 2012).

14 Migrant Workers and the Right to Non-discrimination and Equality Shauna Olney and Ryszard Cholewinski*

I. Introduction This chapter examines the right of migrant workers to non-discrimination and equality in international law. It starts from the premise that this principle is fundamental to the body of international labour standards and human rights which have been adopted since the establishment of the International Labour Organization (ILO) in 1919 and the United Nations (UN) in 1945. The principle permeates the core international human rights treaties adopted by the UN General Assembly and the human rights mechanisms that have been established under the UN Charter. It is also prevalent in the ILO fundamental Conventions, which are part of the UN human rights framework, and the ILO supervisory bodies, as well as in a range of other ILO Conventions, including those addressing labour inspection and protection of wages, and the various instruments adopted to protect specific categories of workers, including migrant workers. However, the application of the principle of non-discrimination and equality to nonnationals and migrant workers in particular, while relatively uncontroversial in the abstract, is being challenged in many parts of the world, especially in the current global economic crisis, as the availability of decent work becomes increasingly scarce. Certain categories of migrant workers remain at greater risk of poor working conditions and exploitative treatment, such as those in an irregular situation, low-skilled temporary workers, and migrant domestic workers. Given this context, this chapter charts a course through the range of international legal instruments, with particular reference to international labour standards and the work of the ILO supervisory bodies, and takes a snapshot of some of the key issues that challenge the full enjoyment by migrant workers of the right to non-discrimination and equality.

* Shauna Olney is Chief of the Gender, Equality and Diversity Branch, in the Conditions of Work and Equality Department of the International Labour Organization (ILO), Geneva. Ryszard Cholewinski is a Migration Policy Specialist in the Labour Migration Branch, Conditions of Work and Equality Department at the ILO. The ideas and observations in this article constitute the personal views of the authors and do not necessarily reflect or engage those of the ILO, or its constituents.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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II. International Framework for Non-Discrimination and Equality Applicable to Migrant Workers 1. General principles The Preamble to the 1948 Universal Declaration of Human Rights (UDHR) proclaims that all members of the human family are entitled to ‘equal and inalienable rights’, underscoring the importance of the equality principle as a foundation of freedom, justice and peace in the world.1 But prior to the UDHR, the UN Charter, signed in June 1945, reaffirms ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’, and recognizes as one of the purposes of the UN ‘to achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.2 Even earlier, the Declaration of Philadelphia concerning the Aims and Purposes of the International Labour Organization,3 which was adopted in 1944 and incorporated into the revised ILO Constitution of 1946 (when the ILO became the first specialized agency of the UN), espouses the equality principle in the context of the pursuit of material well-being and spiritual development, of particular relevance, therefore, to those persons who leave home to seek a better life elsewhere, notably migrant workers.4

2. United Nations framework for the protection of human rights The international protection of human rights is organized on two levels. First, there is the protection afforded under the UN Charter-based organs which is inextricably linked to the goals of international peace and security and friendly relations among nations, and thus the prevention of further conflict.5 As noted earlier, realization of non-discrimination and equality is one of the central tenets of the UN. The Charterbased system of human rights protection includes the following main mechanisms:6 the possibility of bringing complaints of violations of human rights under the confidential 5/1 procedure;7 special procedures designating a rapporteur, working group, or Special Representative of the UN Secretary General to consider violations of human rights relating to a specific country situation or thematic issue in all parts of the world;8 and

1

Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III). Charter of the United Nations (adopted 26 June 1945), Preamble, and Arts 1(3) and 55(c). 3 Declaration concerning the Aims and Purposes of the International Labour Organization 1944, Parts I(a) and II(a). 4 The ILO is constitutionally mandated to protect migrant workers. See section II.3 of this chapter. 5 UN Charter, Art 55(c). 6 These underwent revision since the establishment of the new Human Rights Council to replace the Commission on Human Rights in 2006. See UNGA Res 60/251 (15 March 2006). See also Fact Sheet: Work and Structure of the Human Rights Council (July 2007). 7 Formerly the 1503 procedure. See ECOSOC Res 1503 (XLVIII) (1970). See also HRC Res 5/1 (18 June 2007). 8 See accessed 10 July 2014. 2

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the Universal Periodic Review (UPR), which ensures that the human rights obligations of all 193 UN Member States are subject to scrutiny.9 The last two mechanisms are particularly relevant when it comes to ensuring that migrant workers are not overlooked in the application of the non-discrimination and equality principle. With the examination of all UN Member States within its first cycle (2006–2011) now completed, the UPR has proved to be a useful mechanism in drawing attention to the human rights obligations of states towards certain groups of persons at particular risk of exploitation and discrimination, including migrant workers. Frequent recommendations submitted to Member States by their peers include ratification of international human rights instruments, including the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW).10 Recommendations also often include ratification of the ILO Domestic Workers Convention 2011 (No 189), which has particular relevance to migrant workers.11 The Special Rapporteur on the Human Rights of Migrants was appointed for an initial three-year period with the mandate to examine ‘ways and means to overcome the obstacles existing to the full and effective protection of the human rights of this vulnerable group, including obstacles and difficulties for the return of migrants who are non-documented or in an irregular situation’.12 The post encompasses a number of functions, such as requesting and receiving information from all relevant sources, including migrants themselves, on violations of the human rights of migrants and their families; formulating appropriate recommendations to prevent and remedy violations of the human rights of migrants, wherever they may occur; promoting the effective application of relevant international norms and standards on the issue; and recommending actions and measures applicable at the national, regional, and international levels to eliminate violations of the human rights of migrants. Given that nearly half of all international migrants are women, the functions of the Special Rapporteur also include the need ‘to take into account a gender perspective when requesting and analysing information, as well as to give special attention to the occurrence of multiple discrimination and violence against migrant women’.13 Importantly, as a special procedures mandate of the Human Rights Council, the work of the UN Special Rapporteur is relevant to all 193 UN Member States and not just those which have ratified international human rights treaties, in particular the ICRMW. The current Special Rapporteur has underscored the importance of the non-discrimination and equality principle and its application to migrants:

9 For more information on the UPR, see Office of the High Commissioner for Human Rights (OHCHR), ‘Universal Periodic Review’ accessed 2 January 2014. 10 ICRMW (adopted 18 December 1990) 2220 UNTS 93. As of July 2014, the ICRMW had been ratified by 47 state parties. 11 See section III.3 of this chapter. 12 UNCHR Res 1999/44 (27 April 1999) [3]. This appointment met one of the principal recommendations of the report of the Working Group of intergovernmental experts on the human rights of migrants, UN Doc E/CN.4/1999/80, convened by the Commission on Human Rights in 1997. 13 UNCHR Res 1999/44 [3].

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All . . . human rights [with the exception of the right to vote and be elected, and the right to enter and stay in a country] are for ‘everyone’, irrespective of immigration status. This includes the equal enjoyment of rights and the prohibition of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, including nationality. Distinctions can be made on the basis of immigration status, but they can’t be discriminatory and they must be justified by the authorities within the human rights framework.14

The human (and labour) rights of migrant workers, including their right to nondiscrimination and equality, have also been considered under the mandates of other special rapporteurs and working groups, such as the Special Rapporteurs on trafficking in persons, especially in women and children; on violence against women, its causes and consequences; on contemporary forms of slavery, including its causes and its consequences; on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance.15 Moreover, the work of the Working Group on Arbitrary Detention16 has also drawn attention to the increasing state detention practices in respect of migrants around the world. The second level of protection is found in the ten core international treaties addressing human rights concerns that have been adopted by the UN General Assembly. Two of these treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),17 together with the UDHR, comprise the ‘International Bill of Rights’. The ICRMW is recognized as a core human rights instrument and is underpinned by the principle of non-discrimination and equality, both in terms of ensuring its application to all groups of migrant workers, as well as between migrant workers and nationals.18 However, it should be underscored that the UDHR and the other core human rights instruments also prohibit unjustified distinctions between non-nationals and nationals.19 14

UNGA, Statement by Special Rapporteur on the human rights of migrants Mr François Crépeau (66th Session, 21 October 2011). 15 See UN Human Rights Council (UNHRC) Res 7/34 (28 March 2008) [2(a)]. For an overview of these mandates, see T Lesser, ‘The Role of United Nations Special Procedures in Protecting the Human Rights of Migrants’ (2009) 28(4) Refugee Survey Quarterly 139. Other mandates of relevance to the protection of migrants include the Working Group on the issue of human rights and transnational corporations and other business enterprises, and the Independent Expert on minority issues. 16 See UNCHR, Report of the Working Group on Arbitrary Detention Deliberation No 5 UN Doc E/CN.4/2000/4 (28 December 1999), Annex II concerning the situation regarding immigrants and asylumseekers. 17 ICCPR (adopted 16 December 1966) 999 UNTS 171; ICESCR (adopted 16 December 1966) 993 UNTS 3. 18 ICRMW, Part II (Non-discrimination with Respect to Rights), Art 7, Parts III and IV. 19 The other seven treaties are: International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966) 660 UNTS 195 (ICERD); Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979) 1249 UNTS 13 (CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984) 1465 UNTS 85 (CAT); Convention on the Rights of the Child (adopted 20 November 1989) 1577 UNTS 3 (CRC); Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 18 December 2002) 2375 UNTS 237 (OPCAT); Convention on the Rights of Persons with Disabilities (adopted 13 December 2006) 2515 UNTS 3 (CRPD); and International Convention for the Protection of All Persons from Enforced Disappearance, UNGA Res. 61/177 (20 December 2006) (CPED).

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In addition to the general reference to the non-discrimination and equality principle in its Preamble, Article 2(1) of the UDHR enumerates a number of prohibited grounds of discrimination.20 The use of terms ‘such as’ and ‘other status’ in this clause indicates that the list of prohibited grounds is not exhaustive and that other grounds, including nationality, citizenship or immigration status, may also be contemplated. Any doubts as to whether the principle of equality and non-discrimination applies to persons who are not citizens of a country have been dispelled by the work of the treaty bodies monitoring the implementation of the human rights treaties which contain similar non-discrimination and equality provisions.21 In considering Article 2 of the ICCPR, the Human Rights Committee has clarified that the ICCPR applies to non-citizens on equal terms with nationals: In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in Article 2 thereof. This guarantee applies to aliens and citizens alike.22 [emphasis added]

The Human Rights Committee, in considering a number of individual communications, has also applied the substantive equality provision in the ICCPR, Article 26, to non-nationals.23 Similarly, the Committee of Economic, Social and Cultural Rights, has confirmed that Article 2(2), the non-discrimination provision in the ICESCR, prohibits unjustified distinctions based on nationality and immigration status: The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.24

Furthermore, the Committee on the Elimination of Racial Discrimination (CERD), in General Recommendation No 30 on Discrimination against non-citizens (2004),25 addressed the meaning of Article 1(2) ICERD, which appears to exclude distinctions 20 UDHR, Art 2(1): ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. 21 See ICCPR, Arts 2 and 26; ICESCR, Art 2(2); CRC, Art 2(1). 22 UN Human Rights Committee, ‘General Comment 15/17 on the Position of Aliens under the Covenant’ (1986) UN Doc A/41/40 [1]–[2]. 23 See eg Gueye et al v France UN Human Rights Committee Communication No 196/1985 UN Doc CCPR/C/35/D/196/1985. 24 See UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 20: Nondiscrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)’ (2009) UN Doc E/C.12/GC/20 [30]. 25 UN Committee on the Elimination of Racial Discrimination (CERD) ‘General Recommendation No 30: Discrimination Against Non-Citizens’ (1 October 2004) [2]–[3].

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made in respect of non-citizens from ICERD’s application.26 Importantly, the CERD underlined that Article 1(2) is to be interpreted as not undermining the basic prohibition of discrimination and detracting from rights and freedoms in international human rights law.27 Further, the CERD observed that, in principle, the state obligation in Article 5 to guarantee a range of civil, political, economic, social, and cultural rights to all persons without discrimination includes the obligation to guarantee equal treatment between citizens and non-citizens, with the exception of some political rights such as the right to vote and stand for election.28 The CERD also outlined the following definition of discrimination and confirmed its applicability to distinctions based on citizenship or immigration status: [D]ifferential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.29

Despite these general exhortations of equality between citizens and non-citizens in international human rights law, the situation in practice remains very different. Indeed, the human, including labour, rights of migrants remain unfulfilled or precarious in many regions of the world and they are frequently subject to widespread exploitation.30 The existence of a gap between the principles found in international human rights law and their application in practice was echoed by the Global Commission on International Migration, which called for the legal and normative framework affecting migrants to be strengthened, implemented more effectively, and applied in a nondiscriminatory manner.31

3. International Labour Organization and migrant workers Since 1919, the ILO has been working to promote and protect the rights of all workers, wherever they are from and wherever they work. From the 1919 ILO Constitution, the importance of the protection of migrant workers’ human rights, including nondiscrimination and equality, has been clearly recognized. The Treaty of Versailles, establishing the original ILO Constitution, sets out nine principles of ‘special and urgent importance’, the first of which is that labour is not a commodity or article of commerce. Other principles of special and urgent importance include the right of association, the abolition of child labour, equal remuneration for men and women for work of equal value, and that ‘the standard set by law in each country with respect to conditions of labour should have due regard to the equitable

26 Article 1(2) of the ICERD reads: ‘This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.’ 27 28 29 CERD (n 25) [2]. CERD (n 25) [3]. CERD (n 25) [4]. 30 See Amnesty International, Living in the Shadows: A Primer on the Human Rights of Migrants (Amnesty International 2006). See also ILO, Equality at Work: The Continuing Challenge (ILO 2011) 35–7. 31 Global Commission on International Migration (GCIM), Migration in an Interconnected World: New Directions for Action (GCIM 2005) 81.

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economic treatment of all workers lawfully resident therein’.32 The Preamble to the present Constitution refers specifically to ‘the protection of the interests of workers when employed in countries other than their own’.33 In 1944, the Declaration of Philadelphia, which forms part of the ILO Constitution, affirmed that: (a) all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; (b) the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy.

The Declaration goes on to recognize the obligation of the ILO to further programmes which will achieve ‘the provision . . . of facilities for training and the transfer of labour, including migration for employment and settlement’.34 The ILO has recognized since its inception that migrant workers deserve special attention: they are far from home, far from their families, may not speak the predominant language, or understand local customs and laws, and they may be involved in work excluded from the protection of the labour laws, making them particularly vulnerable to discrimination, exploitation, and abuse. Those in an irregular situation are even more vulnerable to such discrimination and abuse. Even when migrant workers are in principle covered by labour laws, application and enforcement in practice is often weak. All ILO Conventions and Recommendations apply to migrant workers, unless otherwise stated.35 With respect to a wide range of international labour standards, including the fundamental Conventions, those on employment policy, wages, private employment agencies, labour inspection, social security, domestic workers, and others, the ILO supervisory bodies closely monitor their effective application to migrant workers.36 There are also Conventions and Recommendations specifically addressing the situation of migrant workers.37 The regular supervision of the implementation of all ILO Conventions is undertaken by the ILO Committee of Experts on the Application of Conventions and Recommendations (‘Committee of Experts’).38 Some of the comments of the Committee of Experts are then examined by the tripartite Committee on 32

Treaty of Versailles, Part XIII, 1919, Art 427. 34 ILO Constitution, Preamble, recital 2. See section II.1. ILO Constitution, Annex. 35 See International Labour Conference, Resolution Concerning a Fair Deal for Migrant Workers in a Global Economy (92nd Session 2004) para 28; ILO, Multilateral Framework on Labour Migration: Non-binding Principles and Guidelines for a Rights-based Approach to Labour Migration (ILO 2006) Principle 9(a). 36 See Equality of Treatment (Accident Compensation) Convention 1925 (ILO No 19); Labour Inspection Convention 1947 (ILO No 81); Protection of Wages Convention 1949 (ILO No 95); Social Security (Minimum Standards) Convention 1952 (ILO No 102); Equality of Treatment (Social Security) Convention 1962 (ILO No 118); Employment Policy Convention 1964 (ILO No 122); Employment Injury Benefits Convention 1964 (Schedule I amended in 1980) (ILO No 121); Private Employment Agencies Convention 1997 (ILO No 181); Domestic Workers Convention 2011 (ILO No 189). 37 See section II.3.i in this chapter. 38 The Committee of Experts is a body of independent experts which meets in November–December of each year to examine reports of governments, as well as comments of employers’ and workers’ organizations, on the application in law and practice of ILO standards. 33

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the Application of Standards at the annual session of the International Labour Conference, which normally adopts conclusions. The ILO Multilateral Framework on Labour Migration, 2006, which provides for non-binding principles for a rights-based approach to labour migration that are rooted in international labour standards, also contains additional guidance.39 The protection of the human rights of all migrant workers regardless of their status, the prevention and protection against abusive migration practices, and the promotion of social integration and inclusion, including preventing discrimination against migrant workers and taking measures to combat racism and xenophobia, are key principles enshrined in the Multilateral Framework.40

i. Labour migration and protection of migrant workers: Conventions Nos 97 and 143 The first international labour standard specifically addressing the situation of migrant workers, the Reciprocity of Treatment Recommendation, No 2, dates from 1919. In 1949, prompted by a concern to facilitate the movement of labour while at the same time ensuring equality of treatment between migrant workers and nationals irrespective of race, sex, religion, or nationality, the International Labour Conference adopted the Migration for Employment Convention (Revised) (No 97). This Convention, together with the more recent Migrant Workers (Supplementary Provisions) Convention, 1975 (No 143),41 are among the first specific instruments aimed at finding solutions to the particular issues facing migrant workers and their families. Indeed, many of the provisions in these two instruments are found in similar terms in the ICRMW adopted by the UN General Assembly in 1990. Convention No 97 has been ratified by 49 countries, and Convention No 143 by 23. Convention No 97 calls for measures aimed at regulating the conditions in which labour migration should occur. It also provides for measures ensuring free services of assistance and the provision of accurate information to migrant workers, and steps against misleading information on the migration process, as well as the transfer of earnings. A key principle of Convention No 97 is equality of treatment between migrants in a regular situation and nationals. Upon ratification of Convention No 97, states undertake: To apply, without discrimination, in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: . . . remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young people; . . . membership of trade unions and enjoyment of the benefits of collective bargaining; . . . accommodation; . . . social security . . . ; employment taxes, dues or 39 40 41

ILO, Multilateral Framework on Labour Migration (n 35). ILO, Multilateral Framework on Labour Migration (n 35), Parts V, VI, and VIII. Migrant Workers (Supplementary Provisions) 1975 (ILO No 143).

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contributions payable in respect of the person employed; and . . . legal proceedings relating to the matters referred to in this Convention.42

The comments of the supervisory bodies have focused in particular on the provision of accommodation, and payment of wages and social security benefits.43 Special attention has also been given to specific measures regarding women migrants.44 The Committee of Experts has emphasized the importance of the application of the principle of equal treatment not only in law but also in practice.45 For the right to be enjoyed in practice, effective mechanisms should be in place to address non-respect of the right, including accessible and effective complaints procedures and adequate labour inspection, and migrant workers should have access to the courts on the same terms as national workers.46 Convention No 143 calls upon states to take a number of measures to prevent and suppress migration in abusive conditions and the ‘illegal’ employment of migrant workers. At the same time, it focuses on ensuring that all migrant workers, independent of their immigration status, enjoy basic human rights and certain rights arising out of past employment. It also calls upon states to declare and pursue a national policy on equality of opportunity and treatment between migrant workers lawfully in the country and nationals. International collaboration between states and the involvement of employers’ and workers’ organizations are essential to achieving the objectives of both Conventions Nos 97 and 143. The role of the social partners is emphasized in particular in Convention No 143.47 Convention No 143 contains a number of provisions referring specifically to equality of treatment, each with a different threshold for application. Pursuant to Article 8, migrant workers who have ‘resided legally’ in the territory for the purpose of employment are protected under the Convention in the case of loss of employment. They are not in such circumstances to be considered in an irregular situation by the mere fact of the loss of employment, and are entitled to ‘enjoy equality of treatment with nationals in respect in particular of guarantees of security of employment, the provision of alternative employment, relief work and retraining’. Where migrant workers have not entered the country to take up employment in conformity with the relevant laws and regulations, and their position cannot be regularized, Article 9(1) provides that the migrant worker and his or her family are to enjoy equality of treatment ‘in respect of rights arising out of past employment as regards remuneration, social security and other benefits’. In addition, Article 14 addresses access to employment, though with some limitations permitted. It provides that the free choice of employment may be made subject to the migrant worker having resided lawfully in the territory for the 42

Migration for Employment (Revised) 1949 (ILO No 97), Art 6. See eg Burkina Faso (direct request 2013); Cameroon (direct request 2013); China (Hong Kong Special Administrative Region) (observation and direct request 2013); Israel (observation 2013); Slovenia (observation 2012). 44 See eg France (observation 2013); Germany (direct request 2013); Madagascar (direct request 2013); Zambia (direct request 2013). 45 See Bosnia and Herzegovina (direct request 2013); Kenya (direct request 2013). 46 See Germany (direct request 2013); Ecuador (direct request 2013); Montenegro (direct request 2013). 47 See in particular ILO No 143, Arts 2, 4, 7, and 12. 43

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purpose of employment for a certain period, which cannot exceed two years. Article 14 also allows states to restrict access to limited categories of employment or functions where this is ‘necessary in the interests of the State’. Article 10 of Convention No 143 refers, in terms similar to the Discrimination (Employment and Occupation) Convention, 1958 (No 111),48 to the obligation to declare and pursue a national equality policy, with a focus on issues of particular concern to migrant workers and their families: Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee . . . equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights and of individual and collective freedoms for persons who as migrant workers or as members of their families are lawfully within its territory. [emphasis added]

Article 12 goes on to set out some of the elements of the national policy, including enacting legislation and promoting educational programmes, and guaranteeing ‘equality of treatment, with regard to working conditions, for all migrant workers who perform the same activity whatever might be the particular conditions of their employment’.49 The ILO supervisory bodies have highlighted the importance of taking measures, in the context of Articles 10 and 12, to ensure the effective protection of migrant workers against direct and indirect discrimination and to review laws and policies in this regard.50 It has also been emphasized that the existence of legislation prohibiting discrimination and providing reparations against infringements is not sufficient to ensure equality of opportunity and treatment in practice: an active policy to secure acceptance and observance of the principle and to assist migrant workers and their families to make use of the equal opportunities offered to them is also necessary.51 In addition, under Convention No 143, each state ratifying the Convention ‘undertakes to respect the basic human rights of all migrant workers’.52 While in the context of Part II of the Convention dealing with equality of opportunity and treatment, and in which Article 10 falls, the definition of ‘migrant worker’ requires that the person concerned be ‘regularly admitted’ as a migrant worker,53 this qualification does not apply to Part I (Articles 1 to 9).54 With respect to Article 1, the basic human rights to which all migrant workers are entitled, irrespective of their legal status, include the human rights contained in the relevant UN instruments and those set out in the ILO Declaration on Fundamental Principles and Rights at Work, 1998.55

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49 See section II.3.ii of this chapter. ILO No 143, Art 12(g). International Labour Conference, Committee on the Application of Standards (98th Session 2009): Conclusions, Italy, ILO No 143. 51 See Burkina Faso (direct request 2013); Tajikistan (direct request 2013). 52 53 ILO No 143, Art 1. ILO No 143, Art 11(1). 54 Upon ratification of ILO No 143, Member States are able to exclude either Part I, which addresses migration in abusive conditions, or Part II, dealing with equality of opportunity and treatment (Art 16). To date, only Albania has excluded Part II. 55 International Labour Conference Migrant Workers: General Survey on the Reports on the Migration for Employment Convention (Revised), 1949 (No 97), and Recommendation (Revised) (No 86), 1949, and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No 143), and Recommendation (No 151), 50

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ii. Fundamental labour standards Fundamental principles and rights at work, and the eight fundamental human rights Conventions enshrining these principles, undoubtedly apply to migrant workers. The four categories of fundamental principles and rights at work are: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation. The eight fundamental labour Conventions56 enshrining these principles and rights are an integral component of the UN human rights system. The ILO supervisory bodies have on many occasions raised concerns with respect to the effective application of these Conventions to migrant workers, whether in a regular or irregular situation.57 However, whether or not a country has ratified the relevant fundamental Conventions, the ILO Declaration on Fundamental Principles and Rights at Work, 199858 makes it clear that, by virtue of membership in the Organization, each member State is obliged ‘to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions’.59 The importance of giving special attention to migrant workers in the implementation of fundamental principles and rights at work is acknowledged in the Preamble. More recently, during the 2012 International Labour Conference, the ILO tripartite constituents, namely governments and workers’ and employers’ organizations, adopted conclusions on fundamental principles and rights at work, which acknowledged the fact that certain groups, including migrant workers, are more exposed to violations of fundamental principles and rights at work.60 The Conclusions also reaffirmed the particular significance of fundamental principles and rights at work as human rights and enabling conditions for the achievement of the ILO’s other work ‘and for the creation of decent jobs through assuring the links between economic growth and sustainable enterprises and social progress’.61

1975 (87th Session 1999) [296], [297]. See section II.3.ii of this chapter regarding the ILO Declaration of 1998. 56 Forced Labour Convention 1930 (ILO No 29) (and the Protocol to the Forced Labour Convention adopted by the International Labour Conference in June 2014); Freedom of Association and Protection of the Right to Organise Convention 1948 (ILO No 87); Right to Organise and Collective Bargaining Convention 1949 (ILO No 98); Equal Remuneration Convention 1951 (ILO No 100); Abolition of Forced Labour Convention 1957 (ILO No 105); Discrimination (Employment and Occupation) Convention 1958 (ILO No 111); Minimum Age Convention 1973 (ILO No 138); Worst Forms of Child Labour Convention 1999 (ILO No 182). 57 See section III.1 on the application of trade union rights to migrant workers in an irregular situation. 58 Adopted by the International Labour Conference (86th Session 1998). 59 International Labour Conference (86th Session) (n 58) [2]. 60 International Labour Conference Resolution concerning the Recurrent Discussion on Fundamental Principles and Rights at Work (101st Session 2012) Conclusions [11]. 61 International Labour Conference (101st Session) (n 60), Conclusions [5].

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iii. Equality and non-discrimination in employment and occupation: Convention No 111 As emphasized earlier, equality and non-discrimination are at the centre of human rights discourse.62 Dominating the greater part of most people’s lives, and as a privileged entry point into society, the world of work is a key area in which equality and non-discrimination must be ensured. The world of work is of particular importance for migrants, as most migrants move in search of employment.63 The Committee of Experts in its 2012 General Survey highlighted that ‘[e]quality and non-discrimination in employment and occupation is a fundamental principle and human right to which all women and men are entitled, in all countries and in all societies. It impacts on the enjoyment of all other rights.’64 The right to non-discrimination in employment and occupation is enshrined in the Discrimination (Employment and Occupation) Convention, 1958 (No 111).65 The Convention requires ratifying states to declare and pursue a national policy, designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.66 This policy should cover all workers, including migrant workers.67 Equality and nondiscrimination under the Convention is to apply to all aspects of employment and occupation.68 In the context of the formulation and application of the national equality policy, the Recommendation accompanying Convention No 111 refers specifically to Convention No 97: With respect to immigrant workers of foreign nationality and members of their families, regard should be had to the provisions of the Migration for Employment Convention (Revised), 1949, relating to equality of treatment and the provisions of the Migration for Employment Recommendation (Revised), 1949, relating to the lifting of restrictions on access to employment.69

No provision of Convention No 111 limits its scope with respect to individuals or branches of activity—the Convention applies to all workers, both nationals and nonnationals, in all sectors of activity, in the public and private sectors, and in the formal and informal economies.70 As workers, migrant workers are covered by the Convention, and states are to ensure that they are protected against discrimination on a range

62

See sections II.1 and II.2. ILO, International Labour Migration: A Rights-based Approach (ILO 2010) 1–2. 64 International Labour Conference Giving Globalization a Human Face: General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization (101st Session 2012) (General Survey 2012) [649]. 65 66 ILO No 111. ILO No 111, Art 2. 67 See General Survey 2012 (n 64) [776]. 68 ILO No 111, Art 1(3) provides that ‘employment’ and ‘occupation’ include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Further details are set out in Recommendation No 111 [2]. 69 Discrimination (Employment and Occupation) Recommendation 1958 (No 111) [8]. 70 General Survey 2012 (n 64) [733]. 63

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of grounds, which must include as a minimum race, colour, sex, religion, political opinion, national extraction, and social origin.71 The Convention also foresees the inclusion of additional grounds of discrimination, as new manifestations of discrimination arise and existing manifestations are acknowledged.72 In this context, more and more states are including ‘nationality’ or ‘citizenship’ as a prohibited ground of discrimination in their labour and employment-related legislation.73 It is, however, often difficult to determine whether discriminatory treatment faced by migrant workers is exclusively based on their real or perceived nationality, or on race, ethnicity, religion or a combination of grounds.74 The ILO supervisory bodies have stressed the importance of addressing the intersection between migration and discrimination, including ensuring that migration laws and policies and the implementation thereof do not result in discrimination based on race, colour or national extraction.75 They have also noted that all migrant workers, including those in an irregular situation, must be protected from discrimination in employment and occupation.76 The Committee of Experts regularly examines the particular effect on migrant workers of discrimination based on the grounds set out in the Convention, and often on a combination of these grounds, including race, colour, sex, religion, and national extraction. The Committee has stressed that effective legislative protection, as well as the promotion and enforcement of such legislation, is needed to ensure that migrant workers are not subject to discrimination and abuse.77 While ratification of Conventions Nos 97 and 143 has not been extensive, the situation with respect to Convention No 111 is quite different. As of July 2014, 172 countries had ratified the Convention. As a fundamental Convention, its application in each ratifying state is examined at least every three years by the Committee of Experts, and more often if issues of particular concern arise in a country.78 As a result, even where states have not ratified Conventions Nos 97 and 143, it is likely that they will have ratified Convention No 111, which provides considerable rights and protections to migrant workers.

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ILO No 111, Art 1(1)(a). ILO No 111, Art 1(1)(b) states that ‘ “discrimination” includes . . . such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.’ 73 Examples include Chad, Djibouti, Eritrea, Japan, Kenya, Republic of Korea, Lithuania, Republic of Moldova, Seychelles, Syrian Arab Republic, and Tajikistan. See General Survey 2012 (n 64), n 2085. 74 See ILO, Equality at work (n 30) 34. 75 International Labour Conference (97th Session 2008) Report of the Committee on the Application of Standards, Convention No 111, Dominican Republic; Dominican Republic (observation 2012). 76 International Labour Conference (n 75). See also section III.1. 77 General Survey 2012 (n 64) [777]: See also Committee of Experts’ observations on ILO No 111 in 2013 regarding Bahrain, Republic of Korea, and Saudi Arabia. 78 Pursuant to Article 23 of the ILO Constitution, workers’ and employers’ organizations are able to provide comments to the Committee of Experts on the state’s compliance with the Convention, and the government will then normally be requested to provide its response. 72

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iv. Freedom of association and the right to collective bargaining: Conventions Nos 87 and 98 As a tripartite organization, freedom of association and the right to collective bargaining are at the very heart of the ILO. There could be no tripartism without free and independent workers’ and employers’ organizations. The Declaration of Philadelphia reaffirms that one of the fundamental principles on which the ILO is based is that ‘freedom of expression and of association are essential to sustained progress’.79 This right is essential for migrant workers in ensuring they have a voice, in the protection of their other rights at work, and in improving their terms and conditions of employment. However, migrant workers may be relatively isolated from other workers, and lacking the opportunity to organize into associations or unions, thus having little bargaining power. Freedom of association and the right to collective bargaining, as they apply to migrant workers, are also limited by law in some countries.80 The two fundamental Conventions in this respect are the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98). The Committee of Experts as well as the tripartite Committee on Freedom of Association81 have addressed the issue of the rights of migrant workers to form and join organizations of their own choosing, and to enjoy adequate protection against acts of anti-union discrimination. Convention No 87 states categorically in Article 2 that ‘workers and employers, without distinction whatsoever, shall have the right to establish and . . . to join organizations of their own choosing’ (emphasis added). The Committee on Freedom of Association has stated with respect to Article 2 that it is: [Designed] to give expression to the principle of non-discrimination in trade union matters, and the words ‘without distinction whatsoever’ used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc. [emphasis added]82

With regard to the denial of the right to organize to migrant workers in an irregular situation, the Committee on Freedom of Association has recalled that all workers, other than the armed forces and the police, are covered by the Convention, and has stated that in the granting of trade union rights, the requirement of reciprocity is not acceptable.83 In its 2012 General Survey, the Committee of Experts has affirmed that 79

ILO Constitution, Annex Part I. See International Labour Conference Freedom of Association in Practice: Lessons Learned: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (97th Session 2008) 57. 81 The Committee on Freedom of Association, a tripartite body of the ILO Governing Body, was established in 1951 to examine complaints of violations of the principles of freedom of association. Complaints can be brought to the Committee on Freedom of Association against a member State, by workers’ and employers’ organizations, regardless of whether the state has ratified Conventions Nos 87 or 98. 82 ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th edn, ILO 2006) [209]. 83 ILO, Freedom of Association (n 82) [214]–[215]. See also Republic of Korea (Case No 2620) (November 2010) Report of the Committee on Freedom of Association No 358. 80

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‘migrant workers have the right, under the same conditions as nationals, to benefit from the fundamental rights deriving from freedom of association’.84 It has also noted that citizenship continues to be a requirement for establishing trade unions in some countries, or that a particular proportion of members have to be nationals, while in others, trade union membership of foreign nationals is subject to conditions of residence and reciprocity.85 Migrant workers are entitled to establish their own unions, and the right to organize is not to be denied to migrant workers in an irregular situation.86 Eligibility of migrant workers for trade union office has also been an issue of particular concern, as many states limit eligibility to nationals of the country. The Committee of Experts has stated clearly that national legislation should allow foreign workers to take up trade union office, at least after a period of reasonable residency in the host country.87 With respect to anti-union discrimination, the Committee on Freedom of Association has made it clear that this right applies to migrant workers, including those in an irregular situation, and sufficiently dissuasive sanctions should be applied in case of violations.88

III. Groups of Particular Concern While all migrant workers are at risk of discrimination in destination countries, this risk is exacerbated in respect of specific groups of workers, such as migrant workers in an irregular situation, temporary migrant workers, and migrant domestic workers. The precarious working and living conditions of these workers should also be seen in the light of the misconception that they somehow ‘warrant’ less protection from the application of the non-discrimination and equality principle because of their particular situation. In the case of certain categories of temporary workers, such as agricultural workers and domestic workers, exclusion from the protection of labour codes and employment laws in a number of countries effectively ‘institutionalizes’ their discrimination. Attention also needs to be given to particular groups of migrant workers in the light of the present world economic situation. The consequences of the global financial and economic crisis have and will continue to pose human rights’ challenges worldwide. For many, the crisis is far from over. Reduced overall demand for labour affects employment and migration opportunities, with repercussions on the volume of earnings and remittances sent home. It may also lead to rising tensions between different groups in society, and resentment and possible discrimination against migrant workers. Therefore, extra vigilance is needed to prevent and combat discrimination and abuse against migrant workers, and ensure the protection of their human rights.

84

85 General Survey 2012 (n 64) [79]. General Survey 2012 (n 64) [79]. See Republic of Korea (Case No 2620) Committee on Freedom of Association (n 83); Malaysia (Case No 2637) (March 2009) Report of the Committee on Freedom of Association No 353 See also section III.1. 87 General Survey 2012 (n 64) [103]. Twenty years has been considered excessive, while three years has been considered a reasonable requirement. 88 United States (Case No 2227) (November 2003) Report of the Committee on Freedom of Association No 332. 86

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1. Migrant workers in an irregular situation The many international labour standards adopted over the years by the International Labour Conference of the ILO are central to the dignity and rights of all migrant workers.89 As discussed earlier, from its very inception, the ILO resolved to protect ‘the interests of workers employed in countries other than their own’ with no qualification as to their immigration status.90 In principle, unless otherwise stated, all international labour standards cover all workers irrespective of their nationality or immigration status. Lack of labour protection for migrant workers in an irregular situation undermines protection generally for lawfully resident migrant workers as well as national workers. The universal application of ILO fundamental Conventions to all persons in the world of work has been underscored by the ILO supervisory bodies. The ILO Committee on Freedom of Association has clearly concluded that laws which make the exercise of trade union rights by migrant workers dependent on authorization of their presence or residence are not in conformity with the broad scope of Article 2 of Convention No 87. The Committee has observed that Article 2 covers all workers, and exceptions are only permissible in relation to the armed forces and the police. In one of its recommendations, the Committee called on a government ‘as concerns the legislation in cause [restricting access to trade union rights for migrant workers in an irregular situation], to take into account the terms of Article 2 of Convention No 87, according to which workers, without distinction whatsoever, have the right to join organizations of their own choosing’.91 In addition to the fundamental Conventions, the widely ratified ILO Conventions of general application—such as those dealing with labour inspection, protection of wages, and safety and health at work—are particularly relevant and their specific application to migrant workers in an irregular situation has been the subject of observations by the Committee of Experts. For example, with regard to the widely ratified Labour Inspection Convention, 1947 (No 81),92 which is recognized as one of ILO’s governance and thus priority instruments, the Committee of Experts has remarked on the functions of labour inspectors vis-à-vis immigration enforcement in the context of irregular migration: Inspections of clandestine work or illegal employment, which are increasingly closely linked to irregular migration, are carried out in many countries through a partnership between the labour inspectorate and other public administration bodies (such as 89 Section III.1 draws on the ‘ILO Note on the Dignity and Rights of Migrant Workers in an Irregular Situation’, prepared for the Working Group on Labour Exploitation at the European Union Agency for Fundamental Rights (FRA) Conference on Dignity and Rights of Irregular Migrants (21–22 November 2011). 90 ILO Constitution, Preamble, recital 2. 91 Spain (Case No 2121) (2002) Report of the Committee on Freedom of Association No 327 (2002) [561]–[562]. In 2007, the Spanish Constitutional Court overturned the provisions of the Foreigners’ Law and declared unconstitutional the distinction between regular migrants and migrants in an irregular situation as regards a number of rights, including the right to freedom of association and the right to organize. See also Republic of Korea (Case No 2620) (n 83). 92 As of July 2014, ILO No 81 had been ratified by 145 Member States.

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internal and border police, customs, social insurance bodies and tax services), each in pursuit of its own objectives . . . The Committee recalls that the primary duty of labour inspectors is to protect workers and not to enforce immigration law . . . Illegal employment, ‘clandestine work’ or ‘illegal employment of foreign labour’ is on the increase in many industrialized countries. Efforts to control the use of migrant workers in an irregular situation require the mobilization of considerable resources in terms of staff, time and material resources, which inspectorates can only provide to the detriment of their primary duties.93

The Committee of Experts had also, on several occasions, addressed questions to governments regarding obligations under the Protection of Wages Convention, 1949 (No 95), including in respect of the alleged non-payment of wages owed to sub-Saharan African migrant workers—both documented and undocumented—expelled from a country in previous years.94 That respect for fundamental rights and principles at work is not limited by a worker’s nationality or immigration status is reinforced by Article 1 of Convention No 143, which requires states parties ‘to respect the basic human rights of all migrant workers’. As discussed earlier, the Committee of Experts views this provision as referring to ‘the fundamental human rights contained in the international instruments adopted by the UN in this domain, which include some of the fundamental rights of workers’.95 This assessment is particularly important because it reflects the interdependence between international labour standards and human rights law. In this regard, the Committee of Experts explicitly refers to the UDHR, the ICCPR, the ICESCR, and the ICRMW. Importantly, and as also observed above, Convention No 143 provides, in explicit terms, for equality of treatment for migrant workers in an irregular situation and members of their families in respect of rights arising out of past employment as regards remuneration, social security, and other benefits.96 It also provides for the right to have access to dispute resolution procedures to claim such rights.97

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International Labour Conference General Survey of the Reports concerning the Labour Inspection Convention, 1947 (No 81), and the Protocol of 1995 to the Labour Inspection Convention, 1947, and the Labour Inspection Recommendation, 1947 (No 81), the Labour Inspection (Mining and Transport) Recommendation, 1947 (No 82), the Labour Inspection (Agriculture) Convention, 1969 (No 129), and the Labour Inspection (Agriculture) Recommendation, 1969 (No 133)—Report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) (95th Session 2006) 24–5 [78]. See also Italy (observation 2009): ‘The Committee . . . emphasizes the need for the Government to take measures to distinguish with sufficient clarity the powers and working methods of labour inspectors from those of officials of other bodies responsible for combating illegal employment and migration. Such a separation in no way excludes the possibility of establishing a form of collaboration which involves labour inspectors drawing the attention of the competent authorities to employers in breach of the legislation regarding conditions of work and the protection of workers, especially as regards abuses reported with regard to workers whose situation is irregular . . . The Committee requests the Government to indicate in its next report any measures taken or envisaged to re-establish labour inspectors in their duties defined by the Convention and limit their cooperation with the immigration authorities to an extent that is compatible with the purpose of the Convention’. See also France, observation 2011. 94 Libya, observation 2007. 95 International Labour Conference (87th Session), Migrant Workers (n 55) 10 [296]. 96 ILO No 143, Art 9(1). See also section II.3.i. 97 ILO No 143, Art 9(2). See Cameroon, observation 2011.

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The protection of the rights of migrant workers in an irregular situation, including their right to non-discrimination and equality, is greatly facilitated if a ‘firewall’ is applied to ensure that they can bring complaints in the event of discrimination, including to courts and tribunals, without fear of detection (and their subsequent removal) by immigration authorities.98 Moreover, possibilities should exist for them to regularize their status. While there is no obligation on states to regularize such workers in international law in view of the sovereign prerogative of states to determine which non-nationals to admit to their territory, Convention No 143 expressly stipulates that: ‘Nothing in this Convention shall prevent Members from giving persons who are illegally residing or working within the country the right to stay and to take up legal employment.’99 Indeed, regularization of migrant workers in an irregular situation has been and continues to be viewed by a number of countries, particularly in Europe, as an important step to officially recognize their presence in the labour market, protect their human, including labour, rights, as well as prevent their marginalization, thus increasing the prospects for improved social cohesion.100

2. Temporary migrant workers The growth in temporary work opportunities for migrants has given rise to a number of difficulties in ensuring their protection. A comparative study of six temporary migrant worker programmes in five countries (Germany, Kuwait, Singapore, Switzerland, and the United States) identified the following protection problems:101 the timelimited duration of the schemes; the lack of possibilities to switch to a more secure residence status and for family reunion; restrictions on employment (to a specific employer and employment sector), wages, and savings; the absence of social protection; and other restrictions unrelated directly to employment, such as a prohibition on becoming pregnant or marrying citizens.102 It would seem also that the increasing resort to temporary migrant worker schemes is often accompanied by the proliferation of a perplexing array of different legal 98 Establishment of such a ‘firewall’ was recommended by the European Union Agency for Fundamental Rights in its report on Fundamental Rights of Migrants in an Irregular Situation in the European Union (Publications Office of the European Union 2011) 11: ‘Practical barriers to access justice should be removed through the following actions by Member States: . . . [inter alia] Ensuring, where possible, that any personal data revealing migrants’ identity or whereabouts are not shared with immigration enforcement bodies when migrants seek redress against abusive employers.’ 99 ILO No 143, Art 9(4). See Portugal (observation 2009). 100 See REGINE, Regularisations in Europe. Study on Practices in the Area of Regularisation of Illegally Staying Third-country Nationals in the Member States of the EU (International Centre for Migration Policy Development 2009). 101 M Ruhs, Temporary Foreign Worker Programmes: Policies, Adverse Consequences, and the Need to Make them Work (Perspectives on Labour Migration 6, International Labour Office 2003) 8–9. 102 The latter restriction relates to the situation of temporary migrant workers and female domestic workers in Singapore: Ruhs (n 101) 8–9. See also the Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers concluded between the governments of Malaysia and Indonesia (13 May 2006) accessed 3 January 2014: ‘The Government of Malaysia reserves the right to revoke the Work Pass in the event that the Domestic Workers marry in Malaysia during the period of employment’ (Appendix A, clause D(iv)). The MoU was revised in 2011, although it appears that this provision is still in place.

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statuses as governments attempt to regulate the admission and stay of the various short-term worker categories. On the whole, this approach tends to dilute further the protections afforded such migrant workers in the country of employment and to augment the risk that they might fall into irregularity.103 Moreover, temporary migrant workers are especially vulnerable to certain abuses in the recruitment process, which is a particular problem faced by low-skilled workers using the services of private recruitment agents who compete intensely for ‘the sale’ of their labour to employers and intermediaries in destination countries. Such abuses include deliberate misinformation about the working and living conditions in the country of employment, offers of nonexistent jobs, the charging of excessive fees, and, in some instances, may give rise to trafficking in human beings for forced labour. The requirement that employers sponsor migrant workers also results in abuses such as the withholding of travel and/or identification documents, contract substitution, late or partial payment of wages, restrictions on freedom of movement, and, in some cases, physical or sexual abuse.104 Similarly, circular migration, seen by some commentators and in intergovernmental forums as conferring ‘triple win’ benefits in terms of development for countries of origin and destination as well as for the migrant workers themselves, is increasingly being questioned, including from a rights-based standpoint.105 A Staff Working Paper, prepared by the European Commission to accompany its Communication on the Global Approach to Migration and Mobility,106 observes that: The implications of temporary and circular migration schemes on migrants’ rights and protection are a major cause for concern in some countries. As temporary/ circular migrants are often not eligible for any integration support, this may adversely affect their economic integration and the protection of their rights.107

Such concerns are especially applicable in relation to schemes for less-skilled migrant workers that channel them into precarious work situations and where access to fundamental labour rights, such as the right to join a trade union and to bargain collectively, may not be available to them or they may be discouraged from exercising these rights. Indeed, this becomes even more problematic when circular/temporary migration is used to fill jobs that are essentially permanent in nature.

103 To a degree, such a finding supports theoretical arguments that migrants’ enjoyment of rights is connected integrally with the existence of complex systems of differentiation at the national level. See L Morris, Managing Migration: Civil Stratification and Migrants’ Rights (Routledge 2002). 104 Ruhs (n 101) 13–15; International Labour Migration Survey (International Labour Office 2003) 8. 105 Concerns relating to the concept of ‘circular migration’ have also been raised in the ILO, particularly by workers’ representatives, as well as by the European Trade Union Confederation (ETUC), the International Trade Union Confederation (ITUC), and civil society at the Civil Society Days of the Global Forum on Migration and Development (GFMD) (November 2011). See respectively P Wickramasekara, Circular Migration: A Triple Win or a Dead End (Global Union Research Network Discussion Paper No 15 2011); ETUC, ETUC Position Regarding European Commission’s Proposals on Legal and ‘Illegal’ Migration (7 December 2007) Annex B; ITUC General Council Resolution on ‘Migration: A Decent Work Issue’ (17–18 October 2011); GFMD, Civil Society Recommendations from the 2011 Civil Society Days (29–30 November) Recommendation 3.3. 106 Commission, The Global Approach to Migration and Mobility COM (2011) 743, 18. 107 Commission, Staff Working Paper, Migration and Development SEC (2011) 1353, 10–11.

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Importantly, the ILO Conventions No 97 and 143 do not generally distinguish between migrant workers admitted for longer periods of time or settlement and those entering for short-term employment, although some adjustments are made to cater for particular categories of temporary work. The ICRMW provides that all workers—except for students and trainees who are excluded entirely108—can benefit from the rights in Parts III and IV, although, in Part V, states parties may limit some of the rights in Part IV in respect of certain categories of temporary migrant workers, such as seasonal workers, project-tied workers, and specified-employment workers. This limitation is set in general terms in respect of seasonal workers, who are entitled to those rights in Part IV ‘that can be applied to them by reason of their presence and work in the territory of the State of employment and that are compatible with their status in that State as seasonal workers, taking into account the fact that they are present in that State for only part of the year’.109 While this provision would appear to facilitate the exclusion of seasonal workers from such rights as vocational training and family reunion, in the view of one commentator it is a flexible clause which does not require states parties to exclude seasonal migrants from these rights and thus reflects the drafters’ intention ‘to secure the widest possible rights for this category of temporary migrant workers’.110 While both ILO Conventions Nos 97 and 143 (Part II) exclude specific groups of temporary migrant workers,111 the Committee of Experts has underlined that the four ILO instruments concerning the protection of migrant workers apply generally to all categories of workers, including short-term and seasonal workers: ‘[N]o distinction can be made, within the provisions of the instruments, between migrants for permanent settlement and migrants who do not intend to stay for any significant length of time in the host country, such as seasonal workers.’112 This principle extends to a range of rights afforded under these instruments. For example, with regard to the right to social security, the Committee of Experts has observed that ‘the principle of equality of treatment in terms of social security cannot be interpreted . . . as providing a legal basis permitting the automatic exclusion of a category of migrant workers from qualifying for social security benefits’.113

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109 ICRMW, Art 3(e). ICRMW, Art 59(1). See W Böhning, ‘The Protection of Temporary Migrants by Conventions of the ILO and the UN’, paper presented to the International Institute for Labour Studies Workshop on Temporary Migration— Assessment and Practical Proposals for Overcoming Protection Gaps (18–19 September 2003) 4. 111 ILO Nos 97 and 143 in Art 11, exclude artistes and members of the liberal professions who have entered the country on a short-term basis, while ILO No 143 also excludes students and trainees as well as ‘employees of organizations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties or assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments’. According to Böhning (n 110) 3, the latter category refers to ‘project-tied workers’ and ‘essentially concerns persons with special qualifications who go to a country to carry out specific short-term technical assignments’. Importantly, the excluded categories in ILO No 143 only apply to Part II concerned with equality of opportunity and treatment for lawfully resident workers, and not Part I. 112 International Labour Conference (87th Session), Migrant Workers 43 [107]. 113 International Labour Conference (87th Session), Migrant Workers 171–2 [431]. 110

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3. Migrant domestic workers Domestic workers, the majority of whom are women, are frequently excluded from the scope of labour and employment-related legislation, often with little or no equivalent protection provided through special laws or regulations.114 In some cases, however, special regulations or model contracts have been adopted covering the conditions of work of domestic workers, though these may still not provide a full level of rights and protections.115 The issue of multiple discrimination against migrant workers has been particularly evident in the context of migrant domestic workers, with discrimination based on race, colour, and national extraction often intersecting with discrimination based on sex.116 The nature of the employment relationship, the lack of legislative protection of migrant domestic workers in a number of countries, and stereotyped views regarding gender roles and the undervaluing of this kind of employment make migrant workers in domestic work especially vulnerable to multiple forms of discrimination.117 In this context, not only are clear legal rights important, but also accessible and effective complaints procedures and means of redress and remedies, as well as adequate information, counselling, and legal assistance.118 Migrant domestic workers should also be entitled to form associations to defend their occupational interests.119 The sponsorship system which applies in a number of countries, limiting the ability of migrant workers to change employers, sponsors, or workplaces, has come under scrutiny, particularly in the context of migrant domestic workers.120 Some countries allow the worker to change to another sponsor in very limited circumstances, such as only with the consent of the sponsor and the Ministry of Labour, or in the case of serious abuses.121 In other situations, a worker may terminate his or her employment where serious abuse such as violence, assault, or harassment has been proved, though termination in all cases leads to the worker having to leave the country.122 Such systems may create a high level of dependency and vulnerability to discrimination.123 Migrant workers suffering from discrimination and abuse may be reluctant to bring complaints and seek redress out of fear of retaliation by the employer, including termination or non-renewal of the employment contract.124 The ILO Committee of Experts has emphasized that providing for appropriate flexibility for migrant workers to change 114 See General Survey 2012 (n 64) [663], [667], and [795], and the list of laws excluding domestic workers set out in footnote 1600. See also ILO, Domestic Workers across the World: Global and Regional Statistics and the Extent of Legal Protection (International Labour Office 2013). 115 See Lebanon, ILO No 111 (direct request 2012); see also China (Hong Kong Special Administrative Region), ILO No 97 (observation 2012). 116 See Kuwait, ILO No 111 (observation 2011). 117 Kuwait, ILO No 111 (observation 2009); see also General Survey 2012 (n 64) [707] regarding the undervaluing of domestic work and the consequences on pay. 118 Kuwait, ILO No 111 (observation 2011); Israel, ILO No 97 (observation and direct request 2012). 119 See Malaysia (Case No 2634) (November 2011) Report of the Committee on Freedom of Association No 362. 120 See also A Khan and H Harroff-Tavel, ‘Reforming the Kafala: Challenges and Opportunities in Moving Forward’ (2011) 20(3)–(4) Asian and Pacific Migration Journal 293. 121 122 Qatar, ILO No 111 (observation 2012). Lebanon, ILO No 111 (direct request 2012). 123 124 Kuwait, ILO No 111 (observation 2011). Lebanon, ILO No 111 (direct request 2012).

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their workplaces and employers helps to limit exposure to situations in which they become particularly vulnerable to discrimination.125 The importance of effective and accessible mechanisms to settle disputes between migrant workers and their sponsors has also been raised.126 In June 2011, the International Labour Conference adopted the Domestic Workers Convention No 189 and its supplementing Recommendation No 201.127 This is a major step forward for the recognition of the value of domestic work and the rights of these workers, including migrant workers. These new instruments have a broad scope of application, aiming at the protection of all domestic workers.128 While the Convention and the Recommendation do not distinguish between nationals and non-nationals employed as domestic workers or between those holding a different immigration status, they contain a number of provisions specifically relating to migrant domestic workers, such as obligations to ensure that migrant domestic workers receive a written job offer or employment contract before departing for the destination country, and effective protection for domestic workers, including migrant domestic workers, from abusive recruitment practices.129 There are also provisions regarding the application of fundamental principles and rights at work in relation to domestic workers generally, as well as with respect to equal treatment between domestic workers and workers generally in relation to hours of work, overtime compensation, rest and leave periods, and conditions not less favourable regarding social security.130 Remuneration is also to be established without discrimination based on sex.131 In the context of the UPR, as well as in the Committee on Migrant Workers, and the Committee on the Elimination of Discrimination against Women, recommendations are being made that states ratify Convention No 189.

IV. Conclusion The Global Jobs Pact, adopted by the ILO in June 2009, recalls that respecting fundamental principles and rights at work is critical to recovery and development.132 The decent work response to the crisis should contribute to a fair globalization and development that respects workers’ rights and protects vulnerable groups, including

125 See Bahrain, ILO No 111 (observation 2013); Republic of Korea, ILO No 111 (observation 2013); International Labour Conference Committee on the Application of Standards (98th Session 2009) Conclusions, ILO No 111, Republic of Korea. 126 Qatar, ILO No 111 (observation 2012). 127 ILO No 189; Domestic Workers Recommendation 2011 (No 201). As of July 2014, Convention No 189 had been ratified by 14 Member States. 128 See ILO No 189 Art 2(1): ‘The Convention applies to all domestic workers’, who are defined in Art 1(b) as ‘any person[s] engaged in domestic work within an employment relationship’ (emphasis added). Under Art 2(2), ratifying Members may exclude from the scope of the Convention, wholly or partly ‘(a) categories of workers who are otherwise provided with at least equivalent protection; (b) limited categories of workers in respect of which special problems of a substantial nature arise’. 129 ILO No 189, Arts 8 and 15. See also, Recommendation No 201 [20(2)], [21(1)], [21(2)], [22], [23], and [26(1)]. 130 131 ILO No 189, Arts 3, 10 and 14. ILO No 189, Art 11. 132 International Labour Conference, Recovering from the Crisis: A Global Jobs Pact (98th Session 19 June 2009) [14].

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migrant workers.133 The Jobs Pact states that ‘[t]he world must do better’ and ‘[t]he world should look different after the crisis’.134 It is important not to lose sight of the risk of existing patterns of discrimination and abuse being exacerbated in times of crisis, and, therefore, of the need for increased vigilance to ensure the full implementation of the rights and protections set out in international labour standards for migrant workers. A culture of social dialogue, which is at the heart of the ILO and decent work, is invaluable for maintaining social peace and stability and advancing inclusive policies for economic recovery. Using ILO and UN standards as a framework, and recognizing and building on the complementary nature of the various instruments, governments, the social partners and civil society can work together in countries of origin and destination to improve labour migration policies that can respond to the crisis, end abuse of migrants, and ensure equality and non-discrimination of migrant workers. The ILO Director-General’s recent report on Fair migration: Setting an ILO agenda, submitted to the International Labour Conference in May 2014, identifies eight key components of an ILO agenda for fair migration, which includes the realization of the ILO’s rights-based approach to labour migration. Application of equality and nondiscrimination is recognized as a central feature of this approach: Self-evidently, the ILO brings to this debate its rights-based approach grounded in universal values of equal treatment and non-discrimination. Migrant workers must enjoy equal pay for work of equal value and they must be able to exercise their fundamental rights, including trade union rights. This is a basic issue of human rights, and it is also the best way of ensuring that migration is not misused for the purpose of undercutting existing terms and conditions of work.135

133 134 135

International Labour Conference, Recovering from the Crisis (98th Session) (n 132) [7], [9]. International Labour Conference, Recovering from the Crisis (98th Session) (n 132) [3], [6]. International Labour Conference, Fair migration: Setting an ILO agenda (103rd Session 2014) [42].

15 Migrant Rights under the European Social Charter Colm O’Cinnéide*

I. Introduction The European Social Charter (ESC) contains an extensive series of rights which give wide-ranging protection to migrant workers. Its provisions in this respect are often overlooked, especially since, in contrast to EU law, they do not provide for a right of entry as such (except for family reunification purposes). Furthermore, the scope of these guarantees is restricted by how the text of the Charter limits its scope of applicability for the most part to (i) nationals of contracting states who are (ii) lawfully present or ‘working regularly’ in the territory of the host state. However, given that the state parties to the Charter include prominent non-EU states, such as Turkey, Russia, Ukraine, Serbia, Bosnia, and Georgia, its provisions still have some ‘bite’. Furthermore, the rights it provides for migrant workers in the field of social security, social assistance, equality of treatment, and family unification, as well as the striking provisions of Article 18 which require states accepting its provisions to take active steps to give effect to the rights of migrant workers to seek ‘gainful occupation’ in their territory, are worthy of note in themselves. The Charter provides a rights-based template for how migrant workers should be treated, which can be used to critique existing law and policy.

II. The European Social Charter Adopted in 1961,1 the ESC was a ground-breaking instrument, being the first international human rights treaty to set out binding legal obligations to respect socio-economic rights, pre-dating the UN International Covenant on Economic, Social and Cultural Rights by five years. It was designed to complement the European Convention on Human Rights (ECHR) by establishing a pan-European ‘floor’ of social rights that would complement the protection afforded to civil and political rights by the Convention. Almost all Member States of the Council of Europe have now signed and ratified the Charter or its successor instrument, the revised Social Charter of 1996.2 However, the

* Colm O’Cinnéide is a Reader in Law at University College London and Vice-President of the European Committee on Social Rights. All comments here are made in a personal capacity, and should not be read as reflecting the views of the Committee as a whole. 1 The European Social Charter was signed by thirteen Member States of the Council of Europe in Turin on 18 October 1961 (CETS no 35, 529 UNTS 89). It entered into force on 26 February 1965. 2 Switzerland remains the only prominent Member State which has not, and discussions are ongoing with the Swiss Government about changing this situation.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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profile and status of the Charter has never come close to equalling that of its sister instrument, the ECHR. Social rights are often marginalized in legal and policy discourse. Furthermore, the Charter has also lacked exposure, both among lawyers and among the wider European population. It has been overshadowed by the development of EU social policy, even though in many respects the latter remains chronically underdeveloped.3 Furthermore, the European Committee on Social Rights (ECSR), which is charged with interpreting and applying the text of the Charter, does not possess anything like the authority and status enjoyed by the European Court of Human Rights. Indeed, in its original incarnation as the Committee of Independent Experts, the Committee tended to be viewed by state parties as a source of expert advice on the meaning of the Charter, not as an adjudicatory body providing a legally authoritative interpretation of its text.4 However, a process of ‘revitalization’ of the Charter was launched at the Council of Europe Ministerial Conference on Human Rights held in Rome in November 1990.5 The objective of this process was to breathe new life into the Charter. Subsequently, the Turin Protocol in 1991 clarified and strengthened the role of the ECSR. In 1995, an Additional Protocol to the European Social Charter was adopted: this established a ‘collective complaint mechanism’, whereby ‘international’ non-governmental organizations (NGOs) registered with the Council of Europe, as well as national employer and trade union federations and ‘representative’ national unions, could bring a complaint to the ECSR against a state which had ratified the Protocol alleging a failure to comply with the Charter that had a ‘collective’ dimension, ie which affected more than a few specific individuals.6 In 1996, agreement was also reached on a Revised European Social Charter, which extends and deepens the list of social rights protected by the Charter mechanism.7 In particular, the revised Charter reflects the more developed understanding of equality and non-discrimination rights that has gradually emerged following the civil rights and feminist movements of the 1960s. Certain states have remained aloof from this revitalization process. For example, the UK has thus far neither ratified the 1995 Additional Protocol or the 1996 Revised Social Charter. However, the UK remains a long-standing state party to the original Charter, having ratified it on 11 July 1962. It therefore remains bound by the series of commitments to respect certain social rights it entered into when it first ratified the original Charter. Furthermore, while no moves are afoot for the EU to ratify the Social Charter, all its Member States have ratified either the original or the revised Charter. This means that 3 Somek has argued that social policy has been ‘the sick man of public policy on the Community level’: see A Somek, ‘Concordantia Catholica: Exploring the Context of European Antidiscrimination Law and Policy’ (2005) 14 Transnational Law & Contemporary Problems 957. 4 See D Harris, The European Social Charter (University Press of Virginia 1984) 229–31. 5 See D Harris, ‘A Fresh Impetus for the European Social Charter’ (1992) 41 International and Comparative Law Quarterly 659. 6 CETS no 158, opened for signature in Strasbourg on 9 November 1995. See R Churchill and U Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417. 7 CETS no 163, opened for signature in Strasbourg on 3 May 1996. The Revised European Social Charter entered into force on 1 July 1999.

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the ESC is part of the framework of international human right norms which constitute a key source of the general principles of EU law. In addition, many of the social rights provisions of the EU Charter on Fundamental Rights are based on equivalent provisions set out in the text of the ESC. As such, the social rights set out in the Social Charter are both binding upon states as a matter of international law and may potentially have an indirect effect via EU law. They may often be overlooked, but the Charter’s provisions thus deserve more attention than they usually receive.

III. The Substantive Provisions of the ESC and Jurisprudence of the ECSR The Charter contains a detailed set of rights that include the right to work (Article 1), rights to decent working conditions and fair remuneration (Articles 2–4), the right to organize and engage in collective bargaining (Articles 5 and 6), rights to vocational training (Articles 9–10), the right to health care (Article 10), the right to social security (Article 12) and social assistance (Article 13), rights to social protection and equality of treatment (Articles 7–8, 15–17, 20), and special rights for migrant workers (Articles 18 and 19, more on which later). The revised Charter also includes additional rights that relate to the employment sphere (such as the right to insolvency protection under Article 24), equality (such as freedom from sexual harassment as set out in Article 26), and social protection (such as the right to housing included in Article 31). Many of these provisions contain detailed sub-paragraphs, which set out various specific obligations that put flesh on the bones of the general rights. The Charter is unusual in that states parties are only required to commit themselves to respecting a minimum number of these specific obligations. Only one state, Portugal, has accepted to be bound by every substantive provision. However, the minimum requirements are sufficiently extensive (ten full articles or forty-five numbered paragraphs under the original Charter, sixteen articles or sixty-three numbered paragraphs under the revised Charter) to ensure that ratifying states have to accept a wide spread of commitments. Furthermore, Article 20(1)(b) of the original Charter and Article A(1)(b) of the revised Charter require all states to accept a fixed number of the ‘core’ provisions of the Charter, which include the right to work, the right to engage in collective bargaining, the right to social security, the right to social assistance, and, as discussed later, the migrants rights provisions contained in Article 19. Compliance with the Charter is monitored by the ECSR through a process whereby state parties submit periodic reports to the Committee, setting out the steps they are taking to give effect to their obligations under the Charter.8 States submit these reports in accordance with a fixed reporting cycle. Each year, states report on how they are complying with a particular group of Charter rights linked by a common theme. At present, there are four such groupings, which means that all the Charter rights are covered after four years, after which the reporting cycle begins again.

8

The reporting cycle is fixed with the agreement of state parties.

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Beginning with the first cycle of national reports adopted back in the early 1960s, the Committee asks state parties a set of specific questions in respect of each provision of the Charter covered by the reporting cycle in question. These questions are revised and updated before each reporting cycle to reflect the Committee’s evolving interpretation of the Charter and shifts in the background socio-economic context. National reports consist of detailed responses to these questions, along with any other background information that the state in question may wish to include. When it receives the reports, the ECSR adopts reasoned conclusions on the reports submitted by the states on an article-by-article basis.9 In arriving at its conclusions, the ECSR will also draw upon what credible information it can obtain in addition to that contained in the national report, which can include reports produced by the International Labour Organization (ILO), civil society, employers’ organizations, and trade unions.10 Furthermore, through this reporting process, the Committee has over time developed a systemic approach to interpreting the Charter and defining the nature of state obligations. Furthermore, the conclusions of the ECSR over the years add up to an authoritative body of case law, which sets out in detail how the Charter should be interpreted and applied. This puts flesh on the bones of the relatively abstract provisions of the Charter, and ensures that it acquires meaningful substance and content. The Committee also makes use of statements of interpretation set out at the beginning of each annual set of reporting conclusions to clarify the meaning of the Charter and to develop its jurisprudence. In addition, the Committee’s decisions in collective complaints coming from the fourteen states which have ratified the Additional Protocol of 1995 (which include France, Greece, the Netherlands, Italy, Croatia, Ireland, Slovenia, Norway, Finland, and Greece) also help to clarify the scope and content of the Charter rights.11 The collective complaints procedure is quasi-judicial in nature, with both the complaint organization and the state party submitting extensive written arguments in an adversarial process, with the Committee having the ability if it wishes both to ask the parties follow-up questions and to stage a public hearing on the matter at issue. As a result, this adversarial process enables the Committee to receive detailed arguments from both parties, which in turn helps it to develop better-reasoned decisions on the merits on the complaint.12 It also allows the Committee to identify the precise nature of state obligations under the Charter that arise in respect of the particular factual matrix that forms the subject of the complaint. Holly Cullen has noted that the collective complaints procedure is the first ‘quasi-judicial’ process in international human rights 9 The Committee will continue to assess whether a state complies with its obligations under the Charter in respect of each of the obligations it has accepted even after making an initial finding of conformity. This practice was initially criticized by the Governmental Committee back when it was first adopted, but has become the accepted procedure. See Harris (n 4). 10 The Committee is authorized to do this by Article 24 of the Charter. Representatives from the ILO and the major pan-European trade union and employers’ associations may attend meetings of the Committee as observers. 11 CETS no 158, opened for signature in Strasbourg on 9 November 1995. See Churchill and Khaliq (n 6). 12 R Brillat, ‘The Supervisory Machinery of the European Social Charter: Recent Developments and Their Impact’ in G De Búrca and B de Witte (eds), Social Rights in Europe (Oxford University Press 2005).

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law which has been designed specifically for socio-economic rights.13 It has provided an important platform for the Committee to expand and project its interpretative approach to the original Charter and its revised successor instrument. The Committee has now made decisions on the merits in respect of sixty-six collective complaints, and its case law has expanded and deepened as a result.14 Its decisions on collective complaints should not, however, be seen as existing in isolation: these decisions combine with its conclusions on national reports to form a reasonably comprehensive and substantive case law. The collective complaints and national reporting procedures are both mechanisms for assessing state conformity with the Charter, and the Committee’s reasoning on collective complaints is carried over and applied in assessing the situation in state parties via the reporting procedure, and vice versa.

IV. The Interpretative Approach of the ECSR Since its first set of conclusions in the late 1960s, the Committee has taken the view that its role is to adopt an independent and autonomous interpretation of each of the specific rights set out in the Charter, making use of the standard techniques for interpreting human rights treaties as used by the European Court of Human Rights and other human rights bodies. This means that the Committee makes an assessment based upon the text of the Charter as to the nature and scope of each individual Charter right and what obligations they impose upon state parties. Furthermore, the Committee requires that state parties not only conform in a formal sense to the requirements of the Charter, but also take steps to ensure that individuals and groups can effectively enjoy their socio-economic rights. For example, Article 15 of the Charter sets out the right of persons with disabilities to independence, social integration, and participation in the life of the community: in its interpretation of this Article, the Committee has taken the view that not only must state parties remove obstacles to participation by persons with disabilities in the life of the community, but they must also introduce legislation prohibiting discrimination against persons with disabilities in employment, occupation, access to goods and services, and other areas of social interaction, on the basis that such legislation is necessary to ensure full and effective enjoyment of the right at issue.15 This emphasis on effective protection is a major theme in the jurisprudence of the Committee, and has played an important role in defining the extent of state obligations under the Charter. 13 See H Cullen, ‘The Collective Complains System of the European Social Charter: Interpretative Methods of the European Committee on Social Rights’ (2009) 9(1) Human Rights Law Review 61. 14 The text of collective complaints and the Committee’s decisions can be found at accessed 6 January 2014. 15 Conclusions 2005, 96 (Cyprus); Conclusions 2003, 503 (Slovenia), 170 (France). Another example can be found in the Committee’s case law on the right to housing and protection against homelessness set out in Article 31(2) of the revised Charter, which it has interpreted as requiring states to have procedures to limit the risk of eviction faced by disadvantaged groups and to ensure that evictions, if carried out, are conducted in a manner that resects human dignity: to ensure effective protection for those at risk, the Committee also considers that Article 31 requires states parties to provide legal protection and assistance for those challenged with eviction. See Conclusions 2003, 654 (Sweden).

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The Committee has also adopted a dynamic ‘living instrument’ approach to the interpretation of the Charter, recognizing that changing social and economic conditions, along with changing expectations and shifts in moral understanding, may require adjustments in its case law. For example, it has interpreted Article 23 of the revised Charter, which recognizes the right of elderly persons to social protection, as requiring state parties to prohibit age discrimination in access to health care, housing, and other areas of social provision, which reflects shifts in the expectations of older persons and the expanding reach of the concept of discrimination. As part of this dynamic interpretative approach, the Committee also takes into account the general European context in which state parties to the Charter operate. It often cross-refers to the jurisprudence of the European Court of Human Rights, and tries to ensure that a seamless system of human rights standards is applied across the various Council of Europe rights instruments.16 It also cross-refers to UN, ILO, and EU standards in developing its case law, although the Committee emphasizes that it adopts its own independent interpretation of the Charter.17 In addition, in setting out the obligations to which states parties are subject, the Committee takes account of the relatively developed nature of European economies. For example, in interpreting the right to social assistance in Article 13 of both Charters, the Committee considers that states must ensure that every person in serious need should receive a minimum level of assistance which should not be less than the ‘risk-ofpoverty threshold value’, usually defined by Eurostat as 40 per cent of median equivalized income.18 This reflects the approach adopted by poverty experts in Europe to fixing rates of social assistance and takes account of the differences that exist between the various European economies. Applying this general interpretative approach, the Committee has developed a reasonably comprehensive jurisprudence. It inevitably focuses more on questions of law than practical policy implementation, although the Committee makes use of various indicators as a tool for assessing whether states are giving substantive effect to their commitments when it comes to social and employment policy. Furthermore, how this general approach is applied in respect of each specific commitment under the Charter will obviously depend on the text of the relevant provision and the nature of the right being protected. Interesting complexities arise in this respect when it comes to the situation of migrant workers.

V. The Rights of Migrant Workers under the ESC The position of migrant workers under both the original and revised Charters is more or less identical. It is also complex, nuanced, and controversial. Migrant workers who 16 See J Akandij-Kombé, ‘The Material Impact of the Jurisprudence of the European Committee of Social Rights’ in G De Búrca and B de Witte (eds), Social Rights in Europe (Oxford University Press 2005). 17 It may be the case, for example, that EU standards deviate from those established under the Charter: for example, the controversial recent case law of the European Court of Justice in relation to the right to strike discussed earlier may confer a lower level of protection on this right than the ECSR has usually required under Article 6 of the ESC. 18 Conclusions XIII-4, Statement of Interpretation on Article 13(1), 54–7.

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are (i) nationals of other state parties, and (ii) legally resident and/or working regularly in the territory of a contracting state enjoy extensive rights protection, especially as a result of the provisions of Articles 18 and 19 of the Charter: this protection also extends to their families, who are covered by a right of family reunification and assorted entitlements linked to their integration within the society of the host country. However, migrant workers who do not come within the scope of the Charter have much more limited entitlements, and even this restricted form of rights protection has proved to be controversial and contested. To understand why migrant workers can enjoy such varied levels of protection under the Charter, it is necessary to understand two competing impulses that are reflected in its text. To begin with, the Charter (as already discussed) aims to lay down a floor of minimum standards which all state parties are expected to respect in how they treat persons within their jurisdiction. The protection of Charter rights is not limited to nationals of the states concerned. Indeed, the wording of certain rights, such as the Article 13 right to social assistance, provides that ‘everyone’ shall be entitled to the relevant standard of protection at issue, while other provisions involve a commitment by the state to ensure that national law and practice respect the rights of workers, vulnerable groups, and other general categories which are not defined by nationality or citizenship. Furthermore, the Preamble to the original Charter and Article E of the revised Charter provide that the enjoyment of Charter rights shall be secured without discrimination on any ground, including ‘national extraction’. However, the drafters of the original Charter did not intend it to apply to all persons present on the soil of state parties: this would have been difficult to achieve, given the link between many of the Charter rights and national insurance systems. Instead, they saw its provisions as an opportunity to establish mutual bonds between different European states when it came to the treatment of migrant workers moving between these states, at a time when what became the EU was in its infancy. As a result, the drafters inserted an express provision to the effect that the personal scope of Charter rights in general only extends to foreigners who were nationals of other state parties residing and/or working legally on the territory of a contracting state. This approach has been carried over into the text of the revised Charter, notwithstanding the free movement rights that have been established in EU law and in accession agreements between the EU states and other Council of Europe members such as Turkey. This restricted personal scope has created a complex legal situation under the Charter, which gives rise to some interesting questions about the extent to which social rights can and should be applied to non-nationals. It also sets up an interesting tension at the heart of the Charter framework of values: it is a human rights instrument that is supposed to define and protect fundamental social entitlements, but the protection it offers is limited to the nationals of contracting states. The Charter is thus both universal and communitarian in its ambitions, which explains the greatly varying level of protection it affords to migrant workers.

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VI. The Personal Scope of the Charter Rights The Appendix to both the original and revised Charters provides that Charter rights apply to foreigners ‘only in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’. This is the key provision which limits the personal scope of the Charter. Special provisions apply in respect of some Charter rights, such as the right to social security (Article 12) and the right to social assistance (Article 13), which are discussed further later in this chapter. Foreign nationals must therefore satisfy three conditions to be entitled to enjoy the protection of Charter rights on the same basis as nationals: 1. be a national of one of the state parties to the original or revised Charters; 2. be lawfully resident, in other words be authorized to enter and reside in the state’s territory; and/or 3. be working regularly, in other words be authorized to enter and work in the state’s territory or to have otherwise become established as a worker in that state. Unlike EU law, the Charter does not grant foreign nationals any right of entry to the territory of other parties. Nor does it establish any free movement rights, even as between state parties. However, it does require states to protect migrant workers who can satisfy the above conditions against discrimination and other forms of less favourable treatment. It also confers rights of family reunification upon them and their dependants, as well as additional entitlements linked to their integration within national education, employment, and social welfare systems. Furthermore, the Charter requires states to operate a flexible immigration policy towards nationals of other parties by liberalizing the regulations governing the employment of foreign workers (Article 18(1)–(3)) and also to facilitate family reunion (Article 19(6)). The scope of certain Charter rights extends further than this. The provisions of Article 12(4) govern the social security rights of ‘nationals of other Parties’. It requires states to ensure that (a) foreign nationals covered by the Appendix are entitled to equal treatment and the export of social security benefits, but also that (b) non-nationals who are no longer resident in the country but were previously lawfully resident or working there can retain and export the social security rights they have acquired under the legislation of the host country. States are expected to give effect to these requirements through domestic legislation and the conclusion of ‘appropriate bilateral or multilateral agreements’ with other state parties. Article 13(4) provides that social assistance should be provided to non-nationals in need who are nationals of other state parties and lawfully present on the territory of the state concerned: in other words, beneficiaries need not be resident or ‘working regularly’ to become entitled to temporary social assistance. Furthermore, Article 18 establishes that nationals of other state parties have a right to seek to engage in gainful occupation in the territory of other state parties, who must respond in a ‘spirit of liberality’: this right is not confined to those already resident and/or working in the country concerned. Similarly, the reunification and other familyrelated rights recognized in Article 19 apply specifically to migrant workers and their families, including family members who are not yet in residence.

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Migrant workers who are not nationals of state parties appear to be excluded in toto from the scope of the Charter rights as defined by the Appendix, except for refugees who are entitled to ‘treatment as favourable as possible’. (This obligation is extended to stateless persons under the revised Charter.) However, in its decision in the collective complaint 14/2003, International Federation of Human Rights Leagues (FIDH) v France,19 the Committee interpreted the Charter as extending a certain level of protection to nationals of non-state parties, notwithstanding the apparent limits imposed on the personal scope of Charter rights by the wording of the Appendix. In this complaint, FIDH alleged that the introduction of special charges for in-patient hospital treatment of foreigners unlawfully present in France, and the exclusion of children of illegal immigrants and unaccompanied minors from the French universal medical coverage (CMU) scheme, breached Articles 13(1) and 13(4) (the right to medical care as an aspect of social assistance for those in need) and Article 17(1) (the right of children to social and legal protection) read in conjunction with Article E (the non-discrimination clause) of the Revised Social Charter. In response, the Committee concluded that legislation or practice which denies foreign nationals access to emergency medical assistance, even if they were illegally present on the territory of the relevant state and were not nationals of another state party, was contrary to the Charter. In reaching this conclusion, the Committee justified its reasoning on several different grounds. First of all, the Committee relied on the provisions of Article 31 of the Vienna Convention on the Law of Treaties 1969, which provides that international treaties should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In the Committee’s view, the purpose of the Charter was to ensure that individuals were entitled to benefit from basic forms of social protection, and an interpretation of its text which would deny individuals access to essential health care would be fundamentally at odds with this objective. Secondly, in determining the object and purpose of the Charter, the Committee gave especial weight to the fact that it is an international human rights instrument based upon the values of dignity, autonomy, equality, and solidarity. As such, the Charter had to be interpreted so as to give substantive effect to fundamental social rights. This in turn meant that restrictions on the scope of the Charter such as that contained in the Appendix had to be given a narrow interpretation, especially in situations when essential human interests such as health and dignity were on the line, as was the case in this collective complaint. Applying this approach, the Committee noted that the Appendix provides that nothing in its text should be read as prejudicing the ‘extension of similar facilities to other persons by any of the Contracting Parties’: in its view, as the state parties had agreed to refrain from subjecting individuals to inhuman and degrading treatment and other forms of dignity violation through ratification of the ECHR and other human rights instruments, the Appendix could not be read as precluding the

19 International Federation of Human Rights Leagues (FIDH) v France CC 14/2003, European Committee of Social Rights, Decision of 8 September 2004.

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application of Charter rights in situations where a failure to respect these rights would violate these other commitments. As a result, while the Committee concluded that the imposition of charges for access to health care did not in itself constitute a violation of the Charter, the restrictions imposed on children of illegal immigrants and unaccompanied minors accessing essential medical treatment was not in conformity with Article 13(4). In a subsequent collective complaint, Defence of Children International v Netherlands,20 it applied a similar logic to the right of children to social protection protected under Article 17 of the revised Charter and the right to housing protected under Article 31. Legislation and state practice which denied the children of illegal migrants access to basic accommodation facilities was held not to be in conformity with the Charter. As a result, it appears as if the restrictions on the scope of Charter rights imposed by the Appendix will not apply when it comes to the enjoyment of the ‘minimum core’ of the rights set out in the Charter which are essential to maintain human dignity.21 This interpretative approach has attracted criticism from certain states, on the basis that it is difficult to reconcile with the express provisions of the Appendix.22 However, the Committee has adhered to this approach. Indeed, in recent reporting cycles, the Committee has begun to clarify the circumstances in which non-nationals of state parties (and even nationals of state parties who are illegally present on the territory of a contracting state) are entitled to the protection of the Charter. For now, this protection primarily extends to access to emergency health care, shelter, and social assistance. However, it is possible to identify other situations where the Committee’s logic may also apply. Nationals of non-state parties and others unlawfully present on the territory of contracting states should arguably also be protected against forms of forced labour that constitute a form of slavery, in line with the approach adopted by the European Court of Human Rights in Siliadin v France23 and Rantsev v Cyprus and Russia:24 in line with the Committee’s jurisprudence, such practices could be viewed as constituting a breach of Article 1(2) of the Charter. A failure to prevent serious exploitation of ‘illegal’ workers might also fall foul of this interpretative approach under Articles 2 to 4 of the Charter. The case law in these fields remains to be developed: for now, it suffices to say that a failure by a state party to protect migrant workers who are nationals of non-state parties or who are unlawfully present on national territory against forms of degrading treatment would appear to be contrary to the Charter. Another area of uncertainty exists. The Appendix refers to ‘nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’ (emphasis added). This wording implies that migrant workers who are not lawfully 20

Defence of Children International v Netherlands CC 47/2008, European Committee of Social Rights, Decision 20 October 2009. 21 Conclusions 2004, Statement of Interpretation, 10. 22 See the submissions of the Dutch Government in CC 47/2008, Defence of Children International v Netherlands, European Committee of Social Rights, available at accessed 13 January 2014. 23 Siliadin v France (2006) 43 EHRR 16. See V Mantouvalou, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 ILJ 395. 24 Rantsev v Cyprus and Russia (2010) 51 EHRR 1.

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resident in a contracting state but who are ‘working regularly’ on its territory come within the scope of the Charter and are entitled to the full protection of the rights it contains (as distinct from the minimalist protection given to non-nationals and discussed in the preceding paragraphs). Workers ‘posted’ to a contracting state will presumably come within this category, even if they lack any right of residence as such. However, it is possible that nationals of contracting states who are unlawfully on the territory of another state but nevertheless ‘working regularly’ will also be covered. For now, the Committee has not ruled on this issue. It may be that few workers come within this category, but this ambiguity in the text of the Appendix is nevertheless worthy of note.

VII. The Protection Afforded to Migrant Workers who come within the Personal Scope of the Charter Turning to the categories of migrant worker who clearly come within the personal scope of the Charter, ie nationals of contracting states who are lawfully resident and/or working regularly in the territory of another state party, it is noteworthy that the Charter confers extensive rights on these workers which at times go beyond the entitlements they tend to enjoy under EU law and related accession agreements (even if there is no right of free movement as such under the Charter). In general, such migrant workers are entitled to enjoy the full benefit of the Charter rights without discrimination. Thus, for example, under Article 1(2), which protects the right of the worker to ‘earn his living in an occupation freely entered upon’, states cannot discriminate against migrant workers when it comes to filling posts in the public or private sectors. Any restrictions on non-nationals must be shown to be objectively justified on the basis that they serve the legitimate aim of protecting national security or the public interest at large and are proportionate in the circumstances. To give another example, the Committee has interpreted the right of access to vocational guidance set out in Article 9 as requiring equal treatment of non-nationals that come within the personal scope of the Charter.25 This implies that no length of residence or reciprocity requirements can be imposed in respect of non-national students or trainees who have a legal right of residence on the territory of the relevant state party.26 A similar analysis applies to the right to appropriate facilities for vocational training guaranteed by Article 10, including entitlement to financial support.27 The Charter also contains provisions which confer distinct and specific rights on migrant workers and their families. The key provisions here are Articles 18 and 19, with the specific provisions of Article 12(4) and 13(4) also being worthy of note. These provisions are unique. They impose obligations on state parties not only to refrain from 25

Conclusions XIV-2, Statement of Interpretation on Article 9, 58. Conclusions XVI-2, 632–3 (Poland). 27 Conclusions XIV-2, Statement of Interpretation on Article 10, 62; see also Conclusions XVI-2, 941 (UK). 26

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discriminating against migrant workers, but also to take positive steps to open up their labour markets to migrant workers, ensuring that they can benefit from the social security and social assistance schemes of their host states, and make it possible for their families to join them and receive assistance with the integration process into the society of the host state. These provisions are highly unusual: while compliance rates with these provisions are at best mixed, they reflect the Charter’s unusual mix of universalist and communitarian ambitions.

1. Article 18: the right to engage in ‘gainful occupation’ in the territory of another contracting state The opening text of Article 18 provides: ‘The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons.’ This is not a full free movement right, but the specific provisions set out in the substantive paragraphs of Article 18 that follow this general statement put some flesh on the bones of what would otherwise be a relatively empty entitlement. Paragraph 1 of Article 18 provides: ‘With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to apply existing regulations in a spirit of liberality.’ As discussed earlier, this provision applies both to migrant workers already ‘legally resident or working regularly’ in the territory of a state and also to workers outside the country applying or reapplying for a work permit.28 It also covers migrant workers who have obtained employment in another state but subsequently lose their job and therefore their entitlement to remain in that country.29 The Committee will assess the ‘liberality’ of a state’s approach in this context by taking into account the refusal rates for work permits as broken down by country, first-time applications, and renewal applications.30 A clear failure to apply a ‘liberal’ approach as indicated by disproportionately high refusal rates will constitute a violation. Article 18(2) provides: ‘With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers.’ The Committee has interpreted these provisions as requiring that it must be possible to complete these formalities in the country of destination as well as in the country of origin, and also that it must be possible to obtain residence and work permits at the same time and through a single application.31 It also implies that the documents required will be delivered within a reasonable time, and that administrative fees must not be excessive.32

28 29 30 31 32

Conclusions XIII-1, 204 (Sweden). Conclusions II, 61 (Denmark, Germany, Ireland, Italy, UK). Conclusions XVII-2, 747 (Spain). Conclusions XVII-2, 243 (Finland); Conclusions XVII-2, 285–6 (Germany). Conclusions XVII-2, 702–3 (Portugal).

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Article 18(3) states: ‘With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to liberalise, individually or collectively, regulations governing the employment of foreign workers.’ This requires states to take periodic steps to liberalize the regulations governing the employment of migrant workers in the following areas: 1. Access to the national labour market—the conditions governing access by migrant workers to the national labour market must not be excessively restrictive, in particular with regard to the geographical area in which the occupation can be carried out and the eligibility requirements that are imposed.33 2. The right to engage in an occupation—a person who has been legally resident for a given length of time on the territory of another party should be able to enjoy the same rights as nationals of that country. Any restrictions initially imposed on the type of employment that migrant workers can engage in must be proportionate, and furthermore must be gradually lifted over time.34 3. Rights in the event of loss of employment—loss of employment must not lead to the cancellation of the associated residence permit. The Committee has interpreted Article 18 as requiring extension of the validity of residence permits so as to provide a migrant worker with reasonable time to find a new job.35 Finally, Article 18(4) provides: ‘With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties recognise the right of their nationals to leave the country to engage in a gainful occupation in the territories of the other Parties.’ The Committee has interpreted this as requiring all such restrictions to be objectively justified as necessary to protect the rights and freedoms of others or as being in the public interest.36

2. Article 19: the right of migrant workers and their families to ‘protection and assistance’ Article 19 is the key provision of the Charter when it comes to migrant rights, and creates rights both for migrant workers and their families. The opening part of Article 19 provides that ‘[m]igrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party’. As with Article 18, the subsequent provisions of the Article put flesh on the bones of this open-ended entitlement.37 Article 19(1) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to maintain or to satisfy themselves that there are maintained adequate and 33

Conclusions II, Statement of Interpretation on Article 18(3), 60. 35 Conclusions XVII-2, 247 (Finland). Conclusions V, 119 (Germany). 36 For examples of permitted restrictions, see inter alia Conclusions XI-1, 155 (Netherlands) and Conclusions 2005, 105 (Cyprus). 37 The UK has ratified all but one of the paragraphs of Article 19—para 11 being the exception. 34

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free services to assist such workers, particularly in obtaining accurate information, and to take all appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration.

This paragraph obliges state parties to provide free information and assistance to nationals wishing to emigrate and to nationals of other Parties who wish to immigrate. Information should be reliable and objective and cover issues such as formalities to be completed and the living and working conditions they may expect in the country of destination (such as vocational guidance and training, social security, trade union membership, housing, social services, education, health, etc).38 Another obligation under this paragraph is that states must take measures to prevent misleading propaganda relating to immigration and emigration. To be effective, action against misleading propaganda should include legal and practical measures to tackle racism and xenophobia as well as human trafficking, both among state officials and across the wider population at large.39 Article 19(2) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to adopt appropriate measures within their own jurisdiction to facilitate the departure, journey and reception of such workers and their families, and to provide, within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey.

This paragraph obliges states to adopt special measures for the benefit of migrant workers, beyond those which are provided for nationals, to facilitate their departure, journey, and reception. The Committee has interpreted this provision as requiring that reception procedures must include not only assistance with regard to placement and integration in the workplace, but also assistance in overcoming problems, such as short-term accommodation, illness, shortage of money, and adequate health measures.40 Article 19(3) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to promote co-operation, as appropriate, between social services, public and private, in emigration and immigration countries.

The scope of this paragraph extends to migrant workers immigrating as well as migrant workers emigrating to the territory of any other state. Contacts, practical cooperation, and information exchange should be established between public and/or private social services in emigration and immigration countries, with a view to facilitating the life of emigrants and their families, their adjustment to the new environment, and their relations with members of their families who remain in their country of origin. A common situation in which such cooperation would be useful would be, for example, 38 40

39 Conclusions III, 87 (Cyprus). Conclusion XV-1, 59 (Austria). Conclusions III, 88; Conclusions IV, 116.

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when a migrant worker has returned to his or her country but needs to claim unpaid wages or benefits, or must deal with other employment or social security-related issues in the country in which he was employed.41 Article 19(4) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters: a) remuneration and other employment and working conditions; b) membership of trade unions and enjoyment of the benefits of collective bargaining; c) accommodation.

This paragraph obliges states parties to take steps to ensure that migrant workers enjoy ‘treatment not less favourable’ than that accorded to their own nationals in the areas of remuneration and employment and working conditions, trade union membership and the enjoyment of benefits of collective bargaining, and accommodation. States are required to guarantee certain minimum standards in these areas with a view to assisting and improving the legal, social, and material position of migrant workers and their families. In particular, the Committee has interpreted this provision as requiring states to prohibit direct and indirect discrimination against migrant workers both in the workplace and also in the sphere of public and private housing,42 to ensure that union positions are open to non-nationals,43 and to remove any legal or de facto restrictions on migrant workers accessing subsidized housing and other forms of accommodation subsidy and support.44 Moreover, states should pursue a positive and continuous course of action providing for more favourable treatment of migrant workers.45 Its provisions are complimented by Article 19(5), which provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals with regard to employment taxes, dues or contributions payable in respect of employed persons.

This paragraph is straightforward: it recognizes the right of migrant workers to equal treatment in law and practice in respect of the payment of employment taxes, dues or contributions.46 The right to family reunion is set out in Article 19(6), which provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory. 41 44 46

42 43 Conclusions XIV-1, 165–6. Conclusions III, 92. Conclusions XIII-3, 418. 45 Conclusions III, 92; Conclusions IV, 121. Conclusions I, 81. Conclusions II, 68.

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This paragraph obliges states to allow the families of migrants legally established in their territory to join them. It needs to be read together with a specific provision in the Appendix to the Charter, which provides: For the purpose of applying this provision, the term ‘family of a foreign worker’ is understood to mean at least the worker’s spouse and unmarried children, as long as the latter are considered to be minors by the receiving State and are dependent on the migrant worker.

As a result, the worker’s children entitled to family reunion are those who are dependent and unmarried, and who fall under the legal age limit in the receiving state (which the Committee has interpreted as the age of majority, which in most countries is 18 years). ‘Dependent’ children are understood as being those who have no independent existence outside the family group, particularly for economic or health reasons, or because they are pursuing unpaid studies.47 The Committee has given states some leeway when it comes to imposing conditions and restrictions on this right of family reunion. For example, while a state will not ordinarily be able to deny entry to its territory for the purpose of family reunion to a family member of a migrant worker for health reasons, a refusal on this ground may be justified in certain limited circumstances, such as when the family member suffers from an illness which is sufficiently serious so as to present a threat to public health.48 Very serious drug addiction or mental illness may justify refusal of family reunion, but only where the authorities establish, on a case-by-case basis, that the illness or condition constitutes a threat to public order or security.49 States may also require migrant workers to complete a certain minimum period of residence before their family can join them. A period of a year is acceptable under the Charter, while three years has been deemed to be an unacceptably long period.50 States can also impose requirements relating to housing space and income, but these must not be disproportionate.51 Furthermore, once a migrant worker’s family members have exercised the right to family reunion and have joined him or her in the territory of a state party, they have an independent right to stay in that territory. Article 19(7) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals in respect of legal proceedings relating to matters referred to in this article.

Under this paragraph, states must ensure that migrants have access to courts, to lawyers, and to legal aid on the same conditions as their own nationals.52 This obligation applies

47 49 51

48 Conclusions VIII, 212. Conclusions XVI-1, 316 (Greece). 50 Conclusions XVI-1, 227–8 (Finland). Conclusions I, 69. 52 Conclusions IV, 126; Conclusions XIII-1, 209. Conclusions I, 86.

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to all legal proceedings concerning the rights guaranteed by Article 19 (ie pay, working conditions, housing, trade union rights, taxes etc).53 Article 19(8) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality.

This paragraph obliges states to prohibit by law the expulsion of migrants lawfully residing in their territory, except where they are a threat to national security, or offend against public interest or morality.54 The Committee has interpreted it as providing that expulsion for offences against public order or morality can only be in conformity with the Charter if they constitute a penalty for a criminal act, imposed by a court or a judicial authority, and are not solely based on the existence of a criminal conviction but on all aspects of the non-nationals’ behaviour, as well as the circumstances and the length of time of his or her presence in the territory of the state. The fact that a migrant worker is dependent on social assistance cannot be regarded as a threat against public order and cannot constitute a ground for expulsion.55 States must ensure that foreign nationals served with expulsion orders have a right of appeal to a court or other independent body, even in cases where national security, public order, or morality are at stake.56 Significantly, the Committee has also ruled that migrant worker’s family members who have joined him or her through family reunion may not be expelled as a consequence of his or her own expulsion, since these family members have an independent right to stay in the territory.57 Article 19(9) provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to permit, within legal limits, the transfer of such parts of the earnings and savings of such workers as they may desire.

This provision is clear-cut: it obliges states not to place excessive restrictions on the right of migrants to transfer earnings and savings aboard, either during their stay or when they leave their host country.58 Article 19(10) extends rights to self-employed migrant workers: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to extend the protection and assistance provided for in this article to selfemployed migrants insofar as such measures apply.

53 56 58

Conclusions I, 217. Conclusions IV, 129–30. Conclusions XIII-1, 212.

54

55 Conclusions VI, 126. Conclusions V, 138–9. 57 Conclusions XVI-1, 460–1 (Netherlands).

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Under this paragraph, states must ensure that the protection and assistance provided for in paragraphs 1 to 9, 11, and 12 are extended to self-employed migrant workers and their families.59 States must ensure that there is no discrimination, in law or in practice on the one hand between wage earners and self-employed migrants, and, on the other hand, between self-employed migrants and self-employed nationals. The extent of the Charter’s ambitions in this field is reflected in the provisions of Article 19(11), which provides: With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to promote and facilitate the teaching of the national language of the receiving state or, if there are several, one of these languages, to migrant workers and members of their families.

Under this paragraph, states should promote and facilitate the teaching of their national language(s) to children of school age, as well as to the migrants themselves and to members of their families who are no longer of school age. Furthermore, according to the Committee’s interpretation, states should endeavour to introduce additional educational support alongside formal schooling for migrant workers’ children who have not attended the first few primary school years in the host state’s education system, as well as for members of migrants’ families who are no longer in full-time education. Such language classes should be provided free of charge. This provision is complemented by Article 19(12): With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to promote and facilitate, as far as practicable, the teaching of the migrant worker’s mother tongue to the children of the migrant worker.

The undertaking of states under this paragraph is to promote and facilitate the teaching, in schools or other structures, such as voluntary associations, of those languages that are most represented among migrants within their territory.60 States should therefore promote and facilitate the teaching of the mother tongue of significant migrant worker groups.

3. Articles 12 and 13: social security and social assistance Article 12(4) provides: With a view to ensuring the effective exercise of the right to social security, the Parties undertake to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a) equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social

59

Conclusions I, 87.

60

Conclusions 2002, 102–3 (Italy).

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security legislation, whatever movements the persons protected may undertake between the territories of the Parties; b) the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.

As previously discussed, the scope of Article 12(4) extends to nationals of other states parties who no longer reside on their territory but did legally reside or work there in the past, thereby conserving the social security rights they acquired in the host state. The guarantee of equal treatment within the meaning of Article 12(4) requires states to remove any form of direct or indirect discrimination from their social security legislation against non-nationals. This means that national legislation cannot reserve a social benefit to nationals only, or impose extra or more restrictive conditions on nonnationals, apart from the completion of a period of residence for non-contributory benefits (which is expressly permitted in the text of the Appendix). However, the Committee has ruled that any such length of residence requirement must be proportional to the objective pursued, ie to ensure that migrant workers have formed genuine connection with the host state.61 Furthermore, length of residence and/or employment requirements cannot be imposed in respect of contributory benefits.62 With regards to the payment of family benefits, ‘child residence’ requirements are permissible (ie payment can be made conditional on the presence of the child within the territory of the host state). However, the Committee has taken the view that states applying such requirements are expected to conclude bilateral or multilateral agreements within a reasonable time with states applying an alternative approach.63 Payment transfers under such arrangements may be reduced to reflect varying costs of living, but any such reduction must be proportionate.64 Social security benefits such as invalidity allowance, old age benefit, survivor’s benefit, and occupational accident or disease benefit acquired under the legislation of the host state should be transferrable across borders.65 However, the Committee has been willing to accept that unemployment benefit need not be exportable, on the basis that it is a short-term allowance closely linked to trends in the labour market.66 Exportability can be achieved through bilateral arrangements or other routes, as long as it is guaranteed in practice. Similarly, states should take measures to ensure that accrued social security rights are maintained even when workers cross borders.67 Turning to ‘social assistance’, which the text of the Charter distinguishes from social security, the Committee has interpreted the Article 13(1) guarantee of access to social assistance as requiring that ‘any person’ in need receive support. As a result, a denial of

61 62 63 64 65 66 67

Conclusions XIV-1, 768 (Turkey). Conclusions XIII-4, Statement of Interpretation on Article 12, 44. All Conclusions 2006 and XVIII-1. Conclusions XIII-4, Statement of Interpretation on Article 12, 44; Conclusions XIV-1, 314 (Germany). Conclusions XIII-4, Statement of Interpretation on Article 12, 45, Conclusions XIV-1, 230 (Finland). Conclusions XIV-1, 630 (Norway). Conclusions XIII-4, Statement of Interpretation on Article 12, 45.

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access to social assistance on the grounds of a failure to satisfy a length of residence requirement will generally not be in keeping with Article 13(1).68 Article 13(4) makes further specific provision in respect of the entitlement of migrant workers to receive social assistance, by recognizing a right of equal treatment to migrant workers and other non-nationals that come within the scope of the Charter when it comes to social assistance. Its text needs to be read together with a provision in the Appendix to the Charter: With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11th December 1953 . . . 69 Governments not Parties to the European Convention on Social and Medical Assistance may ratify the Charter in respect of this paragraph provided that they grant to nationals of other Parties a treatment which is in conformity with the provisions of the said convention.70

Equality of treatment means that entitlement to assistance benefits, including income guarantees, is not confined in law to nationals or to certain categories of nonnationals,71 and that the criteria applied in practice for the granting of benefits do not differ by reason of nationality.72 Equality of treatment also implies that additional conditions, such as length of residence, should in general not be imposed on nonnationals in a genuine state of need and seeking access to social assistance. This means that migrant workers have a right to access social assistance that should not be made dependent on their length of time in residence in the host state, if they are in a genuine situation of socio-economic need. The Committee has also interpreted Article 13(4) as requiring that non-nationals lawfully resident in the territory of a contracting party cannot be repatriated on the sole ground that they are in need of assistance. As long as their lawful residence or regular work continues, they should enjoy equal treatment. As discussed earlier, Article 19(8) contains a similar provision, which applies specifically to migrant workers and their families: the scope of Article 13(4) is a little wider, as it also applies to non-workers, but their provisions are similar. However, the Charter does not preclude states imposing a requirement that those in receipt of social assistance be in residence in their territory, or have a distinct and specific link with the state providing the assistance. As a result, the UK’s ‘habitual residence’ test may in principle satisfy the requirements of the Charter, on the grounds that it makes welfare entitlement dependent on established presence within the territory of the state. Such ‘presence’ or ‘close link’ requirements, designed to combat ‘welfare tourism’, are permissible, as long as they are not applied in a disproportionate or excessive manner. However, the distinction between ‘length of residence’ and 68 70 72

69 Conclusions XVIII-1, 238 (Czech Republic). ESC, Article 13(4). 71 ESC, Appendix. Conclusions XVIII-1 (Belgium). Conclusions XVIII-1 (Germany).

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‘presence’ tests is not always clear in practice, as the tests can easily blur into one another. The ‘habitual residence’ test illustrates this perfectly, as one of the factors by which an individual’s link to the territory of the UK is assessed is the period of residence they have spent on British soil. In its 2011 conclusions in respect of the UK for Article 19(8), the Committee has sought further information on how the habitual residence test is being applied in practice.73 However, once the validity of a residence and/or work permit has expired, state parties have no further obligation towards non-nationals (subject to the requirement to provide emergency assistance and care, discussed earlier). This includes the situation where possession of a work permit is made conditional on being employed, or being employed in a particular post: the Charter makes clear that nothing in its provisions creates a right of entry or residence in the territory of contracting states. However, if states repatriate non-nationals on the grounds that their work permits have expired and they lack the means to support themselves, any such repatriation must be in accordance with the provisions of the 1953 Council of Europe Convention on Social and Medical Assistance. Article 7 of this Convention provides that repatriation can only be used in the greatest moderation and where there is no objection on humanitarian grounds, and can also only be done subject to the following specific conditions: • those concerned have not been continuously resident in the party’s territory for at least five years; • they are in a fit state of health to be ‘transported’; • they have no close ties in the territory in which they are resident. In addition, repatriating states must bear the cost of repatriation as far as the frontier of the territory to which the national is being repatriated (Article 8) and provide relevant information to the diplomatic or consular authorities of the country of origin and the authorities of any country or countries of transit (Article 10). As the Appendix makes clear, these requirements also apply to those states which have accepted Article 13(4) but not ratified the 1953 Convention.

VIII. Conclusion The Charter is a complex instrument, whose provisions reflect the era in which they were drafted and the political compromises that underpinned its establishment. The personal scope of its provisions are seriously limited, notwithstanding the Committee’s finding that states are required to provide emergency assistance to non-nationals unlawfully present in the national territory. However, its provisions set out a detailed framework of rights which provide a template for how migrant workers should be treated, and constitute a set of normative standards by which to assess the reality of how they are treated in law and practice across Europe today.

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Conclusions XIX-4 (2011) (UK).

16 Black Women Workers and Discrimination Exit, Voice, and Loyalty . . . or ‘Shifting’? Iyiola Solanke*

I. Introduction The purpose of this chapter is to consider whether non-migrant black women1 are more or less likely to dissent at work than migrant black women, that is, black women born and socialized in Africa, Asia, or the Caribbean, who migrate to Britain and acquire British citizenship through naturalization.2 The focus of this chapter falls on migrants who are skilled professionals, enjoy a secure migration status, and are in a position to exercise rights at work. The distinction is intended to draw a contrast to other contributions in this volume which centralize vulnerable workers subject to immigration control who do not enjoy full labour rights, or are unable to exercise their rights.3 It is important to remember that despite the different pathways to secure status (birthright and naturalization), women in both of these groups may suffer discrimination, even as British nationals and therefore also black European Union citizens.4 The central issue is the response to race discrimination, in particular whether migrant status affects the decision of black women workers to dissent formally by using anti-discrimination law to make a complaint. The chapter will explore the extent to which migrant status can operate as an independent variable determining if a black woman will use voice, exit, or shift when facing discrimination at work. I frame the exploration using a classic political science text, Exit, Voice, and Loyalty by Albert Hirschman.5 By using empirical research into the working lives of black women, I show that Hirschman’s three categories are insufficient and require a fourth to incorporate how non-migrant black women

* Iyiola Solanke is a Senior Lecturer in the School of Law at the University of Leeds. 1 Defined for the purposes of this chapter as black women born and socialized in Britain to parents whose origins are in Africa, Asia, and the Caribbean. 2 British nationality law is complex, containing many different statuses. The key distinction to be made is between black women who have never been subject to immigration control and those that have been subject to this prior to naturalization. 3 However, recent cases illustrate that even vulnerable migrant workers subject to immigration control may use voice to enforce their rights. See Onu v Akwiwu and others [2013] UKEAT/0283/12/RN and UKEAT/0022/12/RN, [2013] IRLR 523; Taiwo v Olaigbe [2013] UKEAT 0254/12/KN and UKEAT/0285/ 12/KN, [2013] ICR 770 (joined on appeal as Onu v Akwiwu and another & Taiwo v Olaigbe and another [2014] EWCA Civ 279, [2014] WLR (D) 128); Mehmet t/a Rose Hotel Group v Aduma [2007] UKEAT/ 0573/06/CEA & UKEAT/0574/06; Hounga v Allen [2012] EWCA Civ 609; [2012] IRLR 685. 4 Article 20 and 21 TFEU. 5 A Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press 1970).

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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workers dissent. This can be described as ‘shifting’. Shifting is neither exit, nor voice, nor loyalty. Rather, it is silenced acquiescence, a strategy for survival in the workplace. Social surveys suggest that non-migrant black women will shift if exit is impossible; I suggest that by contrast migrant black women workers do not shift, but will use voice, or bring legal proceedings using anti-discrimination law. I also draw on Elizabeth Hoffman’s nuance to Hirschman’s theory, that is, her suggestion that loyalty can sometimes be ‘ironic’.6 Furthermore, I show that even when voice is an expression of commitment, workers can lose their jobs. My argument that migrant status makes a difference to the behaviour of black women at work relies upon the notion of trust. Trust can be described as the confidence that authorities will not exploit the power vested in them to cause harm, but will behave in a way ‘that is beneficial or at least not detrimental to us’,7 that is, in a way that serves our interests. Trust, I argue, explains the mode of dissent: migrant women arguably have more trust in the formal justice system because they have not been subjected to the social alienation and workplace estrangement experienced by non-migrant black women. As foreigners, migrant black women may of course experience isolation when abroad, but non-migrant black women are alienated, or treated like foreigners, at home. Non-migrant black women experience social alienation directly and vicariously through personal and family experiences. As the workplace is a microcosm of society and workplace relations reflect and entrench social relations, social alienation undermines the communication that is a prerequisite to trust in organizational procedures designed to tackle dissent. I conclude that due to the absence of trust, non-migrant black women will shift, whereas migrant black women will use voice. Neither are easy options. Both have costs in the workplace and beyond. The argument proceeds from the case of Feyi Awotona, a consultant in the British National Health Service (NHS) who was dismissed from her job as a consultant obstetrician with South Tyneside NHS Trust.8 She was not the first to suffer discrimination in the NHS, nor was she the last: in 2012, Elliott Browne was awarded £1 million in a discrimination case against Central Manchester University NHS Foundation Trust.9 Her particular case is remarkable due to its duration, and the amount awarded by the tribunal. In 2005 she was awarded £1.6 million, at that time the second highest payout from an employment tribunal.10 Her case represents the tip of an iceberg of racial tension in the NHS. It is paradoxical that the NHS is plagued by racism despite its dependence on black and

6 E Hoffman, ‘The Ironic Value of Loyalty Dispute Resolution Strategies in Worker Cooperatives and Conventional Organizations’ (2006) 17(2) Nonprofit Management & Leadership 163. 7 D Gambetta, ‘Can we Trust Trust?’ in D Gambetta (ed), Trust: Making and Breaking Cooperative Relations (Basil Blackwell 1988) cited in S Rose-Ackerman, ‘Trust, Honesty, and Corruption: Reflection on the State-Building Process’ (2001) John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers. Paper 255, . 8 Dr V F Awotona v South Tyneside Healthcare Trust Case (Number 2500205/99, Newcastle Upon Tyne March 2000–November 2001). 9 D Campbell, ‘Former NHS Manager Awarded £1m in Racial Discrimination Case’ The Guardian (9 January 2012). 10 D Sanderson, ‘Sacked Doctor in Racial Bias Case is Awarded 1.6 million’ The Times (16 September 2005).

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minority ethnic (BME) workers.11 Figures from the NHS Institute for Innovation and Improvement state that BME medics comprise almost 20 per cent of the NHS workforce. In some medical fields, up to 30 per cent of the NHS are overseas-qualified.12 It is estimated that BME doctors have saved Britain billions in training costs. However, this cohort remains ‘over-represented in the lowest paid, least glamorous specialities in the least popular parts of the country’ and under-represented in senior roles. There are only five BME chief executives across more than 300 NHS organizations.13 In London, although over 44 per cent of NHS staff are from BME backgrounds, only one out of the thirty-one primary care trusts in the capital has a chief executive from a BME group.14 White middle-class males dominate the senior ranks of the profession.15 The low rates of promotion are compounded by the disproportionately high rates of disciplinary procedures involving BME doctors. They are three times more likely to be charged with serious professional misconduct by the General Medical Council, and therefore more likely to be struck off the practising register. BME doctors may be the biggest single group to complain of routine discrimination.16 The problem is not restricted to NHS employees. Black and minority ethnic trainees also complain of racism during college and when looking for their first job. For instance, in March 2013, Victoria Jibowu alleged racist harassment and discrimination forced her out of her medical programme at King’s College London.17 Racism also affects NHS patients: the death of David ‘Rocky’ Bennett at a Norwich hospice in 1998 was attributed to institutional racism.18 The problem is compounded by the fact that the NHS seems to have a general culture of bullying and a tradition of gagging those who might want to report problems in patient care and welfare.19 Whistle-blowers, or those who verbalize such concerns, seem to risk their jobs. Dr Feyi Awotona fell into

A Taher, ‘Report Reveals Racism in Medical Profession’ The Guardian (19 June 2001). Figures from the NHS Institute for Innovation and Improvement. K Chand, ‘Viewpoint: Racism still Rife in NHS Half a Century after Martin Luther King’s “Dream” ’ GP Online (29 August 2013). 13 K Chand, ‘Viewpoint: Racism still Rife in NHS Half a Century after Martin Luther King’s “Dream” ’ GP Online (29 August 2013). See also K Chand, ‘Why is Racism Rife in the NHS?’ The Guardian (5 February 2013). 14 A Dangerfield, ‘ “Institutional Racism is an Issue” in NHS, says Ex-executive’ BBC News (7 November 2012). 15 N Coker, Racism in Medicine (The Kings Fund, 2001); N Coker, ‘Tackling Racism in the NHS’ (1997) BMJ 314, 618; A Esmail and S Everington, ‘Asian Doctors are Still being Discriminated Against’ (1997) BMJ 314, 1619. 16 R Verkaik, ‘ “Doctors Encounter Worst Racism” says Phillips’ The Independent (31 October 2005). 17 Anonymous, ‘NHS Accused of Racism’ The Telegraph (27 August 2008); ‘Medical Student “Endured Racist Taunts by NHS Doctors” ’ Daily Mail (28 March 2013). 18 In response the Government produced a five-year plan entitled ‘Delivering Race Equality’ to combat racism in the mental health services. Department of Health, Delivering Race Equality in Mental Health Care: An Action Plan for Reform Inside and Outside Services and the Government’s Response to the Independent Inquiry into the Death of David Bennett (Department of Health, 2005) accessed 20 January 2014. 19 For a recent example, see The Francis Report, based on a public inquiry into the Mid-Staffordshire NHS Foundation Trust (‘The Mid Staffordshire NHS Foundation Trust Public Inquiry’ accessed 7 January 2014). A Code of Practice on Whistleblowing has been proposed by the independent Whistleblowing Commission, set up by Public Concern at Work. See accessed 7 January 2014. 11 12

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this category. Prior to her dismissal for ‘gross personal misconduct’,20 she had raised various concerns with her colleagues relating to a high infant death rate and substandard treatment of women patients.21 The institutional context makes use of voice even less likely and thus Awotona’s behaviour even more extraordinary. Why did she not exit, stay silent, or simply shift? After explaining Hirschman’s theory of organizational dissent, and Hoffman’s development thereof in section II, section III turns to discussion of the working lives of black women in Britain. Section IV moves into explanation of social alienation and section V covers workplace isolation and estrangement. Before concluding, section VI explains how alienation and isolation undermine trust and authentic communication.

II. Exit, Voice and Loyalty: Hirschman’s Theory of Organizational Dissent Hirschman explored the role of dissent across various forms of organization, from firms to higher education institutions to states. His seminal text argues that citizens, consumers, and workers who are unhappy have two basic options: stay or leave. Dissatisfaction can lead to fight or flight. A consumer who is no longer satisfied with a particular product can continue to purchase it nonetheless (loyalty) or seek an alternative (exit). Likewise, an employee who is unhappy at work can stay and put up with the situation (loyalty) or seek a new job (exit). Like resignation, migration is a form of exit. A disgruntled citizen can abandon ‘voice’ and ‘cut and run’. As Hirschman wrote, ‘the United States owes its very existence and growth to millions of decisions favouring exit over voice’.22 Upon arrival, however, the exit option may decline for migrants. This may be for a variety of reasons including: their migration status, such as where the conditions of their work permit tie them to a particular employer; debt; shame; persecution; or the impossibility of returning home. Hirschman defined voice as a means to an end—voice is intended to achieve change: To resort to voice, rather than exit, is for the customer or member to make an attempt at changing the practices, policies and outputs of the firm from which one buys or of the organization to which one belongs. Voice is here defined as any attempt at all to change, rather than to escape from, an objectionable state of affairs, whether through individual or collective petition to the management directly in charge, through appeal to a higher authority with the intention of forcing a change in management or through various types of actions and protests including those that are meant to mobilise public opinion.23

There is no specific mechanism for voice. It can take many forms, including the use of anti-discrimination law. Anti-discrimination laws are used in many countries to protect individuals from disadvantageous treatment because they belong to, are perceived to

J Smy, ‘The Path Back’, Hospital Doctor (25 November 2004). A Symon, ‘Institutional Racism and Discrimination: Are they Endemic in the NHS?’ (2006) 14(6) British Journal of Midwifery 366. 22 23 Hirschman (n 5). Hirschman (n 5) 30. 20 21

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belong to, or are associated with groups that are stigmatized and marginalized. The basis of this stigmatization is typically a personal attribute that cannot be changed or can only be changed with great difficulty. These laws seek to secure equal treatment by preventing decisions being detrimentally influenced by consideration of such attributes. Such decisions are unlawful. Anti-discrimination law may be styled as civil rights law, equality law, or human rights law. For example, the Civil Rights Act of 1964 in the USA makes discrimination unlawful, as does the British Equality Act 2010 (which brings together all the anti-discrimination statutes adopted since 1965) and the Canadian Human Rights Act of 1977. The different titles do not reduce the centrality of the prohibition of discrimination to these laws. Hirschman linked exit to voice: if exit is easy, he held that voice is unlikely. The employee who can find another job is more likely to leave than speak out, for example by using anti-discrimination law. Exit is therefore always to some extent conditional upon the availability of alternatives. If exit is difficult because of a lack of opportunities, such as when jobs are scarce, replacement products do not exist, or borders are closed, voice may instead be exercised. According to his theory, the role of voice will therefore increase as exit options decline.24 In the labour force, those with less marketable skills (poor qualifications), or with vested interests (a position of seniority), or in a sector with high entry costs (the need for specific non-transferable qualifications) are therefore more likely to use voice. However, as Barnard shows in this volume, both voice and exit are often unavailable for migrants in vulnerable situations at work—precarious labour relationships for the most part generate silence.25 Hirschman posited that where exit is not an option, some who stay may remain ‘dumbly faithful’, silently acquiescing in the face of organizational misbehaviour. Voice is always the more difficult option. Yet a brave minority may find the strength to speak out despite their vulnerability: ‘The voice option is the only way in which dissatisfied customers or members can react whenever the exit option is unavailable. This is very nearly the situation in such basic social organizations as the family, the state, or the church’.26 Until recently, the Church of England as a whole had no formal grievance procedure through which to dissent, although some individual dioceses had their own procedures.27 The risks undertaken by whistle-blowers in the NHS demonstrates that voice has an ‘opportunity cost’. Hirschman contrasts taking the risk that voice will lead to improvement with the ‘certainty of the exit option’.28 As voice may have costs and consequences, it requires a certain level of trust before it will be exercised. The employee must have faith that the employer will respond sincerely. For Hirschman, exit tended to occur after trust has been disappointed, for example where attempts to speak out have been ignored or voice had failed due to a weak opportunity structure for change. Thus the decision to exit is influenced by both the availability of options and the perceived effectiveness of voice to bring about change. He argues that ‘[t]he effort an interested 24

25 Hirschman (n 5) 34. C Barnard, Ch 11 in this volume. Hirschman (n 5) 33. On speaking out in the Church of England, see Sharpe v The Worcester Diocesan Board of Finance Ltd & Anor [2013] UKEAT/0243/12/DM, [2014] ICR D9. 27 28 Sharpe (n 26) [54]. Hirschman (n 5) 39. 26

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party makes to put its case before the decision-maker will be in proportion to the advantage to be gained from a favourable outcome multiplied by the probability of influencing the decision.’29 The decision to use anti-discrimination law is especially risky, as it can leave a stigma that may affect re-employment,30 in a way that until recently was not covered by the anti-victimization provisions in the 2010 Equality Act.31 Hirschman links loyalty to silence. In contrast, more recent scholarship has suggested a link between loyalty and voice.32 In a study focusing specifically on workerowned cooperatives in the non-profit sector, Hoffman suggests that voice can also be inspired by loyalty. However, this loyalty has an ‘ironic value’ because it does not lead to silence (as Hischman had originally suggested) but rather voice. She describes workers in this sector as highly motivated and often committed to the organization because it is aligned with their personal, social, or political beliefs and goals. This commitment brings with it a high level of trust and faith in the organization’s values and ethics. The loyalty to these values is the trigger for voice. Ironically, therefore, these ‘workers with greater loyalty are less likely to exit when they encounter workplace problems.’33 Due to their faith in the organizational values and its ethos, they will stay and try to sort things out. Exit for them is not a dispute resolution option. Consequently, this loyalty results in high levels of dissent, forcing management to address issues because the choice to stay also makes a grievance more likely. Hoffman’s main observation that in some sectors voice can also be a consequence of conscious commitment would also seem to apply to workers in the NHS, such as Awotona. Yet, Hoffman’s suggestion that ironic loyalty leads to positive outcomes may not hold for black migrant women at work. For Awotona, voice motivated by loyalty led to expulsion: she attempted to change NHS culture through voice, but ultimately lost her job. Dr Awotona arrived in England from Nigeria in 1981. She worked in hospitals in London and Newcastle before being employed by South Tyneside District Hospital as a consultant gynaecologist in 1995. She was dismissed in 1998 for alleged ‘gross personal misconduct’. It was claimed that she was obstructive and confrontational.34 In 2002, an employment tribunal found that the main reason for her dismissal was her decision to begin discrimination proceedings against South Tyneside NHS Trust.35 Her claim was only partially successful, in that the claim of racial discrimination was upheld, while that of sex discrimination rejected.36 A BBC investigation revealed that she was in fact a

29

Hirschman (n 5) 39. See eg Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202; [2010] ICR 397. Mr Chagger was employed by Abbey National for five years until his employment ended, ostensibly as he was made redundant, in 2006. He presented a complaint to the employment tribunal alleging unfair dismissal, race discrimination, and breach of contract. All his claims were upheld. He then applied for more than 111 jobs without success. More recently, Latifa Bouabdillah claimed she was fired after one month when her new employers discovered she was suing her former employer for sex discrimination. R Neate, ‘Commerzbank “Victimized” Employee over Discrimination Case, Tribunal Rules’ The Guardian (15 April 2013). 31 See Jessemey v Rowstock Ltd & Anor [2014] EWCA Civ 185, [2014] WLR(D) 101. 32 33 34 Hoffman (n 6). Hoffman (n 6) 163. Sanderson (n 10). 35 36 Sanderson (n 10). Sanderson (n 10). 30

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whistle-blower, motivated by loyalty. Contrary to the wishes of her colleagues, she had confronted the hospital medical director, the most senior clinician at the hospital, about the high post-operative complication rate of his female cancer patients. Apparently, many of his patients ‘had to come back a second time to put right what was done wrong. The patients bled excessively and were transfused, many organs were damaged and they were in a lot of pain.’37 When she questioned why a white midwife was appointed clinical director, given the presence of black consultants, she was told that ‘she was “a woman and black” and that there was a limit to what she could achieve within the hospital’.38 Awotona’s story adds a new angle to the interaction of voice and loyalty: her actions were informed by commitment, or ‘ironic loyalty’. When asked if she would ‘risk raising her head above the parapet again’, she replied, ‘Yes, I would. It is a duty for each and every one of us to speak out. Doctors are not employed to serve themselves. Our role is to serve the population. And that means taking action if something goes wrong.’39 However, there was no reward for her ironic loyalty. Instead she felt her career blocked, and, after threatening legal action for discrimination, was subjected to disciplinary proceedings and eventually dismissed on spurious grounds. She won at Tribunal but despite being ordered to reinstate her, South Tyneside Trust initially refused to do so and then procrastinated until this became impossible.40 The situation took seven years to come to a final resolution. In 2005, she resigned her post and was awarded £1.6 million in compensation for past and future losses. Given her migrant status, the context of racism in the opaque NHS and the dangers of voice in such a secretive organization, why did Awotona have the commitment to voice dissent? She was discouraged from taking formal action. So, why did she do so, rather than stay silently loyal like her longer-standing colleagues? Why did she not exit, or ‘shift’? In order to understand why, it is necessary to consider the working conditions of black women in predominantly white institutions.41

BBC News Online, ‘Doctor Sacked after Exposing Blunder’ BBC News (23 July 2002). A Symon, ‘Institutional Racism and Discrimination: Are they Endemic in the NHS?’ (2006) 14(6) British Journal of Midwifery 366. 39 ‘The Path Back’ (n 20). 40 BBC News, ‘Trust Refuses to Reinstate Doctor’ (12 March 2003); BBC News, ‘Sacked Doctor Returns to Work’ (25 November 2003); BBC News, ‘Sacked Doctor’s Fight Continues’ (29 September 2004); BBC News, ‘Sacked Doctor to Return to Work’ (15 October 2004); BBC News, ‘Tribunal Victory Consultant Quits’ (19 May 2005). 41 For scholarship on black women in predominantly white academic institutions, see R Wilson, ‘Women of Colour in Academic Institutions: Trends, Progress and Barriers’ (1989) 21 Sex Roles: A Journal of Research 85; L Benjamin, Black Women in the Academy: Promises and Perils (University of Florida Press 1997); S Gregory, Black Women in the Academy: The Secrets to Success and Achievement (University Press of America 1999); R O Mabokela and A Green, Sisters of the Academy: Emergent Black Women Scholars in Higher Education (Stylus Publishing 2001); R Mabokela and Z Magubane (eds), Hear Our Voices! Race, Gender and the Status of Black South African Women in the Academy (UNISA Press 2004); J Carter-Black, ‘A Black Woman’s Journey Into a Predominately White Academic World’ (2008) 23(2) Affilia: Journal of Women and Social Work 112. On black students in predominantly white institutions, see accessed 22 March 2014. On women in general in academia, see C Black and A Islam, ‘Women in Academia: What Does it Take to Reach the Top?’ at accessed 22 March 2014. 37 38

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III. Shifting: Black Women and Dissent at Work Many scholars argue that black women form an ‘intersectional’ group, who experience discrimination in a way that is qualitatively different to the experience of black men and white women. Intersectionality has been described as the synergy of two degraded statuses, combining for black women ‘the disabilities of blacks and the disabilities which inhere in their status as women’.42 The result is a condition ‘more terrible than the sum of their two constituent parts’.43 I have argued that synergy is central to intersectionality: Synergy highlights ‘cooperative effects, the effects produced by two or more elements, parts or individuals . . . that operate together’: synergistic effects are always codetermined and interdependent, the elements work together so that if one is removed it becomes something else. The elements themselves need not be pre-determined: the synergy arises from the effects of their combination, although history and contingency are both important factors. Synergetic intersections are like chemical compounds: just as the mixing of oxygen and hydrogen results in water not ‘oxydrogen’, or tin and copper together make bronze, not ‘tinper’, intersectionality creates a new compound subject.44

Thus while intersectionality is not necessarily limited to the experience of black women, synergy is essential for any experience of discrimination to be defined as intersectional. A model for intersectionality is Sojourner Truth. Her plaintiff cry of ‘ain’t I a woman’ was revived in the twentieth century by critical race feminists, who noted that black women at work experienced a disadvantage not shared by white women or black men. The ‘gap’ into which black women fell was explained as an unintended consequence of political struggles. As Crenshaw explains: Feminists and civil rights thinkers have treated Black women in ways that deny both the unique compoundedness of their situation and the centrality of their experiences to the larger classes of women and Blacks. Black women are regarded either as too much like women or Blacks and the compounded nature of their experience is absorbed into the collective experiences of either group or as too different, in which case Black women’s Blackness or femaleness sometimes has placed their needs and perspectives at the margin of the feminist and Black liberationist agendas.45

Judges in the USA eventually concluded that this omission could not be ignored due to the number of black women in the American labour market. In 2011, African Americans made up 11.6 per cent of the US labour force; 53.8 per cent of employed black workers were women. A refusal to address discrimination affecting this cohort would 42 J Scales-Trent, ‘Black Women in the Constitution: Finding Our Place and Asserting Our Rights’ (1989) 24 Harv CR-CLL Rev 9, 1. 43 J Scales-Trent (n 42). 44 I Solanke, ‘Infusing the Silos in the Equality Act 2010 with Synergy’ (2011) ILJ 336, 340. 45 K Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracial Politics’ (1989) University of Chicago Legal Forum 139, 150.

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leave a large group of workers vulnerable to workplace discrimination. In 1980, a US Court in Jeffries acknowledged as much when it held that absent a ‘clear expression’ that Congress did not intend to protect black women as a distinct group, it could not ‘condone a result’ that left such a ‘significant’ proportion of the workforce without a remedy under Title VII of the Civil Rights Act.46 There are of course disadvantages to group recognition and encapsulation under a single term. It can lead to the problem of over-inclusion and also to ‘monolithism’, that is the belief that there are no distinctions within the group. It is advisable to remember that categorical labels serve as shorthand, and diversity accompanies commonalities. Nonetheless, empirical studies show that black women as a group face specific common conditions at work. A study of black female lawyers found that these professionals are ‘ghettoized’ into certain practice areas; forced to repeatedly establish their credentials to professors, peers, and judges; and have more difficulty reaching senior roles in the profession.47 In a separate survey of black women in the US,48 97 per cent reported awareness of negative stereotypes of African American women; 80 per cent said they have been personally affected by persistent racist and sexist stereotypes49 and that they had experienced discrimination most frequently at work, as well as sexual abuse and harassment elsewhere.50 The survey suggests a very different world of work for black women that is governed by ‘a set of old oppressive myths circulating in the whitedominated world’. These myths cast them as inferior, lazy, stupid, unmotivated, and inarticulate. They surfaced in double-edged compliments, such as ‘You’re so articulate’,51 or direct put-downs, such as being told as an academic that you only get tenure because you are black.52 Decisiveness and leadership skills were not an advantage: the women in the survey spoke of having to be ‘traditionally feminine and uniquely strong’ in order to be professionally successful, but strength led to expectations of being ‘Superwoman’—‘tough, pushy and in charge rather than soft, feminine and vulnerable’ and with feelings that needed to be considered.53 Thus in an environment potentially

46

Jeffries v Harris County Community Action Association 615 F 2nd 1025 (5th Cir, 1980) [24]. 1994 ABA Commission on Women in the Profession and the Commission on Opportunities for Minorities in the Profession, ‘The Burdens of Both, the Privileges of Neither’ cited in Gender Fairness Task Force Report on Intersectionality. See also T Beiner, ‘Not All Lawyers are Equal: Difficulties that Plague Women Lawyers and Women of Color’ (2008) 58 Syracuse Law Review 2, 317. 48 The 2003 African American Women’s Voices Project was the largest and most comprehensive study on African American women’s perceptions and experience of racism and sexism: 333 female respondents, aged between 18–88 in twenty-four different states of America with a variety of educational backgrounds, incomes, marital status, and sexual orientation answered open-ended questions about their perceptions of stereotypes of black women, their major difficulties as black women, their experience of racial and gender discrimination, and their coping strategies. In-depth interviews were conducted with a cross-section of seventy-one women, aged 18–80. It is acknowledged that the results provide no more than a ‘meaningful glimpse’ into the world of black women. See accessed 13 January 2014. 49 C Jones and K Shorter-Gooden, Shifting: The Double Lives of Black Women in America (Harper Collins 2003) 11–34. 50 Jones and Shorter-Gooden (n 49). For an example of egregious race and sex abuse at work in North America, see Ontario Human Rights Commission and Rachael Baylis-Flannery v Walter DeWilde c.o.b. as Tri Community Physiotherapy [2003] HRTO 28. 51 52 Jones and Shorter-Gooden (n 49). Scales-Trent (n 42) 120–1. 53 Jones and Shorter-Gooden (n 49) 18–19. 47

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full of ‘middle-class, white, rather bossy women’,54 assertive black women are judged as being harsh55 and negatively aggressive if they speak with authority.56 These myths are not confined to African American women. The social, cultural, and economic connections during the era of the Atlantic slave trade means that they can constrain the lives of black women wherever they live as a minority of the general population.57 They permeate social, economic, and political life, crossing class and sector. Wherever they arise, they tend to be covert and thus are difficult to challenge. ‘Micro-aggression’58 or ‘micro-inequities’ describe insults ‘widely perceived as being minor and forgivable’ and thus difficult to complain about. They may be undertaken in feigned innocence or with a smile, but can include office intrusion and removal of property; name-calling; tasks being removed without notice or discussion; having to verify qualifications; being put down in front of others; having work dismissed by superiors; being told that your presence is not important or that you ‘were not expected to stay for so long’. Consequently black women surveyed often report that they do not use voice. Given the likelihood to be chastized as ‘over-sensitive’, ‘uncooperative’, ‘un-collegiate’, or ‘unprofessional’, rather than supported to seek a remedy,59 most respondents seem not to complain, but rather developed individual strategies to cope with the impact of these myths on their professional and personal lives. They also chose not to exit, but to silently acquiesce or ‘shift’. Shifting can be described as a pragmatic alternative where exit is not possible. It is a choice to be silent for the sake of survival rather than loyalty. Shifting is a hidden and very personal breakdown in communications and of trust, not only with management, but also with co-workers. It turns the workplace into a hostile environment that is experienced in a very private way. Shifters operate silently and in isolation. Shifting without doubt causes black women to disengage from the workplace. It can lead to dismissal due to ‘lack of motivation’ when black women decide to just do their job rather than pursue a career. Black women are by no means the only group to shift. Arguably, all ‘marginalized groups—Native Americans, Latinos, gays, lesbians, and others—are compelled to conform, to adjust, to shift in response to bigotry’.60 However, as Kumea and Gooden-Shorter identify, ‘because of the singular way racism and sexism converge in the lives of Black women . . . [they] may have to shift more often and more consistently than most other Americans’.61 Black women workers may also have to shift more because they are under-represented at management level in all sectors—they are most likely to be in senior management roles in the health, social work, and personal services

54

Constitution Committee, Judicial Appointments (HL 2010-12 272), para 86 (Baroness Neuberger). 56 Jones and Shorter-Gooden (n 49) 22–4. Jones and Shorter-Gooden (n 49) 97. 57 C Adkison-Bradley, D Maynard, P Johnson, and S Carter, ‘British African Caribbean Women and Depression’ (2009) 37(1) British Journal of Guidance & Counselling 65. 58 P Davis, ‘Law as Micro-Aggression’ (1989) Harvard Law Journal 1559; I Solanke, ‘Where are the Black Lawyers in Germany?’ in Eggers and others (eds), Mythen, Masken und Subjekte. Kritische Weißseinsforschung in Deutschland (2nd edn, Unrast Verlag 2009). 59 60 Jones and Shorter-Gooden (n 49) 55. Jones and Shorter-Gooden (n 49) 63. 61 Jones and Shorter-Gooden (n 49) 63. 55

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sector, but this is much less likely in the private sector or industries such as manufacturing and construction.62 The idea of ‘shifting’ adds a new dimension to Hirschman’s theory. It is an addition to voice, exit, and loyalty which may be necessary to incorporate the response of black women workers to dissent. Like voice, shifting can be costly. Worse than loss of morale, shifting is a state of unhappiness that can also lead to stress. Stress and ill health can be a long-term consequence of shifting. We know that ‘the stresses of everyday living and the experience of living in a racist society often take its toll on British African Caribbean women, having an overwhelming effect on their psychological well being’.63 Research reveals high numbers of black women who are distressed or depressed. The rates of depression in black British communities are believed to be about 60 per cent higher than the white population—and black women are least likely to receive treatment for this.64 In a survey by the US National Centre for Health Statistics of more than 43,000 US adults, black women were three times as likely as white men and twice as likely as white women to have recently experienced distressing feelings, like boredom, restlessness, loneliness, or depression.65

IV. Social Alienation: The Origins of Workplace Shifting ‘Ironic loyalty’ prevented Awotona from shifting—she was too committed. She also, I argue, had more trust in the system than her colleagues, some of whom (given the data) must be non-migrant black women. She may have had higher levels of trust because she was a foreigner in Britain, rather than alienated. Foreignness and alienation are often incorrectly used as synonyms. Foreignness and alienation produce different registers of relationships between black women and their employers, which may influence the expression of dissent. Foreignness is the experience of novelty, while alienation is ‘the condition of being estranged or separated from what is constitutive of, or essential to, one’s nature, causal powers or wellbeing’.66 This estrangement also leads to loss of autonomy.67 Non-migrant black women may suffer this alienation if they feel that they do not ‘belong’ at ‘home’. For most people ‘home’ is the country where they are born, grow up, are educated, work, and plan to retire. When an individual is alienated, they lack the comfort of being at home in the only country that they know. A foreigner abroad does not suffer from this alienation, as home is somewhere else. This is not to say that a foreigner will not be a victim of discrimination; but that a foreigner abroad does not suffer alienation. It can be argued that non-migrant black Britons are alienated. Contrary to popular stereotypes, Britain was home to many black people even before the arrival of the MV

62 L Adams and K Carter, Black and Asian Women in the Workplace: The Employer Perspective (Equal Opportunities Commission 2007) 97–9. 63 64 Adkison-Bradley and others (n 57) 66. Adkison-Bradley and others (n 57) 65. 65 Jones and Shorter-Gooden (n 49) 8. 66 67 R Bhaskar, Dialectic: The Pulse of Freedom (Routledge 2008) 394. Bhaskar (n 66) 114.

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Windrush. This was because of slavery, colonization, and British nationality law.68 The British Empire had a very specific political structure that brought all persons within the colonial territories together as formal equals through allegiance to the British monarchy. The colonized were British subjects during the colonial period, and after independence workers from the former British colonies remained such through allegiance to the King. The ‘ethos of empire was that all Her Majesty’s subjects were equal subjects without due regard to race or colour’.69 Britain was the ‘Motherland’. The contribution of the citizens in the colonies to Britain’s World War II campaign70 was made with this sense of belonging in mind, of ‘Civis Britannicus sum’.71 In 1952, when Queen Elizabeth became the British Sovereign, she also became monarch of millions of citizens of countries in the Commonwealth. The Crown provided both ‘a motive for union and a method for identity’, uniting the citizens of the Commonwealth to each other and made each citizen of an independent Commonwealth country ‘both a national of his homeland and a subject of Her Majesty’.72 These subjects, unlike foreigners (‘Aliens’), were free from all immigration control—there were no restrictions on their entry to Britain and they could not be deported. Under the 1948 British Nationality Act, a measure adopted to address Britain’s labour shortage,73 the Commonwealth citizen was entitled to equal citizenship rights, including freedom to enter and settle in the UK, the right to vote for and stand for election to Parliament, and the right to employment in the civil service.74 The introduction of the Commonwealth Immigrants Act of 1962 (CIA 1962)75 changed this. For the first time, immigration controls were imposed upon ‘subjects’, predominantly those from India, Pakistan, and above all the Caribbean.76 The CIA 1962 was a response to the arrival of black Commonwealth citizens in the 1950s and 1960s. As shown in Table 16.1,77 migrants from the Caribbean to Britain increased dramatically after 1954. The increase has been attributed to a change in US immigration policy in 1952,78 which reduced the Jamaican entry quota to the US from 1,000 to 100:

68

C Hill, How Colour Prejudiced is Britain? (Victor Gollancz 1965) ch 1; J Green, Black Edwardians: Black People in Britain 1901–1914 (Frank Cass 1998). 69 A Dummett and A Nicol, Subjects, Citizens, Aliens and Others (Weidenfeld and Nicolson 1990) 118. 70 S Bourne, The Motherland Calls: Britain’s Black Servicemen & Women 1939–45 (The History Press 2012). See also black women in WWII accessed 13 January 2014. 71 V Bevan, The Development of British Immigration Law (Croom Helm Ltd 1986) 76. 72 J Cameron, Queen and Commonwealth: Background to the News (London News Chronicle 1952) 4–5. Commonwealth citizenship has some parallels to European Union citizenship. See T Bloom and K Tonkiss, ‘European Union and Commonwealth Free Movement: A Historical-Comparative Perspective’ (2013) Journal of Ethnic and Migration Studies 1067. 73 74 Bevan (n 71) 76. C Short, Immigration Law Handbook (Handsworth Law Centre 1979). 75 Commonwealth Immigrants Act 1962. 76 East African Asians were not affected by the Commonwealth Immigrants Act 1962 because they were ‘UK and Colonies Citizens’, but were the main group targeted by the Commonwealth Immigrants Act 1968. The Immigration Act 1981 removed that category completely. On the Commonwealth Immigrants Act 1968, see B Hepple, ‘Commonwealth Immigrants Act 1968’ (1968) MLR 424. 77 Home Office Estimates and Home Office White Papers as compiled in Hill (n 68) 14. 78 The McCarran-Walter Act 1952 effectively closed the USA to Jamaicans. For the impact on Britain see D Hiro, Black British, White British (Eyre and Spittiswoode 1971).

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Table 16.1 Immigration flows into Britain 1951–1962 1951

1952

1953

1954

1955

1956

1957

1958

1959

1960

1961

1962

C 1,000 2,000 2,000 10,000 27,550 29,800 23,000 15,000 16,400 49,650 66,300 31,800 I 5,800 5,600 6,600 6,200 2,950 5,900 23,750 19,050 P 1,850 2,050 5,200 4,700 850 2,500 25,100 25,080 C = Caribbean; I = India; P = Pakistan

By imposing entry restrictions, the CIA 1962 qualified Commonwealth citizenship. The right of free entry was removed. Henceforth, it would be by voucher only, and these were issued on a restrictive basis. Inevitably, those subject to restrictions immediately became less equal than those who were not. The pre-1962 status as British subjects disappeared and with it the distinction between black workers from the Commonwealth and immigrants from elsewhere. Black Commonwealth citizens were placed on the same status as non-Commonwealth immigrants, subject to restrictions on entry, economic activity, and stay. The sentimental bond and attachment to the Commonwealth was broken. The CIA 1962 therefore did more than turn these subjects into migrants—it alienated them. This was an act of alienation because for many Commonwealth citizens, Britain was home. The colonized peoples of the Caribbean, Asia, and Africa had been told that, believed that, and behaved as if (for example by fighting for Britain in World War II79) they were British. They took pride in belonging to Great Britain. The social, legal, and political structure in their countries supported this belonging. The highest court of the legal system in their countries sat in London; they spoke English as their first language; their education system was designed in Britain, as were their school leaving examinations; they had fought for Britain in World War II and adopted popular norms of England as their own. In contrast to, say, a French or Hungarian migrant to the UK, they had been educated in the language and values of Britain. They were not foreign to British ways and values, and ‘on arrival in the United Kingdom their loyalty to the Crown is in no way less than that of other British subjects’.80 Britain was the ‘Motherland’ and the Motherland was home. These sentiments of ‘home’ and expectations of equality did not disappear when the CIA 1962 deprived them of their status of belonging. On the contrary, alienation in Britain—estrangement from that which is inherent to wellbeing—simply deepened. Yet their needs, competition for resources, and discrimination increased. Paradoxically, the CIA 1962 raised the needs of the communities of colour as it reduced the legal basis of their entitlement to access to basic resources. Voluntary rotation, or circular migration, ended and more Commonwealth citizens settled in Britain, bringing their spouses (usually wives) and starting families here. Women consequently became the majority of the new entrants after 1962. Their arrival marked the change in the pattern of settlement: black communities became more permanent and grew as these women 79 80

Bourne (n 70); Dummett and Nicol (n 69) 140. M Banton, The Coloured Quarter: Negro Immigrants in an English City (Cape 1955) 237.

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started to have children. The growth of families changed the profile of needs. The hostels, which previously housed single young men, were no longer adequate. Fairly priced, larger, and more comfortable lodgings were needed; a steady income, wages that could support a family, health care, and educational provision for the young became priorities. Such basic concerns put them in exactly the same situation as the majority white population, seeking opportunities both for themselves and for their children, who would be wholly or partially educated and brought up in Britain. Needs increased not only for work, but also for the scarce resources of settlement and establishment: housing, health services, schooling, and further training. Unmet expectations and competition caused disappointment and resentment all around: on the one hand, the Commonwealth citizens resented alienation, ignorance,81 and discrimination; on the other, existing white Britons resented the increased competition. Community relations suffered as racial discrimination increased and communication broke down. The Race Relations Acts of 1965, 1968, and 1976 were designed to address this constellation of problems. In 1968, the then Home Secretary Roy Jenkins outlined the risks of exclusion of a new generation of Britons: From here forward we are beginning to deal, so far as employment is concerned, with the children of these first generation immigrants. Many were born in this country, many more wholly educated here. They are not so much Asians or West Indians as coloured Britons, dressing and speaking much as we do, and looking for the same opportunities as the rest of us . . . If we allow their expectations to be disappointed we shall be both wasting scarce skills and talents and building up vast trouble for ourselves in the future. In the next decade this to my mind will become the real core of the problem.82

The Race Relations Act 1968 was designed to ensure that the expectations of black Britons were met. It was a new legal ‘channel of communication’83 for black workers,84 who in comparison to white workers had difficulties in being heard, in voicing dissent in organizations. This new channel of communication has had some success, but examples of social alienation remain. These are both vicarious and personal. Vicarious alienation is experienced when, for example, the sons of non-migrant black women are excluded from school at disproportionately high rates.85 A 2012 report into school exclusions found that in 2009–10, ‘if you were a Black AfricanCaribbean boy with special needs and eligible for free school meals you were 168 times more likely to be permanently excluded from a state-funded school than a White girl without special needs from a middle class family’.86 School exclusions can instigate the

81

82 Hill (n 68) 12. I Solanke, Making Anti-racial Discrimination Law (Routledge 2011) 87. Hirschman (n 5) 42. 84 The Race Relations Act 1965 applied only to racial discrimination in public spaces. 85 School exclusions are a complex and stubborn problem. In her ground-breaking study in the 1990s, Mirza found overtly racist opinions in 33 per cent of teachers interviewed. H Mirza, Young, Female and Black (Routledge 1992) 57–8. 86 Office of the Children’s Commissioner, They Never Give Up on You: School Exclusions Inquiry (Office of the Children’s Commissioner 2012) 9. 83

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alienation of the next generation. Many permanently excluded children never return to school or find work: 40 per cent of 16- to 18-year-olds not in education, employment, or training (NEETS) have been permanently excluded.87 Black women may also experience alienation vicariously when they see their brothers and sons disproportionately targeted using ‘Stop and search’ powers—police are up to twenty eight times more likely to stop and search black men: less than 3 per cent lead to an arrest.88 The treatment of young black men in formal education and the criminal justice system results in cross-familial and inter-generational alienation as these experiences resonate in the lives of black women’s children, siblings, partners, and even parents. Even though not targeted themselves, this treatment of their families affects non-migrant black women. The subordination of their menfolk creates a ‘community of suffering’89 and sends a collective message of being unwanted.90 As will be discussed later, nonmigrant black women also experience alienation personally, on the labour market. For example, in 2011, 39.1 per cent of black women aged 16 to 24 were unemployed.

V. Workplace Isolation and Estrangement Why might social alienation make a difference to who challenges discrimination at work? How might it affect non-migrant black women in a way that doesn’t affect migrant black women? It might be thought that the deeper social integration of non-migrant black women workers would furnish them with knowledge of acceptable workplace behaviour and that they would be more likely to speak up when facing discrimination at work; or that as citizens they have a better knowledge of the legal system and thus how to seek a remedy. This may not be the case. It is precisely because of their deeper social integration that non-migrant black women workers may decide to act otherwise. For non-migrant black women, alienation may continue at work. The workplace is after all a microcosm of society. The social alienation they experience informs relationships within the work environment. In 2010, there were 36.9 million people in the UK working-age population of whom 4.4 million or 12 per cent were from an ethnic minority background. The number of women in the UK working-age population stands at 17.6 million of which 2.1 million or 12.4 per cent are from an ethnic minority background. Of those 2 million women, 25 per cent are black. It should be noted that within this group, employment rates vary widely: black Caribbean (64 per cent) and Indian (64.4 per cent) women have the highest employment rates, while Pakistani and Bangladeshi women have the lowest employment rates at 29.6 per cent. According to Equal Opportunities Commission

87

Office of the Children’s Commissioner (n 86). V Dodd, ‘Police up to 28 Times More Likely to Stop and Search Black People: Study’ The Guardian (12 June 2012). 89 P Werbner, ‘Essentializing Essentialism, Essentializing Silence’ in P Werbner and T Modood (eds), Debating Cultural Hybridity: Multicultural Identities and the Politics of Anti-racism (Zed Books 1997) 242. 90 E Levinas, Collected Philosophical Papers (Alphonso Lingis tr, Duquesne University Press 1987) 18–19. 88

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(EOC) research, almost a third (31 per cent) of employers in England and Wales have no black91 women employees.92 In Britain, a 2005 study on black women by the Fawcett Society found that black women achieve fewer educational qualifications, are paid less than both white women and white men, and are excluded from society at all levels, especially high public office.93 A 2010 study on black women in Britain found widespread under-representation in most professional fields: of the 6,038 female local authority councillors, only 149 were ethnic minority women (0.8 per cent of all councillors in England).94 Figures from 2010 report that women comprise 25 per cent of the 144,000 police officers in England and Wales but only 4.3 per cent are ethnic minority women—the data does not report how many are black, but it will be fewer than this. While 51 per cent of the UK population is female and 17.9 per cent BME, only ten black women sit as MPs in the House of Commons and just fifteen black women sit in the House of Lords. The Cabinet contains only one black woman.95 Finally, in 2013, the Judiciary of England and Wales includes no black women in the Supreme Court or the Court of Appeal. There are no black Presidents of the Courts or Tribunals and just five out of 108 High Court judges identify as BME.96 Black women therefore negotiate situations that white women do not face, such as invisibility in public life, inaudibility in political life, and perhaps most worrying, workplace isolation, especially if in a position of authority. As outlined previously, black women are under-represented in most professional sectors, including higher education,97 and especially in management roles. Past research suggests that in the health, social work, and personal services sectors, employers most often attributed limited career progress to lack of individual motivation.98 Around half of the employers surveyed blamed women themselves for difficulties in recruitment or progression—the ‘reluctance to acknowledge their/the establishment role’ was identified as a potential barrier to better employment opportunities for black women.99 However, 31 per cent of employers acknowledged that difficulties in the recruitment and progression of black women could arise from institutional beliefs and attitudes such as poor interviewing

The research cited uses the terms ‘Black and Asian’: I have conflated this to ‘black’. Adams and Carter (n 62) 116. See also Equality and Human Rights Commission, Race Discrimination in the Construction Industry (Equality and Human Rights Commission 2009). 93 E Brittain, H Dustin, C Pearce, K Rake, M Siyunyi-Siluwe, and F Sullivan, Black and Minority Ethnic Women in the UK (Fawcett Society 2005). 94 Although the number of public appointments held by members of ethnic minority groups increased in 2009 to 6.9 per cent and, of these, around 38 per cent were ethnic minority women. (Business in the Community, BAME Women in the UK 2010: A Profile of Ethnic Minority Women in Britain (Business in the Community 2010)). 95 Business in the Community (n 94). 96 Judiciary of England and Wales, ‘Diversity Statistics and General Overview’ available at accessed 21 March 2014. 97 The Equality Challenge Unit has just announced a ‘Charter Mark’ to challenge racial discrimination in all levels of the Academy. See E Gibney, ‘Equality Challenge Unit “Charter Mark” to Tackle Racial Discrimination’ Times Higher Education (26 September 2013). 98 99 Adams and Carter (n 62) 103. Adams and Carter (n 62) 113. 91 92

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skills, concern for the image of the organization, and women wearing the hijab. In addition, the research noted a male reluctance to be managed by a black woman.100 These attitudes may or may not have abated in the intervening period. Either way, they indicate that as employees and entrepreneurs,101 the experiences of black women differ from white women. White women are not confronted with the social stereotypes that black women must tackle and are also spared isolation at work in tackling them. For alienated non-migrant black women workers, this isolation can develop into workplace estrangement. Workplace estrangement goes beyond isolation. It refers to a deep and entrenched lack of familiarity. Whilst white men and women always interact with each other, as co-workers, educators, mothers, fathers, brothers and sisters, or partners, with almost a third of firms never hiring a black woman, it is possible for both white men and white women to have never interacted with a black woman as a co-worker. Workplace estrangement can have serious consequences. In the absence of personal experience, stereotypes inform interaction.102 People tend to use both real world examples and stereotypes to understand groups to which they belong, but depend upon stereotypes in relation to groups to which they do not.103 Thus in the absence of personal knowledge and experience, managers, who are usually white men and women, may resort to stereotypes to understand their black female colleagues, reactivating, perhaps subconsciously, the myths discussed previously. This tendency affects the dynamics of interaction and authentic communication: mutual understanding may disappear and low levels of trust can enter. The result may include overly formal interaction, patronizing treatment, withholding of positions of authority, and the black woman being ‘held back’. In addition, white co-workers may feel threatened by black workers for whom they have no reference point other than stereotype. The black woman who disagrees can become ‘disagreeable’, branded as ‘un-collegiate’, ‘unable to work in a team’ and so on. Application of such phrases can ultimately result in lack of promotion, workplace stress, resignation, and long-term unemployment. Estrangement can also be a result of black women being more closely observed and perhaps, as the EOC results suggest,104 more harshly judged. What may be reasonable for most might become unreasonable when done by a black woman. In short, workplace communication suffers, trust disappears, and the context for voice is lost. All that remains is exit or shifting. Some of these scenarios arose in the case of Awotona—she did insist on applying her expertise and was rejected for disagreeing. Why did she remain undeterred? Crucially, her situation arose outside of the context of alienation and isolation. A migrant worker 100 Almost 20 per cent of employers in both the public and private sector felt that their male employees would find it difficult to be managed by a black woman. Adams and Carter (n 62), 107—regional variations were seen across London, the SE, Midlands, North, and Wales. 101 C Forson, ‘The Strategic Framework for Women’s Enterprise: BME Women at the Margins’ (2006) 25 (6) Equal Opportunities International 418. 102 C M Steele, Whistling Vivaldi and Other Clues to How Stereotype Affects Us (W W Norton and Company 2010). 103 R Entman and A Rojecki, The Black Image in the White Mind: Media and Race in America (University of Chicago Press 2001) 146. 104 Adams and Carter (n 62).

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from Nigeria like Awotona may not have experienced the social alienation that I have described.

VI. Alienation, Trust, and Authentic Communication Where a black woman spends her formative years—where she went to school, experienced her teens and perhaps early adulthood—may make a difference to behaviour in the face of discrimination. Some argue that racism and unemployment can lead to loss of self-confidence at an early age, resulting in black children by their early teens rejecting participation in wider British society, as they believe the system is against them.105 Coupled with an absence of ‘critical mass’ in the labour market, black women growing up in an environment where there are few women leaders who look like them may behave differently to black women who have grown up surrounded by successful women who look like them. A black woman who has grown up an environment where black women occupy visible senior positions in society may have different expectations to a black woman growing up in Europe and North America, where black women in such roles are rare. When a woman from the former environment migrates to the latter, she will bring these expectations with her. It is possible that these expectations, together with the experience of life as a member of the majority rather than the minority, make a difference to the way in which migrant black women respond to discrimination at work. It is probably safe to assume that women from majority black countries grow up, are educated, and trained within a different constellation of social and workplace relations. By maturing without exposure to alienation, the dynamics of the relationship at work in Britain is different. She may not experience workplace estrangement unless and until she ‘misbehaves’ or uses voice. In the world of work, foreigners may be treated as ‘exotic’ and approached as different, but their difference is neither problematic nor ‘wrong’. They are accepted because they come from elsewhere and are often met with a degree of curiosity. They are treated as persons from a recognized and respected culture, in other words, legitimate. Their experiences of difference may also be seen as legitimate. ‘Foreignness’ does not challenge the majority culture in the same way that alienation does. Foreignness is accepted and acknowledged because it happens elsewhere. Thus, Awotona did not enter the workplace from a position where she had lost her autonomy. Her estrangement began after her use of voice, not when she started her job. She therefore suffered discrimination, but without alienation. As mentioned above, an immediate assumption might be that a migrant black woman is less likely to challenge discrimination at work than a non migrant black woman, as the latter will know her rights, how to assert them, and have the confidence to do so. However, this may not be the case—the opposite may occur. The migrant worker may use voice while a non-migrant worker may shift or exit. Paradoxically, professional black women workers from overseas may be more likely to complain because as foreigners they have not grown up under the social evil of

105

L Murray, Being Black in Britain: Challenge and Hope (Chester House Publications 1995) 51.

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discrimination. Discrimination has not influenced and informed their everyday life.106 They have not experienced the social alienation and workplace estrangement within which non-migrant black women grow up, live, and forge relationships at work. Alienation and estrangement interrupt communication and therefore undermine trust. According to research on ‘interactional justice’, good communication is central to trust in and use of grievance procedures. Put simply, trust is central to voice. Blancero et al argue that ‘interpersonal communication, affecting perceptions of interactional justice, can potentially be the most important component in overall fairness perception’.107 Interactional justice can be more important than procedural justice in determining perceptions of fairness. Systems that are seen as unfair will neither be trusted nor used. Needless to say, interactional justice cannot appear when an issue arises. It must be present before voice is exercised. Therefore, if communication is poor due to micro-aggression, alienation, and estrangement, there will be no trust in mechanisms for voice at work. Non-migrant black women may therefore respond to discrimination at work by either shifting or leaving because they have no trust in grievance procedures; migrant black women may use voice because in the absence of alienation and estrangement, they enjoy more positive communication and therefore higher levels of trust in formal mechanisms for dissent. Foreignness therefore spares migrant black women alienation and estrangement at work, whereas for the non-migrant black woman these can intensify in the workplace, and hinder the use of discrimination law. Social alienation can undermine the register of workplace relationships, in particular the development of relationships of trust. Workplace estrangement may be more likely to lead to exit than voice. As a foreigner without the problem of alienation, Awotona trusted the NHS procedures. Arguably those who are alienated are less likely to trust internal disciplinary procedures. Social alienation may make this harder because it can result in isolation, estrangement, poor workplace communication, and low levels of trust.

VII. Conclusion Hirschman notes that ‘[t]he propensity to resort to the voice option depends also on the general readiness of a population to complain and on the invention of such institutions and mechanisms as can communicate complaints cheaply and effectively.’108 Different countries may have different cultures of complaining and the use of law, but at a sub-national level, every organization will have its share of members who are vocal and those who remain quiet and passive in the face of workplace problems. Writing in 1970 in the USA, with the civil rights movement as a backdrop, Hirschman saw voice as ubiquitous. He assumed that ‘[i]n [that] age of protest . . . dissatisfied consumers (or members of an organization), rather than just go over to the

106

P Essed, Understanding Everyday Racism: An Interdisciplinary Theory (Sage 1991). D Blancero, R Delcampo, and G Marron, ‘Just Tell Me! Making Alternative Dispute Resolution Systems Fair’ (2010) Industrial Relations 524. 108 Hirschman (n 5) 43. 107

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competition, can “kick up a fuss” and thereby force improved quality or service upon delinquent management.’109 Nowadays, however, ‘kicking up a fuss’ at the workplace is less easy and most workers will try not to do so, even where mechanisms exist to facilitate this, unless, as shown by Hoffman, voice is an expression of loyalty. Anti-discrimination law is one mechanism for voice. The goal of this chapter was to consider if a migrant black woman worker might use this mechanism more readily than a non-migrant black woman worker. Using the language of Hirschman, the question examined was: ‘When facing discrimination at work, does migrant status influence when a black woman will resort to voice, exit or loyalty?’ The chapter built upon the theory of Hirschman by identifying shifting as another response to dissent at work and that of Hoffman by showing that expulsion can occur even when the motivation for voice is loyalty. Departing from the premise that workplace relations are social constructions,110 the conclusion rests upon the ideas of alienation and foreignness. In relation to discrimination, it is perhaps better to live as a foreigner abroad than alienated at home. Even in Nazi Germany, migrant blacks, both Africans and African Americans, were treated with more tolerance than black Germans. While black Germans were impoverished, slowly exterminated via sterilization, and incarcerated in concentration camps, some Africans from the German colonies could maintain a bourgeois existence as diplomats, shopkeepers, and craftsmen, and African Americans were embraced as educators, performers, and entertainers.111 Under Nazi rule, black foreigners enjoyed more liberty than black Germans. Paradoxically, the more foreign a black person was, the ‘safer’ they were.112 It may be, therefore, that their foreign origins empower migrant black women victims of discrimination to use voice, while alienation and estrangement disempower non-migrant black women. According to Bhaskar, ‘to be alienated is to lose part of one’s autonomy’.113 It is the loss of this autonomy that may discourage non-migrant black women from voice when facing discrimination at work. Trust is a prerequisite for voice—alienation and estrangement undermine the autonomous communication and trust that is necessary for its exercise. Interactional justice refers to communication concerning procedures for achieving fair and just outcomes. The more authentic the communication, the higher the perception that the procedure is fair, and the higher the level of trust. Trust is therefore a casualty of alienation and once lost can be hard to recover.114 The different dynamic of their social and labour relationships may explain dissent by migrant black women workers in secure situations. They have higher levels of trust because they have not been alienated, directly or vicariously, as they grew up. In this

109

Hirschman (n 5) 30. See also M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford University Press 2011). 111 C Lusane, Hitler’s Black Victims: The Historical Experience of Afro Germans, European Blacks, Africans and African Americans in the Nazi Era (Routledge 2002) 96. 112 Likewise, Josephine Baker and James Baldwin may have preferred to live as foreigners in France than as alienated African Americans at home. 113 114 Bhaskar (n 66) 114. T Judt, Ill Fares the Land (Penguin Books 2011) 67. 110

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sense, they enjoy more autonomy as workers. However, their autonomy may be undermined if their migrant status is insecure due to dependence upon the employer. Ultimately, an alienated person is one whose belonging is denied. To be alienated is to be submerged in a web of negative connotations. Assertions of belonging may be met with suspicion; the experience of difference can be rejected or seen as invalid. Nonmigrant black women workers are therefore more likely to exit or shift rather than use voice. Exit may also be easier due to unrestricted access to the labour market. Why waste seven years like Awotona if finding a new job is easy? However, if exit is obstructed due to lack of skills or seniority, non-migrant black women workers may remain in their jobs, shifting, stressed, and distressed.

17 Migration, Labour Law, and Religious Discrimination Lucy Vickers*

I. Introduction Labour law and migration enjoy a number of interactions. The aim of this chapter is to explore a further dimension of this already complex relationship, the interaction of labour law and migration with aspects of religion: both religious freedom and nondiscrimination law. The interaction is in some respects reasonably straightforward: religion may of course enjoy a causal relationship with migration in some cases, for example refugees moving from religious persecution, but domestic legal provisions relating to the workplace will apply to migrant workers and long-term resident workers alike. However, if a longer timeframe is used, then the relationship between migration and religion and, in turn, its interaction with the labour market, can be viewed as more complex. Here the development of the role of religious freedom in the workplace can be viewed as a response to changing approaches to migration, from an approach based on tolerance of difference towards one based on integration and multiculturalism. This more progressive aim of social policy has as its aim a fuller conception of equality, including an aspiration towards full integration and inclusion of minorities. To this end, the recent legal protection in the UK for religious equality at work, contained in the Equality Act 2010, is much more ambitious in its scope than earlier legal protection for religion in the UK. It includes not only prohibitions on less favourable treatment because of religion, but provisions requiring public sector organizations to promote equality, foster good relations between different protected groups, and encourage equal opportunities, including participation in public life. These provisions encourage a far more proactive approach, using the workplace as a site of inclusion and integration for religious minorities. Although not directed at migrants per se, these provisions, which apply in the workplace, can be viewed as part of a trajectory towards inclusion and integration as a response to migration, and as including recognition that equality in terms of religion is an essential building block for integration. While the process of moving towards greater integration and inclusion can be seen in the UK, it is important to note the role of EU policy relating to the issue. Although integration forms a key aim of EU social and immigration policy, and while it is recognized that protection for religious diversity can play a vital role in this process, * Lucy Vickers is Professor of Law at Oxford Brookes University.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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nonetheless a unified approach to the protection of religion in the workplace remains difficult to discern within the EU. Although governed by the religious discrimination provisions of the EU Framework Equal Treatment Directive,1 the Member States of the EU take divergent approaches to the protection of religious freedom at work. A simple example of the different approach can be seen with the hijab or headscarf, which is commonplace in the UK, but banned in many workplaces elsewhere in Europe. It is suggested that developing greater consistency in the treatment of religion within Europe should help realize the EU social policy aim of greater integration for migrants.

II. The Influence of Migration on the Development of Legal Protection for Religion A link between migration and religion can be readily identified. In many cases religion will have been the cause of migration, as religious groups fled persecution. In other cases, migration may not have been motivated by religion, but the migration to the UK and elsewhere in Europe of those from other areas of the world has brought with it new and varied religious beliefs. In the UK, the legal response to this religious difference has varied over time, with periods of tolerance interspersed with periods of religious persecution, applied both to non-Christian religions and to unfavoured denominations of Christianity, such as Catholicism and non-conformism.2 Over time, persecution was gradually replaced by emancipation and then tolerance, which was slowly extended across religious groups, from protestant dissenters, then to Jews and, eventually, to Roman Catholics. Restrictions on participation in public life have persisted in various forms until a clearer move towards tolerance emerged over the last two centuries. For example, university education was restricted to members of the Church of England until the foundation of University College London and the lifting of restrictions at Oxford and Cambridge during the nineteenth century; the restriction on Catholics sitting as MPs was removed in 1829,3 and in 1888 affirmation was allowed rather than the swearing of oaths,4 opening up a range of public offices. By the beginning of the twentieth century, therefore, a more liberal position of tolerance of religious difference had been reached, with few legal restrictions on religious minorities (with the notable exception of the requirement on the monarch to be Anglican, which remains today). However, the legal system was one of tolerance rather than anything more inclusive: while religious minorities were not formally prevented from participation in employment or public life, informal barriers were not addressed. The second half of the twentieth century saw further changes. First there was a change in patterns of migration, influenced by global and domestic policies on migration, which have contributed to increased religious diversity to the UK, and, of course,

1 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16 (Framework Equal Treatment Directive). 2 See J Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford University Press 2010) ch 1. 3 4 Roman Catholic Relief Act 1829. Oaths Act of 1888.

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the descendants of those who were originally migrants now form a significant population of British-born citizens of minority faiths. Social policy responded to this increased diversity in the population by seeking to integrate minorities into the community more fully, by removing barriers to participation in employment and public life. However, the change in social policy towards greater integration does not only reflect changes in the make-up of the population. It can also be understood as a response to developments in thinking about social identity more generally, and with a move towards a more multicultural approach in social policy. This move towards multiculturalism can be viewed fairly broadly as a move towards greater recognition of the need to include a range of previously disadvantaged groups, defined in terms of gender, race, and disability.5 The inclusion of other characteristics such as age, sexual orientation, and religion and belief can thus be seen as part of a more general movement towards recognizing different social identities within our legal framework. Of course, the notion of multiculturalism is not without its critics, and there is wide and vibrant debate on its many meanings, debate of which is outside the scope of this chapter.6 Nonetheless, the developments relating to the role of religious freedom in the workplace can, it is suggested, be usefully viewed as a response to changing social policy approaches to migration, from an approach based on tolerance towards one based on multiculturalism and inclusion. The influence of multiculturalism in its broadest sense can be seen reflected in developments in thinking on the meaning of equality. For example, Fredman identifies a vision of equality based on the need to allow all groups an equal set of alternatives from which they can pursue their own version of a good life. She suggests that equality law should have a number of aims, such as breaching the cycle of disadvantage associated with out-groups, as well as promoting respect for the equal dignity of all and redressing stigma, stereotyping, humiliation, and violence because of membership of an out-group, and affirming community identities. She adds an additional aim, however, which is to facilitate full participation in society.7 This vision of full participation has particular resonance in the context of religion and migration, as it seeks to integrate more fully minority groups into the majority society. It simultaneously addresses the disadvantage experienced by minority groups and aims to improve participation more generally in society. Collins has also sought to move thinking about equality law towards promoting social inclusion.8 Again, the argument is that minority groups need to be encouraged to participate in civic life, so that their voice within the community can become stronger, leading to an end to their marginalization. 5 See M Aziz, ‘The Origins, History and Development of Multiculturalism in the UK’ in Debating Multiculturalism I and II: Workshop Proceedings (Dialogue Society 2012). 6 For some of the debate, see W Kymlicka, Multicultural Citizenship (Oxford University Press 1995); Multiculturalism Reconsidered (Polity Press 2002); B Parekh, Rethinking Multiculturalism (Palgrave 2000); S Okin, Is Multiculturalism Bad for Women? (ed J Cohen, M Howard, and M Nussbaum) (Princeton University Press 1999). See also Debating Multiculturalism I and II: Workshop Proceedings (Dialogue Society 2012). 7 S Fredman, ‘The Future of Equality in Britain’ (Equal Opportunities Commission, Working Paper Series No 5 2002) 11. 8 H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16.

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This conception of equality is also reflected in the definition of equality provided in the Report of the Equalities Review: An equal society protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish. An equal society recognises people’s different needs, situations and goals, and removes the barriers that limit what people can do and can be.9

This broader concept of equality is consistent with changes in thinking on the role of religious minorities in society, from a policy of tolerance of difference, in relation to which the legal response had been to remove barriers to work, towards a policy of integration, in relation to which the legal response has been the creation of a specific right not to be discriminated against because of religion. This is not to deny that the development of legal protection for religion and belief both in employment and more generally serves other interests, such as conflict resolution, upholding notions of dignity, autonomy, and equality, and the protection of human rights.10 Instead, it is merely to suggest that an appreciation of religious protection as a response to migration and the consequent changes in the religious make-up of the population may help us better determine the boundaries of its protection where these are contested. It suggests that areas of contest might usefully be resolved in ways which help promote the broad policy aims of social inclusion.

III. UK Labour Law’s Intersection with Religion The move from tolerance of religion towards a broader conception of religious equality can be seen in the changes in protection in labour law for religious interests. After the removal of restrictions on public service and education, religion was largely ignored as a legally relevant category in employment terms. This meant that although religion did not formally restrict access to employment, nor was it provided with any legal protection. The lack of protection meant that discriminatory practices could develop without any legal redress for those subject to their effects. For example, in a study published in 2001,11 just prior to the introduction of protection against religious discrimination in employment, discrimination was reported both in terms of refusals to employ people because of their religious beliefs, as well as refusal to accommodate religious practice, such as refusal to accept a religious dress code. Examples included being required to work on Saturdays or Sundays, being subjected to dress restrictions, suffering reduced promotion prospects, and experiencing disrespectful attitudes towards religious customs. Indeed, employment was found to be one of the areas of life where religious individuals were most likely to experience unfair treatment.12 9

Cabinet Office, Fairness and Freedom: The Final Report of the Equalities Review (HMSO 2007). See discussion in L Vickers, Religious Freedom, Religious Discrimination and the Workplace (Hart Publishing 2008) 29–40. 11 P Weller, A Feldman, and K Purdam, Religious Discrimination in England and Wales (Home Office Research Study No 220 2001). 12 The other areas identified as being most likely to give rise to experiences of unfairness were education and the media. 10

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After the introduction of race relations legislation, there was some movement in this position, as some religious groups are also found to be ethnic groups, and so covered by the Race Relations Act 1976. This meant that discrimination against Sikhs and Jews was prohibited,13 but discrimination against Muslims was not.14 However, it was not until the implementation of the Framework Equal Treatment Directive into UK law in 2003 that religious discrimination was expressly prohibited. Under the Employment Equality (Religion and Belief ) Regulations 2003 (later replaced by the Equality Act 2010), direct and indirect discrimination because of religion and belief are prohibited, as well as harassment and victimization. Direct discrimination is defined as less favourable treatment ‘because of religion or belief ’, and this covers discipline and dismissal for religious reasons, as well as a refusal to employ, train, or promote staff on the basis of religion. Indirect discrimination covers the application of a provision, criterion, or practice which is applied equally to those not of the same religion, but which puts persons of the religion in question at a disadvantage compared to others, and which cannot be shown to be a proportionate means of achieving a legitimate aim. These legal provisions apply to all workers, of all religions and none, and as such there is no direct link with issues of migration. The rules provide a response to the fact that work practices in the UK reflect its Christian roots, with the weekly religious day of rest and major religious holidays coinciding with the normal working week and working year, allowing Christian workers to comply with religious observance while meeting most employers’ requirements for work attendance. This is not the case for those of different faiths, who rely on discrimination laws to provide protection where their religious practices are not so easily accommodated within the standard employment framework. To the extent that migrant workers may often be members of minority religions, labour law will provide some protection at this intersection of migration with religion. It is the indirect discrimination provisions which apply to the most common examples of religious discrimination in the workplace. For example, employers who impose uniforms on staff will be applying a neutral requirement on all staff; if those of a particular religion are disadvantaged, the employer will have to justify the requirement. Where employers do not have objective reasons for imposing the requirement, such requirements will not be justified. The need for employers’ requirements which have an adverse impact on religious individuals to be justified should ensure that job requirements are appropriate to the job in question, and should prevent the imposition of unnecessary requirements that have a disproportionate impact on those of any particular religion. Direct discrimination can only be justified under strict conditions, such as where there is a genuine occupational requirement to be of a particular religion in the context of the particular workplace, and where the use of that requirement is strictly justified. Thus an organization undertaking Muslim youth work could refuse to employ

13

Mandla v Lee [1982] UKHL 7, [1983] 2 AC 548; Seide v Gillette [1980] IRLR 427 (EAT). Tariq v Young Case 247738/88 EOR Discrimination Case Law Digest No 2. Muslims can come from a range of ethnic groups. There were also findings in domestic law that discrimination against Muslims may amount to indirect race discrimination, see JH Walker v Hussain [1996] IRLR 11 (EAT). 14

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non-Muslim youth workers. Similar provisions apply to the other heads of discrimination, such as sexual orientation, so, for example, it could be argued that an organization providing a counselling and support service for gay and lesbian clients could refuse to employ a heterosexual counsellor.15 In the case of religious discrimination, the standard genuine occupational requirement is supplemented by an additional exception where the employer has a religious ethos and where regard is had to the religious ethos of the organization and the context of the employment in deciding whether being of a particular religion or belief is a proportionate occupational requirement for the job.16 The limits of the protection against religious discrimination, then, are generally set through the notion of justification and proportionality. An example of the use of proportionality in setting the parameters of protection against religious discrimination can be seen in two cases under the 2003 Regulations, one of indirect discrimination and one where a genuine occupational requirement was used. The first case is Azmi v Kirklees Metropolitan Borough Council.17 Here a Muslim classroom assistant helping children for whom English is a second language wanted to wear a face veil (niqab) when she was in the classroom with a male teacher. Her claim that her suspension for refusing to remove the veil was directly discriminatory was unsuccessful. The Employment Appeals Tribunal (EAT) confirmed that anyone who covered her face at work would be subject to the same treatment. Nonetheless, the EAT held that the treatment was indirectly discriminatory as the requirement to have her face showing put her, as a Muslim, at a disadvantage. The discrimination was, however, proportionate: the aim was to enable the children to get the best education and for this they needed to be able to see her face. The case illustrates well the approach of the courts to proportionality, and the standard of justification that is required of employers. Azmi argued that more could have been done to try to accommodate her: for example, the school could have timetabled her to avoid helping in a class taught by a man. However, the EAT, while agreeing that the standard of review needed to be stringent, accepted that the school’s actions were proportionate: they had investigated whether they could accommodate Azmi’s requirement to wear the niqab and concluded that they could not. It is worth noting that in Azmi the school had not raised any objection to Azmi wearing a headscarf in the school, a practice which is widely banned in schools in other parts of the EU. Moreover, the school did not ban Azmi from wearing the niqab in school, only in the classroom while teaching. This is not to say that wearing of a headscarf will always be allowed, however. But, any ban would be treated as potentially indirectly discriminatory and would have to be justified as a proportionate means of achieving a legitimate aim. A second example of justified religious discrimination can be seen in Muhammed v The Leprosy Mission International.18 Mr Muhammed, a Muslim, was not offered employment as a finance administrator at the Leprosy Mission, a Christian charity.

15 17 18

16 Equality Act 2010, Sch 9(1). Equality Act 2010, Sch 9(3). Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154. Muhammed v The Leprosy Mission International [2009] ET/2303459/09 (ET).

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The Leprosy Mission stated that one of the selection criteria for the job was to be a practising Christian, a requirement that Mr Muhammed clearly did not meet.19 The Employment Tribunal held that the organization had a Christian ethos that permeated the daily life and activities of the workplace. In this context, the requirement to share the religion was a genuine occupational requirement, even though the job itself was financial in nature. It also held that it was proportionate to impose this genuine occupational requirement because otherwise the ethos of the organization would have been entirely undermined. As these cases demonstrate, the job of determining the parameters of the protection against religious discrimination at work is largely left with courts, who have to set the boundaries of protection through the concept of proportionality. In the case of indirect discrimination, the court must consider whether work requirements such as working hours and dress codes can be justified when they place religious minorities at a disadvantage. A typical example is that of the wearing of headcoverings at work. A requirement to refrain from such a practice is potentially indirectly discriminatory against Sikh men and Muslim women and so will need to be justified. Potential justifications may include the wish of the employer to have consistency in its corporate image, health and safety requirements, or a desire to present an image of religious neutrality. The question for any court determining a case of indirect discrimination will be whether such justifications are proportionate in the particular case. The concept of proportionality is very flexible, and can be affected by a range of different considerations. A number of factors that might be considered in determining the proportionality of any limit on the non-discrimination principle can be identified, such as the interests of other workers (eg to a religiously neutral workspace), the employer’s economic efficiency and autonomy, and the type of employment (eg public or private sector). Other underlying factors could also influence the assessment. For example, in assessing the proportionality of any restriction on the non-discrimination principle, it may be necessary to consider the aims of the protection, the meaning of equality, and the socio-economic context.20 It is arguable that factors such as the level of social exclusion or historic disadvantage experienced by any group should be taken into account in assessing whether it is proportionate to allow exceptions to the non-discrimination principle, and it is in this context that matters related to migration and integration could be considered. For example, if it is accepted, as Collins has argued,21 that discrimination law should serve the overarching aim of social inclusion, then this aim should help to determine the correct parameters of the law. Clearly this will not help resolve every contentious issue in this area, but having as an aim an increase in social inclusion for minority religious groups may help to determine the correct parameters of the legal protection against discrimination on a principled basis. For example, if it is acknowledged that Muslim women have suffered exclusion from the job market, it may be proportionate to require

19 The applicant, Mr Muhammed, also failed to meet other criteria for the job, but the legal issue in the case concerned the scope of the religious ethos occupational requirement. 20 Vickers (n 10) 54–78. 21 Collins (n 8).

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a greater level of protection for their religious practices than for religious groups for whom such disadvantage cannot be shown.22 This would mean that particularly strong reasons would be needed to restrict the wearing of headscarves at work. A second way in which the UK’s equality law reflects a social policy of inclusion and multiculturalism is through the public sector equality duty, contained in section 149 of the Equality Act 2010. This imposes various overarching duties on public bodies, in the exercise of their functions, in particular ‘to have due regard to the need to eliminate discrimination’; ‘to advance equality of opportunity between persons who share a [religion or belief ] and persons who do not share it’; and ‘to foster good relations between persons who share a [religion or belief ] and persons who do not share it’. In effect, public bodies are required to be proactive in promoting equality. The duties are enforced via judicial review proceedings. Although cases have been few, and often unsuccessful in directly changing policy,23 the duty has had a measure of success through the development of a culture of mainstreaming equality measures in most public sector organizations. Whilst there is evidence to suggest that implementation has focused on compliance rather than with achieving substantive equality outcomes,24 nonetheless, examples can readily be found of changed practices in organizations seeking to develop their organizations in a way that will increase inclusion.25 The duties originated in duties to promote equality on grounds of race in 2000, and similar duties followed to promote equality on grounds of disability from 200626 and on grounds of gender from 2007.27 In the Equality Act 2010 they were extended to all equality grounds, including religion and belief. Thus far there have been no cases brought testing the limits of the new version of the duty, but the extension of the duty has been subject of some criticism. For example, the argument has been made that protection should not be given to characteristics which are chosen by the individual;28 that many religions are themselves not particularly wedded to the idea of equality;29 and that even the foundational concepts behind the 22 Such groups may be Christians, who, as members of the majority religion, may face less systemic disadvantage. 23 Such as a failure to have due regard to race equality in making planning decisions; a failure to have due regard to the needs of people with disabilities in making decisions on closing post offices; and challenges to the funding for domestic violence support. See R (Kaur & Shah) v Ealing London Borough Council [2008] EWHC 2062 (Admin); R (Harris) v Haringey London Borough Council [2010] EWCA Civ 703, [2010] BLGR 713. 24 See eg Cabinet Office, Fairness and Freedom: The Final Report of the Equalities Review (February 2007). See also C O’Cinnéide, ‘Fumbling Towards Coherence: The Slow Evolution of Equality and AntiDiscrimination Law in Britain’ (2006) NILQ 57; S Fredman, ‘Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage onto the Equality Agenda’ (2010) EHRLR 290. 25 For examples see the regular case studies reflecting good practice from both private and public sector organizations featured in the Equal Opportunities Review. See also K Clayton-Hathway, The Public Sector Equality Duty, Empirical Evidence Base (Oxford Brookes 2013) accessed 10 July 2014. 26 Disability Discrimination Act 2005. 27 Equality Act 2006, amending the Sex Discrimination Act 1975. 28 See A Lester and P Uccellari, ‘Extending the Equality Duty to Religion, Conscience and Belief: Proceed with Caution’ (2008) EHRLR 567. See also Eweida v British Airways [2010] EWCA Civ 80, [2010] IRLR 322 [40] (Sedley LJ). 29 A McColgan, ‘Class Wars? Religion and (In)equality in the Workplace’ (2009) 38 ILJ 1. See also S Okin, ‘Feminism and Multiculturalism’ (1998) 108 Ethics 661.

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protection are not clear, as there is no clear definition of religion and belief. Other criticisms include those of Lester and Uccellari, who argue that the religion and belief duty may ‘give rise to competing and, more importantly, sometimes irreconcilable demands, not only as between different religious groups, but between religious believers and those who believe in a secular society’.30 It may be that in promoting equality of religion and belief, public bodies will disadvantage those who wish for a secular public sphere. This could mean that the religion and belief public sector duty could, counterintuitively, reduce rather than increase social cohesion, as the mainstreaming of religion leads to increased religious tensions. Although these criticisms may be well founded, they may be viewed differently if considered from the perspective of migration and the social response of inclusion. For example, while debates may continue over whether religion is based on choice or not, and so whether or not it deserves its status of a protected characteristic, a perspective based on the religious needs of migrants will focus instead on the practical impact of policies and practices which enhance social inclusion. For example, whether or not religion is chosen, if the provision of vegetarian food in a workplace canteen means that religious minorities can better access employment, not only is equality promoted, but a potentially disadvantaged group can gain access to work and the social integration that this can lead to. Similarly, just as flexible working arrangements have allowed access to work for many women, so flexibility in working conditions more generally may allow access to work for members of minority religious groups. The development of legal protection for religion and belief in the twenty-first century can, then, be seen to reflect significant changes in social policy towards issues of migration and integration. The introduction in 2003 of non-discrimination protection for religion and belief and the extension of the public sector equality duty to religion in 2010 reflect a significant step in the development of the legal responses to religion from an approach based on tolerance to one based on inclusion and integration.

IV. Labour Law, Religion, and European Social Policy It has been suggested in this chapter that the UK’s response to migration through a social policy of multiculturalism and inclusion of minorities can be seen reflected in its legal response to religious discrimination. The UK’s liberal approach to religion was, of course, already well established before the introduction of the religious discrimination legislation. For example, work uniforms have routinely been adapted to allow religious minorities to express religious identity at work. Turbans and hijabs are perhaps the most visible example of this practice, with both routinely seen in UK workplaces, both public sector and private sector, including court staff, teachers, and police. The introduction of legal protection for religion and belief has formalized this position, and this can be seen in the interpretation of the legal provisions in cases such as Azmi, where the UK courts have confirmed that employers can only restrict religious expression at work where there are strong reasons.

30

Lester and Uccellari (n 28) 570.

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The policy approach to promoting inclusion and integration of migrant groups is replicated at EU level. Since the latter part of the twentieth century, the EU has experienced increases in migration. Whilst this is acknowledged as of economic benefit to the EU,31 it has also led to increasing concern at EU level about social cohesion and integration. The EU does not have specific competence on integration and cohesion, and so specific policies are developed at Member State level. However, a range of policy initiatives and soft law measures have been developed at the EU level, aiming to better integrate third-country migrants across the EU.32 The development of an EU policy on integration has involved the integration of third-country nationals by comparable rights with EU citizens,33 and the development of rights to family reunification.34 The policy also had an equality dimension, and the creation of the EU Equality Directives,35 targeted at eradicating discrimination from the workplace on grounds of race and religion and belief, can clearly be viewed as part of this process. In 2004, Common Basic Principles for Immigrant Integration Policy in the European Union were agreed by the European Council.36 While confirming that precise details of social policy should be left to Member States to develop, they also present clear overarching principles which should guide such policies. Key in the context of religion and employment are the following principles: that ‘integration is a dynamic, two-way process of mutual accommodation by all immigrants and residents of Member states’; and that ‘employment is a key part of the integration process’. The common principles also emphasize that ‘frequent interaction between immigrants and Member State citizens is a fundamental mechanism for integration’. The strategy of promoting inclusion and integration of migrants has been continued since 2004 and can be seen in the Europe 2020 Strategy, which includes as a headline target ‘the better integration of legal migrants’.37 The policy of improved social integration of thirdcountry migrant workers is reiterated in the 2011 European Agenda for the Integration of Third-Country Nationals, which affirms again that ‘Europe needs a positive attitude towards diversity and strong guaranties [sic] for fundamental rights and equal treatment, building on the mutual respect of different cultures and traditions’.38 Thus a number of EU policy statements confirm that the employment sphere is a key area for promoting integration. This is in part because it is a common meeting point for See Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Agenda for the Integration of Third-Country Nationals’ COM (2011) 455 final, 2. 32 See S Morano-Foadi and M Malena, ‘Integration Policy at European Union Level’ in S Morano-Foadi and M Malena (eds), Integration for Third-Country Nationals in the European Union: The Equality Challenge (Edward Elgar 2012). 33 Presidency Conclusions No 200/99, Tampere European Council 15 and 16 October 1999. 34 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L251/12. Admittedly, this Directive permits Member States to use ‘integration criteria’ to limit family reunification. 35 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 (Racial Equality Directive); Equal Treatment Directive. 36 Council Document 14615/04, ‘Common Basic Principles for Immigrant Integration Policy in the EU’ (19 November 2004). 37 Conclusions of the European Council 25 and 26 March 2010 (EUCO 7/10, CO EUR 4, CONCL 1). 38 COM (2011) 455 final 5. 31

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those from different communities within a state who might not otherwise interact much, thus fulfilling the policy aim of increasing interaction between immigrants and other citizens.39 It is also because improved employment levels for migrant populations will directly improve their levels of integration in society. Low employment rates are particularly marked in the case of migrant women,40 and so it would seem that removing barriers to the employment of migrant female workers would be a step towards fulfilling the EU social policy agenda regarding migration and integration. The EU social policy agenda on migration is thus firmly committed to improving integration of migrant labour in the employment sphere. This can be seen reflected in the legal framework on discrimination through the introduction in the Employment Equality Directive41 of non-discrimination rights on the grounds of religion and belief, as well in the integration at EU level of the Charter of Fundamental Rights into EU law in the Lisbon Treaty. However, whilst the UK’s interpretation of the rights created by the Directive would seem compatible with the aim of encouraging participation in employment by minority religious groups, particularly those whose participation is shown to be low, it is far from clear that this can be said for all Member States. Taking the example of the headscarf, practice varies among states. While headscarves are commonly seen in the UK in both private and public sector employment, France imposes a legal obligation of laïcité, and bans headscarves and other religious symbols in state employment, including in schools.42 In Belgium, the position is similar. In Denmark, where an employee was dismissed for wearing a headscarf in breach of company policy, the Supreme Court held that dismissal was lawful because the dress code was enacted in order to signal that the company was politically and religiously neutral. Although the policy affected Muslim women in a negative way, it was objectively justified.43 In Germany, although the Federal Labour Court has held that dismissal of a salesperson based on the wearing of a headscarf was invalid,44 and the Federal Constitutional Court has held that a school teacher must not be denied employment on grounds of wearing a headscarf, the decisions are fact-specific and do not suggest that wearing of headscarves should generally be allowed. In the Netherlands, while headscarves are allowed in private sector employment, they are not accepted for the police, the judiciary, and in schools.45 It seems, then, that the approach in the UK is out of step with the approach elsewhere in the EU, despite the fact that all Member States are governed by the same EU Framework Equal Treatment Directive, as well as the Charter of Fundamental Rights. This raises the question of how the European Court of Justice (ECJ) may determine questions relating to religion and belief equality if they are raised before it. Any such case would be likely to arise as a case of indirect discrimination: the requirement not to wear religious garb at work will disadvantage persons of the particular religious group. The 40 Council Document 14615/04. COM (2011) 455 final 5. Equal Treatment Directive. 42 Conseil d’État 3/05/2000 No 217017; Conseil d’État 15/10/2003 No 244428. 43 Decision of the EEA Joint Committee No 22/2004 of 19 March 2004 amending Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement [2004] OJ L127/127. 44 Federal Labour Court 10 October 2002, 2 AZR 472/01. 45 H van Ooijen, Religious Symbols in Public Functions: Unveiling State Neutrality (Intersentia 2012). 39 41

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requirement will then need to be justified by showing that it has a legitimate aim and that the means of achieving the aim are appropriate and necessary.46 The need for employers’ requirements which have an adverse impact on religious individuals to be justified should prevent the imposition of unnecessary requirements that have a disproportionate impact on those of any particular religion. Of course the question of justification is left to domestic courts, and it is not yet clear what factors courts will accept as justifying indirect religious discrimination when dealing with cases under the EU Directive. The cases which have dealt with religious dress codes and work thus far in the EU have been brought under different legislative provisions, but they suggest that most EU Member States would find that restrictions are justified as pursuing legitimate aims, such as state policies of laïcité or employer policies of religious neutrality. However, if these cases are heard by the ECJ, the Court will face a dilemma: should the Court allow different states to pursue different policies with regard to the accommodation of religion at work, or should it require adherence to a similar standard, given Member States are all governed by the same EU Directive? If adherence to a similar standard is required, should that standard be one of openness to the accommodation of religion at work, or one where religion and belief are granted more limited protection in the work context? On the question of whether the Court can allow variable standards across the EU, one option is to follow the lead of the European Court of Human Rights (ECtHR), which allows a ‘margin of appreciation’ to states in setting the parameters of their domestic law, particularly on matters over which there is a lack of consensus across Europe. With regard to religion and belief, a fairly wide margin has been allowed,47 reflecting the lack of consensus about how religion should be treated. With regard to EU protection in other areas, some flexibility can also be allowed at times, in terms of a ‘margin of discretion’. This can be seen in Schmidberger v Austria,48 and confirmed in the Omega case,49 where the ECJ accepted that EU law must be interpreted in the light of fundamental human rights principles. It accepted that there is a margin of discretion in reaching a fair balance between competing economic and social interests, and that it is not necessary that states all agree on a shared conception of how to protect the interests in question. Thus in other areas of EU law, as long as the standard of protection provided does not fall below a minimum standard, there is room for different standards of protection for fundamental rights to be accepted as legitimate within the EU Member States, to reflect different national contexts and traditions. The difficulty with such an approach if used in the context of EU equality law is that it creates problems of consistency as between different strands of equality law. For example, with regard to sex discrimination the standard of justification is very high: any requirement must have a legitimate aim, the means chosen for achieving that objective must correspond to a real need on the part of the undertaking, must be appropriate with a view

46

Framework Equal Treatment Directive, Article 2(2)(b). C Evans, Freedom of Religion under the ECHR (Oxford University Press 2001) 143–4. 48 Case C-112/00 Schmidberger Internationale Transporte Planzüge v Republik Österreich [2003] ECR I-5659. 49 Case C-36/02 Omega v Oberburgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. 47

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to achieving the objective in question, and must be necessary to that end. Furthermore, there should be no less discriminatory way to achieve the end in question.50 If such a level of justification were required for religious indirect discrimination cases, it would seem that many of the restrictions imposed on religious practice at work in Member States will be difficult to justify. If a margin of appreciation or margin of discretion is allowed, the effect will be to allow different standards of justification for different grounds of discrimination. This will lead, in turn, to inconsistencies in treatment as between different grounds of discrimination within the domestic and European jurisdictions, something which is not envisaged in the Employment Equality Directive. Even leaving aside the difficulty which arises if different standards of protection are allowed to develop for different equality strands, there still remains the vexed question of what standard of protection to apply to religion and belief at work. Clearly opinions vary hugely across the EU, with the approach of the UK and of France illustrating the divide at its widest. This issue will inevitably need to be resolved by the ECJ at some stage, and the legal mechanism by which it will be determined will be via the interpretation of the concept of proportionality: will restrictions on the wearing of headscarves at work be held to be justified as a proportionate means of achieving a legitimate aim? Clearly Member States can identify legitimate aims such as laïcité or employer autonomy which are served by the restriction, but the question will be whether upholding these aims by restricting religious practice is proportionate to those aims. As suggested earlier, this question will be determined using a range of factors, such as the interests of other workers and employer autonomy, but it is suggested that the need to promote inclusion of migrants in employment should also be included in the range of factors assessed. This might mean tipping the proportionality scales towards accommodation of the religious practices of Muslim women in order to improve their inclusion in employment. It is worth noting in this regard the approach of the ECtHR in Eweida and Others v UK in 2013.51 Of course this case was brought under the separate legal framework of the ECHR, but nonetheless it remains significant, not least because the EU law should be interpreted in line with the ECHR following the entry into force of the Lisbon Treaty in 2009 and the accession of the EU to the ECHR.52 In Eweida the ECtHR accepted for the first time that restrictions on the manifestation of religion at work could amount to an interference with freedom of religion. Until then, the approach of the ECtHR had been that, as the Convention does not cover access to employment, so restrictions on religion at work did not infringe convention rights. In Eweida the position shifted and it was accepted that the right to religious freedom can operate within the workplace. The fact that employees remain free to resign remains relevant, but only at the stage of considering whether a restriction is proportionate rather than acting as a preliminary bar to any religious claims relating to employment. Whilst the ECtHR also confirmed that religious freedom at work is subject to limitations where it interferes with the rights of others, the case nonetheless seems to signal a slight softening in the approach of the ECtHR towards the protection of religion in the work context. 50 51

Case C-427/11 Bilka-Kaufhaus v Weber von Hartz [1986] ECR 1607. 52 Eweida and Others v UK [2013] 57 EHRR 8. Treaty on European Union, Article 6(2).

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The acceptance by the ECtHR that workplace restrictions on religion may interfere with religious freedom chimes with the approach of the UK courts in giving fairly generous protection to the manifestation of religion at work, in comparison with other EU Member States. It is suggested that this approach is the correct one to take, particularly if the non-discrimination rules are viewed from the perspective of EU social policy on migration, inclusion, and integration. If the ECJ takes a more restrictive approach to religious freedom and upholds the approach of other EU states which are restrictive of religious freedom at work, it will miss an opportunity to enable the law on religious discrimination at work to serve the wider EU social policy of integration. As has been established earlier, the approach in the UK can be seen as part of a developing response to migration which has shifted from tolerance to integration and inclusion of minority groups. Moreover, the proportionality assessment is inherently flexible, and can take into account both historic disadvantage as well as more recent socio-economic inequalities. This opens the possibility for the law on religious discrimination to be responsive to the needs of both recent migrant workers, as well as the needs of more long-established religious minorities. The EU has a clear social policy to promote inclusion of migrants and to enhance their employment opportunities. It would seem that one way to progress with this agenda is to use the law on equality on grounds of religion and belief to remove barriers to employment for members of minority religious groups, thereby improving their inclusion and integration in employment and consequently in society more generally. Such an approach can address the needs of both recent third-country national migrants as well as those of EU citizens with minority faiths who are long established in Member States. It should be noted that such an approach does not advocate the imposition of an unqualified freedom to manifest religion at work: restrictions should clearly be allowed where they are a proportionate means of achieving a legitimate aim. It is merely to suggest that in assessing the proportionality of any restriction on religion at work, the EU social policy imperative to enhance inclusion of migrants into employment should be taken into account.

V. Conclusion There is no doubt that the legal response to migration, as reflected in the treatment of religious freedom, has varied significantly in the UK over time, with progress from persecution in the eighteenth century to an approach inspired by inclusion in the twenty-first. This has reflected developments in thinking on social identities, social policy, and migration. Different approaches to religious freedom at work remain rather stark at EU level,53 with religion enjoying significant protection at work in the UK whilst being restricted to the private sphere in many other Member States. The difference can be seen most simply in the approach to religious dress, with headscarves banned from public employment in many states. Justifying such a variation in protection is in any event difficult, given that all Member States are governed by the same 53 S Ferrari and R Cristofori (eds), Law and Religion in the 21st Century: Tensions between States and Religious Communities (Ashgate 2010).

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legal provisions of the Framework Equal Treatment Directive. The difference in treatment of the issue becomes even more difficult to sustain if viewed through the lens of EU social policy on migration. The argument has been made that historic religious migration led (eventually) to the legal protection in law of religion and belief in Europe. However, across Europe, despite largely similar patterns of migration and more recently a common legal framework, very different approaches have been taken to integration, resulting in very different legal and social practices with regard to accommodation of religious practices at work. It is suggested here that in order for EU social policy on migration and integration to be achieved, some change in approach to the treatment of religious practice at work is needed. In concluding, it is also worth noting one further way in which religion, migration, and employment may interact in future. Unless some commonality of approach is achieved, the difference in treatment of religious minorities across the EU could lead, in practice, to restrictions in the free movement of workers. For while religious minorities are reasonably free to manifest religion at work in the UK, they remain less free to do so elsewhere in the EU. It may well be the case that religious employees will come to feel that their free movement, guaranteed in EU law, is infringed as a result of this variation in state practice. For example, a doctor or teacher in the UK who wishes to wear a headscarf or turban to work may not enjoy freedom to move to work in the EU if they are unable to do so without removing the turban or headscarf. Thus, an acceptance of the development over time of different practices relating to religion and work in Europe may well have implications for future migration of religious minorities in the EU.

18 Reconciling Openness and High Labour Standards? Sweden’s Attempts to Regulate Labour Migration and Trade in Services Samuel Engblom*

I. Introduction 1. A radical opening to foreign labour Over the past decade, the Swedish labour market has undergone a radical opening up to foreign workers. At the time of the European Union’s enlargement in 2004, with ten new Member States, Sweden was one of the few existing fifteen Member States that chose not to impose any restrictions on the free movement of workers from Eastern Europe. Another aspect of Sweden’s relationship to labour that differs from the other EU Member States has, however, received much more attention. In the Laval case,1 the European Court of Justice (ECJ) removed the pillars of what was supposed to be Sweden’s method for regulating the wages and working conditions of workers posted to Sweden, and prompted several changes in the legislation. In 2008, Sweden carried out a comprehensive reform of its system for labour immigration from countries outside the EU/EEA, abolishing earlier quantitative restrictions and creating what the Organisation for Economic Co-operation and Development (OECD) has described as the most open system for labour immigration among its members.2 In this contribution, these three openings to workers from other countries will be compared to one another and an attempt made to explain the apparent paradox that, in a country which during the same five-year period took two active decisions to open its labour market to foreign workers, the Laval case could cause such convulsions. The argument will be made that the Swedish industrial relations system, with its high unionization rate and high degree of collective bargaining coverage, together with the prevalent method for defining wages and working conditions in Sweden, affects the ability of the Swedish labour market to cope with different kinds of cross-border labour

* Dr Samuel Engblom is the Chief Legal Advisor of TCO (Tjänstemännens Centralorganisation), the Swedish Confederation for Professional Employees. The author would like to thank the participants at the Migrants at Work Seminar in Oxford on 22–23 June 2012 for valuable comments on earlier drafts. 1 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet [2007] ECR I-11767. 2 OECD, Recruiting Immigrant Workers: Sweden (OECD Publishing 2011) 11.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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mobility without experiencing adverse effects in the form of lower wages and deteriorating working conditions.

2. A strong collectively agreed going rate Sweden is one of the countries with the highest degree of collective bargaining coverage, despite not having any mechanism for making collective agreements generally applicable or erga omnes. According to statistics from the National Mediation Office, in 2011, 91 per cent of all employees were covered by a collective agreement— 100 per cent in the public sector and 87 per cent in the private sector.3 The high coverage is due to high organizational rates both on the side of employees (71 per cent) and on the side of employers (80 per cent if calculated as the share of all employees working in a company that is a member of an employers’ organization).4 An employer that is a member of an employers’ organization, or that has separately signed a collective agreement, is bound by the collective agreement in relation to all his or her employees. Two other factors that contribute to the importance of collective agreements in regulating the terms and conditions of work in Sweden are that Sweden is one of a minority of EU countries that does not have a statutory minimum wage, and the ‘semimandatory’ nature of large parts of statutory Swedish labour law. Semi-mandatory means that it is possible for trade unions and employers, through collective agreements, to deviate from statutory rules in ways that reduces the level of protection of employees. This possibility is believed to facilitate the adaptation of labour law to the specific conditions in different sectors and make it easier for the trade unions and employers to reach agreements. Taken together, this means that collectively agreed terms and conditions are more important and statutory provisions less important in Sweden than in most other countries. The most important level for bargaining regarding wages and conditions is the sectoral level. This means that each sector or branch of business has its own set of standards, expressed in the relevant collective agreement. The standards apply regardless of the size or profitability of the individual firm. It is thus possible to speak of the existence of a collectively agreed ‘going rate’ for a certain job in a certain sector. The going rate should not be confused with precisely defined minimum standards. To the contrary, the wage provisions of Swedish collective agreements are often vague and rarely include well-defined pay scales, even in the public sector. Instead, they contain criteria and procedural requirements for wage setting on the work place level, distributing sectorally agreed average wage increases. Albeit imprecise, the going rate is accepted in the Swedish labour market as the standard for wages and working conditions.

3

Medlingsinstitutet, Avtalsrörelsen och lönebildningen 2011 (Medlingsinstitutet 2012) 33–5. For an in-depth analysis of the determinants and development of the unionization rate in Sweden, see A Kjellberg, ‘Trade Unions and Collective Agreements in a Changing World’ in A Thörnquist and Å Engstrand (eds), Precarious Employment in Perspective: Old and New Challenges to Working Conditions in Sweden (PIE Peter Lang 2011). 4

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II. Sweden and the Free Movement of Workers When the EU enlarged with ten new countries joining in May 2004, Sweden was one of three Member States, together with Ireland and the UK, that chose not to introduce any transitional rules for the free movement of workers. The choice to do so was not an obvious one. Even though high numbers of Eastern European workers were not expected, there were fears that people could come to Sweden, work part-time for a short period, and then enjoy social benefits, citing ECJ case law granting social rights to part-time workers working as little as ten hours per week.5 The Government was reluctant to impose transitional rules and several opposition parties changed their positions at the last minute. In the end, the issue was not settled until it reached Parliament, where the minority Social Democratic Government’s proposal for transitional rules was defeated.6 Explaining why Sweden, which at the time had had a rather restrictive regime for labour immigration in force for more than thirty years (see section IV.1), came to open up its labour market to workers from the new Member States merits a study in its own right. One likely explanation is the strong support that the enlargement of the EU enjoyed in Sweden. It is, however, probable that the institutions in the labour market played a role as well. In Sweden, the high unionization rate, the high degree of collective bargaining coverage, and strong trade union presence at the work place level reduce the risk that workers exercising their right to free movement would become a source of cheap labour. The possibility of Eastern Europeans coming to Sweden and finding a job with an employer established in the country was thus not perceived as any grave threat to wages and working conditions. This goes to explain why the decision not to impose transitional rules enjoyed the support of trade unions. Prior to enlargement, there was an intense discussion among trade unions regarding the need for transitional rules. Trade unions, for example in the construction industry and in transportation, where the fear of low-wage competition was more immediate, were particularly concerned. In the end, however, the blue-collar confederation Swedish Trade Union Confederation (Landsorganisationen i Sverige or LO) decided not to ask for transitional rules but to demand better control of informal work and irregular migration.7 Similar positions were taken by the two white-collar confederations, TCO and SACO (Sveriges Akademikers Centralorganisation or Swedish Confederation of Professional Associations). The introduction of free movement of workers from the new Member States did have an effect on the number of immigrants from these countries to Sweden. In absolute terms, however, the number remained low.8 In a comparison of the various 5

Government White Paper, EU’s utvidgning och arbetskraftens rörlighet (SOU 2002) 116, citing Case C-139/85 R. H. Kempf v Staatssecretaris van Justitie [1986] ECR 1741 and Case C-171/88 Ingrid RinnerKühn v FWW Spezial-Gebäudereinigung GmbH & Co [1989] ECR 2743. 6 Regeringens skrivelse, Särskilda regler under en övergångsperiod för arbetstagare från nya medlemsstater enligt anslutningsfördraget (2003/04) 119. Riksdagens protokoll 2003/04, 104. 7 D Andersson and K Mårtensson, ‘LO varnar för arbetskraftsinvandring’ Dagens Nyheter (13 January 2004). 8 C Gerdes and E Wadensjö, ‘Immigrants from the New EU Member States and the Swedish Welfare State’ (2008) Swedish Institute for European Policy Studies 9, contains a thorough analysis of migration patterns between the new Member States and Sweden.

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transitional regimes of the five Nordic countries and the influx of migrants from the eight new Member States from Eastern Europe, Dölvik and Eldring point to other factors, notably the demand for labour, as much more important.9 Measuring the outcome in terms of wages and working conditions is much more difficult, as many workers come for short periods and do not register in Sweden. Examining the working hours and wages of those that did register, Gerdes and Wadensjö found small differences compared to employees born in Sweden.10 More recent reports regarding the wages and working conditions of Bulgarian and Romanian workers in forestry and agriculture—a sector with low unionization, low collective bargaining coverage, and dispersed work sites—tell a different tale, with wages and conditions well below the standards that typically apply in Sweden.11

III. The Freedom to Provide Services—Before and after Laval 1. Concerns before enlargement While existing Member States such as Sweden had the possibility of imposing transitional rules on the free movement of workers from the eight Eastern European Member States that joined the EU in 2004, no such possibility existed regarding the freedom to provide services. From a labour market perspective, this was not fully logical, as the freedom to provide services also allows natural persons to cross borders to perform work in the context of posting. The fact that these persons are formally employed in another country also allows employers to exploit differences in regulation and labour costs in order to gain competitive advantages. Even before enlargement, the EU had addressed this issue through the Posted Workers Directive.12 Under this directive, the Member States are under an obligation to make some of their labour law applicable to posted workers from other EU countries, regardless of the rules of private international law. Article 3(1) of the directive states that host country terms and conditions of employment regarding, for example, working time, minimum rates of pay, temporary work agencies, occupational health and safety, equal treatment, and non-discrimination, should apply to workers posted from another Member State. According to the same article, the terms and conditions can be determined by law, regulation, or administrative provision, or, in the case of the building sector, by collective agreements which have been declared universally applicable. If a Member State does not have a system for declaring collective agreements universally applicable, Article 3(8) of the directive includes the ability to base itself instead on collective agreements which are generally applicable in the geographical area and in the profession or industry concerned or on collective agreements which have been concluded by 9 J Dölvik and L Eldring, ‘The Nordic Labour Market Two Years after the EU Enlargement: Mobility, Effects and Challenges’ (2006) 558 TemaNord 45. 10 Gerdes and Wadensjö (n 8) 22–3. 11 Swedwatch, ‘Mors lilla Olle II—Hur gick det för blåbärsplockarna sommaren 2011’ (2011) 43 Swedwatch Rapport 9. 12 Council Directive (EC) 96/71 concerning the posting of workers in the framework of the provision of services (Posted Workers Directive) [1997] OJ L18/1.

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the most representative employers’ and labour organizations at national level and are applied throughout the national territory. Finally, Article 3(10) states that the directive should not preclude the application of terms and conditions of employment other than those referred to in Article 3(1) in the case of a ‘public policy provision’ (ordre public). The directive was implemented in Sweden through a special law on the posting of workers.13 It was obvious that the directive would not be easy to reconcile with the Swedish model of industrial relations, with its strong emphasis on collectively agreed wages, terms, and conditions, and absence of a system for declaring universally applicable collective agreements. Article 3(8) was interpreted as giving collective agreements of the Swedish type a status equal to that of collective agreements that had been declared universally applicable. But as the legislator took great care not to interfere with the existing national system, Sweden refrained from adopting legislation that would oblige foreign service providers to abide by terms and conditions of Swedish collective agreements.14 The result was a rather minimalist implementation. The Foreign Posting of Employees Act contains a list of statutory provisions that visiting foreign service providers must abide by, identical to the list found in the directive, with the exception of minimum rates of pay (as Sweden does not have any statutory minimum wage). Hopes that the consequences of opening up Swedish service markets to providers from the new Member States would be limited were thus pinned, not so much on legislation implementing the Posted Workers Directive, as on the capability of the social partners to conclude collective agreements with visiting service providers. This was to be achieved either through foreign service providers joining a Swedish employers’ organization or through foreign service providers individually concluding collective agreements with the relevant Swedish trade union. This was backed up by the possibility of taking collective action in order to convince a reluctant foreign service provider to conclude a collective agreement. Little more than a decade earlier, the ability of Swedish trade unions to take collective action against visiting foreign employers had been strengthened. An important feature of Swedish industrial relations is that collective agreements come with peace obligations. It is unlawful to use collective action to alter or set aside an existing collective agreement.15 If there is no collective agreement in force, however, the parties have a rather wide scope to take collective action and ask for secondary (solidarity) action from other unions. In 1989, the Swedish Labour Court, in a case regarding collective action taken against a ship, the Britannia, registered in Cyprus and where a collective agreement signed by an employer and a trade union in the Philippines was in force for the majority of the crew, found that foreign collective agreements also had this effect.16 As this seriously hurt the Swedish trade unions’ ability to take collective action against visiting foreign employers, the Co-determination Act was amended so that only collective agreements to which the Co-determination Act was ‘directly applicable’ would have the effect of making collective action unlawful. Together with some other

13 14 15 16

Foreign Posting of Employees Act (1999:678). Government White Paper, Utstationering av arbetstagare (SOU 1998:52) 91. Co-determination in the Workplace Act (1975:580) ss 41–2. Swedish Labour Court Case AD 1989:120.

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changes aimed at strengthening the position of collective agreements brought about through collective action, this became known as the Lex Britannia.17 With hindsight, the Swedish response to the prospect of visiting foreign service providers using wages and working conditions as a competitive advantage rested on the assumption that neither the Treaty nor the Posted Workers Directive would interfere with the right to take collective action and that the Posted Workers Directive was a minimum directive. Considering the wording of then Article 137(5) (now Article 153(5) TFEU), which seems to exclude the EU from regulating both wages and the right to take collective action, and the rather clear statements in the preamble of the Posted Workers Directive that it is ‘without prejudice to the law of the Member States concerning collective action’ and that the mandatory rules for minimum protection ‘must not prevent the application of terms and conditions of employment which are more favourable to workers’ this was explicable.

2. The Laval case The judgment of the ECJ in Laval is well known and there is no need, in the present context, to treat it in detail.18 The focus here will be on the aspects of the case that have had importance for the subsequent development of Swedish labour law in situations involving cross-border worker mobility. L&P Baltic Bygg AB, a limited company registered in Sweden and a subsidiary of the Latvian company Laval un Partneri (Laval), won a tender to build a school. In May 2004, Laval posted workers from Latvia to Sweden to perform the work. Laval was neither a member of a Swedish employers’ organization nor bound by any collective agreement in Sweden or in Latvia. The Swedish Construction Workers’ Union approached Laval and asked the company to conclude a collective agreement. The collective agreement that the union asked Laval to sign was the standard agreement for the sector. This means that it contained provisions in areas other than those mentioned in Article 3(1) of the directive and that the levels of protection prescribed in some cases went beyond those found in Swedish legislation, for example in the area of insurance. As far as wages were concerned, common practice in the construction industry in Sweden was, and is, that wages are performance related and the details are negotiated at the workplace level. The collective agreement proposed by the Union also contained a fall-back clause of 109 SEK/hr applicable if the parties concluded an agreement 17

Government Bill Prop. 1990/91:162 om vissa fredspliktsregler. For a more comprehensive treatment of the Laval case from a Swedish perspective, see R Eklund, ‘A Swedish Perspective on Laval’ (2008) 29 Comparative Labour Law and Policy Journal 551; J Malmberg and T Sigeman, ‘Industrial Action and EU Economic Freedoms: The Autonomous Collective Bargaining Model Curtailed by the European Court of Justice’ (2008) 45 Common Market Law Review 1115; M Rönnmar, ‘Laval returns to Sweden: The Final Judgment of the Swedish Labour Court and Swedish Legislative Reforms’ 39 Industrial Law Journal 280; C Thörnquist, ‘The Most Powerful Industrial Relations in the World? Pros and Cons of the Swedish Collective Bargaining System in the Light of the Laval Conflict’ in A Thörnquist and Å Engstrand (eds), Precarious Employment in Perspective: Old and New Challenges to Working Conditions in Sweden (PIE Peter Lang 2011). For an overview covering all of the Nordic countries, see N Bruun and C Jonsson, ‘Consequences and Policy Perspectives in the Nordic Countries as a Result of Certain Important Decisions of the European Court of Justice’ in A Bücker and W Warneck (eds), Viking— Laval—Rüffert: Consequences and Policy Perspectives (ETUI 2010). 18

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but then failed to agree on wages. As Laval wanted an hourly wage rather than a performance-related plan, the union required that the wages should reflect the average wage paid in the geographical area in which the work was to be performed (145 SEK/hr). The negotiations between Laval and the Swedish Construction Workers’ Union did not result in any agreement. Instead, Laval signed a collective agreement with a Latvian building workers’ union. In November 2004, after due notice, the Swedish Construction Workers’ Union started a blockade against the construction works. One month later, the Swedish Electricians Union took secondary action, with the effect that no electrical installation work would be carried out on the site. Laval then took the situation to the Swedish Labour Court. The Labour Court dismissed Laval’s application for an interim order that the collective action should be brought to an end, as it was lawful under Swedish law. In April 2005, the Labour Court made a reference to the ECJ for a preliminary ruling. The judgment of the ECJ came in December 2007. The implications of the Laval case, together with Viking,19 for the right to take collective action in the context of the free movement of services and the freedom of establishment within the EU are well known and will not be dealt with here. Instead, the focus will be on the judgment’s consequences on the regulation of the wages and conditions of the employees of foreign service providers in Sweden. As mentioned previously (section III.1), this was supposed to be done through foreign service providers concluding collective agreements with Swedish trade unions and thus be subjected to the same rules as Swedish companies in the same sector. Ultimately, this would be backed up by the ability to take collective action, even in cases where the company brought with it a collective agreement from their country of origin. The Laval judgment wrecked this model. The Court concluded that the then Article 49 EC (now Article 56 TFEU) and the Posted Workers Directive precluded the Swedish trade unions from forcing, by means of collective action, a service provider established in another Member State to enter into negotiations with it on the rates of pay for posted workers and to sign a collective agreement, the terms of which lay down more favourable conditions than those resulting from the relevant legislative provisions or relating to matters not referred to in Article 3 of the directive. The other part of the judgment, where the ECJ found that the Lex Britannia, with its openly differential treatment of foreign collective agreements regardless of their content, was in conflict with the treaty was more expected.

3. The Lex Laval The Laval judgment resulted in several changes to the Swedish legislation. The new rules, known as the ‘Lex Laval’, entered into effect in April 2010.20 Since the entry into 19

Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti [2007] ECR I-10779. 20 The Lex Laval is not a separate act but a number of amendments in the Foreign Posting of Employees Act, the Co-determination Act, and the act regulating the procedure in labour disputes. Government Bill 2009/10:48 Åtgärder med anledning av Lavaldomen and Government White Paper, Förslag till åtgärder med anledning av Lavaldomen (SOU 2008:123).

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force of the Lex Laval, collective action in relation to foreign service providers from EU/ EEA countries is now subject to the following conditions: 1. the terms and conditions of the collective agreements proposed by the trade union must be equivalent to those found in the relevant sectoral agreement; 2. the terms and conditions can regard minimum wages or minimum conditions as belonging to the ‘hard core’ as defined in the Posted Workers Directive; and 3. must not be more favourable than those found in the relevant legislation.21 In the case of foreign temporary work agencies, the third limitation does not apply, due to the equal treatment provision in Article 5 of the Directive on temporary agency work.22 Further, such collective action may not be taken if the employer can show that the employees already have terms and conditions that are at least as favourable as the minimum terms found in the relevant Swedish sectoral collective agreement. Collective action taken without these conditions being fulfilled is unlawful.23 In addition, trade unions are now required (however without any sanction) to inform the occupational health and safety authority, exercising the function of a liaison office, about terms and conditions that could be applied in relation to posted workers.24 Taken together, these mean the imposition of rather strict limitations on the right to take collective action and a radical reduction in the incentives for foreign service providers to join a Swedish employers’ organization or to sign a collective agreement with a Swedish trade union. In addition, the limitations put on the content of the collective agreement, both concerning its ‘width’ (that the matters covered must not go beyond those listed in the Posted Workers Directive) and ‘height’ (that the terms and conditions must not be more than minimum provisions), depart from the collectively agreed going rate and open up the possibility for work to be performed in Sweden at wages and conditions significantly below those typically applied for the same job.

4. Effects of Laval on the Swedish labour market An immediate effect of the Laval judgment was that foreign service providers became much more reluctant to sign Swedish collective agreements. According to statistics from the Swedish National Mediation Office, the number of collective agreements concluded by the Swedish Building Workers’ Unions with foreign companies fell dramatically from 120 each year in the period between the preliminary decision of the Labour Court (December 2004) and the ECJ judgment (December 2007) to about thirty every year since then.25 That some foreign service providers still conclude collective agreements with Swedish trade unions, despite the reduction of the scope 21

Foreign Posting of Employees Act (1999:678) s 5a. Foreign Posting of Employees Act (1999:678) s 5b; Directive (EC) 104/2008 on temporary agency work [2008] OJ L327/9. 23 Co-Determination in the Workplace Act (1976:580) s 41c. 24 Foreign Posting of Employees Act (1999:678) s 9a. 25 Yearly reports of the Swedish National Mediation Office 2008–2012 are available at accessed 27 June 2014. 22

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for industrial action, has been attributed to user enterprises and main contractors asking them to do so in order to avoid disturbances.26 Measuring the effect that the Laval judgment and the Lex Laval have had on the working conditions of workers posted to Sweden is methodologically difficult, as is measuring the extent to which foreign service providers engage in underbidding. An illustration of how foreign service providers can use lower labour costs as a competitive advantage in Sweden can be found in two reports from the blue-collar trade union confederation LO, published in 2010 and 2013 respectively.27 The 2010 report focused on three major public infrastructure projects in Stockholm and Malmö, where contractors had been chosen through public procurement, and was based on documents from the Swedish authorities, statistics from trade unions, and interviews with officials, trade unionists, company representatives, and posted workers. The authors found that 45 per cent of the labour force used in the three projects was not liable for taxes and social security contributions in Sweden (a proxy for being posted workers). The majority of these were Polish workers hired by subcontractors or provided by temporary work agencies registered in Poland or Ireland.28 Estimating the differences in wages, the authors found that the take-home pay of the posted workers on the three projects fell in the range of 55 to 80 per cent of workers who were employed in Sweden performing the same tasks. The difference was often caused through deductions made by the employer for travel, board, and housing, despite such deductions being prohibited in Article 3(7) of the Posted Workers Directive. The focus of the 2013 report was how companies also exploit differences in taxes and social security contributions between countries to reduce unit labour costs further, arguing that even foreign service providers that sign Swedish collective agreements have room for using lower unit labour costs as a competitive advantage, or create such room through exploiting the difficulties inherent in monitoring cross-border activities or the workers’ lack of information concerning their rights.

5. International criticism and the future of Lex Laval A final, and more principled, question is whether Sweden, after the recent limitations on the right to take collective action, still fulfils its obligations vis-à-vis the International Labour Organization (ILO) and international instruments protecting the freedom of association. In its report to the 2013 International Labour Conference, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) criticized the limitations put on the right to take collective action through the Lex Laval as a violation of ILO Convention No 87. The CEACR recalled ‘that when elaborating its position in relation to the permissible restrictions that may be 26 Interview with Mattias Landgren, Chief Legal Advisor, Svenska byggnadsarbetareförbundet (the Swedish construction workers’ union) (27 May 2012). 27 C Jonsson, T Pettersson, H Löfgren, and K Arvidsson, ‘När arbetskraftskostnaderna pressar priset— en genomlysning av offentliga investeringar I infrastruktur’ (LO 2010); C Jonsson, ‘Vinnare och förlorare— Om konkurrens med arbetskraftskostnader inom EU’ (LO 2013). 28 According to the report, some temporary work agencies pose as ‘ordinary’ subcontractors as this is more advantageous for them.

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placed upon the right to strike, it has never included the need to assess the proportionality of interests, bearing in mind a notion of freedom of establishment or freedom to provide services’. The CEACR requested the Swedish Government ‘to review with the social partners the 2010 amendments made to the Foreign Posting of Employees Act so as to ensure that workers’ organizations representing foreign posted workers are not restricted in their rights simply because of the nationality of the enterprise’.29 The European Committee of Social Rights, a body under the Council of Europe tasked with interpreting the Revised European Social Charter of 1996, has also criticized Sweden. After a collective complaint by LO and TCO, the committee found Sweden to be in violation of charter provisions regarding the right to bargain collectively, including the right to take collective action (Article 6(2) and (4) of Charter) and the equal treatment of migrant workers (Article 19 (4)(a) and (b)).30 In September 2012, the Swedish Government appointed a committee of inquiry with members from all political parties which, according its terms of reference, will evaluate the Lex Laval.31 The committee is not explicitly asked to review the conflict between Sweden’s commitments to the freedom of association and to the freedom to provide services, but is not prevented from doing so.

IV. Labour Immigration 1. Earlier rules on labour immigration In December 2008, new rules on labour immigration from countries outside of the EU, EEA, and Switzerland entered into force. The changes amounted to a comprehensive reform of labour immigration. From the end of World War II to the late 1960s, Sweden had a rather generous system for labour immigration and even actively recruited labour in southern Europe, primarily to fill vacancies in the Swedish manufacturing industry. After World War II, the Common Nordic Labour Market was established, allowing citizens of Sweden, Finland, Norway, Denmark, and Iceland to work freely in the five countries. In the mid-1960s, as the post-war economic boom came to an end, unemployment increased and concerns were raised that continued labour immigration would make it more difficult for married women, the disabled, older workers, and immigrants already in Sweden to find jobs.32 In 1968, more restrictive rules were introduced. In the 1970s and 1980s, the room for labour immigration from outside of the Nordic countries was very limited (this period did, however, see an increase in other forms of immigration) and remained so until Sweden’s entry into the EU in 1995 introduced the free movement of workers. The decision to consider a reform of the system for labour migration was taken by the then Social Democratic Government in 2004. A so-called parliamentary committee, 29 ILO, General Report of the Committee of Experts on the Application of Conventions and Recommendations (Report III (1a), 2013) 177–8. 30 Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden. Complaint No 85/2012, Decision of 3 July 2013. 31 Dir 2012:92 Utstationering på svensk arbetsmarknad. 32 Government White Paper, Arbetskraftsinvandring till Sverige—befolkningsutveckling, arbetsmarknad i förändring, internationell utblick (SOU 2005:50).

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a committee of inquiry with members from all political parties, was appointed. The committee presented its final report shortly after the 2006 general elections.33 Most of the proposals in the report, as well as the analysis that Sweden would benefit from more labour immigration, enjoyed support from all of the political parties. The crucial issue, where no consensus was possible, was whether to reform or abolish the labour market needs test. In the committee, the majority was in favour of reforming rather than abolishing the test. After its victory in the 2006 election, the centre-right alliance therefore drafted new proposals in a number of key areas which were sent out for consultation together with the final report of the committee of inquiry.34 In April 2008, a bill was presented to Parliament, supported by the centre-right government and the Green Party.35 Prior to December 2008,36 temporary work permits were granted to cover temporary labour shortages in occupations or sectors where employers had difficulties in finding qualified and experienced labour and under the condition that the shortage could not be solved within a reasonable time through recruiting or training available labour in Sweden or any other EU/EEA country. There was also a possibility of granting a permanent residence permit on labour market grounds, in cases where there were labour shortages, which, from a long-term perspective, was an obstacle to the expansion or continued activity of the employer. Special rules and no labour market needs test applied regarding international exchanges and seasonal workers (primarily in agriculture). In the special case of seasonal workers in the picking of wild berries, no work permit was needed and most came on three-month tourist visas. In order for work permits to be granted, wages and working conditions had to be at least equivalent to those that are customary in the occupation and sector, and enough to allow the employee to support him or herself. In addition, housing should have been arranged. Applications were sent to the relevant trade union for an assessment primarily of the wages and working conditions, but also of the labour market situation in the occupation concerned. In the political debate, this has sometimes been described as a ‘trade union veto’ on labour immigration, but it was far from that.

2. The 2008 reform Since December 2008, work permits have been granted under the following conditions:37

33 Government White Paper, Arbetskraftsinvandring till Sverige—Förslag och konsekvenser (SOU 2006:87). 34 Ministry Memorandum Ds, Ett effektivt och flexibelt system för arbetskraftsinvandring (2007:27). 35 The legislative history of the reform can be found in Government White Paper, Arbetskraftsinvandring till Sverige—Förslag och konsekvenser (SOU 2006:87); Ministry Memorandum Ds, Ett effektivt och flexibelt system för arbetskraftsinvandring (2007:27) and Government Bill Prop, Nya regler för arbetskraftsinvandring (2007/08:147). 36 A description of the rules in force prior to December 2008 can be found in Government White Paper, Arbetskraftsinvandring till Sverige (SOU, 2005:50) p 201ff. 37 Aliens Act (2005:716) ch 6, s 2 (as amended by Government Bill 2007/08:147).

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• The job must have been advertised within Sweden and the EU/EEA for at least ten days, normally through registering the job in the database of the Swedish public employment service and the European EURES system. • The wages, insurance, and other working conditions must be equal to or better than those provided under the relevant Swedish collective agreements or that are customary for the occupation of sector. The relevant trade union is consulted regarding the terms and conditions. • The employee must earn enough from employment to support him- or herself. This has come to be interpreted as the migrant worker having to earn enough not to be eligible for the basic means tested subsistence allowance provided for by Swedish municipalities. Currently, this corresponds to a pre-tax income of 13,000 SEK/ month (approx 1,400 EUR/month). An employee working full time with a wage that is equal to those provided for in collective agreements will normally earn well above this amount, but as work permits can also be granted for part-time work, the provision still has relevance. Compared to earlier rules, the difference was the abolition of the labour market needs test and the requirement that housing should have been arranged. The primary role for trade unions, to give an assessment in each case of whether the terms and conditions are better or equal to those provided under Swedish collective agreements, remained the same. The reform also meant that the special rules for seasonal work were abolished. Work permits are granted for the duration of the contract of employment in Sweden but not for more than two years. After two years, the work permit can be extended for another two years.38 Whereas during the first two years the permit is restricted to a certain occupation with a certain employer, after two years it is only restricted to a certain occupation. An earlier possibility of being directly granted a permanent residence permit on labour market grounds was abolished, but a person who has been working in Sweden with a valid work permit for at least four of the past five years can apply for a permanent residence permit.39 A labour migrant who loses his or her job has the right to stay in Sweden for four months to find a new job.40 The main rule is that applications for first-time work permits (not extensions) must be filed from outside Sweden. The exemptions are for asylum seekers, students, and persons who have entered Sweden for a job interview in an occupation where there is a shortage of labour. Apart from the abolition of the labour market needs test, the introduction of a possibility for asylum seekers whose application for asylum has been rejected to apply for a work permit without having to leave Sweden, and thus ‘change track’ from asylum to labour immigration, was the biggest novelty of the 2008 reform. This possibility is, nonetheless, quite limited. Sweden is one of few countries where asylum seekers have the right to work while their case is being considered by the authorities. An asylum seeker who has used this possibility and, at the time of the final decision on their asylum application, has worked for at least six months and who has a 38 40

39 Aliens Act, ch 6, s 2a. Aliens Act, ch 5, s 5. Aliens Act, ch 7, s 3 (as amended by Government Bill 2013/14:227).

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contract that extends for at least twelve months more, in a job fulfilling the criteria concerning wages and working conditions and sufficient earnings to support him or herself, can get a work permit. Such applications must be filed within two weeks of the final decision in the asylum case.

3. Early assessments of the reform In December 2011, the OECD published a review of Sweden’s new labour immigration policy on the invitation of the Swedish Government.41 According to the review, ‘Sweden’s new demand-driven labour migration policy is the most open in the OECD’.42 Analysing statistics from the Swedish Migration Board, the OECD found that the number of work permits issued increased from around 14,500 in 2008, the last year with the old rules (the new legislation entered into effect on 15 December 2008), to around 21,500 in 2010. The latter does, however, include 5,200 relatives of labour migrants who, under the new rules, have the right to work but in reality seldom do (almost half are not of working age). In relative terms, the increase was actually bigger in the years preceding the reform, from less than 6,000 in 2005 to 14,500 three years later, than after the reform. Agricultural, fishery, and related trades are by far the most common occupational category and accounted for 27 per cent of all work permits in 2010. The second most common occupation was computing professionals (18 per cent), followed by housekeeping and restaurant services workers (8 per cent), artistic, entertainment, and sports professionals (5 per cent), and architects, engineers, and related professionals (4 per cent).43 In its review, the OECD also looked at the skill levels of the nonseasonal work permit holders and the extent to which their occupations were on the Migration Board’s list of labour shortages.44 Of the number of work permits granted between 1 January 2009 and 25 May 2011, 55 per cent were in skilled occupations, 32.2 per cent within medium skilled occupations, and 12.8 per cent in elementary occupations; 47 per cent were in occupations found on the shortage list.45 It is still too early to assess the effect the reform of labour immigration will have on wages and working conditions in Sweden. In theory, if the rules are followed, the impact should be limited, as work permits are only granted when wages and working conditions are at least on the same level as the relevant collective agreements. At the same time, an increased supply of labour could keep wage increases at a lower level than they otherwise would have been. In an attempt to make some kind of early assessment of the impact of the labour migration reform on wages in Sweden, the OECD compared the average wages of newly recruited residents in those firms

41

42 43 OECD (n 2). OECD (n 2) 11. OECD (n 2) 107, table 6.1. OECD (n 2) 107. As there are no longer any special work permits for seasonal workers, the OECD simply deducted all permits for the occupational category agricultural, fishery, and related labourers, of which 95 per cent are for less than 102 days. The shortage list is drawn up by the Migration Board in collaboration with the Public Employment Service, the police, and the Foreign Ministry and can be found at accessed 27 June 2014. 45 OECD (n 2) 107, 109. 44

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recruiting labour migrants in 2009 with the average wages of newly recruited residents in firms that did not recruit from abroad.46 After having controlled for, for example, age, education, firm’s sector, and size, the OECD found that the newly recruited residents in firms that also recruited from abroad earned on average 10.5 per cent more than newly recruited residents in firms that did not recruit from outside the EU. In small firms that started recruiting only after the reform, the picture was different, with lower than average wages. The largest threat probably comes from situations where the rules are not followed and labour migrants receive wages and enjoy working conditions below those that were a condition for their work permits. If this becomes widespread in a certain sector, it could lead to deteriorating conditions. It is therefore worrying that two of the five occupational categories where labour immigration is most common are agriculture and fisheries and housekeeping and restaurant services, sectors where both the unionization rate and the collective bargaining coverage is below average. These worries are confirmed by numerous reports, from both media and trade unions, of migrant workers that do not receive the wages and working conditions that were indicated in the job offer presented to the migration authorities and that constituted the basis for granting the work permit.47 There have also been examples of abuse where the primary objective does not seem to have been to find cheap labour but the selling of residence permits through bogus job offers.48 Further, there are examples of fraud, where persons have paid middlemen large amounts of money in order to obtain work permits.49 In its 2011 final report, the Government Committee of Inquiry on Circular Migration and Development, with members from all political parties, found that ‘there are cases where dubious or criminal employers take advantage of or cheat employees. Employers that do not respect laws and working conditions are a problem not only for their employees but for the labour market as a whole.’50

4. Effects of the reform The reports of abuse point not only to a number of weaknesses in the Swedish system for labour immigration, but also to its interplay with the Swedish model of labour market regulation focused on collective bargaining. As mentioned, a basic requirement for the grant of a work permit is that the employer offers wages and other working conditions that are equal to, or better than, the relevant collective agreement. Even though the company is not required to have a collective agreement, the requirement promotes the conclusion of such agreements, as it can be the easiest way for an employer to fulfil the conditions. For employers that

46

OECD (n 2) 95–100. See eg ‘The Swedish Hotel and Restaurant Workers’ Union’ (HRF 2011) accessed 2 April 2013; ‘Den nya svenska modellen’ Kaliber, Sveriges Radio (8 December 2011); ‘Gästarbetare jobbade under slavliknande förhållanden’ Uppdrag granskning, Sveriges Television (23 January 2013) accessed 2 April 2013. 48 ‘Lagligt att fuska med arbetstillstånd’ Svenska Dagbladet (7 October 2011). 49 ‘Arbetstillstånd säljs dyrt’ Kalla Fakta TV4 (30 March 2013). 50 Government White Paper, Cirkulär migration och utveckling—förslag och framåtblick (SOU 2011:28) 131. 47

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need to recruit from abroad more often, having a collective agreement can help to shorten the time it takes for a work permit application to be processed, as it opens the door to ‘certification’ which significantly reduces the time it takes to have a work permit granted.51 The way the wages-and-conditions-requirement has been implemented in practice has, however, created problems. The basis for the trade union’s assessment of the wages and working conditions and the Migration Board’s decision is the information regarding wages and working conditions provided by the employer in a special form known as the offer of employment. The offer of employment is not a contract of employment and it is not possible for the employee to use it to claim any specific wage or working conditions from the employer. An employer can therefore promise one thing in the offer of employment and then sign an individual employment contract with wages and working conditions on a much lower level.52 Under migration law, however, deviating negatively from the wages and working conditions indicated in the offer of employment can lead to the employee losing his or her work permit, but the employer will not be subjected to any sanction. In its review, the OECD identified as one of the weaknesses the absence of any ‘formal post-arrival verification mechanism’ apart from when permits are renewed.53 On the one hand, this may not be as odd as it may seem, as it is the social partners that are responsible for controlling wages and working conditions. Sweden does not have a labour inspectorate, only an occupational health and safety authority. Due to the high unionization rate, in most cases, this model provides Sweden with an efficient enforcement of workers’ rights. On the other hand, however, the regulation of work permits falls within the domain of public law. From a migration law standpoint, the issue is not the terms and conditions of employment as such, but whether the conditions for the work permit are being followed. This, the state has a legitimate interest, and duty, to control. Given the fact that a significant share of the work permits are granted for employment in sectors with a lower than average unionization rate, and for work in companies that lack collective agreements and trade union presence, making the monitoring task particularly difficult, it is not so strange that trade unions have also come to ask for more state involvement in the monitoring of the working conditions of migrant workers.54 A further much-debated weakness is the absence of sanctions directed against the employer in cases where the conditions for the work permit are not respected. For

51 ‘Bli en certifierad arbetsgivare’ (Swedish Migration Board ) accessed 3 April 2013. 52 In Swedish Labour Court Case AD 2012:34, the Swedish Labour Court was asked to decide whether the latter of two employment contracts was bogus and drawn up for the sole purpose of helping the employee get a work permit; the Labour Court did afford the fact that the employer had communicated the wages and conditions of the contract in question to the Migration Board some importance, but nevertheless found that the first contract, with a lower wage and more unsecure employment was valid. 53 OECD (n 2) 126. 54 See eg ‘Vi kräver schyssta villkor—även för migrantarbetare’ Article by five blue-collar trade union presidents. Aftonbladet (3 April 2013) and ‘Bättre kontroll för bibehållen öppenhet—Så kan reglerna för arbetskraftsinvandring förbättras’ (TCO 2012) accessed 27 June 2014.

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example, if an employer pays lower wages and has the employee work longer hours than indicated in the job offer, this can lead to the work permit being withdrawn, which hurts the employee much more than the employer. Rather than functioning as an incentive for employers to follow the rules, it adds to the imbalance of power between the employer and the employee. The preparatory works to the 2008 reform do not contain any reasoning regarding the choice not to provide for sanctions directed at the employer. The lack of sanctions also means that Swedish migration law treats the situation where an employer violates the conditions on which a work permit was based (which has the effect that it can be withdrawn) differently from the arguably analogous situation where an employer hires a person who does not have a work permit (or retains an employee who has lost his or her permit). In the latter case, the Aliens Act does contain penal sanctions.55 The weak status of the offer of employment, the lack of post-arrival control, and the absence of sanctions are all the subject of political debate. In August 2014, the Aliens Act was amended in order to make it easier to withdraw work permits if the conditions for the permit are not fulfilled or if the migrant worker has not commenced their work within four months from the first day of the permit’s validity.56 The amendments, which were the result of negotiations between the centre-right government and the Green Party, also contained a provision intended indirectly to create the possibility of sanctions for employers who violated the conditions of a work permit by reference to a penal code provision on untrue affirmation. This sanction has been criticized by, for example, the police, the Swedish bar association, and trade unions for not being a sufficient deterrence, as well as for being easy to circumvent by simply refusing to make any statement on the wages and working conditions of the migrant workers.57 The Government Bill did not contain any amendment aimed at creating a right for migrant workers to actually receive the wages and working conditions on which their work permit was conditioned. In some areas, controls had already been strengthened in 2012. In January of that year, the Migration Board introduced special requirements on employers that wish to recruit in certain sectors where the risk of abuse is deemed to be higher: hotel and restaurants; construction, agriculture and forestry; automobile repair; services; and temporary work agencies. Apart from the general requirements regarding wages and working conditions, employers in these sectors also have to show that they can guarantee the work permit applicant’s salary for at least three months and, if they have previously employed persons with work permits, tax statements regarding their wages for the last three months. Special requirements also apply to newly started businesses, regardless of sector.58 If the company is registered in a non-EU country, and is operating in Sweden in one of the industries mentioned

55

Aliens Act, ch 20, s 5. Government Bill 2013/14:227 Åtgärder mot missbruk av reglerna för arbetskraftsinvandring. 57 Government Bill 2013/14:227 Åtgärder mot missbruk av reglerna för arbetskraftsinvandring 28. 58 Swedish Migration Board, ‘Requirement for work permits’ accessed 3 April 2013. 56

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above, it is required to have a branch registered in Sweden.59 In the wild berry picking sector, where the problems go back well before the 2008 reform,60 even stricter rules were introduced in 2011.61 The new control measures have had an impact. In its annual report for 2012, the Migration Board noted that almost one-fourth of all applications were in occupations covered by the enhanced controls. In these occupations, the number of work permits fell by between 35 and 20 per cent compared to the previous year. It was also more common that applications were rejected in these sectors than in other sectors. In the wild berry picking sector, where special controls and requirements were introduced before the 2011 season, the number of applications for work permits fell by almost 50 per cent. Employers and companies that buy wild berries seem to have turned to two other sources of labour instead—pickers on tourist visas and EU citizens. In a report after the 2011 berry season, the non-governmental organization (NGO) Swedwatch concluded that the numbers of wild berry pickers who come on tourist visas have increased.62 These operate in a legal grey area. As they do not have work permits, employers are not allowed to employ them, but as long as they operate independently it is not illegal for them to pick and sell wild berries. In the case of EU citizens, they do not need work permits, with the effect that there is no requirement that their wages and working conditions be at least on the level of Swedish collective agreements and no additional controls of their employers.

5. Cross-border provision of services As a small country heavily dependent on exports, Sweden has traditionally been a promoter of free trade. This includes liberalization of the trade in services, which Sweden hopes will benefit its advanced service sector on world markets. In line with this, Sweden’s schedules of commitments under the GATS regarding trade in services are more open that those of most other EU Member States.63 The issue of the crossborder provision of services therefore warrants a closer look.64 The main rule is that employees of service providers from outside the EU/EEA who come to Sweden to work need work permits. The requirements are the same as for Swedish Migration Board, ‘Stricter Investigations and Inspections in Certain Industries’ accessed 3 April 2013. 60 Swedwatch, ‘Mors lilla Olle—Så exploateras asiatiska bärplockare i de svenska skogarna’ (2010) 41 Swedwatch Rapport accessed 2 April 2013; C Woolfson and others, ‘Forced Labour and Migrant Berry Pickers in Sweden’ (2012) 28(2) International Journal of Comparative Labour Law and Industrial Relations 14. 61 Swedish Migration Board, ‘For those who Wish to Employ Foreign Berry Pickers’ accessed 20 May 2012. 62 Swedwatch, ‘Mors lilla Olle II—Hur gick det för blåbärsplockarna sommaren 2011’ (2011) 43 Swedwatch Rapport accessed 27 June 2014. 63 General Agreement on Trade in Services 1994 (15 April 1994) 1869 UNTS 183 (GATS). 64 For an overview of the legal differences between labour migration of employees, entrepreneur migration and trade in services and how they can affect the working conditions of different categories of migrant workers in a European perspective, see S Engblom, ‘Labour Migration, Trade in Services, Equal Treatment, and the Role of the EU’ in J Karlsson and L Pelling, Moving Beyond Demographics: Perspectives for a Common European Migration Policy (Global Utmaning 2011). 59

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migrant workers who work for an employer that is established in Sweden, and the same requirements regarding wages and working conditions apply. There are, however, exemptions from the need for work permits, among them specialists who work in Sweden for an international group for less than one year altogether.65 Situations where the employee needs a work permit can also be complicated. The employee is still employed in the home country. As a consequence it is normally a home country employment contract which has to live up to host country standards. If an Indian service provider sends one of its employees to Sweden, the Swedish Migration Board and the Swedish trade union have to make an assessment whether the Indian employment contract and the various supplements commonly added in these situations are equal to or better than those provided for in the relevant Swedish collective agreement. This is seldom an easy task and ambiguities regarding the remuneration, together with the fact that taxes and social security contributions are paid in the home country, may give visiting foreign service providers (or companies established in Sweden using intra-corporate transfers from their operations in other parts of the world) an unfair advantage. One of the recommendations that the OECD issued to Sweden was to ‘better identify and monitor the use of intra-corporate transfers to ensure that lower total labour costs for labour migrants do not represent a disincentive to hiring from within Sweden, especially within the IT sector’.66

V. Conclusions The main lessons to be learned from the Swedish experience is that the type of crossborder labour mobility matters for the possibility of combining openness to labour from other countries and high labour standards and equal treatment of migrant workers, as does the strength and design of the system for industrial relations. In the case of the free movement of workers, the Swedish lawmakers made the apparently correct assumption that opening up to this type of mobility would not lead to any large inflow of cheap labour from the new Member States. That host country labour law applies fully, and taxes and social security contributions as a main rule will be paid in the host country, means that a country such as Sweden, with a high union density and a high degree of collective bargaining coverage, can afford to be open without experiencing any significant adverse effects. As has been demonstrated in this chapter, the freedom to provide services is quite a different story. Under the freedom to provide services, it is the labour law in the country of establishment that applies, complemented by the minimum rules of the Posted Workers Directive and taxes and social security contributions. After Laval and the restrictions on the ability to take collective action, it has become easier for foreign service providers to refuse to sign collective agreements and much more difficult for Swedish trade unions to impose the collectively agreed going rate.

65 Swedish Migration Board, ‘Exemptions to the Requirement to Obtain a Work Permit’ accessed 3 April 2013. 66 OECD (n 2) 16.

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Labour immigration from outside the EU is similar to free movement of workers, but deviates in two important ways. The requirement that wages and other working conditions be on a certain level in order for work permits to be granted reduces the risk that labour migrants receive substandard working conditions. At the same time, however, the more unsecure migration status, as compared to EU citizens, may increase migrant workers’ vulnerability and make it more difficult for them to claim their rights. It is also important to consider the character of the rights that are to be enforced. If migrant workers are only guaranteed minimum protections, for example statutory minimum wage or working hours, even the strict enforcement of these rights will in most cases not prevent underbidding, as in most sectors, the average wages and working conditions exceeds the minimum. Here, the Swedish collectively agreed going rate matters as it establishes a standard the purpose of which is to prevent underbidding within a given sector. Arguably, this creates a possibility for Sweden to be more open to labour migrants from other countries, as the risk of negative consequences in the form of downward pressures on wages and working conditions is less. It also means, however, that in the Swedish context, the difference between, on the one hand, the freedom to provide services and, on the other, the free movement of workers or labour immigration becomes greater than in many other countries as foreign service providers post-Laval can get away with applying minimum standards that deviate significantly from the collectively agreed going rate. The greater difference makes the posting of workers both more interesting to exploit for companies seeking competitive advantages and less acceptable to trade unions. As mentioned (in section IV.4), even though GATS Mode 4 service providers from outside the EU resemble posting, the fact that Sweden as a host country in these situations is able to demand the service provider’s employees have work permits, and can thereby impose the collectively agreed going rate, makes this less problematic. If this possibility, as some countries wish, is restricted or abolished, GATS Mode 4 would become much more difficult for Sweden to handle.67 Even though both EU enlargement and the labour immigration reform led to increases in the number of migrants coming to Sweden, neither led to any very large inflow if compared to the total labour force. In this case, the collectively agreed going rate also played a role. For labour migrants from third countries, it is the standard which the wages and working conditions they are promised must meet, otherwise work permits are not issued. For EU citizens wishing to exercise the free movement of workers, it is not a formal requirement but 90 per cent collective bargaining coverage means that fewer employers have incentives to look for employees abroad in order to reduce their costs.68 The OECD commented on the absence of massive inflows of migrant workers after the 2008 reform that it ‘may be a tentative sign that this very

67

The relationship between GATS and labour migration is treated more in depth in Engblom (n 64). Obviously, there are other factors, such as language and climate, which reduce Sweden’s appeal as a destination country. 68

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open regime may be workable in the Swedish context, but it is not certain that it is transferable elsewhere, in particular because of the role of the unions.’69 It would also be good to question the perceived ‘openness’ of the Swedish system for labour immigration from outside the EU. Is it really as open as the Swedish Government, the OECD, and others claim? Conditioning entry with being able to find an employer who is willing to pay the same rate as he or she would for a native employee doing the same job could be seen as quite a high barrier. Whereas, officially, there is no points system or other tool aimed at picking out the best workers, only persons who are at least as productive as a Swedish employee doing the same job are welcome. The Laval case and the 2008 labour immigration reform have both received much international attention, but up until now seldom from the same audiences. As this contribution has hopefully shown, they benefit from being seen together. Not because they are alike but because, in the context of the Swedish model for labour law and industrial relations, they are so fundamentally different.

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OECD (n 2) 12.

19 Links between Individual Employment Law and Collective Labour Law Their Implications for Migrant Workers Alan Bogg and Tonia Novitz*

I. Introduction Migrant workers are vulnerable to exploitation. They tend to be over-represented in low-paid jobs, for which they are often over-qualified, working long hours and frequently performing monotonous or unpleasant tasks.1 Their ill-treatment may arise because they are unfamiliar with English, and also with standard domestic employment practices or the laws that might govern their employment. There is evidence that migrant workers are disproportionately hired through agencies, often on the express terms that they are self-employed, so as to avoid statutory claims for superior working conditions.2 Further, as the Council of Europe Commissioner for Human Rights has observed, their immigration status is itself a source of vulnerability, since ‘they may enter and live in another country only with the express consent of its authorities’, this being permission which could be retracted on the evidence of an employer in many cases.3 So-called ‘irregular’ migrants (who have not necessarily satisfied all the legal formalities of entry, residence, or work in the host state) are particularly vulnerable, because their presence in the labour market is often hidden from view.4 One option for a migrant worker, seeking to improve his or her pay and conditions, is to act collectively with others.5 They may of course wish to join religious or cultural associations in which they gain support from others in their community, but also to

* Alan Bogg is Professor of Labour Law at the University of Oxford and a Fellow and Tutor in Law at Hertford College; Tonia Novitz is Professor of Labour Law at the University of Bristol. 1 R MacKenzie and C Forde, ‘The Rhetoric of the “Good Worker” versus the Realities of Employers’ Use and the Experiences of Migrant Workers’ (2009) 23(1) Work, Employment and Society 142, 143. See also B Anderson, M Ruhs, B Rogaly, and S Spencer, Fair Enough? Central and East European Migrants in Low Wage Employment in the UK (COMPAS 2006). 2 Twenty-five per cent of UK agency workers are migrants and 90 per cent of those work in second stage food processing. See B Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24(2) Work, Employment and Society 300, 304; and N Lillie and M Sippola, ‘National Unions and Transnational Workers: The Case of Olkiluoto 3, Finland’ (2011) 25 Work, Employment and Society 292. 3 Council of Europe Commissioner for Human Rights, The Human Rights of Irregular Migrants in Europe (CommDH/IssuePaper 2007) 1, 7. 4 In our paper, we use the terms ‘regularized’ and ‘irregular’ migrant status, as opposed to describing migrant workers as ‘illegal’ or ‘undocumented’. 5 For current discussion of the ‘wage premium’, see D Blanchflower and A Bryson, ‘The Wage Impact of Trade Unions in the UK Public and Private Sectors’ (2010) 77 Economica 92.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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join a trade union, which can offer representation in bargaining or in individual grievances. Indeed, empirical survey evidence indicates that a majority are interested in joining a union.6 However, they do not do so and the question is why that representation gap exists. It could be that trade unions themselves are the problem. Unions may be acting predominantly to protect their existing membership from competition over terms and conditions, or there may be hostility to devoting time and resources to the concerns of what may be seen as a transient minority.7 In this context, the chant of ‘British Jobs for British Workers’ has a rather chilling echo that could deter migrant workers from seeking membership.8 Yet, the dominant approach of the UK trade union movement has been to endorse free movement of labour, as well as to seek to recruit and support migrant workers. The Trades Union Congress (TUC) did not request transitional measures upon EU enlargement9 and has lobbied hard for particular statutory measures to be taken to assist the most vulnerable migrant workers, such as the Gangmasters (Licensing) Act 2004.10 More recently, the TUC seems to have shifted from promotion of a distinct ‘migrant worker strategy’ to a more inclusive approach, which places migrant workers under the broader umbrella of ‘vulnerable workers’.11 This is leading to structural reform within some TUC affiliates, so as to accommodate the different demands of migrant workers and assist them in achieving their objectives, perhaps by means other than traditional collective bargaining.12 There have also been active campaigns for voluntary and statutory recognition in workplaces with large numbers of migrant workers, most notably Kettle Foods13 and Cranberry Foods.14 6 See eg the survey of Polish and Lithuanian workers discussed in B Anderson, N Clark, and V Parutis, New EU Members? Migrant Workers’ Challenges and Opportunities to UK Trade Unions: A Polish and Lithuanian Case Study (TUC 2007). See also A Pollert’s findings that over half of low-paid unorganized workers were favourably disposed to trade unions and 40 per cent wished to join a union: A Pollert, ‘Spheres of Collectivism: Group Action and Perspectives on Trade Unions among the Low-Paid Unorganized with Problems at Work’ (2010) 34(1) Capital and Class 115, 121–3. 7 See, for discussion of these issues, M Lucio and R Perrett, ‘The Diversity and Politics of Trade Unions’ Responses to Minority Ethnic and Migrant Workers: The Context of the UK’ (2009) 30 Economic and Industrial Democracy 324, 326. 8 B Ryan, ‘Transnationalism and Labour Law: The “British Jobs” Protests of 2009’ in M Moreau (ed), Before and After The Economic Crisis: What Implications for the ‘European Social Model’? (Edward Elgar 2011). See also MacKenzie and Forde (n 1) 144. 9 T Krings, ‘A Race to the Bottom? Trade Unions, EU Enlargement and the Free Movement of Labour’ (2009) 15 European Journal of Industrial Relations 49, 58, which discusses the ‘principled stance’ taken by the TUC ‘in favour of free movement of labour’; also identified in L Eldring, I Fitzgerald, and J Arnholtz, ‘Post-accession Migration in Construction and Trade Union Responses in Denmark, Norway and the UK’ (2012) 18(1) European Journal of Industrial Relations 21, 26–7. 10 Eldring, Fitzgerald, and Arnholtz (n 9) 27. 11 See TUC, Organising Migrant Workers: A National Strategy (TUC 2006) and TUC Commission on Vulnerable Employment (CoVE), Hard Work: Hidden Lives (TUC 2008). This is a controversial strategy according to I Fitzgerald and J Hardy, ‘ “Thinking Outside the Box”? Trade Union Organizing Strategies and Polish Migrant Workers in the United Kingdom’ (2010) 48(1) British Journal of Industrial Relations 131, 137–8. 12 See E Heery, ‘Trade Unions and Contingent Labour: Scale and Method’ (2009) 2 Cambridge Journal of Regions, Economy and Society 429. See also Lucio and Perrett (n 7) 335, for deployment of learning centres. Complementary strategies are also usefully discussed in Platform for International Cooperation on Undocumented Migrant Workers (PICUM), Ten Ways to Protect Undocumented Migrant Workers (PICUM 2005) 42ff. 13 Unite the Union v Kettle Foods Ltd, CAC Case No TUR1/557/(2007). 14 Unite the Union v Cranberry Foods Ltd, CAC Case No TUR1/708/2010.

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Of course, there remain certain practical impediments to union representation, which follow from immigration status and linguistic barriers. Obviously, migrant workers, whose work permit may be connected to a particular employer, may be very reluctant to join a trade union or seek trade union representation, if this would antagonize an employer and thereby lose them their job.15 The intended brevity of a migrant worker’s stay may also be an obstacle, although there are indications that those who stay longer may gain greater expectations of terms and conditions and remain more likely to join trade unions and participate in trade union activities.16 Trade unions have realized that inadequate translation of basic information regarding membership can also be obstructive and that failure to communicate may lead to inadequate actual representation of the migrant worker’s concerns. Accordingly, UK trade unions are progressively seeking support from translators, as well as creatively using alternative ways of meeting (through churches and community groups) so as to ensure access to participation.17 So, while we do not seek to underestimate the practical obstacles to migrant worker engagement with trade unions, we contend that of considerable significance remain the legal barriers erected by common law and legislation. The doctrine of illegality and the tests which determine who is a ‘worker’ and an ‘employee’ have been applied in the UK in such a way as to prevent workers from asserting their entitlement to statutory rights. The hybridity of individual and collective labour law can operate thereby to exclude fundamental statutory protections otherwise applicable to trade union membership and activities. These protections may be found, for example, in those provisions relating to prevention of discrimination on trade union grounds, such as sections 145A, 145B, 146, and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992. Similarly, the possibility for trade unions to make complaints arising from ‘unfair practices’ in relation to workers who are the subject of a ballot for trade union recognition under Schedule A1 of the same statute is predicated on the identification of a worker. In this chapter, we outline the international legal standards which govern the parameters of migrant workers’ entitlements to freedom of association and collective bargaining, whether they are ‘regularized’ or not. We then go on to examine how individual employment law has the potential to inhibit access to these entitlements, by virtue of both the doctrine of ‘illegality’ and, even if that obstacle is overcome, the application of common law tests regarding employment status. Finally, we consider how collective claims to ‘unfair practices’ might provide a further, significant source of statutory relief to migrant workers. We conclude by proposing an agenda for reform that centres on the normative claim that freedom of association is a fundamental human right that should be enjoyed by persons by virtue of their common humanity.

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16 Fitzgerald and Hardy (n 11) 143. MacKenzie and Forde (n 1) 145, 156. J Gordon, ‘What the United States can Learn from the New EU Migration to Britain’ Issue Brief (The Chief Justice Earl Warren Institute on Law and Social Policy, University of California, Berkley Law School May 2011), especially at 11 and 13. On language as a barrier to GMB organizing initiatives, see Fitzgerald and Hardy (n 11) 140, 145. 17

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II. The Right of Everyone to Freedom of Association Under Article 20 of the Universal Declaration on Human Rights 1948 (UDHR), everyone has the right to freedom of association. This is an entitlement which arises under key international human rights instruments and International Labour Organization (ILO) instruments. While there has been an attempt to make special provision for irregular migrants in certain instruments devoted to promoting the welfare of migrant workers, which might seem to detract from the universal character of entitlement to freedom of association, we consider that these are best regarded as attempts to elaborate on migrant workers’ rights and should not be considered to dilute them. Our approach is consonant with that adopted by ILO bodies over the past decade. Article 22 of the International Covenant on Civil and Political Rights of 1966 states that ‘everyone’ is entitled to freely associate and that this entitlement includes ‘the right to form and join trade unions for the protection of his interests’. Once workers are physically present in the ratifying state’s territory, they are regarded as being entitled to claim this right.18 The force of the entitlement to freedom of association and its significance for workers was further recognized in ILO Conventions Nos 87 and 98,19 alongside various other ILO conventions and recommendations. Perhaps the most significant development was the adoption (without dissent) of the ILO Declaration on Fundamental Principles and Rights at Work in 1998, which states that all ILO members ‘have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith’, the following ‘principles concerning . . . fundamental rights’, including ‘freedom of association and the effective recognition of the right to collective bargaining’.20 Freedom of association is also guaranteed under Article 11(1) of the European Convention on Human Rights (ECHR), applicable only subject to the restrictions itemized in paragraph (2). While this could allow for some limitations to be placed on the freedom of migrant workers to associate, no state has yet sought to rely explicitly on this exception. The Council of Europe Parliamentary Assembly in Resolution 1509 (2006) has noted (in Article 12) that: ‘the Convention requires that its contracting parties take measures for the effective prevention of human rights violations against vulnerable persons such as irregular migrants’, highlighting that restriction on ‘freedom of assembly, association and expression should not extend beyond what is reasonably necessary’ (para 14), and that particular measures must be put in place to protect from slavery and forced labour and assist victims of trafficking.21 Alongside these entitlements, there is

18 Human Rights Committee, The Position of Aliens Under the Covenant (General Comment No 15); and The Nature of the General Legal Obligation Imposed on State Parties (General Comment No 31) para 10. 19 Freedom of Association and Protection of the Right to Organise Convention 1948 (ILO No 87), 68 UNTS 17; Right to Organise and Collective Bargaining Convention 1949 (ILO No 98) 96 UNTS 257. 20 See reiteration in the 2008 ILO Declaration on Social Justice for a Fair Globalization. 21 See, in this regard, Siliadin v France (2006) 43 EHRR 287, as discussed in V Mantouvalou, ‘Modern Slavery: The UK Response’ in (2010) 39(4) ILJ 425. So much is also consistent with the 2000 UN Convention against Transnational Organized Crime and its Protocol to Prevent, Supress and Punish Trafficking in Persons, Especially Women and Children, which came into force in 2003, and was ratified by the UK in 2004.

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specific recognition that restriction on ‘freedom of assembly, association and expression should not extend beyond what is reasonably necessary’ (para 14). This approach is consistent with that adopted by the Inter-American Court of Human Rights in 2003,22 which found that while states were entitled to make legal distinctions between regular and irregular migrants, once employment began ‘the migrant acquires rights as a worker, which must be recognized and guaranteed, irrespective of his regular or irregular status in the State of employment’.23 In particular, the state (and the employer) could not deny the human rights which arose by virtue of that relationship, including their right to freedom of association, such as the freedom to form and join trade unions, as well as to take part in trade union activities.24 The international legal position is slightly complicated by particular instruments, which seek to address specifically the welfare of migrant workers. ILO Convention No 97 concerning Migration for Employment (Revised) 1949 only covers regularized migrants, but remains in accordance with other ILO norms by stating those workers’ entitlement to freedom of association (in Article 6).25 ILO Convention No 143 goes a little further in Part I, examining specifically ‘[m]igrations in abusive conditions’, whereby all migrant workers, whether their status is regularized or otherwise, are entitled to certain ‘basic human rights’ under Article 1, but does not list freedom of association.26 For additional guidance, we could also look to the UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (ICRMW), which is notable for listing the human rights which are to apply to all migrants (even those who are termed ‘irregular’), expressly including freedom of association. However, it should be noted that the UK has not ratified either instrument.27 The UK does remain bound by the ILO constitutional guarantee of freedom of association and the terms of the ILO Conventions which it has ratified, namely Conventions Nos 87 and 98. In this respect, the jurisprudence of the ILO Committee on Freedom of Association becomes relevant, which establishes that the right to form and join trade unions applies even to undocumented migrant workers.28 Spain was found to be in breach in this regard;29 as was the US following the Supreme Court judgment in Hoffman Plastic Compounds v NLRB.30 The ILO also made a political commitment to ‘a rights-based approach to labour migration’ when, in 2006, the 22 Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 InterAmerican Court of Human Rights Series A No 18 (17 September 2003) [114] citing United Nations General Assembly Resolution 54/166 (24 February 2000). 23 Advisory Opinion (n 22) [134]. 24 Advisory Opinion (n 22) [134]–[136] and at [150]–[158]. Note the Court’s reliance on Article 2 of the 1998 ILO Declaration in this regard. See S Cleveland, ‘Legal Status and Rights of Undocumented Workers Advisory Opinion OC-18/03’ (2005) 99(2) The American Journal of International Law 460, 461. 25 Migration for Employment (Revised) 1949 (ILO No 97) 120 UNTS 70. 26 Migrant Workers (Supplementary Provisions) 1975 (ILO No 143) 1120 UNTS 323. 27 2220 UNTS 93. 28 Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (CFA) (5th (revised) edn, 2006) para 215. 29 ILO CFA Case No 2121 (Spain) (327th Report of the CFA 2001) paras 559–61. 30 Hoffman Plastic Compounds v NLRB (2002) 535 US 137; Case No 2227 (US) (332nd Report of the CFA 2003) para 610.

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tripartite Governing Body adopted a Multilateral Framework on Labour Migration, which has been further elaborated on in 2010 in an ILO publication of the same name.31 Guideline 8 of the Code states that ‘the human rights of all migrant workers, regardless of their status, should be promoted and protected’ and expressly includes freedom of association under ILO Convention No 87 and protection from discrimination on grounds of trade union activities under Convention No 98. The UK being bound by both these ILO Conventions, our common law and legislation should respect the entitlement of all migrant workers to freedom of association, but this is not yet the case.

III. Illegality We might start from the premise (under international law and more particularly relevant ILO standards) that all migrant workers should be able to form and join trade unions, engage in collective bargaining, and seek protection from discrimination on grounds of trade union membership or activity, but this is far from certain under UK individual employment law. In this section, we examine the case law to date on illegality as a common law doctrine which invalidates contractual claims and limits access to statutory torts. A contract may be unenforceable by virtue of illegality at its inception, thereby precluding recovery under the contract for wages or even statutory complaints that are considered to be contractual in substance, such as unfair dismissal. There remains the possibility, however, to pursue a statutory tort, such as a claim for sex or race discrimination, as long as the conduct complained of is not inextricably bound up with the worker’s illegal actions. It remains unclear whether trade union discrimination would be addressed under a contractual or tortious frame, although we argue the latter is more apt. Under either characterization, however, it emerges that migrant workers are treated severely by UK courts. We begin by examining case law on illegality, and go on to make the case for treatment of protection from anti-union discrimination as a statutory tort. This has the potential, we argue, to offer greater scope for relief to migrant workers, even if their immigration status is not entirely regularized. However, we see in the case law a significant reluctance on the part of UK courts to treat the plight of ‘irregular’ migrant workers with the sympathy that their particular vulnerability warrants. This demonstrates the inadequacy of UK provision of protection from discrimination against migrant workers. While there may be ways in which to modify the common law tests to ensure that treatment of migrant workers is ‘proportionate’, this seems unlikely to ensure adequate protection of the fundamental human right to freedom of association.

1. Illegality of contract and conduct at common law Where an employment law cause of action is characterized as ‘contractual’, it is more likely in practice to fail on grounds of illegality. Following the leading case of Hall v

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ILO, International Labour Migration: A Rights-Based Approach (ILO 2010).

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Woolston Hall Leisure Ltd, a distinction can be drawn between the creation of a contract which is illegal at its inception and a contract which is lawful at its inception but performed illegally (for example, through the employer’s failure to deduct tax and national insurance contributions appropriately).32 In situations of illegal performance, the legal test for the operation of illegality has now been developed in a way that mitigates some of the harshness of the doctrine, requiring collusive bad faith on the part of the claimant to trigger the illegality defence.33 However, if a contract is concluded for an illegal purpose or if the contract is expressly or implicitly prohibited by statute, causes of action that are classified as contractual, such as unfair dismissal, are not available. It was established in Sharma v Hindu Temple34 that where a priest changed the place of his employment without satisfying the requirement to obtain a new work permit, there could be no claim for unfair dismissal against the new employer, since the contract was illegal at inception.35 A similarly strict approach to contracts illegal at inception was adopted in Zarkasi v Anandita, where the employment contract of the irregular migrant was treated as a contract expressly or implicitly prohibited by statute.36 These categories of illegality at inception are most likely to be relevant to the situation of irregular migrants, and leads to the automatic extinction of the worker’s ‘contract-like’ statutory rights. There is more hope for protection under anti-discrimination law, for although a claim for discrimination which takes place in the course of employment might seem to be parasitic on the employment contract, sex and race discrimination have been judicially characterized as statutory torts. The leading case on the characterization of discrimination provisions as statutory torts is Hall,37 in which Mrs Hall, after once challenging her employer regarding the means of payment, acquiesced in receipt of false payslips, but was entitled nonetheless to bring a discrimination claim (a statutory tort) when dismissed by reason of her pregnancy. It was said that: ‘There was no active participation by her in the illegality . . . Her acquiescence in the employer’s conduct, which is the highest her involvement in the illegality can be put, no doubt reflects the reality that she could not compel the employer to change its conduct.’38 Unless the tortious claim had been caused by the claimant’s illegality, the tortious claim could proceed regardless of the illegality. The treatment afforded to sex and race discrimination could be applied to the statutory provisions which seek to prevent discrimination on grounds of trade union membership or activities.

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Hall v Woolston Hall Leisure Ltd [2000] IRLR 578, [2001] ICR 99 (CA). The addition of collusion and bad faith is attributable to the Court of Appeal decision in Enfield Technical Services v Payne; BF Components Ltd v Grace [2008] IRLR 500. 34 Sharma v Hindu Temple EAT/253/90 (EAT 28 November 1991), discussed in S Juss, ‘Public Policy and the Enforcement of Contracts of Employment’ (1992) 21 ILJ 301, and B Ryan, ‘The Evolving Legal Regime on Unauthorized Work by Migrants in Britain’ (2005–6) 27 Comparative Labour Law and Policy Journal 27, 45–6. 35 This is contrary to the ‘protection’ principles established under the ICRMW, but (as noted previously) the UK is not bound by this instrument. 36 Zarkasi v Anandita [2012] UKEAT/0400/11, [2012] ICR 788. 37 38 Hall (n 32). Hall (n 32) [47] (Gibson LJ). 33

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2. Statutory freedom of association rights: can they be insulated from contract? If statutory freedom of association rights are to be available to illegal migrant workers, it is clear that this will be very much harder under the stricter contractual doctrine which prevents any enforcement of the illegal contract. How, then, should we characterize the statutory freedom of association rights in sections 145A, 145B, 146, and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992? The problem is that the exercise of characterization is quite arbitrary, given the hybridity of English employment law and the intersections between common law and legislation. Though it now seems well established that unfair dismissal is to be treated as a contractual claim, Mummery LJ opened a Court of Appeal judgment in 2005 referring to ‘the statutory torts of unfair dismissal and discrimination’.39 An example of the difficulties of hybridity is section 152. In some respects, this provision resembles a statutory tort like race or sex discrimination in that it proscribes a discrimination wrong—discrimination on trade union grounds. As cases like Hall demonstrate, dismissal could be understood as simply one of the ways in which discrimination occurs. However, in other respects it resembles a contract-type cause of action more strongly. It is an ‘automatically unfair reason’ for dismissal and section 152 refers explicitly to the Employment Rights Act 1996 (unlike the anti-discrimination provisions set out in the Equality Act 2010). This seems to locate it within the realm of ‘unfair dismissal law’ rather than ‘discrimination and equality law’. And what of a constructive dismissal situation? This would necessitate an engagement with the rules on constructive dismissal and, relatedly, the contractual rules on repudiatory breach. By way of contrast, take section 146. In many ways, this seems less akin to ‘contract’, unlike section 152, since ‘detriment’ has its own autonomous meaning. This might have the paradoxical effect that illegality would be more likely to defeat a section 152 than a section 146 claim. The most serious attack on trade union rights—dismissal— attracts a lower level of protection where illegality is relevant to the claim. Even then, this is not entirely straightforward. Where the claim relates to detriment attributable to trade union activities, whether those activities are protected depends upon their timing, and this is defined in the following way: ‘working hours’, in relation to a worker, means ‘any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work’. This invokes the contract as a device for defining the parameters of statutory protection. Does this transform section 146 into a contract-like statutory right? Or does it depend upon the precise way in which the claim under section 146 is configured? We pose so many questions simply because the distinction is so elusive, perhaps even illusory. Given, however, that the contractual characterization is often fatal to a statutory claim where there is illegality at the inception of the contract, and bearing in mind the requirements of international law (under which the UK is bound), it seems preferable, then, to understand statutory freedom of association rights as ‘statutory torts’. It is 39

Vakante v Addey and Stanhope School (No 2) [2005] ICR 231 (CA), 234 (Mummery LJ).

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obviously unsatisfactory that some freedom of association rights be characterized differently to others. In fact, the only non-arbitrary solution is to characterize all statutory employment rights as ‘statutory torts’, as Mummery LJ has done.40 Following Robert Stevens’ influential theorization of torts as rights, this would seem to be the most rational approach in any event.41 For Stevens, a tort is a breach of the claimant’s right. All statutory employment rights are, in this respect, statutory rights, breach of which can properly be understood as statutory torts.

3. The impact of illegality on the tort claims of migrant workers UK statutory provisions regarding immigration are extensive and complex, as is ably demonstrated in the work of Bridget Anderson. For example, one migrant worker may merely be working a few hours in excess of the terms of their visa and therefore ‘illegally’,42 and another, perhaps, has not registered as required with the Worker Registration Scheme43 and is therefore in breach of domestic UK legal requirements. Yet, the entitlement of both these workers to remain and work (to some extent) will not otherwise be in doubt. By way of contrast, another migrant worker may be regarded as having procured entry to the country by providing false documentation and thereby be regarded as working under an illegal contract. Even as regards this latter category of the irregular or, as they are termed, ‘illegal’ migrant workers, we may want to ask whether (and how) the circumstances matter. Are there to be differences where the fault lies only on the part of the worker making the application for entry as opposed to the situation where a worker is ‘trafficked’ wholly against his or her will, or where there would seem to be coercion of a child? Our position is that these differences matter, and help to explain the relative power of employers in particular scenarios, in that they do indeed lead to the fashioning of ‘precarious’ or ‘vulnerable’ work. Indeed, as Anderson notes, ‘in some instances employers have taken advantage of immigration status as a means of exercising control over work permit holders, including forbidding union membership’.44 As observed earlier, the test applied to statutory torts, so as to determine whether public policy precludes relief, is whether the claim made by the worker is ‘inextricably bound’ up with the illegality in question. Arguably, this allows scope for reflection on the different forms of illegality which can affect migrant workers and their relative culpability. There is potential for the analysis of tribunals and courts to be socially situated, with some awareness of international legal norms and the particular plight of certain types of migrant: children, trafficked labour, and forced labour. However, migrant workers whose contracts are tainted with illegality seem to be treated with greater severity, with less attention paid to the conduct of the employee and employer (or the power relations between them) than is evident in tax cases. There are

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41 Hall (n 32) [47] (Gibson LJ). R Stevens, Torts and Rights (Oxford University Press 2007). For example under a student visa. Cf Anderson (n 2) 307–8. 43 B Ryan, ‘The Accession (Immigration and Worker Authorisation) Regulations 2006’ (2008) 37(1) Industrial Law Journal 75. See also Anderson (n 2) 302–3. 44 Anderson (n 2) 310. 42

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exceptions, where a contract may be regarded as ‘severable’, for example enforceable after immigration status is regularized, but only from that date.45 Nevertheless, the current state of the law is probably best illustrated by the recent case of Hounga.46 In Hounga, the Court of Appeal applied the law in such a way that would seem to indicate that illegal immigrants are being treated much more harshly than other workers when it comes to ‘illegality’. A Nigerian au pair was recruited by the mother of her employers, the Allens. She was already working for the brother of Mrs Allen and had been doing so for the past two years, so since she was quite a young girl (a fair estimate being between 12 and 14 years of age). Hounga was actively assisted by the family in acquiring a passport under a false name and a false age, so that she could more readily meet the UK immigration requirements to work for the family in England. She understood herself to be 14 years of age at the time (as did her employer) and was promised schooling in the UK. Subsequent medical investigations suggest that she was probably 16, but this allows for a two-year discrepancy on either side. Certainly, it was found by the Court of Appeal, as by the tribunal at first instance, that the passport application was ‘masterminded’ by the family by which she was eventually employed and that she ‘went along with what was suggested and did what she was told’.47 In this respect her conduct certainly seems no worse, and possibly even more excusable than that of the employee in Hall. On arrival in England, Hounga received no schooling and seems to have suffered serious physical abuse during her employment as an au pair. The evidence given before the tribunal by the family that hired her was considered to be dishonest. On this basis, the tribunal at first instance upheld Hounga’s claim that her dismissal was a discriminatory act, for which she was entitled to compensation, but dismissed her non-dismissal discrimination claim on the basis that she had not raised a grievance with the Allens. The Court of Appeal allowed the Allens’ appeal and, in doing so, ultimately prevented Hounga from making a successful anti-discrimination claim. Her collusion, as a young girl, was enough to create illegality at the inception of the contract: ‘The only real difference from Vakante’s case is that whereas in that case the employers were innocent of any illegality, the Allens in this case were equal participants’.48 This is curious, for it might have been argued that, given the vulnerability of someone who was a child, the employers could be regarded as more culpable than she. Moreover, the Court of Appeal refused to accept that the vulnerability she experienced by virtue of her immigration status (which her employers had secured) was at all relevant. She was said to be: relying on the facts that she was an illegal immigrant, had no right to be employed here, effectively had no rights here at all and so could be treated less well because of her inferior situation. In making good her dismissal discrimination case she was 45 Bamgbose v Royal Star and Garter Home [1996] EAT 841/95, cited in R Guthrie and R Taseff, ‘Dismissal and Discrimination: Illegal Workers in England and Australia’ (Oxford Business and Economics Conference 24–26 June 2007) accessed 17 December 2013. 46 Hounga v Allen and Allen [2012] EWCA Civ 609, [2012] IRLR 685, following the approach set in Vakante. 47 Hounga (n 46) [36] citing the tribunal at para 43. 48 Hounga (n 46) [55], [60]. Cf. Vakante (n 39).

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therefore directly invoking and relying upon the fact that she was here illegally and had been working illegally for the Allens. She was making a direct link between the discriminatory treatment of which she complained and the circumstances in which she came to be, and was, employed by the Allens. To the question whether her discrimination claim arose out of, or was clearly connected or inextricably bound up or linked with her own illegal conduct, the answer is, I consider, obviously ‘yes’ . . . If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do.49

This is puzzling. Her age, combined with her employment and immigration status, made Ms Hounga especially vulnerable to victimization and abuse in the terrible ways disclosed in the judgment. It does not follow that, in terms of causation, her claim was caused by the illegality because of her special vulnerability to victimization (and racism). At most, this provided the factual context to the claim. The liability test for discrimination is that the discriminator’s reason for less favourable treatment is a proscribed ground. Ms Hounga’s special vulnerability might be a motive for the discriminator, an explanation for why this particular individual has been selected for abusive treatment. That is no part of the legal test for liability, however, which focuses on reason, not motive. The Court of Appeal decision therefore entailed relaxation of the strict causation text posited in Hall. In a decision handed down in July 2014 the Supreme Court has now reversed the Court of Appeal decision, with three of the Justices (Lord Wilson, with whom Lady Hale and Lord Kerr agreed) basing their reasoning on two grounds. First, that there was no inextricable link between the illegality and the tort of discrimination, since her vulnerability as an illegal migrant was simply part of the context rather than being a fact upon which her cause of action relied. Secondly, that in any event the public policy arguments in favour of illegality operating as a defence were trumped by the public policy in favour of providing legal protection to trafficked migrants. It is notable that two justices (Lord Hughes and Lord Carnwath) preferred to uphold Ms Hounga’s appeal on the narrow basis that there was no inextricable link between the illegality and the race discrimination. Consequently, uncertainty as to the scope of this test still remains. The ‘inextricably linked’ test, disconnected from a requirement of causation as it is by Lord Wilson, a test treated as ‘obviously’ satisfied by the Court of Appeal in Hounga, remains vulnerable to the subjective determinations of tribunals. The public policy in favour of trafficked migrants cannot be regarded as securely entrenched in our law. Nor does the decision address the particular vulnerabilites of non-trafficked migrants with unofficial work status.50 There are no easy solutions to the illegality bar in this context, though the current approach of the courts seems harsh and extremely difficult to understand, let alone justify. Though there is insufficient space to develop the point, there seems to be some attraction in recent Law Commission proposals on illegality.51 These proposals decry the use of formulae such as the ‘inextricably bound up’ test, which are really no more than conclusory labels for decisions reached on policy grounds; it is better by far for 49 50 51

Hounga (n 46) [61]. Hounga v Allen and another [2014] UKSC 47, unreported judgment of 30 July 2014. Law Commission, The Illegality Defence in Tort: A Consultation Paper (Law Com No 160, 2001).

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courts to elaborate on those policy arguments transparently. Following the Supreme Court decision in Hounga it may now be possible to argue that the protection of fundamental human rights is an independent element of public policy that countervails against the public policy in favour of illegality as a defence. The Law Commission has emphasized the importance of ‘proportionality’ in this context. This must encompass an appreciation of the weight and significance of the right of the claimant that has been infringed. Arguably, freedom of association is one of the most fundamental of human rights such that it would require an extreme instance of illegality to disable the claimant’s access to the court. In this way, where there is a fundamental right at stake in situations of illegality, the vindication of the fundamental right should have a strong presumptive priority in legal reasoning.

IV. Employment Status Even if the contract avoids the operation of the illegality doctrine, other significant barriers have the potential to exclude migrant workers from access to statutory employment rights. This is because the statutory rights are conferred on ‘workers’ or ‘employees’, which posits a specific kind of contractual relation as a qualifying condition for enjoyment of the right. One problem has been the provision of comprehensive written contracts presented to vulnerable workers on a take-it-or-leave-it basis, where specific terms are included in the written documentation which have the legal effect of negating ‘employee’ or ‘worker’ status. This might done be through a ‘substitution’ clause (permitting the designation of substitute labour at the discretion of the ‘worker’) or a ‘no mutuality’ clause (that the employer is under no obligation to provide work, and the ‘worker’ is under no obligation to accept any work offered). In a run of cases that have culminated in a recent Supreme Court decision, the individual then alleges that the signed written documentation does not reflect the reality of the relationship which, in substance if not in strict contractual form, is a contract involving personal employment. Or, to put it another way, it is alleged that certain terms in the written contract are a ‘sham’ inserted by the employer in order to disguise the reality of the relationship as a way of avoiding statutory employment rights. Kalwak is a case that captures the ‘sham’ problem in the context of migrant labour perfectly.52 It was alleged by the claimants, Polish migrants with limited language skills, that they had been dismissed for proposed trade union membership and activities. In order to claim their statutory rights, the claimants had to demonstrate that they were ‘employees’ (section 152) or ‘workers’ (section 146). The comprehensive written contract, which was stated to be the ‘entire agreement’ of the parties, contained amongst other things a ‘no mutuality’ clause, the effect of which would be (assuming it to be a valid term in the contract) to negate either employee or worker status. In Lizzie Barmes’ powerful narrative reconstruction of the facts in Kalwak, this was a contract ‘made by workers who barely spoke English, had no access to legal advice, had arrived in the UK the day before as economic migrants from a poorer country, had

52

Consistent Group Limited v Kalwak [2008] EWCA Civ 430, [2008] IRLR 505.

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been moved in the night to escape attack and were to take up low-skill, low-paid work’.53 This stark reality belied any assumption of a contract negotiated between equal parties each with the capacity, resources, and information to further their own interests through bargaining. Rather, this was a situation where a well-resourced employer deployed considerable resources to design triangular agency work relations, codified in smartly crafted written documentation, to exploit the vulnerable labour market position of migrant workers. The workers alleged that the written documentation did not reflect the reality of things. In substance, they were employees/workers subject to the contractual obligations characteristic of personal employment. In other words, the written documentation was a sham. The workers persuaded the tribunal and the Employment Appeal Tribunal (EAT) on this issue. They did not persuade the Court of Appeal, which reinstituted a strict contractual test of sham and remitted the case to be reheard by a differently constituted tribunal. Lizzie Barmes’ account suggests that at this stage the claimants in Kalwak were long gone and had most likely returned to Poland.54 Ultimately, then, the workers in Kalwak were unsuccessful in securing fair treatment using available doctrinal techniques. A strict contractualist approach was applied by the Court of Appeal in the case. According to Rimer LJ: It is not the function of the court or an employment tribunal to recast the parties’ bargain. If a term solemnly agreed in writing is to be rejected in favour of a different one, that can only be done by a clear finding that the real agreement was to that different effect and that the term in the contract was included by them so as to present a misleadingly different impression.55

This encompassed a strong commitment to three highly orthodox contractual rules. First, a signature to a written document establishes conclusively that the signatory is bound by its terms.56 This is so regardless of whether the signatory can read the document because he or she is not able to read English.57 Secondly, where the written document is an ‘entire agreement’, as in Kalwak, the ‘parol evidence’ rule applies. This rule holds that ‘where a contract as been reduced to writing, neither party can rely on extrinsic evidence of terms alleged to have been agreed, ie on evidence not contained in the document.’58 This places significant evidential limits on the ability of claimants to challenge written terms, especially where the contract has been signed by the claimant. Finally, there is a narrow exception to these two rules where it is alleged that the term is a ‘sham’ in the sense that both parties have agreed to the inclusion of the term to mislead a third party (such as a court) as to the true nature of the relationship.59 The effect of this strict contractualist approach is, of course, devastating to the freedom of association rights of workers such as those in Kalwak. Where a comprehensive written 53 L Barmes, ‘Learning from Case Law Accounts of Marginalised Working’ in J Fudge, S McCrystal, and K Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 320. 54 Barmes (n 53) 320. 55 56 Kalwak (CA) (n 52) [40]. L’Estrange v Graucob [1934] 2 KB 394 (DC). 57 E Peel and G Treitel, The Law of Contract (13th edn, Sweet and Maxwell 2011) 238. 58 Peel and Treitel (n 57) 211–12. 59 Snook v London and West Riding Investments Ltd [1967] 2 QB 786.

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contract has been signed and that contract includes terms inconsistent with a personal employment contract, it would take a very unusual set of factual circumstances to escape the destructive effect of the documentation on contractual status and thus the availability of statutory rights. This can be contrasted with what might be described as ‘worker protective contextualism’ applied by the EAT in Kalwak as set out in the judgment of Elias J60 (which, as we shall see, became highly influential in the later Supreme Court decision in Autoclenz). In an important statement of principle, Elias J stated that ‘if the reality of the situation is that no-one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship.’61 Or again, ‘the concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.’62 This embodied a much broader conception of ‘sham’ than was permitted on the strict contractualist approach of the Court of Appeal. Where there was relevant evidence (for example, the conduct of the parties) suggesting that the binding contractual obligations were other than those specified in the written documentation, the job of the court was determine the parties’ true agreement. This envisaged a contextual approach to the task of contractual characterization, one that dispensed with the strict formalism of the signature and parol evidence rules. This allowed the court to be sensitive to the particular vulnerabilities of workers through an appreciation of the real contracting context within which the written documents were embedded. This ‘worker protective contextualism’ could be quite radical in allowing the factual context, and especially the specific vulnerabilities of the workers concerned, to disrupt the contractual terms as memorialized in the written document. Thus, Elias J observed that: this was a situation where there was no realistic possibility that these claimants, as heavily dependent as they were on the economic power of the agency, would be free to accept work as and when offered . . . They had come from Poland expecting to work for the agency, their continued accommodation depended on doing such work, and there was no realistic chance of their working elsewhere, at least whilst the agency needed their services.63

This technique had a powerful potential in the context of migrant workers’ freedom of association rights, as the EAT decision in Kalwak demonstrated. Following a series of decisions dealing with alleged ‘sham’ terms, the Supreme Court has now affirmed the broad sham doctrine defended by Elias J in Kalwak.64 According to Lord Clarke, the task of the tribunal was to identify the ‘actual legal obligations of the parties’. The written documentation might provide persuasive evidence of what those ‘actual legal obligations’ were. Where there was evidence, however, that the written 60 61 63

Consistent Group Ltd v Kalwak [2007] IRLR 560 (EAT). 62 Kalwak (EAT) (n 60) [58]. Kalwak (EAT) (n 60) [57]. 64 Kalwak (EAT) (n 60) [59]. Autoclenz v Belcher [2011] UKSC 41, [2011] ICR 1157.

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documentation differed from what had really been agreed by the parties (for example, where the subsequent conduct of the parties indicated a different set of obligations to those contained in the written contract), the tribunal was required to ‘examine all the relevant evidence. That will, of course, include the written term itself, read in the context of the whole agreement.’65 The underlying principle to this contextual approach to contractual construction and characterization was described in the following way by Lord Clarke: So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.66

Elsewhere in the judgment, Lord Clarke describes the approach as ‘purposive’, implying that the point of contractual characterization is to further the protective purposes of the employment legislation being invoked by the claimant. One way in which this ‘purposive’ approach might be understood is that the court was suggesting a presumption of employee/worker status that can be rebutted only by clear evidence to the contrary.67 Such a presumption might be regarded as especially strong where the worker is claiming a fundamental human right, such as freedom of association. The Supreme Court decision in Autoclenz has a radical potential for migrant workers, as evidenced by the reasoning and outcome in the EAT decision in Kalwak which was essentially endorsed by Lord Clarke. It will be of great significance in empowering tribunals to scrutinize the real contracting context within which the written agreement is embedded. Given the rise of comprehensive written contracts within this domain of labour market activity, it also accords with Lord Hoffmann’s influential statement of interpretive principles in contract law, where the meaning of a written contract is interpreted according to ‘all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’.68 Where an employer knows that a worker’s understanding of the obligations are at variance with those set out in the written documentation, it is therefore possible that the written document can be interpreted contextually so as to reflect the true agreement. The ‘purposive’ approach adverted to by Lord Clarke might also provide a powerful technique for maximizing the protective reach of statutory freedom of association rights. It is too early yet to tell whether the radical potential of Autoclenz will be realized in practice. The contextual approach to contract interpretation is only as a powerful as the tribunal’s evidential sensitivity to that context, and in that respect Lizzie Barmes’ work has challenged the judicial construction of narratives of vulnerable workers in ways that silence or distort workers’ own voices.69 Furthermore, the deployment of ‘relative bargaining power’ by employment tribunals should also be scrutinized to identify 65

66 Autoclenz (n 64) [53]. Autoclenz (n 64) [35]. But not the only way—for alternatives see A Bogg, ‘Sham Self-Employment in the Supreme Court’ (2012) 42 ILJ 328. 68 Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 (HL) 912–13. 69 Barmes (n 53). 67

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whether other forms of power are eclipsed or otherwise hidden from view.70 The degrees and forms of ‘unfreedom’ in the context of migrant labour are complex and manifold, often comprising overlapping social, cultural, linguistic, and economic vulnerabilities. Sometimes even appearances can be deceptive. For example, highly skilled migrant workers might appear to enjoy parity of bargaining power, though this may not reflect real power dynamics where employment is effectively tied to a single sponsoring employer. Caution is therefore necessary, since the purposive approach is no panacea. There remain significant ambiguities about what purposive means in this context and its relative strength as an interpretive principle, even after Autoclenz. The purposive approach can only mitigate the problem of personal scope defined by contractual categories; it cannot solve it because the requirement of a personal employment contract as a qualifying hurdle still remains. This is so regardless of how purposively work arrangements are construed.

V. Collective Complaints The technique of individual statutory rights is not the only available method for protecting migrant workers’ freedom of association. It is also possible to protect freedom of association through a model of collective rights. Such a model can be found in the ‘unfair practice’ provisions operative during the ballot procedure of the statutory recognition mechanism as set out in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). These ‘unfair practice’ provisions are distinctive in that complaints of breach may only be made by trade unions or employers to the Central Arbitration Committee (CAC); hence the rights are collective rather than individual in nature. Paragraph 27A (2) of Schedule A1 provides an exhaustive list of the different kinds of ‘unfair practice’ that are proscribed during the ballot process. Much of this focuses on financial inducements and victimization of individual workers. Paragraph 27A (2)(g) is a broader, ‘catch-all’ provision extending the reach of ‘unfair practice’ to cover the use or attempted use of ‘undue influence’ in order to influence the ballot result. In theoretical terms, at least, this collective rights model seems to have strong advantages over the individual rights model. Most importantly, it avoids the multiplicity of barriers to enforcement of individual rights faced by vulnerable migrant workers. Thus, Anna Pollert has been fiercely critical of the crisis of under-enforcement in respect of statutory employment rights, pointing to the ‘ignorance, vulnerability and passivity of workers’ coupled with ‘restrictions to legal redress through rationing legal aid, and a series of policies that depleted a fragmented and precariously funded support infrastructure for vulnerable people seeking help to enforce their rights.’71 These barriers are heightened further for migrant workers. The technique of collective rights

70 For an influential engagement with the limitations of ‘inequality of bargaining power’ as a way of understanding the contours of subordination in employment, see H Collins, ‘Labour Law as a Vocation’ (1989) 105 LQR 463. 71 A Pollert, ‘Individual Employment Rights: Paper Tigers, Fierce in Appearance but Missing in Tooth and Claw’ (2007) 28 Economic and Industrial Democracy 110, 132.

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circumvents the problems of ‘ignorance, vulnerability and passivity’ by channelling enforcement through the union. Although the application and enforcement of an unfair practice provision pushes arguments about the personal scope of employment rights to the periphery of litigation, it does not eliminate it. In order for a union’s request for statutory recognition to be valid under Schedule A1, it must be addressed to an employer that employs at least twenty-one workers.72 The appropriate bargaining unit that is balloted under Schedule A1 likewise consists of workers, and all of the specific modes of ‘unfair practice’ refer specifically to workers in the statutory definition (for example, ‘takes or threatens to take disciplinary action against a worker’ or ‘subjects or threatens to subject a worker to any other detriment’). This seems to be a crucial matter as far as irregular migrant workers are concerned. There have now been a number of prominent and embittered recognition disputes under Schedule A1 involving workforces with large numbers of migrant workers, most notably Kettle Foods and Cranberry Foods. These cases have attracted significant public attention in the national media, not least because of the involvement of US labour relations consultants offering strategic guidance to employers to maintain the nonunionized status quo. The labour relations consultant in these two cases, The Burke Group (TBG), has been reported as having a particular expertise in respect of migrant workers.73 For example, in Kettle Foods it was reported that at least 40 per cent of the workforce were migrants from Eastern Europe, Africa, and Portugal.74 According to Logan: organizers reported that the most striking aspect of the Kettle campaign was the aggressive use of supervisors to spearhead the anti-union drive and the company’s manipulation of the bargaining unit . . . TBG’s anti-union campaign stressed the threat of strikes in the event of a union victory, and, as intended, it seems that this message scared off many of the office workers.75

In Kettle Foods, the CAC identified 48.06 per cent petition support for the union’s claim following a readjustment to the bargaining unit. The applicant union lost the subsequent ballot by a hefty margin of 30.9–68.4 per cent.76 In Cranberry Foods many of the workers in the bargaining unit were migrants from Eastern Europe, who reported an intense campaign conducted through work supervisors.77 Despite initial support, thresholds having been reached by the union in the application of the admissibility criteria (36.32 per cent membership; CAC accepted a figure of 52.14 per cent of established petition support in favour of recognition),78 52.26 per cent of those voting in the ballot voted against recognition. In both cases, then, the union lost the recognition ballot despite significant demonstrated support in the early stages of the 72 On the application of the ‘worker’ concept under Schedule A1, see R (BBC) v Central Arbitration Committee [2003] EWHC 1375 (Admin), [2003] IRLR 460. 73 J Logan, U.S. Anti-Union Consultants: A Threat to the Rights of British Workers (TUC 2008) 10. 74 D Hencke, ‘Kettle Chips calls in US Union-busters to Stop Recognition’ The Guardian (1 October 2007); Logan (n 73) 18. 75 Logan (n 73) 18. 76 D Hencke, ‘Workers at Kettle Foods Vote Against Joining Union’ The Guardian (13 October 2007). 77 M Taylor, ‘ “Union-busting” Company Employed by Turkey Plant before Recognition Vote’ The Guardian (8 September 2010). 78 Cranberry Foods (n 14).

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recognition campaign as demonstrated in the statutory admissibility tests. Interestingly, in Kettle Foods the union made a very credible complaint of unfair practice that was not upheld by the CAC. More interestingly still, in Cranberry Foods the employer was issued with a formal warning by the CAC to desist from certain of its campaign activities, though the union did not pursue a formal ‘unfair practice’ decision by the CAC (perhaps because of the weaknesses thrown up by the earlier Kettle Foods decision). This probably tells us more about the specific weaknesses of the Schedule A1 statutory procedure than it does about the intrinsic weaknesses of a collective rights strategy.79 Yet a number of specific reforms might improve the success of a collective rights strategy for migrant workers. First, the specific vulnerabilities of migrant workers are not given any weight in the Code of Practice dealing with union access and unfair practices during recognition and derecognition ballots. In Kettle Foods the employer conceded that migrant workers had been told that they were liable to be pressurized by the union into taking strike action. The CAC panel also accepted that the statement was ‘partial and incomplete’ though ‘not inaccurate’. Nevertheless, the Panel invoked the Code to justify its conclusion that this did not constitute an unfair practice. In particular, the Code provides that: Campaigning is inherently a partisan activity. Each party is therefore unlikely to put across a completely balanced message to the workforce, and some over-statement or exaggeration may well occur. In general, workers will expect such behaviour and can deal with it. Also, by listening to both sides, they will be able to question and evaluate the material presented to them.80

The Code should be modified to convey the point that migrant workers might not expect such behaviour and might not deal with it in the same adept way as non-migrant workers without those special vulnerabilities. Secondly, given the reported specialization of TBG in migrant workforce situations and its role in Kettle Foods and Cranberry Foods, special attention needs to be paid to the role of such consultants in the context of migrant workers’ freedom of association. The Code emphasizes that parties who employ consultants may be liable for the unfair practices committed by such consultants where those practices have been expressly or impliedly authorized.81 Furthermore, where such consultants engage in direct communication with workers ‘they should inform the workers accurately about the general purpose of their engagement . . . if a consultant has been hired to advance the case of the union or the employer in the campaign then that essential fact should be divulged to the workforce when the consultant is communicating with them’.82 This has been interpreted relatively strictly by the CAC. Thus, in Comet the CAC concluded that it was not an unfair practice where the employer did not disclose the assistance of consultants in the preparation of campaign material that was then sent from the company managers.83 Where migrant workforces are being targeted under strategic advice from anti-union consultants, there ought at a minimum to be a duty of disclosure on employers.

See, further, A Bogg, ‘The Mouse that never Roared: Unfair Practices and Union Recognition’ (2009) 38 ILJ 390. 80 81 82 Kettle Foods (n 13) [65]. Kettle Foods (n 13) [58]. Kettle Foods (n 13). 83 TGWU v Comet Group Plc TUR1/557/2007, [23]. 79

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Mandatory disclosure would enable the union to respond strategically utilizing shared labour movement intelligence on the tactics deployed in consultant-led campaigns. Finally, the CAC needs to develop sensitivity to the particular evidential difficulties faced by migrant workers in this context. In order for an unfair practice complaint to be well-founded, the union must demonstrate that the conduct changed or was likely to change the voting intention or behaviour of a worker in the bargaining unit. A failure to meet this threshold was fatal in Kettle Foods, where the Panel observed that: we had no evidence whatsoever from the Union that the alleged unfair practice had or was likely to have any effect whatsoever on the outcome of the ballot. The Union did not demonstrate or even speculate in its complaint, even in the most general and unspecified terms, that the ballot would be influenced or voting intentions affected.84

In another unfair practice case, Cable and Wireless, the Panel noted that ‘it cannot take account of anonymous letters from employees forwarded by the union’.85 On the CAC’s current approach, it seems that only specific evidence in the form of statements from identifiable workers—which would not be anonymous—will suffice to meet this strict evidential requirement. It is unlikely that many migrant workers would be prepared to provide individual testimony in circumstances of serious anti-union conduct in sectors characterized predominantly by low-paid precarious work.86 These rules might be interpreted more flexibly where migrant workers are involved. Despite these weaknesses of law, trade unions continue to deploy creative strategies beyond the horizons of formal law and statutory provisions. As a postscript to Cranberry Foods, following the loss in the statutory recognition ballot, Unite pursued a complaint through the ‘Ethical Trading Initiative’ (ETI). This is an international alliance of companies, trade unions, and civil society organizations who commit to observing an ETI Base Code of principles that requires (amongst other things) respect for the right to freedom of association and collective bargaining.87 The ‘Principles of Implementation’ also require signatory companies to promote respect for the Base Code in their supply chains, as well as in their own employment activities.88 The complaint about the actions of Cranberry Foods (which is a supplier to many leading supermarket chains who are members of the ETI) was upheld by the ETI. Following this, Cranberry Foods has now committed itself to a voluntary ballot of the workforce to determine the recognition issue. Nevertheless, this should not deflect us from systematic legal reform of the collective rights strategy.

VI. Conclusion We have sought to demonstrate that the UK has an obligation under international human rights law to protect the rights of migrant workers to freedom of association, whether regular or irregular and regardless of employment status. We argue further 84

Kettle Foods (n 13) [16]–[17]. 86 CWU v Cable & Wireless TUR1/570/2007, [26]. Fitzgerald and Hardy (n 11) 143. We are grateful to Sharon Graham, National Director of Organising at Unite, for a very helpful discussion of Cranberry Foods and its aftermath. 88 Ethical Trading Initiative accessed 17 December 2013. 85 87

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that this obligation has yet to be honoured in the UK because individual employment law operates as a significant obstruction to the access of migrant workers to their statutory collective labour rights. It is obviously possible to enact piecemeal reforms that mitigate the exclusionary effects of a contractual gateway into statutory freedom of association rights, and we have suggested a number of possibilities in this chapter. The treatment of ‘irregular’ migrant workers under the illegality doctrine needs to be considered as a matter of urgency. There should be a move away from a test which is concerned with whether the illegality is inextricably linked to the employment contract or tortious act of the employer. Rather, a proportionality test should be developed that gives a full recognition to the fundamental nature of the right to freedom of association as a human right, while at the same time being sensitive to the social and economic vulnerabilities of migrants when assessing their culpability and complicity in the employer’s illegality. Suitably developed and applied, the sham doctrine developed in Autoclenz also has significant potential to alleviate some of the difficulties faced by migrant workers. Collective complaints have the potential to be of greater assistance to migrant workers than individually based claims under a contract of employment. However, for this to be operable, we need to remove the problematic link with employment status and the obstacles that currently arise by virtue of ‘illegality’ and ‘shams’. Further, all of our proposals would be to apply sticking plasters to a set of deeper grounding legal principles that are seriously flawed. Freedom of association as it is defined and protected in international law is a fundamental human right for ‘everyone’, regardless of the particular character of their contractual relation. Our minor amendments to the status quo, while desirable, leave the contractual underpinning unquestioned and intact, albeit with its most egregious failings only ameliorated. What is needed, we think, is a more fundamental challenge to the contractual premise. There is now a rich seam of highly theorized work in this domain. From Hepple’s early call for a reorganization around the concept of ‘employment relationship’89 through to Supiot’s notion of ‘labour force membership status’,90 alternative ways of thinking through the personal scope of fundamental human rights as they operate in the sphere of work. Even the contractual paradigm itself may be capable of salvation, though in a radically different form than its current guise. In this regard, the work of Freedland and Kountouris provides insights of profound importance.91 Whichever legal form is alighted upon, the vital point is this. Migrants are human beings, and human beings enjoy human rights ‘simply in virtue of being human’.92 One of the most important of these human rights at work is the right to freedom of association. That must be the lodestar of any alternative legal strategy in respect of migrant workers.

B Hepple, ‘Restructuring Employment Rights’ (1986) 15(2) ILJ 69, 74, 82–3. A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (Oxford University Press 2001) 213–14. 91 M Freedland and N Kountouris, The Legal Construction of Personal Work Relations (Oxford University Press 2011). 92 J Gardner, ‘Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights’ (2001) 101 Proceedings of the Aristotelian Society 1, 2. 89 90

20 Organizing against Abuse and Exclusion The Associational Rights of Undocumented Workers Virginia Mantouvalou*

I. Introduction In April 2013, farm supervisors shot a group of migrant workers in the strawberry fields of Manolada, Greece, when they demanded six months of unpaid wages. Out of the thirty people shot, some were seriously injured.1 In March 2013, a group of undocumented construction workers in Louisiana, USA, gathered to meet their employer and claim unpaid wages, following a bitter dispute. Instead, they were met by armed police and immigration officers, with their guns pointed.2 In both examples, that the workers spoke out did not lead to the enforcement of their basic labour rights, but to their abuse, their arrest, and deportation. These two examples are by no means isolated. The great majority of undocumented workers carry on in silence, because of the fear of abuse by the employer, arrest and deportation by state authorities.3 Should the labour rights of undocumented workers be protected? This chapter addresses this question by looking at a fundamental labour right, the right to organize. This is a right of unique importance for the vulnerable group of undocumented workers for it may give them a voice at work, which they would otherwise not have, as the examples of the introductory paragraph indicate. Section II of the chapter discusses the value of organizing. Forming associations has inherent value: some people organize for the reason that they value associational activity with others whose views they share. It also has instrumental value: workers primarily associate in order to gain access to certain goods, namely workplace rights, such as fair wages, safe working conditions, and related interests. Even though some trade unions may be viewed as expressive associations that endorse a particular ideology, in general they are primarily instrumental associations that strive for better access to workplace rights. Unions also have a * Virginia Mantouvalou is a Reader in Human Rights and Labour Law at University College London. Many thanks are due to Hugh Collins for comments on a draft. I have also benefited from discussions with Keith Ewing, George Letsas, and Miguel Martinez Lucio. An earlier version was presented at the University of Oxford, ‘Migrants at Work’ conference in summer 2012. I am grateful to the organizers, Cathryn Costello and Mark Freedland, and to all participants for comments and suggestions. 1 Amnesty International, ‘Greece: Despair Pervades Camps as 33 Migrant Workers Shot in Manolada’ (22 April 2013) accessed 31 December 2013. 2 P Harris, ‘ “Undocumented Workers’ ” Grim Reality: Speak Out on Abuse and Risk Deportation’ The Guardian (28 March 2013). 3 EU Fundamental Rights Agency, Migrants in an Irregular Situation Employed in Domestic Work: Fundamental Rights Challenges for the European Union and its Member States (FRA July 2011), for instance, frequently makes reference to the abuse that domestic workers suffer.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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public purpose, namely the promotion of liberty and equality. For the undocumented, who are most of the time socially excluded, the instrumental value of associational activity is even greater than for other workers, as section III of the chapter shows. It not only helps them access important workplace goods; it also promotes their social integration. However, undocumented workers face at least two types of hurdles in their associational activity, which are presented in section IV of the chapter: first, in some countries, the state bans their unionization and the employers have the power to dismiss them if they associate. Secondly, on other occasions, the unions themselves exclude them from membership. Are these obstacles compatible with human rights law? Section V of this chapter discusses the right to organize as a human right. Having found that it is a right of fundamental importance, protected in several civil, political, and socio-economic rights treaties, it turns to the treatment of undocumented migrants. It finds that undocumented workers in Europe are excluded from all social rights protection under the European Social Charter (ESC). For this reason, the final section of the chapter addresses the question whether undocumented migrants have a right to form and join trade unions and other workers’ associations in light of the case law of the European Court of Human Rights (ECtHR). It concludes that banning undocumented workers from forming or joining associations (including trade unions) is incompatible with the fundamental liberal values of the European Convention on Human Rights (ECHR). It also argues that the Court should be slow in permitting the exclusion of undocumented workers from membership by trade unions themselves.

II. The Value of Workers’ Associations It is important to discuss the value of workers’ associations more generally, before turning to the particularities of undocumented workers’ organizations. The value of workers’ associations can first be examined against the background of the value of associational activity, which then has to be placed in the particular context of collective labour relations. Being a member of an association may be inherently valuable. Individuals sometimes associate because they value being members of a community with others whose interests they share. Many associations are expressive, and this is the reason why individuals join them. Expressive associations are those that have as their primary purpose the promotion of a particular ideology, a particular conception of the good life or the good society.4 Individuals become members of organizations that support an ideology or system of beliefs, such as a religion, or have some other shared interest, such as arts or sports, simply because they are religious, art lovers, or sports enthusiasts. Many trade unions can be classified as expressive associations (not neutral). They often embrace ideologies of a part of the political spectrum (left-wing politics most of the time), and some workers join them because they share their political views.

4 S White, ‘Trade Unionism in a Liberal State’ in A Gutmann (ed), Freedom of Association (Princeton University Press 1998) 330, 334.

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At other times people join organizations because of their instrumental role in securing access to important goods. Professional associations are one such example: lawyers or doctors may need to become members of a professional association, in order to be able to exercise the profession. Most of the time, people join trade unions or other workers’ associations because of their instrumental role. Trade unions are, in fact, primarily instrumental associations, because their primary purpose is to secure to their members access to goods, such as fair wages and decent working conditions—goods that are essential irrespective of the members’ conception of the good life.5 Because of the inequality of bargaining power between the employer and the worker,6 people can bargain with the employer meaningfully and gain access to these strategic goods only when they act collectively. Trade unions serve a number of different functions, which evolve over time.7 Yet, in general, the inequality of bargaining power is viewed as the normative foundation of labour law that justifies the legal protection of trade union rights: the idea that ‘[f]ighting individually, workers lose; fighting together, workers can win’.8 The purpose of trade unions and other workers’ associations can also be described as public. Trade unions do not promote a specific conception of the good life, but have (or should have) as their primary purpose the promotion of liberty, and equal and basic opportunities for all. The public purpose of trade unions differentiates them from other associations with purely private purposes, and has implications for the relations of a trade union with a liberal state.9 It may mean that the state should have the power to intervene in the internal affairs of a union to ensure that it is run in a fair way.10 Another aspect of the instrumental value of trade unions is that participation in unions may serve as a school for democratic participation more generally.11 Industrial citizenship can promote democratic citizenship. Trade unions are an organized form of civil society, and, as the ECtHR put it in the United Macedonian Organisation Ilinden v Bulgaria,12 ‘[i]t is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue common objectives collectively’.13

5

White (n 4) 334–5. P Davies and M Freedland, Kahn-Freund’s Labour and the Law (Stevens 1983) 18. 7 K Ewing, ‘The Function of Trade Unions’ (2005) 34 ILJ 1. 8 J Youngdahl, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’ (2009) 18 New Labor Forum 31, 32. 9 A Gutmann, ‘Freedom of Association: An Introductory Essay’ in A Gutmann (ed), Freedom of Association (Princeton University Press 1998) 1, 13. 10 White (n 4) 347–50. 11 C Pateman, Participation and Democratic Theory (Cambridge University Press 1970) chapter IV; K Klare, ‘The Labor-Management Cooperation Debate: A Workplace Democracy Perspective’ (1988) 23 Harvard Civil Rights—Civil Liberties Law Review 39; K Klare, ‘Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform’ (1988–1989) 38 Catholic University Law Review 1, 8; M Walzer, ‘On Involuntary Association’ in A Gutmann (ed), Freedom of Association (n 9) 68; R Dahl, ‘Political Institutions and Democracy’ (2005) 120 Political Science Quarterly 187, 197; J Gordon, ‘Transnational Labor Citizenship’ (2007) 80 Southern California Law Review 503, 526. 12 United Macedonian Organisation Ilinden and Others v Bulgaria App No 59491/00 (ECtHR, 19 January 2006). 13 United Macedonian Organisation (n 12) [58]. 6

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III. Undocumented Migrants and Workers’ Associations Undocumented migrants are those that enter a country without legal authorization, or those who enter with legal authorization, like a visa or work permit, which they overstay. It is hard to have precise numbers of undocumented migrant workers in Europe. According to some estimates, in 2008 between 1.9 million and 3.8 million undocumented migrants resided in the EU, while in the US, which has a smaller overall population, there was a larger population of undocumented migrants of about 11.2 million people.14 Many of the undocumented migrants are either jobseekers or workers, because work is a key reason why people migrate. They often concentrate in specific work sectors. Undocumented migrants are usually employed in the informal labour market, in sectors with low union density, such as domestic labour, sex work, agriculture, construction, and manufacturing.15 Employers often prefer to employ undocumented workers rather than documented migrants or the country’s own nationals exactly because of their vulnerability, which makes them prone to exploitation. Anderson and Ruhs have argued that employers perceive undocumented workers as workers with a better ‘work ethic’ than others, willing to accept worse working conditions than lawful residents or the country’s own nationals.16 The employer, as they explain, does not need to actually know the exact immigration status of the worker: it is the perception of this immigration status (together with the existence of this status) that makes these workers vulnerable, and makes the employers keen to employ them.17 Immigration laws, ‘far from protecting workers’ rights, contribute to creating groups of workers who are more attractive to employers’.18 Because of their precarious legal status, undocumented migrant workers are particularly prone to exploitation. When employed, they suffer from several types of exploitative treatment: they sometimes have their pay withheld or are paid unfairly, they are employed in very poor working conditions, with insufficient health and safety standards, and are also dismissed if, for example, they attempt to unionize.19 This group of workers has limited or no knowledge of their labour rights, and may often face language barriers, which makes access to information more difficult. Sometimes, and particularly if they speak out about their exploitation, they also fall victims of physical abuse.20 Yet most of the time they choose to remain hidden from the authorities, even when they are victims of abuse, because of the fear of deportation. Undocumented workers can form different types of associations. In the US, for instance, the immigrant labour movement consists of three types of organizations: first, 14

C Morehouse and M Blomfield, Irregular Migration in Europe (Migration Policy Institute 2011) 6. B Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford University Press 2013) 79ff. 16 B Anderson and M Ruhs, ‘Migrant Workers: Who Needs Them?’ in B Anderson and M Ruhs (eds), Who Needs Migrant Workers (Oxford University Press 2010) 15, 30–1. 17 Anderson and Ruhs (n 16) 31. 18 Anderson (n 15) 71. 19 All these types of exploitation are well-documented. See eg M LeVoy and N Verbruggen, Ten Ways to Protect Undocumented Migrant Workers (PICUM 2005) 9. 20 See the examples discussed in the introduction of this chapter. 15

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trade unions; second, worker centres, which are non-governmental organizations (NGOs) specializing in labour rights; and third, the immigrant rights movement.21 Similar initiatives exist in Europe.22 Different though these initiatives are, the associations have interrelated goals and often cooperate in order to advance these goals.23 That various migrant, labour, and human rights organizations cooperate is an important fact for those that examine the links between the labour and human rights movements.24 It shows how the human rights movement can serve instrumentally to promote the interests of workers.25 It was said earlier that union membership has both intrinsic and instrumental value. For the undocumented, the instrumental value of association is greater than for other workers, a point that has been highlighted in academic literature and reports of NGOs and trade unions. Illegal immigration is unlikely to diminish.26 Undocumented workers are part of almost every society; yet at the same time they are socially excluded:27 even though they are workers, and hence participate in society through their labour, they are barred from access to most other rights of societal membership.28 Organizing can promote the social inclusion of undocumented workers. Associational activity helps address their isolation, because by organizing, migrants realize that the exploitative situation that they experience is shared by others.29 They also gain confidence by learning that they have certain rights by law, and are informed about what steps they can take to address violations of these rights.30 Members of migrants’ or workers’ organizations provide practical support to each other, which is crucial for the undocumented who may not have access to other networks of support.31 Further, sometimes organizations for migrant workers help them build leadership skills,32 and also encourage civic participation more generally.33 Organizing undocumented migrants can even lead to acquisition of citizenship as formal legal status, as the example of migrant domestic workers in London has shown.34 Finally, by joining a 21 R Milkman, ‘Immigrant Workers, Precarious Work, and the US Labor Movement’ (2011) 8 Globalizations 361. See also J Gordon, Suburban Sweatshops: The Fight for Immigrant Rights (Harvard University Press 2005). 22 For examples, see PICUM Report (n 19) chs 4 and 5. 23 See eg Milkman (n 21). 24 V Leary, ‘The Paradox of Workers’ Rights as Human Rights’ in L Compa and S Diamond (eds), Human Rights, Labour Rights and International Trade (University of Pennsylvania Press 2003) 22; G Mundlak, ‘Human Rights and Labor Rights: Why Don’t the Two Tracks Meet?’ (2013) Comparative Labor Law and Policy Journal 217. 25 V Mantouvalou, ‘Are Labour Rights Human Rights?’ (2013) 3 European Labour Law Journal 151, 160. 26 PICUM Report (n 19) 10. 27 For a definition of social exclusion, see H Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16, 22. 28 On the role of rights for societal membership, see TH Marshall, ‘Citizenship and Social Class’ in R Goodin and P Pettit (eds), Contemporary Political Philosophy: An Anthology (Blackwell 1997) 291. The essay was originally published in 1949. 29 PICUM Report (n 19) 34. 30 PICUM Report (n 19) 35; J Wrench, ‘Trade Union Responses to Immigrants and Ethnic Inequality in Denmark and the UK: The Context of Consensus and Conflict’ (2004) 10 European Journal of Industrial Relations 7. 31 See the website of the self-help group Justice for Domestic Workers, for instance accessed 31 December 2013. 32 33 PICUM Report (n 19) 38. PICUM Report (n 19) 40. 34 See the example discussed by B Anderson, ‘Mobilizing Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ (2010) 33 Ethnic and Racial Studies 60.

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union, workers without legal documentation obtain a membership card, which serves as evidence of residence in a country.35 Forming or participating in trade unions and other associations promoting workers’ rights serves an important instrumental function, and can ultimately lead to the social integration of the undocumented who are citizens at the margins, in the sense that they are employed and participate in the labour market, but have extremely limited labour rights.36

IV. Obstacles Despite the great instrumental importance of organizing, the undocumented often face hurdles unknown to other groups of workers. In some jurisdictions, national law prohibits undocumented migrants from joining trade unions. In a Report of the EU Fundamental Rights Agency on ‘Fundamental Rights of Migrants in an Irregular Situation in the European Union’,37 for example, it was said that in some Member States of the EU (Cyprus, Latvia, and Lithuania), undocumented migrants do not have a right to form or join a trade union. In Spain, undocumented migrants were similarly excluded from union membership by law until a 2007 decision of the Spanish Constitutional Court that ruled the prohibition unconstitutional.38 At the same time, in some legal orders, there are examples of trade unions that exclude undocumented workers from membership, because of protectionism.39 In their view, the interests of their own members are in conflict with the interests of migrant workers, whose participation in the labour market may lead to increased competition, and hence lowering of wages and other labour standards. Looking at the example of Britain, for instance, it has been argued that unions were in the past either actively hostile or insufficiently supportive of migrant workers and members of ethnic minorities.40 The position of UK trade unions changed more recently. Unite the Union, for example, has taken a strategic decision to encourage participation of undocumented workers. Yet in the literature, union activity on migrants is still viewed as ‘piecemeal’, while unions are ‘actively opposed’ to the formation of organizations, such as the US worker centres.41 The examples of Cyprus, where trade unions do not admit migrants, and Austria, where unions have what is described as an ‘ambivalent practice’, serve to illustrate the problem further.42 As undocumented migrants are 35

PICUM Report (n 19) 44. V Mantouvalou, ‘Workers Without Rights as Citizens at the Margins’ (2013) 16 Critical Review of International Social and Political Philosophy 366. 37 European Union Agency for Fundamental Rights, Fundamental Rights of Migrants in an Irregular Situation in the European Union (Fundamental Rights Agency 2011) 55. 38 European Union Agency for Fundamental Rights (n 37) 55. 39 For discussion of the relationship between trade unions and the undocumented in the US, for example, see Gordon (n 11) 528ff. For a theoretical analysis of the issue, see E Albin, ‘Union Responsibility to Migrant Workers: A Global Justice Approach’ (2014) 34 OJLS 133. 40 J Wrench, ‘British Unions and Racism: Organisational Dilemmas in an Unsympathetic Climate’ in R Penninx and J Roosblad (eds), Trade Unions, Immigration, and Immigrants in Europe 1960–1993 (Berghahn Books 2000) 133. 41 H Connolly, M Lucio, and S Marino, Trade Unions and Migration in the UK: Equality and Migrant Worker Engagement without Collective Rights (Manchester 2012) 14. 42 European Union Agency for Fundamental Rights (n 37) 55–6. 36

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excluded from union membership, examples of transnational unions on migrant workers’ rights are limited in number and in success.43 Undocumented migrants therefore have no voice at work in several European legal orders. Their inability to unionize contributes to their continuous exclusion. The exclusion of undocumented workers either by state or trade union policy damages the ability of migrant workers to improve their working conditions and to integrate in society. Is this compatible with international human rights and international labour law?

V. Collective Labour Rights as Human Rights There is much academic debate on labour rights as human rights.44 I have argued elsewhere that there are three approaches to this question: first, a positivistic approach, which examines whether workers’ rights are human rights in international or constitutional law; second, an instrumental approach, which assesses whether human rights can in practice promote the interests of workers; and third, a normative approach, which assesses the conceptual links between labour and human rights, and their justification.45 Having discussed the justification of trade union rights in the previous sections, this section of the chapter will turn to the first one of these approaches: namely whether undocumented migrants have trade union rights as a matter of positive international law. If it is established that they do have such rights, the implication will be that national law and union policy that excludes undocumented workers from membership may need to change. The interest of workers to form associations is recognized as a human right in international human rights and international labour law. The right to organize, including a right to form and join a trade union, is guaranteed in all major human rights treaties. It is protected in Article 23 of the Universal Declaration of Human Rights (UDHR), Article 22 of the International Covenant on Civil and Political Rights (ICCPR), and Article 8 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Freedom of association is also a core value of the International Labour Organization (ILO), and is included in its 1919 Constitution and the 1949 Declaration of Philadelphia. Convention 87 on Freedom of Association and Protection of the Right to Organise of 1948 and Convention 98 on the Right to Organise and Collective Bargaining of 1949 are two of the eight core Conventions of the ILO. 43 I Greer, Z Ciupijus, and N Lillie, ‘The European Migrant Workers Union and the Barriers to Transnational Industrial Citizenship’ (2013) 19 European Journal of Industrial Relations 5. 44 See eg the debate between J Youngdahl, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’ (2009) 18 New Labor Forum 31 and L Compa, ‘Solidarity and Human Rights’ (2009) 18 New Labor Forum 38. See also C Fenwick and T Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing 2010); H Collins, ‘Theories of Rights as Justifications for Labour Law’ in G Davidov and B Langille (eds), The Idea of Labour Law (Oxford University Press 2011) 137; K Kolben, ‘Labor Rights as Human Rights?’ (2010) 50 Virginia Journal of International Law 449; G Mundlak, ‘Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages’ (2008) 8 Theoretical Enquiries in Law 531. 45 Mantouvalou, ‘Are Labour Rights Human Rights?’ (n 25).

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The above documents protect the rights of everyone, though some of the treaties explicitly permit restrictions for specific groups, such as the police or the armed forces.46 They do not distinguish between nationals and non-nationals, authorized and unauthorized migrants. Convention No 87 of the ILO, for instance, states that workers and employers ‘without distinction whatsoever’ have the right to form and join organizations. Many of these treaties also prohibit discrimination either on all grounds, or discrimination on certain grounds, which sometimes include discrimination on the basis of nationality.47 The UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families48 makes special reference to undocumented migrant workers and their vulnerability in its Preamble, and guarantees a right to organize for all migrant workers.49 The right to organize is also recognized as a fundamental right in the 1998 ILO Declaration of Fundamental Principles and Rights at Work, and has been the subject of three Global Reports according to the follow-up mechanism of the Declaration. The 2000 Report entitled Your Voice at Work50 identified migrant workers as a group of workers that are often denied the right to organize in many legal orders. The 2004 Report Organising for Social Justice51 contains a special section on migrant workers, highlighting the challenges that they face. It pays attention to undocumented workers particularly, emphasizing their vulnerability, as well as the fact that unions in many legal orders do not accept them as members.52 Shifting the focus from the international legal order to Europe, the right to organize is guaranteed in Article 11 ECHR, as well as in the counterpart to the Convention in the area of social rights, the ESC, which protects the right to organize (Article 5) and the right to bargain collectively (Article 6). However, the Charter excludes undocumented migrants from its scope. The Appendix to the ESC, under the title Scope of the Social Charter in Terms of Persons Protected, states: persons covered by Articles 1 to 17 include foreigners only insofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned, subject to the understanding that these Articles are to be interpreted in the light of the provisions of Articles 18 and 19.

This means that people who reside lawfully in a country, but do not come from one of the contracting states, are not protected under the ESC, with the exception of Article 19

46 See the discussion in G Morris, ‘Freedom of Association and the Interests of the State’ in K Ewing, C Gearty, and B Hepple (eds), Human Rights and Labour Law (Mansell 1994) 29. 47 For an overview of international and regional documents, see B Ryan and V Mantouvalou, ‘The Social and Labour Rights of Migrants in International Law’ in R Rubio-Marin (ed), Migration and Human Rights (Oxford University Press 2013). 48 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, 2220 UNTS 93. 49 Article 26. 50 ILO Report of the Director General, Your Voice at Work (International Labour Office 2000). 51 ILO Report of the Director General, Organising for Social Justice (International Labour Office 92nd session 2004). 52 ILO Report of the Director General (n 51) para 159.

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that protects migrant workers.53 Undocumented migrants that are employed in the country are excluded altogether. Work-related rights depend upon the status of immigrants as lawful residents, which means that persons residing and working illegally in the territory of contracting states will not enjoy any protection of their social rights.54 That undocumented migrants were excluded from the scope of the ESC does not mean that the Council of Europe as an organization does not recognize the challenges that this group of individuals face. In 2006, for instance, the Council of Europe’s Parliamentary Assembly adopted a Resolution entitled ‘Human Rights of Irregular Migrants’55 that stated that there were at the time between three and five million irregular migrants in Europe, living and working in deplorable conditions. The Assembly urged Member States to protect at least a ‘core minimum’ of rights of irregular migrants. The labour and social rights identified included fair wages and working conditions, compensation for accidents, access to justice, and trade union rights for all those that work.56 At the same time as the ESC excludes undocumented migrants, very few Council of Europe Member States (and no EU Member State) have ratified the UN Convention on the Protection of the Rights of Migrant Workers and Members of Their Families. Similarly, very few European states have ratified the European Convention on the Legal Status of Migrant Workers.57 For this reason, the protection of migrant workers has been described as ‘a clear weakness of the European protection system’.58

53 Article 19 provides as follows: ‘With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Contracting Party, the Contracting Parties undertake: 1. to maintain or to satisfy themselves that there are maintained adequate and free services to assist such workers, particularly in obtaining accurate information, and to take all appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration; 2. to adopt appropriate measures within their own jurisdiction to facilitate the departure, journey and reception of such workers and their families, and to provide, within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey; 3. to promote co-operation, as appropriate, between social services, public and private, in emigration and immigration countries; 4. to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters: remuneration and other employment and working conditions; membership of trade unions and enjoyment of the benefits of collective bargaining; accommodation; 5. to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals with regard to employment taxes, dues or contributions payable in respect of employed persons; 6. to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory; 7. to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals in respect of legal proceedings relating to matters referred to in this article; 8. to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality; 9. to permit, within legal limits, the transfer of such parts of the earnings and savings of such workers as they may desire; 10. to extend the protection and assistance provided for in this article to self-employed migrants insofar as such measures apply.’ 54 On non work-related rights, see International Federation of Human Rights Leagues (FIDH) v France, Complaint No 14/2003, Decision of 8 September 2004 and Defence for Children International (DCI) v Netherlands, Complaint No 47/2008, Decision of 20 October 2009. See C O’Cinnéide, Ch 15 in this volume. 55 Council of Europe, Parliamentary Assembly Resolution 1509 (2006). 56 Council of Europe, Parliamentary Assembly Resolution 1509 (2006) para 13. 57 European Convention on the Legal Status of Migrant Workers, CETS No 093, entered into force in 1 May 1983. It has been ratified by eleven states. 58 UN Human Rights Office of the High Commissioner Report, Rights of Migrant Workers in Europe (UN Human Rights Office of the High Commissioner: Europe Regional Office 2011) 15.

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VI. Do Undocumented Workers have a Right to Organize under the ECHR? Can Article 11 ECHR address the problem of the exclusion of undocumented migrants from collective labour rights? As a starting point, it should be said that the rights of the Convention are protected for everyone within the contracting states’ jurisdiction.59 They are not conditional upon immigration status. The interpretation of the term ‘jurisdiction’ has given rise to controversy in the case law and academic literature, but it covers at least everyone within the state’s territory, as well as areas outside a state’s territory, over which the state exercises effective control.60 Article 16 of the Convention permits restrictions on the political activity of aliens, but the provision has very rarely been examined and is viewed as outdated. The Parliamentary Assembly of the Council of Europe has called for its removal.61 It has also been observed that other international human rights instruments, like the ICCPR, the American Convention on Human Rights, and the African Charter of Human and Peoples’ Rights all have provisions on freedom of expression and association, and none of these documents contain something equivalent to Article 16.62 Immigration was not a primary consideration for the drafters of the ECHR in the aftermath of World War II: their key concern was how to protect the traditional civil and political rights of the peoples of Europe against totalitarian regimes. Being applicable to the forty-seven Member States of the Council of Europe, the Convention does not protect freedom of movement.63 The case law of the Court incorporates the principle that states have the power to control who enters their territory, and that they can plan and implement their own immigration policy.64 This principle is generally accepted in international law and in academic literature.65 The ECtHR has not examined trade union rights of the undocumented, but the rights of migrants have been explored in the case law.66 For example, people that enter a country unlawfully, in order to seek asylum, are protected under the Convention.67 Documented migrants may even establish a right to work under the ECHR, which does not explicitly contain such a provision.68 Turning to the right to organize of undocumented workers, the main focus should be on Article 11 on the right to organize, which reads as follows: 59

60 ECHR, Art 1. Loizidou v Turkey (1995) 20 EHRR 99. Council of Europe, Parliamentary Assembly, Recommendation 799 (1997) on the Political Rights of Aliens. See H Lambert, The Position of Aliens in Relation to the European Convention on Human Rights (2nd edn, Council of Europe Publishing 2001) 17. 62 N Mole, Asylum and the European Convention on Human Rights (4th edn, Council of Europe Publishing 2007) 114. 63 Protocol 4, Article 2 protects freedom of movement within a country’s territory of those who are lawfully therein. 64 N v United Kingdom (2008) 47 EHRR 39 [30]. 65 For an interesting collection of essays, see W Schwartz (ed), Justice in Immigration (Cambridge University Press 1995). 66 For an overview of the case law, see Y Ktistakis, Protecting Migrants under the European Convention on Human Rights and the European Social Charter (Council of Europe Publishing 2013). 67 See MSS v Belgium and Greece (2011) 53 EHRR 2. 68 Bigaeva v Greece App No 26713/05 (ECtHR, 28 May 2009). 61

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1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

The provision protects a right to unionize, but does not explicitly include a right to collective bargaining or a right to strike. However, over the years the Court has developed case law which shows that Article 11 of the ECHR can protect workers’ interests, by incorporating a right to collective bargaining and a right to strike.69 The second paragraph of Article 11 permits limitations to the right, and the Court has examined whether specific groups of workers that are explicitly mentioned in the provision can lawfully be excluded from union membership. The leading case on the issue is Demir and Baykara v Turkey,70 where the Court ruled that members of the administration of the state cannot be excluded from Article 11 altogether. A test of proportionality has to be applied if the state sets limitations to trade union rights—a standard which Turkey failed to meet in this case. Can undocumented workers, who are not mentioned in the provision, be excluded from trade union or other associational rights? Before addressing this, the sections that follow will refer to case law under other ECHR provisions, which provides important insights: first, the jurisprudence views migration status as special status that creates vulnerability and may deserve special protection; and second, it scrutinizes carefully the position of state authorities that discriminate against migrants.

1. Undocumented migrant workers are vulnerable to coercion Jurisprudence under Article 4 ECHR does not exclude undocumented workers, but shows that their status makes them prone to labour exploitation. The provision states as follows, insofar as relevant: ‘1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.’ Article 4 contains an absolute prohibition that does not permit qualifications for any reasons. In a landmark judgment on migrant domestic labour, Siliadin v France,71 the Court examined a situation of labour exploitation, and developed principles that are already very influential in law at national and international level. Siliadin was a Togolese

See V Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual Justification for an Integrated Approach to Interpretation’ (2013) 13 Human Rights Law Review 529; K Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 ILJ 2. 70 Demir and Baykara v Turkey App No 34503/97 (ECtHR, 12 November 2008). 71 Siliadin v France (2006) 43 EHRR 16. For analysis see V Mantouvalou, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 ILJ 395. 69

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national who was brought to France to work and be educated, but was instead kept at home as a domestic worker. She had to clean the house and the employer’s office, to look after three children; she slept on the floor in their room; she rarely had a day off; she was almost never paid. When she escaped from her employers, she was faced with the fact that French law did not criminalize this behaviour. Before the Strasbourg Court, she claimed that lack of legislation criminalizing the employers’ conduct violated Article 4. In dealing with this situation, the Court classified it as ‘servitude’. It said that ‘what is prohibited is a “particularly serious form of denial of freedom” . . . It includes, “in addition to the obligation to perform certain services for others . . . the obligation for the ‘serf ’ to live on another person’s property and the impossibility of altering his condition”.’72 Siliadin’s immigration status carried significant weight in the classification of her situation as servitude. As the Court emphasized, she ‘was entirely at [the employers’] mercy, since her papers had been confiscated and she had been promised that her immigration status would be regularised, which had never occurred’.73 That the Court placed special emphasis on Siliadin’s immigration status shows that it is open to claims of psychological coercion, which undocumented migrant workers often face because of the fear of deportation. Such coercion can be exerted on someone who has no legal right to reside in a country, and can for this very reason be a victim of exploitation. The Siliadin case, which imposed a duty to criminalize this treatment, was followed by the case CN v United Kingdom74 that extended the positive state obligations under Article 4 to include an obligation to investigate effectively the working conditions of undocumented migrant workers, who may be victims of trafficking. The Court recognized in this judgment that an undocumented migrant worker can be victim of ‘overt and more subtle forms of coercion’, and stated that there are ‘many subtle ways an individual can fall under the control of another’,75 and also that the authorities did not pay sufficient attention to the fact that the employers had taken the applicant’s passport. Finally, on a related matter, looking at a case of sex trafficking,76 which involved a woman that worked under a very restrictive visa regime that tied her to her employer, the Court found it problematic for the reason that it rendered individuals vulnerable to traffickers. The Siliadin and CN cases, which both ruled that there had been a violation of Article 4 ECHR, show that the Court includes undocumented migrants under its protections.77 It accepts that irregular migration status generates vulnerability and can lead to the exercise of coercion by the employer over the worker. Moreover, very restrictive immigration rules may lead to precariousness,78 by creating strong ties between a particular employer and an immigrant, and breach the Convention. In

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73 Siliadin (n 71) [123]. Siliadin (n 71) [126]. 75 CN v United Kingdom (2013) 56 EHRR 24. CN (n 74) [80]. 76 Rantsev v Cyprus and Russia (2010) 51 EHRR 1. Discussed in J Alain, ‘The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 Human Rights Law Review 546. 77 On Article 3 of the ECHR, which prohibits torture and inhuman and degrading treatment, see Hirsi Jamaa v Italy (2012) 55 EHRR 21. 78 B Anderson, ‘Migrations, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment and Society 300. 74

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response to the overall question of this section, namely whether the Convention protects the rights to associate of the undocumented, it can be said that Article 4 case law indicates that undocumented migrants are more prone to labour exploitation and abuse than other workers. This reality makes their need to organize more urgent, and the instrumental value of workers’ associations weightier than for any other category of workers. More will be said on this later on.

2. Limitations on the basis of immigration status must be strictly proportionate to the aim pursued Yet Article 11 of the Convention is not an absolute right, unlike Article 4. It is a qualified right, which permits certain limitations. Would the outright exclusion of undocumented migrants from associational activity be compatible with it? A line of cases on welfare support for non-nationals shows that nationality is not easily accepted as a ground of different treatment. Even certain social rights, when read into the Convention, cannot legitimately be limited to state nationals only. The Court has ruled that both contributory and non-contributory benefits have to be available to regular migrants equally to a state’s nationals. Article 14 of the ECHR prohibits discrimination in the enjoyment of Convention rights. It is not a free-standing provision that can be invoked on its own. Applicants have to demonstrate that the conduct in question ‘falls within the ambit’ of some other Convention right.79 Gaygusuz v Austria concerned social security benefits.80 The applicant was a Turkish national lawfully resident and working in Austria, who had paid contributions to an unemployment insurance fund in the same way as Austrian nationals. The authorities refused to pay an advance on his pension as an emergency payment under Austrian legislation for the sole reason that he did not have Austrian nationality. He claimed that this treatment was discriminatory, and hence contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol 1, which states that ‘[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions’. Reading social rights into the right to property, the ECtHR held that the benefit that Gaygusuz claimed could be classified as ‘possessions’, so that his situation was within the ambit of Article 1 of Additional Protocol 1. Turning to Article 14, the Court considered whether the difference of treatment between the applicant, on the one hand, and Austrian nationals, on the other, was justified. It ruled that it was not based on an ‘objective and reasonable justification’. The Court referred to the possibility of recognizing state authorities some discretion in the area of the social rights of migrants, by mentioning its margin of appreciation doctrine, but stressed that ‘very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention’.81 There was therefore a violation of the prohibition of discrimination in conjunction with the right to property. A similar finding was also made in a case 79 80

See eg Thlimmenos v Greece (2001) 31 EHRR 15. 81 Gaygusuz v Austria (1997) 23 EHRR 364. Gaygusuz (n 80) [42].

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where the authorities refused a non-contributory disability benefit to the applicant that was a documented migrant.82 The same principle was endorsed in cases on maternity and child benefits of foreign nationals with limited residence rights83 or those that have the status of a refugee84 under Article 8 (the right to private life) in conjunction with Article 14. The Article 14 jurisprudence shows that at least regular migrants, even those with limited residence rights, cannot be treated differently for the sole reason of their nationality or residence status. The justification for different treatment of similar situations has to be strong. It has to satisfy a strict test of proportionality, which state authorities failed to pass.

3. Associational activity of the undocumented What has been established this far is that, first, undocumented migrants are protected under absolute provisions of the Convention. Their immigration status is viewed as a factor that generates vulnerability and makes them prone to exploitation. Second, migrants with different types of residence permits (some of which are more and other less permanent) cannot be treated differently when it comes to qualified provisions, unless there is a strong justification. In light of these principles, how would the Court approach a ban on the associational activity (trade unions or workers’ centres) of undocumented workers? It was earlier said that even when looking at categories of workers that are explicitly mentioned in the second paragraph of Article 11 as groups whose trade union rights may be limited (members of the armed forces, police, and the administration of the state), the Court applies a test of proportionality. In Demir and Baykara, the Court stated that the restrictions imposed on them should be interpreted strictly and ‘must not impair the very essence of the right’.85 Even though undocumented workers are not explicitly mentioned in Article 11, state authorities might argue that the prohibition of their associational activity can promote the aim of combatting illegal immigration. The Court has accepted that this is a legitimate aim for state authorities to pursue.86 Yet limitations of Convention rights for reasons of immigration policy will be hard to justify morally and legally for those that are already within the jurisdiction of a Member State.87 It might also be said here that if Strasbourg protects the labour rights of irregular migrants, it will open the floodgates to immigrants that will seek to enter Europe.88 Such consequentialist considerations are not unknown in the reasoning of the ECtHR, but they have very rarely been accepted by the Court, and have given rise to dissenting opinions and criticisms.89 So even though control of irregular migration is a 82

83 Koua Poirrez v France (2005) 40 EHRR 2. Niedzwiecki v Germany (2006) 42 EHRR 33. Fawsie v Greece App No 40080/07 (ECtHR, 28 October 2010). 85 Demir and Baykara (n 70) [97]. 86 Souza Ribeiro v France App No 22689/07 (ECtHR, 13 December 2012) [97]. 87 See Hirsi Jamaa (n 77). 88 Discussed in J Carens, ‘The Rights of Irregular Migrants’ (2008) 22 Ethics and International Affairs 163, 167. 89 N v UK (n 64). For discussion and criticism, see V Mantouvalou, ‘N v UK: No Duty to Rescue the Nearby Needy?’ (2009) 72 Modern Law Review 815. 84

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legitimate state function, it will not easily be used as a justification for restrictions of the rights of undocumented migrants, beyond the exercise of the state power of detention and deportation, in conditions that, again, have to comply with ECHR standards.90 It should be added here that very often when the Court examines labour rights under the Convention, it takes note of the position of other international bodies that have addressed similar issues.91 For this reason, mention should be made here of the approach of the ILO to the question of trade union rights of undocumented workers. The ILO examined the issue in a case involving Spain. In response to a complaint brought by the General Union of Workers of Spain (UGT), the ILO Committee on Freedom of Association said that the rights to organize and strike, to freedom of assembly and association, to demonstrate and to collective bargaining of Conventions 87 and 98 are applicable to all workers, without distinction whatsoever, and that undocumented workers cannot be excluded from this protection.92 On this matter it is also important to highlight the landmark advisory opinion of the Inter-American Court of Human Rights (IACtHR) on the rights of undocumented migrants.93 This opinion was adopted in response to a question brought by the Government of Mexico, as to whether it was lawful to exclude undocumented migrants from access to labour rights. While that question did not refer to a particular state, it was understood to relate to the decision of the US Supreme Court in Hoffman Plastic Compounds v NLRB,94 in which undocumented migrant workers were denied back pay for lost wages, after their dismissal for attempts to organize a trade union. The IACtHR ruled that the exclusion of undocumented migrants from labour rights breached international principles of equality before the law and non-discrimination, which it recognized as norms of jus cogens. The Court accepted that it would be compatible with human rights law to deny employment to undocumented migrants, but emphasized that it would not be lawful to deny labour rights once someone is already employed. In its words: Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition . . . [T]he migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.95

The advisory opinion of the IACtHR suggests that while the state has no duty to provide employment to undocumented migrants, once they are employed, they are

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See MSS v Belgium and Greece (n 67). See eg Demir and Baykara (n 70) [98]ff; Mantouvalou, ‘Labour Rights in the European Convention’ (n 69); Ewing and Hendy (n 69). 92 ILO Committee of Experts, Report No 327, Case No 2121. 93 Juridical Condition and Rights of the Undocumented Migrants Advisory Opinion OC-198/03 InterAmerican Court of Human Rights Series A No 18 (17 September 2003). 94 Hoffman Plastics Compounds v National Labor Relations Board (2002) 535 US 137. 95 Advisory Opinion OC-198/03 (n 93) [133]–[134]. 91

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protected equally with other workers.96 This complaint was also examined by the ILO Committee on Freedom of Association, which concluded that Hoffman was incompatible with ILO standards.97 Both the IACtHR and the ILO find that the exclusion of undocumented migrants from trade union membership is contrary to the protection of trade union rights and in breach of the prohibition of discrimination. The approach of these bodies may play an important role in the interpretation of the ECHR, for the Court often takes note of relevant international materials when examining the rights of the Convention, adopting an ‘integrated approach to interpretation’.98 In light of the above, the correct interpretation of Article 11 is an inclusive one, which protects the right to organize of undocumented migrants. The state cannot prohibit their associational activity, and employers cannot lawfully dismiss them for the sole reason that they form and join a trade union or other workers’ association.

4. Trade union autonomy and the exclusion of the undocumented It was earlier said that in some countries, trade unions exclude undocumented workers from membership, because they view the interests of their members as incompatible with the interests of undocumented migrant workers. Is this policy of exclusion compatible with the ECHR? In general, the Court has accepted that the right to associate under Article 11 of the ECHR encompasses both positive and negative components.99 Both individuals and unions have a right not to associate. Compelled association has often been ruled to be incompatible with Article 11.100 The importance of union autonomy, namely the power of unions to set the rules by which they will be governed, is recognized by the Court, and explicitly mentioned in ILO Convention 87, Article 2, as well as other international documents. In the case law of the ECtHR, the principle of union autonomy was in recent years upheld in the case ASLEF v UK.101 ASLEF, the applicant union, is a socialist labour association that expelled a train driver and member of a political party of the far-right, the British National Party (BNP), when union officers were informed of his membership of the BNP and some of his activities, such as handing out anti-Islamic leaflets and engaging in serious harassment of anti-Nazi demonstrators. The Court stated that a union should have a right to choose with whom it will associate in a way similar to individual employees. This is because ‘[w]here associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run 96 For a case note, see S Cleveland, ‘Legal Status and Rights of Undocumented Workers’ (2005) 99 American Journal of International Law 460. 97 Case No 2227 (United States), Report No 332, November 2003. 98 See Mantouvalou, ‘Labour Rights in the European Convention’ (n 69). 99 See Young, James and Webster v UK App Nos 7601/76, 7806/77 (ECtHR, 13 August 1981) and more recently Sorensen and Rasmussen v Denmark (2008) 46 EHRR 29. 100 See V Mantouvalou, ‘Is there a Human Right Not to Be a Trade Union Member?’ in C Fenwick and T Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing 2010) 439. See also the discussion in T Novitz, ‘Negative Freedom of Association: Gustafsson v Sweden’ (1997) 26 ILJ 79. 101 Associated Society of Locomotive Engineers & Firemen (ASLEF) v United Kingdom (2007) 45 EHRR 34.

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counter to the very effectiveness of the freedom at stake if they had no control over their membership’.102 The exclusion from membership here was legitimate. It was due to the worker’s political affiliation to the BNP, the views and activities of which were fundamentally incompatible with those of the trade union. The union was rightly viewed as an expressive association, which endorses a particular ideology, and the views of the BNP were said to run counter to this ideology. The Court did not only recognize the expressive commitments of trade unions, though. This is important because the primary purpose of trade unions is instrumental, as was said earlier, not expressive. The ECtHR said that ‘membership of a trade union is often regarded, in particular due to the trade union movement’s historical background, as a fundamental safeguard for workers against employers’ abuse and it has some sympathy with the notion that any worker should be able to join a trade union’.103 In addition, the Court accepted that unions have a public purpose, namely the promotion of equality for all workers, which may justify state interference in their internal affairs. In the ASLEF case it found that expulsion would not be detrimental to the worker. The BNP member who was expelled from the union would not suffer a significant disadvantage (or indeed any disadvantage at all) following his exclusion. However, union autonomy should not be viewed as absolute. In the case of undocumented workers, the primarily instrumental value of associations and their public purpose, namely the promotion of basic opportunities for all, which was discussed earlier in this chapter, is such that their systemic exclusion from union membership would be detrimental to them. Unlike the exclusion of the member of a far-right political party by a left-wing trade union, the exclusion of undocumented workers is likely to be based not on a deep conflict in expressive commitments,104 such as the one that we saw in ASLEF, but on prejudice and a narrow definition of the national labour market, that a liberal human rights court should be slow to accept. The underlying concern is that the exclusion of undocumented workers from union membership would deprive undocumented workers from an institutionalized voice at work and the basic opportunity to be socially included, leading to well-documented situations of exploitation and abuse that are incompatible with the basic values of the ECHR. The exclusion of undocumented workers from trade unions would probably strike at the very essence of the right to associate and breach Article 11 of the Convention.

VII. Conclusion Associational activity has great value for all workers, which is both intrinsic in the sense that people value being part of associations as such, and instrumental in the sense that people value workers’ associations because they help them gain access to important strategic goods. Trade unions are primarily instrumental associations and, in the case of undocumented workers, their instrumental role is crucial. Organizing not only gives them a voice at work. It can also lead to their inclusion both in the

102 104

103 ASLEF (n 101) [39]. ASLEF (n 101) [50]. See also the discussion in White (n 4) 349–50.

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workplace and in society at large. It is therefore particularly worrying that state authorities do not always recognize that undocumented workers have a right to organize, and that unions themselves sometimes exclude them from membership. The right to organize is a fundamental labour and human right, which is protected in international human rights law and international labour law, as this chapter showed. Most legal documents do not distinguish between nationals and non-nationals, documented and undocumented foreign nationals. In fact, many of them prohibit discrimination on the basis of nationality, and monitoring bodies have come to recognize that irregular migrants are a particularly vulnerable group of workers. Yet in Europe, the protection of the social and labour rights of the undocumented under the ESC is wanting. For this reason, the final part of the chapter turned to the ECHR that protects the right to form and join a trade union. The case law of the ECtHR offers important insights that help address the question of this piece. It recognizes that undocumented migrants are particularly vulnerable to labour exploitation, that difference of treatment on the basis of immigration status has to be very strictly justified, and that exclusion of categories of workers from collective labour rights is to be very narrowly interpreted. The Court accepts the important instrumental role of unions for the promotion of a voice at work. That a most vulnerable group of workers would have no voice at work, if they had no right to unionize, is a consideration that should play a very weighty role in any balancing exercise that the Court employs in its reasoning. This is because above all, as the IACtHR has emphasized, workers’ rights are universal, in the sense that everyone is entitled to them as soon as they become workers, and only by virtue of their status as workers, irrespective of immigration status. That someone is an undocumented worker should constitute a reason for special protection, rather than exclusion from the scope of the ECHR.

21 Home from Home Migrant Domestic Workers and the International Labour Organization Convention on Domestic Workers Sandra Fredman*

I. Introduction Domestic work is a major source of employment worldwide. Recent International Labour Organization (ILO) estimates based on national surveys in 117 countries, place the number of domestic workers at 52.6 million, a growth of at least 19 million since 1995.1 This figure most certainly underestimates the true numbers: because domestic workers work in employers’ homes, and domestic work is frequently undeclared, it is believed that the total number could be as high as 100 million. Moreover, there has been a striking growth in the prevalence of migrant domestic work over the past thirty years.2 Migrant domestic work is a major source of employment for women from Sri Lanka, the Philippines, Nepal, and India, large numbers of whom migrate to the Middle East, particularly Kuwait and Saudi Arabia. Indeed, remittances from domestic workers constitute a significant proportion of income for their countries of origin. In twenty-two countries, remittances were equal to more than 10 per cent of GDP in 2006, and in six countries, they constituted more than 20 per cent.3 Unsurprisingly, domestic work is predominantly women’s work. About 83 per cent of domestic workers are women or girls. One in every thirteen women waged workers (7.5 per cent) in the world is a domestic worker. This ratio is as high one in four in Latin America and the Caribbean and one in three in the Middle East. Migrant domestic workers stand at the confluence of many conflicting currents. Domestic workers’ situation in the heart of the employing family defies the public– private divide which labour law regulation has taken as one of its major premises. Livein domestic workers have little autonomy or privacy, little control over their hours of work, and little protection against verbal, sexual, and physical abuse and other forms of exploitation. Trade union organization is highly challenging. These difficulties are

* Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth and the USA at Oxford University. I am grateful to the participants in the Oxford Migrants Workers’ Conference for helpful feedback on an earlier draft of this chapter, and to Meghan Campbell for her help in preparing it for publication. 1 Figures in this paragraph are from ILO, Domestic Workers across the World: Global and Regional Statistics and the Extent of Protection (ILO 2013) 11 and 24. 2 For figures in Europe, see B Anderson, ‘Why Madam has so many Bathrobes: Demand for Migrant Domestic Workers and the EU’ (2001) 92 Tijdschrift voor Economische en Sociale Geografie 18, 18. 3 ILO, Decent Work for Domestic Workers (International Labour Conference 99th Session 2010) para 37.

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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exacerbated for migrant domestic workers. The Committee on Economic and Social and Cultural Rights noted in 2008 that ‘women migrant workers, especially those employed as domestic workers, nurses and care-givers, often become victims of psychological abuse, physical and sexual violence and slavery-like working conditions’.4 Undocumented migrant workers are particularly vulnerable, since denouncing their employers would expose them to deportation or criminal proceedings. There may also be language, cultural, and other barriers which exacerbate the vulnerability and marginalization of migrant domestic workers. The need to reconfigure the public–private divide arises not just because domestic work takes place within the family. It is also because domestic workers have played an essential role in facilitating the entry into paid work of many other women worldwide. Indeed, it is arguable that the main reason for the mass migration of women from developing to developed countries has been a high demand for domestic workers to assist with childcare, housework, and care of the elderly. However, the fact that employers of domestic workers are often vulnerable elderly people or women working in low-paid and precarious work themselves does not necessarily protect domestic workers: indeed, despite or because of their own precarious position, such employers are also frequently the source of exploitation or abuse.5 The framing of legislation in relation to domestic workers must therefore address this complex layering of discrimination issues. It is against this backdrop that the ILO finally, after much campaigning, adopted in 2011 its Convention No 189 concerning decent work for domestic workers. The Convention entered into force in September 2013. The aim of this chapter is to critically assess the provisions of the Convention and to compare it to other sources of regulation of domestic work, particularly those in South Africa and Brazil. The chapter does not attempt a comprehensive analysis of all the provisions: it focuses on several of the major provisions by way of a representative sample of the complexity of regulation of domestic workers.

II. Domestic Workers: A Feminist Analysis As the ILO forcefully demonstrates, the growth in demand for domestic workers in the North has been the main reason for the mass migration of women from developing to developed countries. This is in turn a response to lack of attention to proper work–life policies in the recipient states. Demand for domestic workers is growing with the decline of the extended family. Ageing populations mean that help is needed to care for the elderly, and working women need childcare and help with housework. This is exacerbated in a recession with the privatization of public services, which has led to growing demand for domestic workers, while at the same time increasing the downward pressure on wages, and terms and conditions of work. Almost by definition, the

4 Committee on the CESCR, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Philippines (E/C.12/PHL/CO/4 (1 December 2008)) para 21. 5 A Cangiano, I Shutes, S Spencer, and G Leeson, Migrant Care Workers in Ageing Societies: Research Findings in the United Kingdom (COMPAS 2009) 143–5.

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wages of domestic workers are below those of their employers. At the same time, as we have seen, remittances from domestic workers constitute a major source of income for their countries of origin. Anderson shows, moreover, that live-in migrant domestic workers may be preferred to local workers. There are various reasons for this. In-kind payments such as board and lodging can lower the cost of employing a domestic worker considerably, as well as in practice extending their hours of work. In addition, the migrant worker is fully committed to the employing family: while a local worker might return home to look after a child or family member, this is impossible for migrant workers. Conversely, migrants might prefer to be live-in workers, because it solves their problems of finding accommodation and can also be a shelter from police and other authorities.6 It is worth noting that migration need not necessarily be across national borders. Internal migration from rural to urban areas also means that domestic workers are far from their own families and communities and highly dependent on their employers. In South Africa, for example, a significant number of domestic workers in urban areas have migrated from rural or peri-urban areas. Domestic work can also have a significant racial dimension. South Africa is the obvious case where, under apartheid, there were almost no paid work opportunities for black women outside of domestic work in white households. Internal migration was forced on many domestic workers who were legally prohibited from bringing their families into urban areas. This configuration has scarcely changed. Thus figures from the Labour Data Force Survey in South Africa show that between 2000 and 2006, at least 94 per cent of domestic workers were women, and close to 100 per cent were African or coloured.7 On the other hand, the fact that many more employers in modern South Africa are themselves black has changed the racial dynamics to some extent.8 In Brazil, too, domestic workers are predominantly Afro-Brazilians. Of the 6.6 million domestic workers in Brazil in 2008, 94.3 per cent were women and 61.8 per cent AfroBrazilian, many of whom had no or only partial education at elementary school level. Indeed, domestic work was the single largest occupational category in the workforce and the single largest occupation for women.9 In Europe, although figures are difficult to come by, it is clear that a significant proportion of domestic workers are noncitizens.10 In this sense, then, domestic work raises acute dilemmas for feminists. Paid domestic work may be essential to women’s ability to participate in the paid workforce. There has been little shift in the expectation that it is women who are primarily responsible for caring and domestic work. Hence women entering the paid workforce retain the double burden of paid and unpaid work. The structure of the paid labour force, which

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Anderson (n 2) 22. D Budlender, Decent Work for Domestic Servants (Community Agency for Social Enquiry 2010). Budlender (n 7) 60. 9 A Gomes and P Bertolin, ‘Regulatory Challenges of Domestic Work: The Case of Brazil’ (2010) McGill Labour Law and Development Research Laboratory Working Paper Series, WP # 3, 2. The ILO cites figures for 2006 of about 5 million domestic workers in Brazil, constituting 7.7 per cent of the workforce in 2006 of which 93.3 per cent are women: ILO, Decent Work for Domestic Workers (n 3) 6. 10 Anderson (n 2) 19. 7 8

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rewards workers who can work longer hours outside of the home, makes it impossible for women to provide childcare, cleaning and other domestic work without subjecting themselves to precarious and low paid work. Unless there is state or private provision for childcare, greater involvement of men, or secure flexible working, women with children will depend on domestic workers, themselves low-paid women, for their childcare. Conversely, undertaking paid domestic work might be the only route to survival for many women and their families. This is especially true if they have been deprived of an education, whether through poverty or discrimination, leaving them with the only skills that they inevitably acquire within the family. For the daughters who are left to provide the childcare in their absence, this, too, will be the only skill they acquire. Thus liberation from unpaid domestic work for some women depends on the availability of other women to perform that work, and necessarily at lower pay; while survival for other women depends on the availability of paid domestic work in other people’s homes. Both employer and employee are women performing paid work outside of their own homes; but the relationship is intense and uncomfortable. This is true both for the woman working inside someone else’s private space, and for the employer whose private space becomes another’s workplace. Thus, to characterize the home as the workplace does not begin to capture the uniqueness of the context of domestic work. What is the workplace for one is the home of the other. For a live-in worker, her home and her workplace merge, and she has the difficulty of both establishing her privacy and managing the boundaries of the household’s privacy. Privacy is not only a spatial issue: it refers to time boundaries and the blurring of professional and family relationships. The domestic worker is privy to the most intimate aspects of the employer’s life, and, indeed, is entrusted with the care of their most valued relationships—their children and their homes. Yet often, as Tomei points out, ‘households, in the absence of a system of certification of skills or previous work experience, cannot verify the abilities and integrity of the people working for them’.11 Thus the domestic worker and the employer have power over each other in both direct and unarticulated ways. The employer depends on the employee to facilitate her own participation in the paid labour force and to care for her loved ones; the domestic worker depends on the employer not just for wages and decent terms and conditions, but also, in the absence of her own family and community, for emotional and social interaction. Because of the deeply unbalanced nature of this interdependence, the unarticulated powers of both come into play. Employers have countless opportunities to humiliate and undermine women domestic workers. Equally humiliating is the tendency, under the label of including domestic workers into the family, to infantilize domestic workers in the name of protecting their best interests. But domestic workers also have opportunities to subvert and challenge, potentially leading to a spiral of

11 M Tomei, ‘Decent Work for Domestic Workers: An Achievable Goal or Wishful Thinking?’ in S Lee and D McCann (eds), Regulating for Decent Work: New Directions in Labour Market Regulation (Palgrave Macmillan and ILO 2011) 256.

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hostility and subtle aggression. Notably, language differences might function as a means of creating private spaces without actual walls. It is of course true that, as Anderson argues, in some circumstances, extra cleaning help is a matter of status rather than necessity.12 Certainly in South Africa under apartheid, white women were discouraged from taking up paid work out of the home and yet it was unusual not to have very low-paid live-in domestic workers. It is still the case that in some households in many parts of the world, employing a domestic worker gives the woman of the house more leisure rather than more time to do paid work. For Anderson, this suggests that while domestic work remains women’s work, whether paid for or not, the ‘female employer must differentiate between herself and the type of women who does the dirty work’.13 For her, ‘it is not only gendered but also racial/ ethnic identities that are reproduced through household labour. As different meanings are assigned to different jobs, so notions of what is appropriate in terms of gender and race are played out and the identities for workers and employers are confirmed.’14 This was certainly true for South Africa under apartheid, and might still be true in Europe where European employers employ migrant workers. Indeed, it is not unusual that the relationship of domestic worker to employer is overlaid by a significant degree of racism, often among the most vulnerable of employers or care users. Research done in the UK on migrant care workers showed that older care users at times made overt references to race, colour, and nationality, including verbal abuse.15 However, the dynamics are even more complex, as demonstrated by post-apartheid South Africa. In a qualitative study of domestic workers in South Africa in 2010, three of the five focus groups consisted entirely of African employers. The study noted that, overall, ‘workers tended to say that white employers were better than black employers’.16 This demonstrates that the underlying issue is ultimately that of power. It is also true that a substantial number of men do domestic work. But even within domestic work there is significant job segregation, with men much more likely to be working as gardeners, drivers, or butlers than as cleaners or carers. For example, in India, while the great majority of domestic workers are women, there are still a significant proportion of male domestic workers. However, there is a striking degree of job segregation: most female domestic workers are employed as housemaids or servants, while men are employed as gardeners, gatekeepers, butlers, or chauffeurs.17 There are many aspects of domestic workers’ situation that desperately need legal protection. Live-in domestic workers have little control over their hours of work and little protection against verbal, sexual, and physical abuse and other forms of exploitation. In Brazil, according to Gomes and Bertolin, domestic workers are the second biggest group of female victims of domestic violence after housewives.18 Sexual harassment is particularly problematic, aggravated by the fact that workers are afraid to denounce their employers. Living and working in an employer’s home has a major impact on a worker’s personal autonomy and might make it difficult to have their own families or acquire their own homes. The ILO points out that one consequence is that, 12 15 17

13 Anderson (n 2) 23–4. Anderson (n 2) 24. 16 Cangiona (n 5) 143–8. Budlender (n 7) 60. ILO, Domestic Workers Across the World (n 1) 14.

14 18

Anderson (n 2). Gomes and Bertolin (n 9) 15.

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on retirement, they may not have children to provide them with personal or financial support.19 At the same time, female employers and female workers share important common sources of oppression. It is not an accident that housewives and domestic servants are the two groups most vulnerable to domestic violence in Brazil.20 Sexual harassment by male employers of female domestic workers has major implications both for the domestic worker and the female employer. These patterns of layered gendered oppression can be seen in both Brazil and South Africa. In Brazil, the high incidence of domestic workers takes place against a backdrop of both a patriarchal society, which discouraged women from working in the paid labour market until the 1990s, and the lack of publicly funded social supports such as day care. In order to take up paid work outside the home, many women have delegated their childcare and housework responsibilities to other women, who have fewer resources. Gomes and Bertolin point out that domestic workers often leave home to work in other people’s homes, leaving them no option but to delegate their own childcare and domestic tasks to their older children, usually their daughters.21 At the same time, the employers of domestic workers are often women working in low-paid and precarious work themselves. The situation in apartheid South Africa was even more complex, with many white women prohibited by custom or law from taking up paid work, whereas many black women had little option but to leave their families to take up domestic work, living in the backyards of affluent white families and bringing up their children. The framing of legislation in relation to domestic workers must therefore address this complex layering of issues. The first principle is to recognize the value of domestic work, both in the form of caring work, and of cleaning, cooking, and general housekeeping. For too long, the assumption that such work can and should be been done unpaid by women in the home has undermined women’s ability to participate on equal terms in the workforce. Domestic work is still not regarded as productive work. Recognizing the value of domestic work benefits all women, not least by recalibrating the market value of caring, catering, and cleaning work. A second major principle is to focus, not just on the domestic worker herself, but also on the employer, and particularly on the relationship. For domestic workers to have real enforceable rights, employer compliance is crucial, and this comes from a recognition of the complexity of the relationship from all sides. Indeed, it has been shown that employers tend not to even consider themselves employers.22 One of the most perceptive comments of the ILO report on domestic workers is that proper regulatory frameworks will also help conscientious employers, who otherwise bear the burden of setting individual standards within a complex personal relationship. However, this is insufficient on its own, particularly where domestic work is a compound of discrimination based on gender and race, as in Brazil and South Africa. As Gomes and Bertolin argue in relation to Brazil, ‘effective policies cannot be blind to the problems of a domestic worker as a woman and an Afro-Brazilian. Regulation is unlikely to improve their condition unless

19 21

ILO, Decent Work for Domestic Workers (n 3) para 27. 22 Gomes and Bertolin (n 9) 5. Tomei (n 11) 255.

20

Gomes and Bertolin (n 9) 15.

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opportunities are created for access to education and subsequently to better paid jobs with decent conditions at work.’23 All of these issues are further complicated in the case of migrant domestic workers, where the ‘global care chain’ crosses multiple jurisdictional boundaries. As Fudge points out: ‘Many of the women who leave the South to work in the North are temporary migrant workers who do not enjoy either the right to become permanent residents in their host country or the right to circulate without restriction in the labour market.’24 Crucial to the creation and maintenance of these global care chains are private employment agencies, which recruit domestic workers and find employment for them across national boundaries. Although a wide range of abusive practices are committed by private employment agencies against migrant domestic workers, they have proved extremely difficult to regulate.25 Regulation of domestic work is therefore a crucial first step in addressing the problems of migrant domestic workers. However, it is far from sufficient. The consistent recommendation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and other international human rights bodies has been to focus on the root causes of migration, namely persistent high unemployment and underemployment, and to create the conditions necessary for the development of safe and protected jobs for women as a viable economic alternative to migration or unemployment.26 In addition, these countries have been urged to improve counselling and medical assistance for migrant women workers while overseas; to conclude more bilateral agreements with countries of destination and to provide legal and consular assistance to its nationals facing discriminatory treatment. Other recommendations include pre-departure orientation and skills training.

III. The ILO Convention It is in the context of widespread invisibility and devaluation of domestic work that the campaign for an ILO Convention on decent work for domestic workers was fought. In a historic moment, in 2011, the ILO adopted the Convention Concerning Decent Work for Domestic Workers with its accompanying Recommendation. The crucial contribution made by the Convention is to recognize the value of domestic work to the global economy, and of domestic workers as workers with rights, rather than as ‘part of the family’ or ‘servants’. The preamble underlines the value of domestic workers to the global economy by increasing paid job opportunities for workers with family responsibilities, and providing greater scope for caring for ageing populations, children, and persons with a disability. It also recognizes that domestic workers constitute a significant proportion of the national workforce in developing countries with scarce opportunities for formal employment, and that migrant workers facilitate substantial income 23

Gomes and Bertolin (n 9) 15. J Fudge, ‘Global Care Chains, Employment Agencies and the Conundrum of Jurisdiction: Decent work for Domestic Workers in Canada’ (2011) 23(1) Canadian Journal of Women and the Law 235, 240. 25 Fudge (n 24) 237. 26 Committee on CEDAW, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Philippines (CEDAW/C/PHI/CO/6 25 August 2006) paras 21–22. 24

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transfers within and between countries. At the same time, it emphasizes the extent to which domestic work is ‘undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights’.27 Regardless of the precise content of the Convention, therefore, it sends a powerful message as to the value of domestic work, and entitles and empowers domestic workers throughout the world. It also provides substantive protection in ways that aim to capture both the specificity of domestic workers and their equal membership of the paid labour force. Recent research by the ILO shows that as many as 29.9 per cent of all domestic workers are completely excluded from the scope of national labour legislation. Only 10 per cent have full coverage.28 Nevertheless, two countries, Brazil and South Africa, stand out as useful yardsticks to evaluate the substance of the Convention. This is partly because domestic work in both countries is both gendered and racialized, and partly because a good faith attempt has been made in each to provide a legislative framework. The Brazilian Constitution stands out for its express inclusion of domestic workers. According to the Constitution: the category of domestic servants is ensured of the rights set forth in items IV [minimum wage] VI [irreducibility of wages], VIII [year end bonus], XV [paid weekly leave], XVII [annual paid vacation with remuneration at least one-third higher than the normal wage], XVIII [paid maternity leave of 120 days]; XIX [five days’ paid paternity leave]; XXI [advance notice of dismissal]; and XXIV [retirement pension] as well as integration in the social security system.29

Brazilian labour law has also been moving in the direction of protecting domestic workers. Domestic employees now have a statutory right to thirty days’ paid vacation, protection for pregnant women, and the prohibition of deductions of pay for meals, housing, and hygienic products supplied by the employer.30 Domestic work under the age of 18 has been declared as one of the worst forms of child labour.31 This has now been extended further. It was reported in March 2013 that the Brazilian Senate had agreed a new constitutional amendment, to come into effect in April 2013, giving domestic workers the same rights as other workers, in particular in relation to the right to paid overtime after working a maximum of eight hours a day, forty-four hours a week.32 Perhaps the most comprehensive regulation is found in South Africa, where the history of abuse of domestic workers under apartheid spurred exceptional attempts to achieve justice for domestic workers in the post-apartheid democratic state. There are currently about 1.2 million domestic workers in private households in South Africa, largely made up of African women. Since 1994, there have been several important ways 27

ILO Convention No 189 (2011) Convention Concerning Decent Work for Domestic Workers, Preamble. 28 ILO, Domestic Workers across the World (n 1) 50. 29 30 31 Brazilian Constitution of 1988, Art 7. Law No 11.324/2006. Tomei (n 11) 277. 32 BBC, ‘Domestic Workers to get Equal Rights in Brazil’ (27 March 2013) accessed 10 July 2014.

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in which protection has been extended to them. Firstly, the 1995 Labour Relations Act gave domestic workers the rights to freedom of association and protection against unfair dismissal. The South African Basic Conditions of Employment Act, 1997 (BCEA), which came into effect in 1998, includes domestic workers in some of its protections, such as the notice provisions, and gives access to the Commission for Conciliation, Mediation and Arbitration. With effect from May 2002, the Unemployment Insurance Act 2001 was expanded to include domestic workers. This provides domestic workers with unemployment insurance benefits. Figures from 2005 show that the insurance fund had registered more than 632,000 employers and 500,000 domestic workers.33 Particularly important, however, is the Domestic Worker Sectoral Determination 2002, promulgated under the BCEA. The Sectoral Determination recognizes domestic workers as workers, while at the same time making provision for the very specific needs of domestic workers which arise from the nature of their work; the fact that they work in their employers’ home, and indeed sometimes live there; and the fact that they are particularly vulnerable to abuse. Thus the sectoral determination sets a minimum wage; prohibits payment in kind and unauthorized deductions; provides for a maximum working week (forty-five hours with a maximum of fifteen hours’ overtime, paid at 1.5 times the regular pay); as well as proper breaks between shifts, mealtime breaks, and three weeks’ leave per annum. It also recognizes the domestic workers’ specific needs. For example, it lays down clear minimum standards for accommodating live-in workers and provides for ‘standby’ time, when a domestic worker is at the home of the employer and may be required for work. This period, between 10pm and 6am is paid at a flat rate, with a requirement of overtime pay for any time actually worked during that period. Domestic workers are also entitled to family leave and a four-month period of maternity leave. South Africa is also ahead of other countries in extending protection both to domestic workers, defined as employees, and to independent contractors who perform domestic work in a private household and who receive, or are entitled to receive, pay.34 The definition includes gardeners, drivers, and domestic workers employed in private households, but domestic workers on commercial farms are covered by a different sectoral determination for agricultural workers. The following does not attempt a comprehensive analysis of the Convention, but picks out some complex and contested areas, and draws on the experience of the regulatory frameworks in Brazil and South Africa to evaluate the Convention.

1. Who is a domestic worker? One of the most important aspects of legal protection for domestic workers is the need for an inclusive definition of ‘domestic worker’. Article 1 defines domestic work as work performed in or for a household. A ‘domestic worker’ is defined as ‘any person engaged in domestic work within an employment relationship’ and does not include a P Benjamin, ‘Informal Work and Labour Rights in South Africa’ (2008) 29 ILJ (SA) 1579, 1594. Basic Conditions of Employment (75/1997) Sectoral Determination 7: Domestic Worker Sector, Government Gazette No 10668 (15 August 2002), s 31. 33 34

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person who performs domestic work occasionally or sporadically and not on an occupational basis. The Convention explicitly permits the exclusion of unpaid family workers, who fall outside of the requirement that domestic work should be done on an ‘occupational’ basis. In addition, Article 2(1)(b) permits members, after consultation, to exclude categories of workers in respect of which ‘special problems of a substantial nature arise.’ More generally, the need for an ‘employment relationship’ may be problematic. The vagaries of domestic law on the meaning of an ‘employment relationship’ might leave many domestic workers unprotected, a central example being workers characterized under national law as ‘self-employed’.35 Article 7 mitigates this somewhat: by requiring that domestic workers should be informed of their terms and conditions, where possible through written contracts, the Convention might facilitate some movement of workers from informal and uncertain work arrangements to a more formal situation. However, as is well known, employers are adept at producing documents which disguise relationships to avoid regulation, for example, by casting them as selfemployed arrangements. It remains unfortunate, then, that the access of the worker to Convention rights is dependent on passing through the gateway of the ‘employment relationship’. The difficulties of excluding possibly the most precarious of domestic workers is highlighted in Brazil, where, as in labour law more generally, a distinction is drawn between ‘employed’ and ‘self-employed’ domestic workers, with protection extending only to the former.36 To address this issue, fiscal incentives are provided for employers who register their domestic workers with the National Social Security Institute, as part of a broader national policy seeking to expand social security coverage to the most vulnerable categories of workers. To encourage registration, social security payments made on behalf of one domestic worker may be deducted from the employer’s income tax liability, a scheme which was due to end in 2012.37 It is too early to tell what impact these policies had, although Tomei points out that the period from 2005 to 2007 showed only a one percentage point increase in the numbers of domestic workers with a ‘carteira assinada’, entitling them to full protection.38 This is disappointing, considering that the Brazilian Ministry of Social Security had estimated that about 20 per cent of informal domestic workers should have benefited from this measure. A more straightforward and effective approach has been that of South Africa, which is ahead of other countries in extending protection both to domestic workers, defined as employees, and to independent contractors who perform domestic work in a private household and who receive, or are entitled to receive, pay.39 Even with such a broad definition, coverage of protection for domestic workers remains challenging, particularly for the many who piece together a living from working for a number of different employers. In South Africa, for example, the Sectoral Determination states that only the clauses setting minimum wages apply to domestic 35 E Albin and V Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) 41 ILJ 67, 71. 36 37 Gomes and Bertolin (n 9) 6–8. Tomei (n 11) 278. 38 39 Tomei (n 11). Sectoral Determination 7 (n 34) cl 31.

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workers who work less than twenty-four hours per month for a particular employer. Such workers are not covered by the remaining rights in the Determination, such as termination provisions, sick leave, maternity leave, and so on.40

2. Agency workers Particularly problematic for migrant workers is the question of whether agency workers are included. As we have seen, the global care chain is constructed and reproduced by agencies, which operate in both sending and receiving countries to find workers and match them with employers. Although two ILO Conventions address migrant workers,41 the ILO Committee of Experts in 1999 found that these instruments did not address the increasing role of private agents and other intermediaries.42 These have now been supplemented by the Multilateral Framework on Labour Migration, approved in 2006, which inter alia urges the licensing of agents. In addition, the Private Employment Agencies Convention 1997 (No 181) prohibits agencies from charging fees to workers for finding them a job. To come within the Domestic Workers Convention, as we have seen, a worker must be employed in an employment relationship. The Convention does not specify whom the employment relationship is with. This raises the question relevant to all agency workers: does the worker have an employment relationship with the agency, the end user, or neither? The extent to which a migrant domestic worker employed through an agency is protected in any particular national system depends on the way in which this triangular relationship is construed. This suggests that, given what Fudge calls ‘the jurisdictional conundrum’, international norms are essential.43 Thus the Convention could potentially play a key role. Article 15 of the Convention requires members to regulate private employment agencies and to ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses, and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers. It also requires members, in collaboration with other members, to provide adequate protection for and to prevent abuses of domestic workers recruited or placed in their countries by private employment agencies. Members are encouraged to enter into bilateral, regional, or multilateral agreements to prevent abuses and fraudulent practices, and are required to ensure that agency fees are not deducted from domestic workers’ pay. This is bolstered by the Recommendation, which urges members to promote good practices by private employment agencies, including migrant domestic workers, taking into account the Private Employment Agencies Convention, 1997 (No 181), and the Private Employment Agencies Recommendation, 1997 (No 188). 40

Sectoral Determination 7 (n 34) cl 1(3). ILO Convention No 97 (1949) Migration for Employment Convention (Revised) and ILO Convention No 143 (1975) Migrant Workers (Supplementary Provisions) Convention. 42 General survey on the reports of the Migration for Employment Convention (Revised) (No 97) and Recommendation (Revised) (No 86), 1949 and the Migrant Workers (Supplementary Provisions) Convention (No 143) and Recommendation (No 151). See further Fudge (n 24) 249. 43 Fudge (n 24) 242–4. 41

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However, it is less forceful in dealing with the allocation of responsibilities in the triangular relationship between worker, employer, and agency. Article 15 of the Convention merely states that regulations should ‘specify the respective obligations of the private employment agency and the household towards the domestic worker’. This arguably leaves too much discretion to Member States as to how these responsibilities should be allocated as between the agency and the client. It is particularly problematic to leave it up to the parties to determine, through their contractual arrangements, how the relationship is characterized, or to give incentives to employers to reconfigure the relationship as an agency-worker rather than direct employment relationship. The South African experience shows that agencies can be fraudulent or precarious, with the result that even if the client pays the wages, the agency may not pass them on to the worker. For domestic workers, it is particularly important that the end-user is bound by the obligations in the Convention, regardless of whether the latter is strictly the domestic worker’s legal employer. One way forward is that found in South Africa, where the Sectoral Determination specifically covers domestic workers employed or supplied by employment agencies.44 Moreover, the end-user and the agency are in principle jointly and severally liable, although it is difficult for the worker to access remedies directly against the end-user.45 This should be complemented by a rigorous system of licensing of employment agencies, such as those found in Canada, as well as requirements for registration of the actual employer or hirer.46

3. Freedom of association Article 3 of the Convention emphasizes that all the ILO fundamental principles apply to domestic workers, including the right of freedom of association and the effective recognition of the right to collective bargaining. It also protects the rights of both domestic workers and their employers to establish organizations of their own choosing. Agency and empowerment through trade unions is an essential step towards proper protection of domestic workers’ rights, in ways which cannot be achieved through standard setting alone. For example, a key aspect of the South African scene has been the development of an activist union, in the form of the Domestic Workers and Allied Trade Union. As well as campaigning in South Africa, the union was at the forefront of the campaign to achieve a domestic workers convention in the ILO. The ILO in its 2013 report demonstrates that a central cause of low wages for domestic workers is their weak bargaining position. However, it is notoriously difficult to organize domestic workers. Domestic workers in private households are isolated from other workers; their long and unpredictable hours of work make it extremely difficult to attend meetings and organize collectively; and they are highly vulnerable to dismissal or other detrimental treatment on the grounds that they have engaged in trade union activities.47

44 46

45 Sectoral Determination (n 34), s 31. Benjamin (n 33) 5–6. 47 Fudge (n 24) 262–4. ILO, Domestic Workers across the World (n 1) 70.

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It is therefore not surprising that trade union density among domestic workers is minimal. In Brazil, domestic workers’ trade unions have only 1.9 per cent membership. Those unions which do exist have difficulty in collecting dues and so are economically vulnerable. These problems are exacerbated by the fact that domestic workers’ trade unions are not registered in Brazil. Even in South Africa, trade union coverage is minimal. In 2004, only 3 per cent of domestic workers were members of a union, and the highest level found in 2005 was 4 per cent.48 This situation is exacerbated for migrant domestic workers, particularly where their residence status is tied to their employment contract, and where they have been recruited by an agency with no opportunity for face-to-face negotiation.49 The question is whether Article 3 sufficiently addresses the unique difficulties faced by trade unions organizing domestic workers. In its Comment on the draft Convention, COSATU pointed out that if the Article 3 right is interpreted as meaning that the method of collective bargaining applicable to other workers should simply be extended to domestic workers, ‘experience teaches us that it is unlikely to have much practical value’.50 The ILO itself acknowledges that traditional models of collective bargaining are ‘not very practical for a sector that is typically as dispersed, isolated, and fragmented as the domestic work sector’.51 However, there are some pointers towards a more targeted approach. The Convention calls for members to ‘respect, promote and realize’ the right to freedom of association and the ‘effective recognition’ of the right to collective bargaining. The exhortation to ‘promote and realize’ as well as the use of the word ‘effective’ give some impetus towards a proactive and targeted strategy. This is bolstered to some extent in the Recommendation, which, as well as requiring members to remove barriers to freedom of association, also suggests that they ‘give consideration to taking or supporting measures to strengthen the capacity of workers’ and employers’ organizations . . . to promote effectively the interests of their members’.52 However, more is needed if proper attention is to be paid to the specific needs of domestic workers’ unions. As the experience of Brazil shows, trade unions are economically vulnerable, since by definition their members earn very little. They will probably have difficulty finding times when workers are free to meet and places to meet in. Clearly, the state cannot directly subsidize trade unions without compromising their independence. Nevertheless, there are other supports that can be provided, such as a right to time off to attend trade union meetings or training sessions. Similarly, registration requirements that require minimum membership or other preconditions should be relaxed for domestic workers’ trade unions. In addition, domestic workers trade unions crucially need the support of other, better-established trade unions to provide facilities and support. Education and awareness-raising among employers is particularly important here. The South African experience has shown that domestic 48

Budlender (n 7) 12 and 15. ILO, Domestic Workers across the World (n 1) 70. 50 Congress of South African Trade Unions (COSATU) Comment On Proposed Convention Concerning Decent Work For Domestic Workers November 2010 (henceforth COSATU). 51 ILO, Domestic Workers across the World (n 1) 70. 52 ILO, Domestic Workers Recommendation (No 201 (2011) 2). 49

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workers frequently feel that trade union membership would provoke hostile reactions from employers.53

4. Terms and conditions at work: ‘freely bargained’ or underpinned Article 7, which requires members to ensure that domestic workers are informed of their terms and conditions in an easily understandable manner, is clearly an important step forward in regularizing their situation. However, the focus on ‘information’ rather than negotiation does not, as COSATU argued in its Comment, pay sufficient attention to the inequality of bargaining power between domestic workers and employers.54 It argued that by requiring no more than that the employer ‘inform’ the worker of the terms and conditions, the Convention does not do enough to promote genuine agreement. More appropriate are the provisions in Article 9(a), requiring states to ensure that workers ‘are free to reach agreement . . . on whether to reside in the household’, and Article 12(2), stating that payments in kind must meet various requirements, including that they ‘are agreed to by the worker’. Arguably, however, even the addition of ‘agreed’ does little to genuinely rebalance the bargaining position of a domestic worker. A better way forward is Recommendation 6(3) that members should consider establishing a model contract of employment for domestic work, in consultation with representatives of domestic workers and employers if they exist, or at least the most representative organizations of employers and workers, which should be made available free of charge. Face-to-face bargaining between individual domestic workers and their employers is particularly sensitive and difficult. Such a model contract would assist conscientious employers as much as domestic workers to navigate this situation. One such model is found in the South African Sectoral Determination, which requires employers to provide domestic workers with ‘written particulars of employment’ and further specifies the information that must be contained in these written particulars. In essence, such written particulars of employment constitute the employment contract. In addition, the Government Gazette in which the Sectoral Determination is published includes a draft contract and a tick-box form on which the worker’s tasks are specified, as well as detailed guidelines as to the content of the contract.55 The determination states that the worker must sign and be given a copy of the contract, and the employer must keep a copy of the contract for three years after employment ends. There is no provision for the contract to be registered with the Department of Labour or any other authority, but inspectors may ask to see the contract. Budlender’s research shows that there was a marked increase in the percentage of workers with written contracts after the Sectoral Determination came into effect, from only 7 per cent in February 2002 to 25 per cent in September 2004.56 As she points out, however, this still left nearly three-quarters without a written contract.

53 55

54 Budlender (n 7) 63. COSATU comment (n 50). 56 Sectoral Determination (n 34) 12, 14, and 38. Budlender (n 7) 12.

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5. Migrant domestic workers Migrant domestic workers are in principle covered by the Convention in the same way as other domestic workers. Some specific provision is also made. Article 9 requires all domestic workers to be entitled to keep their travel and identity documents in their possession. Article 8 is specifically devoted to migrant workers. Its major requirement is that migrant domestic workers who are recruited in one country for work in another should receive a written job offer or contract of employment enforceable in the country in which the work is to be performed prior to crossing national borders. The contract should address all the terms of employment required for local domestic workers. (This does not apply to workers such as those within the EU, who have freedom of movement for the purposes of employment.) Members are required to cooperate with each other to ensure the effective application of the Convention to migrant domestic workers, and should specify the conditions under which such workers are entitled to repatriation on the expiry or termination of their contract of employment. Given the very large and growing numbers of domestic workers who are migrants, this provision is key. An example of its operation is in the Philippines, where large numbers of women migrate to other countries, primarily as domestic workers. The Filipino Government has made a significant effort to address this phenomenon, for example by providing pre-departure information and support services to overseas Filipino workers if they migrate legally;57 and by means of bilateral agreements and memoranda of understanding on migrant workers’ rights with some countries and regions. It has also adopted the Migrant Workers and Overseas Filipinos Act of 1995, and promoted voluntary social security schemes for overseas Filipino workers.58 This contrasts with Nepal, also a source of large numbers of migrant domestic workers, where only very limited initiatives have been taken to provide pre-departure information and skills training, and where there is no institutional support either in Nepal or in countries of employment.59 In 2007, Nepal adopted the Foreign Employment Act, which aims to ‘make foreign employment business safe, managed and decent and protect the rights and interests of the workers who go for foreign employment and the foreign employment entrepreneurs, while promoting that business’.60 Although the Act prohibits gender discrimination in sending workers for foreign employment, it also expressly states that where an employer institution demands either male or female workers, nothing shall prevent sending workers according to that demand.61 On the other hand, it does prohibit sending under-18-yearolds to foreign employment, as well as requiring institutions which send workers for foreign employment to provide reservations for ‘women, Dalits, indigenous nationalities, oppressed classes, backward areas and classes and people of remote areas in the number as prescribed by the Government of Nepal’.62

57

CEDAW, Concluding Observations: Philippines (n 26) para 7. CESCR, Concluding Observations: Philippines (n 4) para 7. 59 Committee on CEDAW, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Nepal (CEDAW/C/NPL/CO/4-5 29 July 2011) para 33. 60 Foreign Employment Act 2064 (2007), Preamble. 61 62 Foreign Employment Act 2064 (2007), s 8. Employment Act 2064 (2007), ss 7 and 9. 58

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One important issue is to ensure that protections apply to all migrant domestic workers, regardless of whether they are documented or not. Otherwise, there is an incentive for employers to undercut terms and conditions by employing undocumented workers, who are unable to seek any form of redress. Article 2 of the Convention states clearly that it applies to all domestic workers, and Article 3 requires members to ‘take measures to ensure the effective promotion and protection of the human rights of all domestic workers’ (emphasis added). Although the Domestic Workers Convention itself is not explicit on this point, reference can be made to the Migrant Workers Convention, which expressly places a duty on states to ensure that migrant workers are not deprived of their rights due to irregularities in their stay or employment. This applies especially to employers, who ‘shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity’.63 It is important to stress, therefore, that the whole of the Domestic Worker’s Convention applies to all domestic workers. The strength of taking a human rights approach to domestic workers’ rights is that all workers, regardless of their immigration status, are entitled to all the protections. Indeed, if equal coverage is not extended to migrant workers, they are capable of undercutting any gains in terms and conditions for local or documented migrant workers. Thus South African domestic workers’ organizations are very insistent that all domestic workers be covered by the same regulations. This approach is seen in the Recommendation, where the specific issues faced by migrant workers are referred to within the context of recommendations for all domestic workers. For example, Recommendation 20, which recommends that members should facilitate payment of social security contributions, also specifically recommends that members should consider concluding agreements with other states to provide equality of treatment in respect of social security, as well as access to, preservation of, or portability of social security entitlements. Similarly, Recommendation 21 recognizes the specific difficulties faced by migrant domestic workers, for example with language requirements. Thus it suggests establishing a national hotline with interpretation services; a system of pre-placement visits to households in which migrant domestic workers are to be employed; and providing an outreach service to inform domestic workers of their rights in languages understood by them.

6. Pay and social security Article 11 requires members to ensure that domestic workers enjoy minimum wage coverage ‘where such coverage exists’. Minimum wage regulation for domestic workers exists in some countries, such as Czech Republic, Philippines, Brazil, and South Africa. Notably, in 2011, the Zambian Government for the first time issued regulations on minimum wages covering domestic workers.64 As well as setting a minimum wage for

63 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, 2220 UNTS 93, Art 25(3). 64 Statutory Instruments No 3 of 2011 The Minimum Wages and Conditions of Employment Act (Laws, Volume 15, Cap 276) The Minimum Wages and Conditions of Employment (Domestic Workers) Order 2011.

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domestic workers at K250,000 ($48) per month, the regulations restrict hours of work to forty-eight hours a week, and provide for a transport allowance and a separation package. Many others, however, such as Bangladesh and India, do not include domestic workers within minimum wage protection.65 Minimum wage protection can make a real contribution to promoting decent work. Thus Hertz found that the average real hourly wages of domestic workers in South Africa rose by almost 20 per cent between 2001, when the regulations came into effect, and 2004. However, wages remain extraordinarily low. The minimum wage from 1 December 2011 to 30 November 2012 remains a pitiful R8.34 (60p) an hour for workers working more than twenty-seven hours a week in Area A (areas where household income is considered slightly higher), while workers working less than twenty-seven hours a week earn an hourly rate of R9.85 (75p). In Area B, the equivalent figures are even worse, with workers earning a mere R7.06 (54p) for working more than twenty-seven hours a week and R8.33 (63p) for less than twenty-seven hours a week.66 Moreover, although Hertz found an improvement in the number of domestic workers paid below the minimum wage, in 2004 there was still a massive 63 per cent of domestic workers earning less than the applicable hourly minimum.67 A more recent study on a more limited sample reported that the percentage of workers paid below the minimum wage had decreased from 58 per cent in 2003 to 39 per cent in 2007.68 Nevertheless, despite the rise in wages, domestic workers remain the lowest paid category of workers in South Africa, earning just over half the hourly wage of the next lowest group, farm workers.69 Indeed Garlick and Woolard found that as many as 67 per cent of domestic workers still earned less than R1,000 a month in 2007.70 Article 11 also provides that remuneration should be established without discrimination based on sex. Although this is a specific application of the fundamental principle in Article 3 requiring the elimination of discrimination in respect of employment and occupation, it is surprising that it refers only to sex. Given the extent of intersectional discrimination, particularly against black or Afro-Brazilian women, it is surprising that only sex is mentioned in Article 11. The key issue would be to find a legal means of capturing the true intersectionality of discrimination. Applying equal pay legislation to domestic workers also runs into the difficulty of finding an appropriate comparator.71 Article 12 provides that domestic workers should be paid directly in cash, at regular intervals, and at least once a month. Other methods of payment, unless provided for by law or collective agreement, should be with the consent of the worker concerned. Arguably, this over-estimates the ability of workers to give free consent. On the other hand, bank transfer might be a safer way for workers to receive wages in situations in

65

ILO, Decent Work for Domestic Workers (n 3) para 140. Basic Conditions of Employment (75/1997) Amendment of Sectoral Determination 7: Domestic Worker Sector Government Gazette No. 9632 (28 November 2011). 67 T Hertz, ‘The Effect of Minimum Wages on the Employment and Earnings of South Africa’s Domestic Service’ (2005) Development Policy Research Unit Working Paper 05/99 1. 68 69 Budlender (n 7) 15 citing Garlick and Woolard (2008). Benjamin (n 33) 1595. 70 Budlender (n 7) 15 citing Garlick and Woolard (2008). 71 Albin and Mantouvalou (n 35) 77. 66

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which there are high levels of crime or other dangers. A better balance is struck by the provision in Article 12(2) on payments in kind. Here it is not only the consent of the worker that is needed: in addition, only a limited proportion of the remuneration may be paid in kind; provision must have been made in national laws, regulations, collective agreements, or arbitration awards, that payments in kind must be for the worker’s personal use and benefit and that the monetary value attributed to them must be fair and reasonable. A central part of formalizing the conditions of domestic workers is to include them in the national social security framework, particularly in regard to pensions and maternity. In addition, many domestic workers do not work for a single employer, but piece together small and highly precarious jobs in different households. For them, the social security net is crucial. Article 14 requires members to make equivalent provision for social security and maternity for domestic workers as they do for workers generally. This, too, can be achieved progressively, in consultation with the most representative organization of employers and workers and, where they exist, with domestic workers’ trade unions and employers’ associations. The challenges of providing comprehensive social security protection for domestic workers, particularly migrant domestic workers, should not be underestimated. As has been seen, Brazil has attempted to provide fiscal incentives for employers who register their domestic workers with the National Social Security Institute.72 The results have, so far, been disappointing, as noted in section III.1.73 In South Africa, domestic workers may claim unemployment benefits for a fixed period on dismissal if they are contributors to the Unemployment Insurance Fund (UIF). There was a significant change in contributions after the introduction of the determination, from only 3 per cent in 2002 to over 25 per cent only two years later.74 However, many employers fail to register their domestic workers, depriving them of their entitlement. Cooper points out, of about 1 million estimated domestic workers, only 600,000 have been registered.75 Garlick and Woolard, using statistics for most of the years up to 2007, found that only 32 per cent of domestic workers reported that their employers contributed to the UIF on their behalf.76 Notably, the Determination does not require contributions towards pensions, although a small minority of employers do in fact pay into pension funds on behalf of their workers.

7. Home and workspace: privacy at work As argued previously, interlocking issues of privacy are acutely sensitive for both domestic workers and their employers, particularly when domestic workers live in, which is highly likely for migrant domestic workers. In the intense relationship of domestic work, privacy is multi-faceted, referring not just to private space, but bodily integrity, hours of work, freedom of movement, and dignity. The Convention deals

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73 74 Tomei (n 11) 278. Tomei (n 11). Budlender (n 7) 12. C Cooper, ‘Women and the Right to Work’ in B Goldblatt and K McLean (eds), Women’s Social and Economic Rights (Juta 2011) 269. 76 Budlender (n 7) 15 citing Garlick and Woolard (2008). 75

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with several of these facets. Thus, in recognition of the importance of respect for bodily integrity and dignity, Article 5 requires members to ensure that domestic workers ‘enjoy effective protection against all forms of abuse, harassment and violence’. In addition, Article 6 requires members to ensure that live-in domestic workers enjoy decent living conditions that respect their privacy. Notably, however, it does not specify what constitutes ‘decent’ living conditions for these purposes. This can be contrasted with the South African Sectoral Determination, which lays down clear minimum standards for accommodating live-in workers. On the other hand, reasonably detailed prescriptions are provided by the Recommendation, which gives detailed standards, including a separate, private room that is suitably furnished, adequately ventilated, and which can be locked by the domestic worker; suitable sanitary facilities, shared or private; adequate lighting, heating, or air conditioning; and meals of good quality and sufficient quantity, which should be adapted where reasonable to meet any cultural and religious requirements of the domestic worker.77 Hours of work is another aspect of domestic workers’ lives which invoke many potential breaches, not just of conditions of work, but also of privacy, particularly for live-in workers, where work easily encroaches on free time and space. Article 10 states that domestic workers should enjoy equal treatment to other workers in relation to hours of work and other conditions of employment, the only substantive protection being the right to at least twenty-four hours’ weekly rest. Again, this is highly dependent on the standard of protection offered to other workers, and twenty-four hours’ weekly rest seems minimal. This can be compared to the South African Sectoral Determination, which prescribes a maximum of forty-five hours per week, with a maximum of fifteen hours’ overtime. The determination also prescribes daily maxima of nine hours a day (or eight if the employee works more than five days a week). A daily rest period of at least twelve hours is prescribed, with a meal interval of one hour, and weekly rest period of at least thirty-six consecutive hours. Some of these periods can be varied on agreement. Domestic workers are also entitled to twenty-one consecutive days’ paid annual leave per year, and five days of paid family responsibility leave. There are specific provisions for sick leave. Workers who do night work are entitled to an allowance and transport must be provided. Domestic workers are entitled to four months’ unpaid maternity leave, with partial payment available through the Unemployment Insurance Fund. The first six weeks of leave are compulsory unless a medical practitioner certifies otherwise. However, many women feel under pressure, financially or from their employers, to return to work sooner. It is true that lack of compliance is still widespread: in 2004 only 20 per cent of domestic workers in Budlender’s study were reported to have the contractual right to paid leave. Hours of work are particularly difficult to police: Budlender found that a small decline from 12 per cent in 2002 to 7 per cent in 2004 of those working the full sixty hours a week. Later statistics do, however, show a marked decrease in domestic workers usually working more than the maximum of forty-five normal hours, from 35 per cent in 2000 to 19 per

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cent in 2007.78 Paid leave is even more intractable: in Garlick and Woolard’s study, at least 75 per cent reported that they did not get paid leave.79 Article 9 recognizes the importance of freedom of movement to privacy, stating that live-in domestic workers should not be obliged to remain in the household during periods of rest or annual leave. A particularly vexed issue is the question of on-call or stand-by time. Should such periods be counted as hours of work when calculating maximum hours of work, and minimum pay? EU law, for example, has struggled to find a coherent way of answering this question. The Convention does not shed much light on the question. Instead, it defers to national laws or collective agreements, stating that: periods of work during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work to the extent determined by national laws, regulations or collective agreements, or any other means consistent with national practice.80

The Recommendation is only a little more forthcoming. It recommends that members should regulate the maximum weekly, monthly, or annual number of hours that a domestic worker may be required to be on standby and the ways they may be measured.81 A better model is provided by the South African Sectoral Determination, which makes specific provision for ‘standby’ time, when a domestic worker is at the home of the employer and may be required for work. This period, between 10pm and 6am, is paid at a flat rate (albeit a tiny one), with a requirement of overtime pay for any time actually worked during that period. Even more complex is the question of employers’ privacy. It is arguable that employers, having chosen to turn their private space into a workplace, should expect external regulation of their employment practices, including inspection where necessary. This is particularly true for health and safety. Article 13 of the Convention is particularly innovative in providing domestic workers with the right to a safe and healthy working environment, going beyond most existing legal frameworks. Nevertheless, it makes some important gestures towards the specificity of the private household. Thus although it requires members to take ‘effective’ measures, these must be taken with ‘due regard for the specific characteristics of domestic work’. In addition, it qualifies this by stating that the measures may be applied progressively (in consultation with representative organizations). It is arguable that this entails too great a concession to the employer’s private space. Progressive realization in international treaties generally refers to measures that require resource expenditure by a state which might have other priorities. Health and safety, by contrast, has been a fundamental and unqualified right of workers since the industrial revolution. The UK Government opposed this measure on the grounds that it was not fair to expect older people and other ordinary

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79 Budlender (n 7) 15. Budlender (n 7) 15 citing Garlick and Woolard (2008). ILO Convention No 189 (2011) Convention Concerning Decent Work for Domestic Workers, Art 10(3). 81 ILO, Domestic Workers Recommendation (n 52) 9. 80

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employers of domestic workers to comply with health and safety standards in the same way as large businesses. But if the cost does not fall on the employer, it rests with the worker. It is hard to see why domestic workers should be subjected to health hazards as part of their jobs. A similar qualification is placed on compliance measures, particularly inspection. Article 17 requires members to develop and implement measures for labour inspection and ‘in so far as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted, having due respect for privacy’. Article 9 requires members to take measures to ensure that domestic workers are free to reach agreement on whether to reside in the household. This raises the question of whether domestic workers are really free to choose as to whether to live in if no alternative housing is available. Trade unions in South Africa and elsewhere have therefore campaigned for the provision of housing, either by employers or through social housing, that is close to the workplace.

8. Enforcement Possibly the most challenging aspect of regulating for decent work for domestic workers is the difficulty in enforcement. For example, despite the package of protections of domestic workers in Brazil, statistics show that almost one-third of domestic workers receive less than the minimum wage. This is a result of poor law enforcement, insufficient labour inspection, and low levels of education among domestic workers.82 Difficulties of implementation are exacerbated by the nature of domestic work. Since they work in a private household, many domestic workers have no knowledge of their rights; and the close relationship between employer and domestic worker make it difficult to resort to formal means of dispute resolution such as courts. Moreover, inspection visits require access to private homes. Also problematic is the difficulty in accessing adjudicative machinery. Even if they are aware of their rights, and are able to confront their employers, domestic workers might have to face high legal charges. For migrants, this is particularly problematic, because of the risk to their migration status. With this in mind, the Convention repeatedly emphasizes the need for the effective promotion of domestic workers’ rights. For example, Article 3(1) requires members ‘to ensure the effective promotion and protection’ of domestic workers’ human rights. Similarly, members are required to take the measures set out in the Convention to ‘respect, promote and realize’ the fundamental principles and rights at work.83 All the provisions are premised with the requirement of ‘effective protection’. More specifically, Article 16 of the Convention requires members to ensure effective access to courts, tribunals, or other dispute resolution mechanisms under conditions that are not less

82 Figures in this paragraph taken from Gomes and Bertolin (n 9) 10, citing Brazilian Institute of Geography and Statistics (IBGE), Perfil dos trabalhadores domésticos nas seis regiões metropolitanas investigadas pela Pesquisa Mensal de Emprego (Rio de Janeiro: IBGE, 2006) on line: IBGE . 83 ILO, Convention on Decent Work for Domestic Workers (n 27), Art 3(2).

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favourable than those available to workers generally; as well as, as we have seen, providing for inspections with due regard to privacy. South Africa has established an innovative solution in the form of the Commission for Conciliation Mediation and Arbitration (CCMA). The CCMA establishes a simple, speedy, and cheap mechanism for resolving workplace disputes. Employers or employees may refer disputes to the CCMA by filling out a simple referral form. Disputes are then submitted to conciliation where a CCMA commissioner assists the employer and employee to develop their own solution to the dispute in an informal, confidential, and lawyer-free environment. If conciliation fails, the CCMA may then arbitrate the dispute and is empowered to make binding awards. The CCMA replaced the Industrial Court, signifying ‘a shift from a highly adversarial model of relations to one based on promoting greater co-operation, industrial peace and social justice’.84 While the previous dispute resolution processes resulted in only 20 per cent of disputes being settled, the CCMA has facilitated a national settlement rate of 70 per cent and greater.85 In its 2010–11 report, it claims with pride that the rate of settlement is now higher than the rate of awards.86 In addition, it is much speedier and cheaper than litigating in court. The CCMA has been particularly successful in its ability to resolve disputes on the part of domestic workers. Macun, Lopes, and Benjamin, in their study of CCMA arbitration awards for the years 2003–05, found that ‘while employees in private household (domestic workers) constitute 8.7 percent of the work force (1,087,000) workers, they constitute 12.1 percent of referrals. This amounts to some 10,000 cases being referred to the CCMA annually by domestic workers.’ They conclude that ‘this is indicative of a high level of awareness of employment rights amongst domestic workers’.87 Hertz attributes at least some of this increased awareness to education and outreach efforts on the part of the Commission, aimed at both employers and employees.88 However, domestic workers’ rights can only be fully effective if a culture of compliance amongst employers can be fostered. This requires an awareness amongst both domestic workers and employers of domestic workers’ rights, as well as particular attention to regularizing the obligations of employers through model contracts, duties to register, requirements to pay taxes, and openness to inspections. Budlender concludes that the South African Sectoral Determination has made a difference to the income of many domestic workers, but the success of implementation is ‘partly attributable to the energetic and prolonged awareness campaign that accompanied publication of the determination’.89 This came right from the top: indeed, she points out that both the Minister of Labour and the Director-General at the time the Sectoral Determination was published had mothers who were domestic workers.90 Nevertheless, the fact that The Commission for Conciliation, Mediation and Arbitration, ‘About Us’ accessed 1 April 2013. 85 Commission for Conciliation (n 84). 86 CCMA, ‘Annual Report 2010–2011’ 6–7 accessed 3 April 2013. 87 I Macun, D Lopes, and P Benjamin, ‘An Analysis of Commission for Conciliation Mediation and Arbitration Awards, Development Policy Research Unit’ (2008) University of Cape Town Working Paper 08/134, 14. 88 89 90 Hertz (n 66). Budlender (n 7) 16. Budlender (n 7) 16. 84

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many workers continue to be paid below the minima, and many others remain unregistered, suggests that there is a long way to go in terms of effective enforcement. At the same time, it is essential to reduce the vulnerability of domestic workers by giving them alternative skills and sources of employment. As we have seen, Gomes and Bertolin argue that regulation is unlikely to improve the condition of Afro-Brazilian domestic workers unless they have the opportunity to access education and subsequently better paid jobs with decent conditions at work.91 Tomei similarly suggests that integrated measures, including legal protection, skills improvements, and fiscal incentives, stand a good chance of working if framed within broader policies seeking to reduce the incidence of low-wage jobs and to narrow racial and gender inequalities.92 Brazil has in fact instituted a three-pronged pilot programme, aimed at (i) improving the schooling and skills of domestic workers; (ii) strengthening their and their organizations’ ability to exercise representational rights and influencing public policy; and (iii) revaluing domestic work through awareness-raising campaigns. These measures are, however, only in the pilot stage and have as yet reached only a tiny number of workers. In South Africa, a number of training initiatives for domestic workers are underway, but here, too, the impact remains tiny. In particular, the question arises as to whether training should be provided to enhance their skills as domestic workers, for example in cooking or childcare; or, alternatively, to provide them with pathways out of domestic work. The South African experience of training in domestic skills has not proved to necessarily enhance the earning power of women who are in a market which is inevitably low paid.

IV. Conclusion The Domestic Workers’ Convention is a landmark in its recognition and revaluing of domestic work, a key message for all women. It is, however, only the first step in fostering a culture in which domestic work is valued in its own right.

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Gomes and Bertolin (n 9) 15.

92

Tomei (n 11) 279.

22 Conflicted Priorities? Enforcing Fairness for Temporary Migrant Workers in Australia Mary Crock, Sean Howe, and Ron McCallum AO*

I. Introduction 1. Disputed territories In November 2011, a Swiss contracting corporation, Allseas Construction Contractors (Allseas), brought an action in the Perth registry of the Federal Court of Australia1 that brought into sharp relief the intersection between the two regulatory regimes governing immigration and labour employment in Australia. Allseas is a Swiss-registered parent company employing non-Australian workers in Australia’s booming mining sector. Its subsidiaries controlled three vessels involved in installing offshore pipelines for gas field projects off Australia’s North West Coast. Workers on these vessels were paid rates considerably below those enjoyed by Australian nationals engaged to do similar tasks in the maritime sector. Identifying the Minister for Immigration and Citizenship as respondent, Allseas sought declarations from the Court that its construction vessels—and the company itself—were not subject to the Migration Act 1958 and its accompanying regulations.2 Allseas argued that its vessels were not ‘resource installations’, nor had they entered Australia’s ‘migration zone’.3 Most importantly, Allseas sought declarations that the non-citizens aboard or working from those vessels while engaged in installing pipelines, were not required to hold Australian work visas, known as ‘subclass 457’ temporary visas.4 The Minister countered with assertions that ‘the pipeline to be laid by the vessels is a resources industry fixed structure’ as defined under the Migration Act, section 5(1); and that persons on board vessels performing work on those pipelines would necessarily have entered the migration zone, thus requiring Australian visas.

* Mary Crock is Professor of Public Law, Faculty of Law, University of Sydney. Sean Howe is a recent LLB Graduate and former Research Assistant, Faculty of Law, University of Sydney. In 2014, he is associate to Deputy President Sams, Fair Work Commission. Ron McCallum AO is Emeritus Professor, Faculty of Law, University of Sydney. The views expressed in this chapter are those of the authors alone. 1 Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529. 2 The dispute involves the visa regime arising from the Migration Act and the Migration Regulations interacting with the national system of employment regulation arising primarily from the Fair Work Act. See Migration Act 1958 (Cth) (Migration Act); Migration Regulations 1994 (Cth) (Migration Regulations); Fair Work Act 2009 (Cth) (Fair Work Act). 3 4 Migration Act, s 5. Allseas (n 1) [1].

Migrants at Work. Cathryn Costello and Mark Freedland. © Oxford University Press 2014. Published 2014 by Oxford University Press.

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The Allseas dispute lies at the physical fringes of Australian territory and at the figurative fringes of the regulatory regimes governing immigration and labour. It highlights the conflicting interests of the various stakeholders engaged in the business of extracting and exploiting Australia’s mineral wealth. While not a party to the Allseas litigation, the Maritime Union of Australia (MUA) has complained loudly that the strategies adopted by Allseas threaten the terms and conditions won for MUA’s Australian members.5 The union has been forthright in assertions that Allseas’ practices deliberately undercut the terms and conditions guaranteed under Australian employment instruments; that these practices are having a damaging effect on the safety and integrity of a highly risky industry; and that the relevant workers are ‘bludging on the system and . . . not paying tax’.6 Unsurprisingly, Allseas is concerned to gain a commercial advantage by avoiding the administrative burden of Australia’s regulatory regimes and by accessing a wider labour market. For the Australian Government, at stake is its ability to regulate the terms and conditions of employment of people working in an expanding offshore resources industry. On 22 May 2012, McKerracher J ruled in favour of Allseas and made the declarations sought. The declarations will allow the company to access short-term labour free of the subclass 457 visa requirements.7 In practical terms, the most restrictive of these is the stipulation that employment must not be offered to 457 visa holders on conditions inferior to those available to Australian workers engaged in the same or similar occupations.8 The ruling in the Allseas case unleashed a torrent of complaints from the labour movement. In part, the furore was exacerbated by the fact that it coincided with the announcement that Australia’s richest woman, Gina Rinehart, had secured an agreement to bring 1,700 foreign workers into Australia to build Hancock Prospecting’s Roy Hill iron ore project in Western Australia’s Pilbara region. Although these workers will be admitted on strict conditions regarding wages and entitlements, the complaint is that not enough is, or was, being done to ensure that construction work is given to Australian workers as a first priority.9 The chatter surrounding the engagement of foreign workers occurs within a continuing narrative of employers testing their obligations under Australian employment and migration legislation. At issue are two Federal Government regulatory systems, the aims of which include both meeting the labour needs of business and the protection of workers’ interests. On the one hand, migration law creates a centralized system for the selection of skilled migrants in response to the needs of business. On the other hand labour law seeks to maintain the terms and conditions of Australian-based workers through collective bargaining. It A Bainbridge, ‘Foreign Worker Visas on Trial in Allseas case’ Lateline (ABC News, 19 April 2012). Bainbridge (n 5). 7 In June 2013, the Commonwealth Parliament passed legislation introduced by the then Labor Government which had the effect of deeming persons participating in or supporting offshore resources activity as being in the migration zone for the purposes of the Migration Act. See Migration Amendment (Offshore Work and Other Measures) Bill 2013. The Coalition Government has since introduced a bill to reverse this. See Migration Amendment (Offshore Resources Activity) Repeal Bill 2014. 8 Migration Act, s 140H; Migration Regulations, reg 2.79. 9 David Crowe and Debbie Guest, ‘Unions Target Cabinet over Foreign Workers’ The Australian (4 June 2012). 5 6

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remains to be seen whether Australia has been able to strike a balance between the interests of business (big and small) and protecting the rights of workers (domestic and foreign).

2. Long road and tough going: seeking fairness for the migrant worker The conflict between Allseas, the MUA, and the Commonwealth Government regarding the terms and conditions under which business may access foreign labour on a short term basis is not, on any view, uniquely Australian. Shortages in skilled labour are a global phenomenon, prompting developed countries across the world to compete to attract the ‘best and brightest’.10 What is interesting about the Australian case is its historical antipathy to temporary labour migration and, indeed, its profound ambivalence to foreign workers in spite of the critical role these have played in nation building. As we will explain in section II, Australia is a country that was built on the twin pillars of racial exclusion and protectionism. Our early history shows an acute awareness of the potential for unregulated foreign labour to undercut the terms and conditions of local workers. The nation’s founders were guided by a strong vision for Australia as a country that would be white and free—with workers enjoying ‘appropriate’ terms and conditions of employment. In section III, we begin our case study on the genesis and evolution of the subclass 457 visa scheme11 by tracing the phenomenal changes wrought in the mid 1990s with the conclusion of the General Agreement on Trade in Services (GATS).12 Australia stands out among the comparator countries in its Group of Five13 for the strictness of controls it has placed on temporary foreign labour.14 Its temporary work visa schemes that have gone through cycles of expansion and contraction. Visa classes have multiplied over time in response to particular initiatives and then been slashed in drives to reduce red tape and bureaucratic inefficiencies. Where Australia has been remarkable, however, is in the efforts made to safeguard the interests of these foreign workers. We will argue in section IV that moves to redress injustices—in wage rates and working conditions—were slow in coming. Even so, the measures introduced in recent years have the potential to redress and prevent injustices to a substantial extent, at least in respect of persons working on valid visas. What is interesting is that the reforms appear to have been motivated as much by national self-interest as by concern for the well-being of migrant workers. Put another way, the wheels of policy have turned full cycle over time. Like those who met

10 A Shachar, ‘The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes’ (2006) 81 New York University Law Review 148; M Crock and D Ghezelbash, ‘Secret Immigration Business: Policy Transfers and the Tyranny of Deterrence Theory’ in S Singh (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013). 11 The focus of this chapter is the regime governing long-term temporary work visas and the mechanisms introduced to enforce wages and conditions of employment. We do not cover issues relating to occupational health and safety or the particular vulnerabilities of irregular migrants. 12 General Agreement on Trade in Services 1994 (15 April 1994) 1869 UNTS 183 (GATS). 13 The Group of Five comprise the five Anglophone, common law states of Australia, New Zealand, the United Kingdom, the United States, and Canada. 14 R Hansen, ‘An Assessment of Principal Regional Consultative Processes on Migration’ (International Organization for Migration 2010).

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to draft the Australian Constitution of 1901, policy makers in more recent times have come to realize that permitting the underpayment or abuse of migrant workers will inevitably have the effect of driving down the terms and conditions under which local workers are employed. Australia’s subclass 457 visa scheme has been a prominent feature of its migration programme since the mid 1990s, becoming the dominant scheme a decade later.15 Significantly, the growth of temporary employment migration coincided with a period of accelerated reforms to the regulation of employment. The challenges for regulation are magnified by the fact that the 457 visa scheme is only one facet of a much wider group of temporary foreign workers who include large numbers of working holiday makers and students. As we explore in section IV, workers in Australia under the 457 visa scheme are likely to be covered by the provisions of the Fair Work Act and have access to the same remedies as other national system employees. They nevertheless remain vulnerable to exploitation by way of underpayment, abuse, and unfair dismissal. The 457 visa scheme has been controversial since its introduction for precisely this reason. The migration legislation (as amended in 2008) and the Fair Work Act provide the Department of Immigration and Citizenship (DIAC), Fair Work Commission (FWC, formerly Fair Work Australia), and the Fair Work Ombudsman (FWO) with powers to enforce the workplace rights of temporary migrant workers in cases of abuse, underpayment, and unfair dismissal. However, the very structure of Australia’s new temporary migrant labour scheme raises questions as to the effectiveness of the protective schema. These questions become even more pertinent as Australia prepares to expand a seasonal guest worker scheme with temporary migrants sourced from the Pacific, reversing a centuryold ban on the importation of unskilled foreign labour.

II. An Early Antipathy towards Contract Immigrants 1. The island continent Migration to Australia, since British colonization, has been deliberately, systematically, and centrally controlled.16 This arises from two, almost atavistic, features of the Australian experience. First, European settlement in Australia was established by way of British colonies situated far from their Anglo-Celtic cultural roots, amongst Asian and Pacific nations with whom the early settlers felt little commonality. Second, the fact that Australia is an island continent ‘girt by sea’ has meant that it has been conceptually easy to think of the country’s borders as subject to a high degree of control by centralized government. A corollary of this understanding of borders as hard national barriers is Australians’ almost primordial belief in the sanctity of immigration 15 In 1997–8, 30,880 subclass 457 visas were granted. In 2007–8, 110,570 subclass 457 visas were granted. See Joint Standing Committee on Migration, Temporary Entry . . . Permanent Benefits: Ensuring the Effectiveness, Fairness and Integrity of the Temporary Business Visa Program (House of Representatives 2007) 14; Department of Immigration and Citizenship, Subclass 457 State-Territory Summary Report 1 July 2007–30 June 2008 (Australian Government, Report ID BR0008) 2. 16 For an account of the early history of Australia’s migration laws, see M Crock and L Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia (Federation Press 2011) ch 2.

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control.17 Any suggestion of a ‘breach’ of Australian territorial limits without permission is characterized typically as ‘loss of control’ of the borders. The emotional responses thus evinced are not simply a function of popular zeitgeist—they also find judicial expression and remain a feature of the contemporary policy debate surrounding the treatment of asylum seekers arriving in Australia by boat.18 The fundamental understanding of the ability and necessity of government to closely control its ocean borders informed historical attitudes that continue to contribute to the development of migration policy in general. Accordingly, throughout much of the twentieth century, Australia promoted policies that encouraged the immigration of people willing (and able) to be a part of a social experiment that involved creating a society built by white, permanent, and free workers. The use of temporary migrant labour was quite deliberately discouraged.

2. Labour and migration regulation at Federation The Australian colonies suffered serious damage to their economy and social fabric throughout the depression and great strikes at the end of the nineteenth century. The avoidance of further industrial conflict was a primary concern of the delegates to the Constitutional Conventions.19 Australia subsequently developed and adopted a unique system for resolving disputes over terms and conditions of work. Its central feature was a system of awards arrived at through a process of arbitration and conciliation. The Constitution granted Parliament power to make laws with respect to ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’.20 The tripartite participation of government, employers, and employee groups in workplace regulation meant that the scope for legal industrial action in Australia was curtailed. Industry remained protected behind a high tariff wall. Higgins J, in the new Commonwealth Court of Conciliation and Arbitration, proposed a standard for a ‘fair and reasonable wage’. This was described as a wage sufficient to support the worker in ‘reasonable and frugal comfort’, taking into account rents, utilities, food, clothes, and small entertainments.21 The judgment remains notable for its advocacy of the view that employers are morally obliged to take a worker’s human needs into account. It is clear, however, that the working subject that Higgins J had in mind in the Harvester judgment was the European, male breadwinner. The system of tariff walls and industrial regulation by conciliation and arbitration represented two of the three pillars that underpinned Australian economic and social policy.22 The third pillar was based on the consensus underpinning the White Australia Policy.23 It had been determined at Federation that the future building of Australia was 17

For early examples, see Robtelmes v Brenan (1906) 4 CLR 396, 415; Potter v Minahan (1908) 7 CLR 277. 18 See M Crock, ‘Immigration Mindsets: How our Thinking has Shaped Migration Law in Australia’ (2004) 27(5) International Journal of Law and Psychiatry 571. 19 R Owens, J Riley, and J Murray, The Law of Work (2nd edn, Federation Press 2011) 97. 20 Constitution of the Commonwealth of Australia, s 51(xxxv). 21 Ex p HV McKay (1907) 2 CAR 1, 2–7 (the Harvester case). 22 Owens, Riley, and Murray (n 19) 95. 23 See M Willard, History of the White Australia Policy (Melbourne University Press 1923).

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not to be on the back of indentured coloured labour, particularly in view of the recent experience of the United States.24 More specifically, the experimental national system of labour market and workplace regulation was linked to a consensus that labour should remain white and free. Migrants who were not white and British were regarded with hostility—a product of incipient racism, colonial fears of being ‘over run’, and the perception that migrants of colour would be used to undermine standards of work. ‘Asiatics’ were viewed as racially inferior, persons whose natural ‘servility’ led them to settle for lower wages and conditions.25 All Australian colonies had passed legislation restricting the immigration of Chinese workers at various times.26 Some unions attempted to restrict membership on racial grounds so as to exclude them from closed shop workforces,27 though generally the later preference was for migrant workers to be unionized so that the risk of their use as strike breakers was reduced. The Australian system of workplace regulation emphasized the security of permanent full-time work with standardized terms and conditions gained through arbitration. At the time that Higgins J was contributing to the understanding of what was to be considered ‘decent work’ in 1907, the last of the Melanesian workers known as ‘kanakas’ was being deported. These were workers who had been brought in to work, largely in the Queensland cane industry, from the mid nineteenth century through blackbirding and other forms of indentured labour.28 While their entry had been encouraged and regulated in Queensland by legislation from the mid nineteenth century,29 the first piece of legislation passed by the Commonwealth Parliament after the Bills establishing the new government was an Act banning the further importation of workers from the Pacific Islands.30 The legislation mandated the deportation of those remaining who did not hold licences, which were subject to steadily decreasing quotas. The Pacific Islander Labourers Act 1901 was followed closely by the passage of the Immigration Restriction Act 1901, which established the discretionary exclusionary device of the dictation test.31 It also barred from entry prospective immigrants under a contract to perform manual labour (absent a ministerial certificate of exemption).32 This Act could be and was employed against British and European migrants, as well as ‘coloured’ labour—prompting the scandal of headlines like ‘Aliens from Lancashire!’33 The policy favouring permanent labour migration was reinforced by the enactment of the Contract Immigrants Act 1905. This legislation allowed for the admission of 24 See L Layman, ‘To Keep Up the Australian Standard: Regulating Contract Migration 1901–1950’ (1996) 70 Labour History 25; Crock and Berg (n 16) [2.23]. 25 See A O’Donnell and R Mitchell, ‘Immigrant Labour in Australia: The Regulatory Framework’ (2001) 14 AJLL 269, 273; M Lake and H Reynolds, Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality (Melbourne University Press 2008). 26 27 See Crock and Berg (n 16) [2.22]. O’Donnell and Mitchell (n 25) 291. 28 Crock and Berg (n 16) [9.12]. ‘Blackbirding’ is the term used specifically to describe the practice of kidnapping or deceptively recruiting South Pacific islanders to work in Australia prevalent in the nineteenth century in particular. 29 Polynesian Labourers Act 1868 (Qld). 30 Pacific Island Labourers Act 1901 (Cth). Upheld by the High Court in Robtelmes v Brenan (n 17). 31 See Crock and Berg (n 16) [2.26]–[2.48]. 32 Immigration Restriction Act, s 3(g) and exemption provisions in s 3(h). 33 Layman (n 24).

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contract labour migrants on condition that importation of workers was not being done to affect present or future industrial disputes. The remuneration and conditions offered to the workers had to be the same as those offered to the local workforce. However, British subjects born in Britain were explicitly exempted from a requirement that no local worker of equivalent skill was available in Australia.34 The effect (and the intent) of such legislation was to further enshrine the long-standing preference for permanent, white migration from Britain. In the context of a country that struggled to define a notion of citizenship that was separate from its colonial ties, the three pillars of arbitration and conciliation, high tariffs, and the White Australia Policy were supportive of a specific and developing view of Australian society, citizenship, and nationality.

3. Regulatory responses to labour and skills shortages after World War II The preference for white British permanent workers first came under stress after World War II in the face of large-scale labour shortages. In addition to formal arrangements with the traditional source countries of Britain and the Republic of Ireland, Australia entered into arrangements with other European countries and with the International Refugee Organization.35 The post-war migrants were quarantined from competition with local workers, initially by way of a requirement that they remain with a Commonwealth-approved employer for the two years of their entry permit. This was described as a ‘contractual’ arrangement, but with limited rights for the migrants to enforce. After 1952, the practice was abandoned, but heavy Commonwealth control remained over the recruitment of migrants on the basis of their abilities and matching shortages. For the most part, this control was exercised at a policy level. The contentious dictation test was abolished in 1958 with the passage of the Migration Act 1958. Instead, the ability to exclude was placed at the discretion of the decision maker. Section 7(2) of that Act conferred on the Minister for Immigration an ‘absolute’ discretion in the matter of temporary entry permits. The White Australia Policy was to remain official policy for another fifteen years, until it was finally abolished by Prime Minister Gough Whitlam in 1973.36

4. Migration law and the age of regulatory revolution In the period between the late 1970s and the mid 1990s, two further structural pressures contributed to the evolution of temporary migrant labour programmes in Australia. The first related to a change in the way in which migration was regulated. From the late 1970s, mechanisms for the selection of permanent skilled migrants became more sophisticated with the introduction of a points test modelled on Crock and Berg (n 16) [9.12]–[9.13]. See also M Crock, ‘Migration Law and the Labour Market: Targeting the Nation’s Skills Needs’ in A Frazer, R McCallum, and P Ronfeldt (eds), Individual Contracts and Workplace Relations (ACIRRT Working Paper No 50, 1997). 35 O’Donnell and Mitchell (n 25) 280. 36 Crock and Berg (n 16) [5.05]. See also Edward Gough Whitlam (Prime Minister), Australian Commonwealth Parliamentary Debates (House of Representatives, Vol 84, 24 May 1973) 2649. 34

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Canadian policies.37 These were the years in which attitudes to government decision making in Australia underwent huge change. Measures introduced to ensure new openness and accountability included the creation of a new Federal Court and the enactment of the Administrative Decisions (Judicial Review) Act 1977. With the codification of the grounds for the judicial review of administrative decisions and related conduct, decision making by government generally came under closer scrutiny. It became increasingly inappropriate to rely on administrative discretion to enforce policy. This was true for all areas of government administration, but most particularly in the field of migration, which had been notorious for a low level of transparency in decision making.38 A number of government reviews and reports into the operation of the Migration Act throughout the 1980s provided the impetus for the creation of a codified regulatory system that is remarkable for the lack of discretion vested in decision makers other than ‘the Minister’.39 Designed to respond quickly to any eventuality, the regime instituted in 1989 created a huge capacity for micro management. The Migration Regulations 1994 provided the Minister for Immigration and his or her Department with almost infinite capacity to control all aspects of the migration process.40 The 1980s and 1990s saw increased cultural and trade engagement with Asia, continuing improvement in telecommunications, and increased mobility of people across nation states. In Australia this was met with fundamental changes to the ‘three pillars’ approach to economic management as successive Labor and conservative Liberal–National Coalition Governments took an ideological view that opening Australia to global markets better served the well-being of Australia than protectionism. In the 1980s, a Labor Government entered into the Accord with the Australian Council of Trade Unions to restrict wage demands on the understanding that the Government would use fiscal policy to minimize inflation. Subsequently, the Australian dollar was floated, the financial markets were liberalized, and tariff walls were dropped. This meant that two of the three pillars upon which Australian economic policy had been based (tariffbased industry protection and the White Australia Policy) were removed in favour of open trade and multiculturalism. The rationale for these policies—that the Australian workforce should be ‘white, permanent and free’—was no longer an object of consensus and had not been for some time. In 1993, the last of the three pillars was removed, or at least changed. The Keating Labor Government amended the Industrial Relations Act 1988 (Cth) to increase the role of bargaining at the level of the enterprise with a view to increasing the flexibility of the terms and conditions under which Australians worked. As industry, the nature of work, and the Australian economy adapted in the face of global competition, business

37 The changes were a product in part of the Joint Management Review which reported in 1978. See Crock and Berg (n 16) [5.15]ff. 38 F Hawkins, Critical Years in Immigration: Australia and Canada Compared (McGill-Queens University Press 1988) 94. See also, Crock and Berg (n 16) [5.07]ff. 39 Crock and Berg (n 16) ch 5.3. 40 K Cronin, ‘A Culture of Control: An Overview of Immigration Policy-Making’ in J Jupp and M Kabala (eds), The Politics of Australian Immigration (AGPS 1993); Crock and Berg (n 16) ch 5.3.

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interests agitated for a regulatory regime that facilitated simpler entry requirements for highly skilled temporary migrant workers.

III. The Rise and Rise of Temporary Skilled Migration Programmes 1. The impetus for change and the objective of reform By the time the conservative Liberal–National Coalition Government came to power in 1996, decision makers in the field of Australian migration had access to a sophisticated set of economic tools contained in a dense and complicated regulatory regime. The new paradigm of market ideology in a context of a changed employment regulation system contributed to a view that it was time for a change in approach to temporary skilled migration. While more recent years have seen a divergence between Australia’s major political parties, a longer view of policy trends in this area reveals most aspects of economic migration as a bi-partisan affair. The development of the regime governing temporary work visas is no exception. The immediate impetus for change in approach came from international initiatives designed to try to force countries to free up laws and policies relating to skills transfers or labour exchanges. The Uruguay Round of trade liberalization talks in 1995 saw the conclusion of the GATS which included a Decision on Negotiations on Movement of Natural Persons. This led in turn to the creation of the ‘Negotiating Group on the Movement of Natural Persons’, within the World Trade Organization. As part of this initiative, Australia undertook to simplify its laws and policies so as to more readily facilitate the admission of temporary workers.41 As Crock and Berg note, if Australia was to remain competitive it had to conform to the general trend towards liberalizing at least some of its policies governing temporary entry.42 It was a Labor Government that responded to the GATS by establishing the Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists (the Roach Committee) in 1994.43 The recommendations made by this Committee were adopted by the conservative Liberal–National Coalition Government in 1996, providing the first example of what has become an almost cyclical process of policy simplification and rationalization over the years. While the regulatory regime introduced in 1989 had the advantage of delivering to government wonderful control over legal migration, the ability to change the policy at will inevitably results in a process of micro management of migration programmes. By 1996, there were no less than seventeen different visa subclasses dealing with temporary migrant workers. The procedures for importing contract workers included labour 41 World Trade Organization, Australia: Schedule of Specific Commitments (GATS/SC/6/Suppl.1/Rev.1, 1995). See also, C Stahl, ‘Trade in Labour Services and Migrant Worker Protection with Special Reference to East Asia’ (1999) 37 International Migration 545; P Garnier, ‘International Trade in Services: A Growing Trend Among Highly Skilled Migrants with a Special Reference to Asia’ (1996) 5 Asian and Pacific Migration Journal 367. 42 Crock and Berg (n 16) [10.04]. 43 Commission of Inquiry into the Temporary Entry of Business People and High Skilled Specialists, Business Temporary Entry: Future Directions (Australian Government Publishing Service 1995).

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market testing, demonstrated commitment to the training of local workers, and, in some cases, negotiated agreements between government departments, trade unions, and employer groups in addition to the individual employers.44 The 1996 reforms simplified procedures to facilitate business travel to Australia. Key features included a general emphasis on entrepreneurs, investors, and highly skilled employees, and an increase in ‘flexibility’ in targeting occupations with a shortage of skilled workers. Counterbalancing this were requirements for both employers and entrants to comply with Australian labour laws and working conditions.45 The many different categories of temporary visa were reduced to two new visa subclasses: the 456 (Business Short Stay) visa, for stays of three months or less; and 457 (Business Long Stay) visas of between three months and four years.46 The uptake of the scheme has changed the focus of the Australian migration programme rapidly. In 1997–8, the total of primary and secondary visa grants under the subclass 457 visa scheme was 30,880,47 growing to 110,570 in 2007–8.48 While there has been some fluctuation in the figures since then,49 the number of applications granted over six months from 1 July 2013 to 31 December 2013 totalled 52,123, a 22.1 per cent decrease compared to the first half of 2012–13.50

2. Implementation: a hands-off approach to enforcement? In its initial iteration, the subclass 457 visa scheme allowed several streams of entry for workers by way of labour agreements;51 for employees of regional headquarters of international companies in Australia;52 for independent executives;53 and for certain service sellers.54 It is the entry stream for employer-sponsored migrants, however, that attracts the most attention and presents the greatest problems for enforcement. In the earliest version of the visa, applying for the visa involved the three steps of approval of the employer as a sponsor, the nomination of the position, and the application by the proposed visa holder. To be approved for sponsorship involved satisfying the Minister that the employment of a subclass 457 visa holder would contribute to employment opportunities for Australians, expand Australian trade, or increase the competitiveness 44

Crock and Berg (n 16) [10.05]. An employer nominating business activities must give an undertaking to abide by industrial laws. See Migration Regulations, regs 1.20G(1)(d), (2). 46 Migration Regulations, Division 1.4A. 47 Joint Standing Committee on Migration (n 15) 14. 48 Department of Immigration and Citizenship (n 15) 2. 49 Subclass 457 visa grants dropped to 67,980 in the year 2009–10, but climbed steadily over the next two years. See Department of Immigration and Citizenship, Subclass 457 State-Territory Summary Report 1 July 2008 to 30 June 2009 (Australian Government, Report ID BR0008) 3; Department of Immigration and Citizenship, Subclass 457 State-Territory Summary Report 1 July 2009 to 30 June 2010 (Australian Government) 3; Department of Immigration and Citizenship, Subclass 457 State-Territory Summary Report 1 July 2010 to 30 June 2011 (Australian Government) 3. 50 Department of Immigration and Citizenship, Subclass 457 State-Territory Migration Summary Report December 2013 (Australian Government) 10. 51 Migration Regulations, Sch 2, Item 457.221(2). 52 Migration Regulations, Sch 2, Item 457.223(3). 53 Migration Regulations, Sch 2, Item 457.221(7). 54 Migration Regulations, Sch 2, Item 457.221(8). 45

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of a specific economic sector.55 The business sponsor was also required to satisfy the Minister that they had a good record of compliance with immigration laws56 and either that they were introducing new skills or technology to Australia or that they had a satisfactory record in training staff.57 Second, the sponsor had to nominate a position that the potential applicant is to fill. This involved a question of whether the position involved the performance of ‘key activities’, meaning activities essential to the business and that requires specialist knowledge or qualifications,58 with the nomination to be accompanied by labour market testing if not.59 The third step was the approval of the application by the nominated employee, which involved satisfying the Minister that the nominated employee had the skills sufficient to perform the activities nominated60 and, if the nominated position was for non-key activities, that the position had not been created for the sole purpose of the applicant’s entry into Australia.61 The distinction between key and non-key activities was later phased out and the nomination of the position was instead required to fit the description of a position on a list of occupations published in the Government Gazette.62 This was the Employer Nominated Skilled Occupation List, gazetted for the employer nominated skilled visas in the permanent migration programme. Additionally, the regulations required adherence by the employer to a gazetted Minimum Salary Level,63 which was designed with three specific policy objectives in mind. First was the encouragement of employers to train and hire local workers through the setting of a price signal; second, the removal of the incentive for employers to inflate the description of skill levels required for a position. The third policy objective was that 457 visa applicants should not have access to the full range of social services available to Australians, ensuring that the remuneration of temporary workers enables a reasonable standard of living.64 In addition, the sponsoring employer was required to commit to a series of undertakings at the time of application as a sponsor to meet certain costs, to abide by immigration laws and workplace laws, and to cooperate with the Department.65 The failure to abide by these undertakings could result in cancellation of the sponsorship and barring from further sponsorship.66 Methods of monitoring and enforcement were not, at this point, enshrined in the relevant legislation.

3. The privileging of employer prerogative in migration and employment regulation While the conservative Liberal–National Coalition Government that implemented the 457 visa regime emphasized repeatedly that the historical preference for permanent

55

56 Migration Regulations, reg 1.20D(2)(a). Migration Regulations, reg 1.20D(2)(d). 58 Migration Regulations, reg 1.20D(2)(c). Migration Regulations, reg 1.20B. 59 Migration Regulations, reg 1.20G(4). 60 Migration Regulations, Sch 2, Items 457.223(4)(e), 457.223(5)(e). 61 Migration Regulations, Sch 2, Item 457.223(5)(f). 62 63 Migration Regulations, reg 1.20G(2). Migration Regulations, reg 1.20G(4). 64 B Deegan, Issues Paper 1: Minimum Salary Levels and Labour Agreements (Visa Subclass 457 Integrity Review DIAC 2008) 11. 65 66 Migration Regulations, reg 1.20CB. Migration Act 1958, ss 140H and 140K. 57

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migration remained and stated its opposition to guest worker schemes in Australia,67 the concessional arrangements of sponsorship and the allowance for workers in regional areas arguably undermined these intentions. The scheme was designed to admit highly skilled workers in a manner that matched the needs of business. It is arguable that the regulation of the relationship between a sponsoring employer and a sponsored employee under the subclass assumed a more equal bargaining relationship between the parties than was actually the case. This problem was exacerbated by the ability to sponsor applicants for certain semi-skilled position descriptions in the Employer Nominated Skilled Occupation List. The concessional arrangements of the scheme, discounting the minimum salary level for regional sponsorships, further reduced subclass 457 visa holders’ ability to negotiate fair terms and conditions. The entry requirements on the subclass 457 visa emphasized the labour needs of the employer in the context of creating further business opportunities in Australia. Very little emphasis was placed on enforcing the terms and conditions of employment of temporary migrant workers. Instead, the focus was on employers’ access to the scheme through something akin to a negative licensing scheme. Sponsorship was approved as long as nothing adverse was known of the employer. Prior to reforms in 2008, DIAC had no power to enforce the payment of lost wages, this power being left to the employment enforcement agencies.68 We have noted that the rationalization of temporary labour migration enjoyed bipartisan political support. It is not insignificant, however, that the original subclass 457 visa regime, while proposed by a Labor Government, was implemented by the incoming conservative Liberal–National Coalition Government. From its initial election in 1996 up until leaving office in 2007, the conservative Government engaged in a project to reform the regulation of employment in a fashion that favoured employer prerogative through the certification of individual agreements and the weakening of remedies for dismissal.

4. Subclass 457 visas and work choices: vulnerability of temporary migrant workers in the context of statutory individual agreements Since the changes to employment legislation by the Keating Labor Government in 1993, bargaining at the level of enterprise in Australia has progressively replaced arbitration as the primary means by which terms and conditions of employment are determined. The relationship between the majority of Australian employers and employees is now governed by a national regime under the Fair Work Act 2009. Under the Fair Work regime, collective bargaining at the level of enterprise is given statutory force through the certification of Enterprise Agreements.69 This is supported by a hybridized safety net of ten ‘rock-bottom’ legislated National Employment Standards (the NES) and a system of 122 Modern Awards covering specific industries

67 P Mares, ‘Objections to Pacific Seasonal Work Programs in Rural Australia’ (2007) 2(1) Public Policy 68, 69. 68 Department of Immigration and Citizenship Submission (No 869) to Joint Standing Committee on Migration Inquiry into Temporary Business Visas, 8. 69 Fair Work Act, s 3(f ).

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and occupations. Modern Awards and Enterprise Agreements are ineffective insofar as they purport to apply or impose a standard lower than that of the NES.70 Additionally, bargaining for an Enterprise Agreement where a Modern Award is operative is subject to the application of a Better-Off Overall Test.71 Importantly, Modern Awards differ from the awards of the past in that they are not creatures of arbitration. Rather, they are the product of an inquisitorial process of rationalization of the terms and conditions of the numerous state and Commonwealth awards that must provide a fair and relevant minimum safety net of terms and conditions.72 The introduction of the Fair Work Act followed a brief period in which the regulation of terms and conditions of workers was based on individual bargaining between employees and employers given statutory force through certification of agreements known as Australian Workplace Agreements (AWAs). Whilst it had been possible to enter into an AWA since 1996, in 2005, the conservative Liberal–National Coalition Government controlled both houses of Parliament and was able to fulfil a long-standing policy objective by passing wide amendments to the Workplace Relations Act 1996 that made AWAs the primary means by which terms and conditions of employment were determined. Collective bargaining still occurred, especially in highly unionized sectors of the economy. However, the thrust of the legislative amendments was to undermine collective arrangements by privileging individual agreement making. The setting of minimum standards was removed from the arbitral dispute resolution mechanisms of the Australian Industrial Relations Commission (AIRC) and was instead concentrated in legislated standards known as the Australian Fair Pay and Conditions Standard. The function of minimum wage setting was withdrawn from the AIRC and became the responsibility of the business and macro-economically focused Australian Fair Pay Commission. The Fair Work regime removed the ability to certify individual agreements in favour of collective bargaining, but retained the structural feature of baseline national legislated standards in the form of the NES, supported by a new system of Modern Awards.73 The peak period of increases of intake of subclass 457 visa holders coincided with these changes in employment regulation and especially with the WorkChoices regime. Both the WorkChoices regime and the regulatory regime governing the subclass 457 visa at the time of WorkChoices (2006–8) arguably worked to privilege employer prerogative and self-regulation, leaving little in the way of enforcement. Judicial recognition of the extent of the ‘vulnerability’ of subclass temporary migrant workers is varied and somewhat difficult to quantify, as consideration of a visa holder’s ‘vulnerability’ in their employment will occur in the context of a variety of litigated disputes and factual scenarios. There is, however, a case that demonstrates the especial vulnerability of subclass 457 visa holders under the bargaining processes of the WorkChoices regime. WorkChoices had come under sustained criticism for its perceived lack of balance in privileging the position of the employer in bargaining with individual employees, but did mandate a process designed to ensure that the bargaining between individual parties occurred in the context of informed consent. The vulnerability of a 70 72

71 Fair Work Act, ss 55 and 56. Fair Work Act, s 193. 73 Fair Work Act, s 134. Fair Work Act, s 3(f ).

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group of tradesmen engaged in the construction industry was considered by Federal Magistrate (FM) Lucey in Jones v Hanssen Pty Ltd [2008]74 in the context of proceedings for the imposition of civil penalties for the contravention of provisions designed to protect the bargaining processes under the WorkChoices regime. Hanssen Pty Ltd admitted contravening the Workplace Relations Act in four respects: lodging unapproved AWAs;75 failing to lodge an AWA within fourteen days;76 failing to take reasonable steps to ensure that employees had access to their AWAs within the mandated bargaining period of seven days; and failing to take reasonable steps to provide employees with an information statement at least seven days prior to the approval of the agreement.77 Being aware that Hanssen Pty Ltd had not fully complied with the requirements of the bargaining process, its director, Mr Hanssen, had instructed his employees not to date their agreements prior to certification, as he planned to do this himself. These contraventions related to processes designed to ensure that bargaining occurred as a result of informed decisions on the part of the employee under a regulatory regime that emphasized the self-regulation of conduct by employers. In assessing the quantum of civil penalties to be applied, Lucey FM considered, inter alia, the vulnerability of the group of 457 visa holders engaged under AWAs, emphasizing the comments of Mr Hanssen that the group of visa holders would ‘sign anything’ because they were ‘frightened of being sent back’.78 Lucey FM ordered the imposition of civil penalties at the higher end of the scale for these reasons, subject to discounts for a first contravention, cooperation with authorities, and apparent contrition.79 The quantum of the civil penalties was subsequently reduced on appeal to the Federal Court in Hanssen Pty Ltd v Jones [2009].80 Siopis J was at pains to note that vulnerability in itself was not a sufficient reason to impose a higher penalty: for increased penalties to have been imposed for this reason, it must be shown that exploitation had flowed from this vulnerability.81 There are a number of types of proceedings in which the vulnerability of the 457 visa holder in their capacity as an employee is relevant to the grant of a remedy under employment laws, not least in proceedings related to unfair dismissal, discussed in section IV. Lucey FM considered the issue of vulnerability of subclass 457 visa holders, again in the context of the application of civil penalties, in Alcantara v Buildpower Pty Ltd (No 2).82 Buildpower Pty Ltd had contravened a requirement under the Fair Work regime83 to provide employee records to the Fair Work Ombudsman in relation to a group of fifteen Filipino tradesmen engaged in the construction industry under the 457 visa scheme. The request for records was made by the Fair Work Ombudsman in connection with an investigation in relation to possible underpayment. Lucey FM did not accept a submission by the applicants that an employee was vulnerable simply because they were the holder of a subclass 457 visa, came from overseas, and were dependent 74 76 78 80 82 83

75 Jones v Hanssen Pty Ltd [2008] FMCA 291. Workplace Relations Act 1996 (Cth), s 341. 77 Workplace Relations Act 1996, s 342. Workplace Relations Act 1996, s 337. 79 Jones (n 74) [7]. Jones (n 74) [38]–[47]. 81 Hanssen Pty Ltd v Jones [2008] FCA 192. Hanssen (n 80) [59]. Alcantara & Anor v Buildpower Pty Ltd (No 2) [2010] FMCA 763. Fair Work Regulation 2009 (Cth), reg 3.43.

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on the goodwill of their employer to remain in Australia. Such an approach would be impermissible as it would have the ‘absurd’ effect that every holder of a 457 visa could be considered vulnerable in their employment.84 A comparison between the two cases suggests that Lucey FM particularly looked askance at the employer conduct in the Hanssen case due to the stress that it placed on an already skewed bargaining process.

5. Underpayment and indenturing The most egregious cases of exploitation relate to significant underpayment over a long period of time in circumstances that can amount to indenturing. These cases generate significant media attention85 and public condemnation and arguably presented the impetus for the 2008 reforms to the Migration Act. In Fryer v Yoga Tandoori House Pty Ltd [2008],86 Mr Rajendran, a chef who had been recommended to an Australian-based restaurateur in India by his father, who was also the restaurateur’s servant in India,87 was brought to Australia on a 457 visa. For the next six weeks, the chef received no payment despite working fourteen hours a day, seven days a week, and was told by his employer that he was not to be paid for a year due to the employer purchasing his plane ticket.88 Mr Rasalingam, his employer, was initially charged with the criminal offence of exercising control over a slave, though was subsequently only convicted of misleading a Commonwealth official.89 In the proceedings in the Federal Magistrates Court, Mr Rasalingam also faced penalties for failing to pay entitlements under the employment legislation of the WorkChoices regime.90

6. Labour hire and other contractual arrangements While many of the serious cases of exploitation disclose grotesque but thoughtless attitudes of entitlement on the part of employers, more sophisticated manipulation of the vulnerability of foreign workers also remains a feature of exploitation. Subclass 457 visa holders sometimes arrive to work in Australia pursuant to arrangements that involve recruitment agents based offshore. This poses a number of problems in that such agents are not subject to Australian regulation and often charge heavy fees, which are then deducted from the employee’s wages on their arrival in Australia. While this practice is unlawful, subclass 457 visa holders are often under the misapprehension that this is an acceptable practice, having been told this by the agent on whom they depend for advice.91 In Fair Work Ombudsman v Kentwood Industries (No 2),92 a group of Chinese tradesmen were recruited through a Chinese company (Beijing Sunshine) and 84

Alcantara (n 82) [21]. Australian Associated Press, ‘Restaurateur Denies Exploiting Worker’ The Sydney Morning Herald (23 October 2007) accessed 22 March 2014. 86 Fryer v Yoga Tandoori House Pty Ltd [2011] FMCA 288. 87 88 Fryer (n 86) [13]. Fryer (n 86) [6]–[8]. 89 R v Yogalingam Rasalingam (Unreported, District Court of New South Wales, 10–11 October 2007). 90 Fryer (n 86) [13]. 91 B Deegan, Visa Subclass 457 Integrity Review: Final Report (DIAC 2008) 62. 92 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 1156. 85

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employed by an Australian company (Kentwood Services Pty Ltd). The director and majority shareholder of each company was the same person (Mr Zhang) and was in China at the time that the case was heard, claiming chronic illness. Each worker entered into an agreement to pay Beijing Services an ‘unspecified fee for services’ for recruitment and visa administration fees. Additionally, the employment contracts entered into with Kentwood Services disclosed standards below the various industrial instruments applicable to the workers and many were not paid for the first few months of their employment. Kentwood attempted to argue that the dispute was really in relation to the agreement between the workers and Beijing Sunshine, though McKerracher J refused to consider this agreement, as no supporting evidence was presented. Accordingly, significant penalties were awarded against Kentwood. One of the most controversial aspects of the current scheme is the access of labourhire companies to the 457 visa regime. As McCallum has noted,93 contractual arrangements of this nature may result in confusion as to what entity is an employer and therefore what entity is responsible for meeting sponsorship obligations. This was an issue in Armstrong v Healthcare Recruiting Australia,94 where a group of Filipino nationals engaged by a labour hire company (HRA) were underpaid and subjected to unauthorized deductions from their wages.95 The sole director argued in the Federal Magistrate’s Court that the relationship was not one of employment, but rather one that consisted of HRA’s provision of a service. HRA was assisting foreign nationals to gain visas, qualifications, and employment. This was not accepted by Smith FM. He noted that written agreements between the workers and HRA, as well as invoicing arrangements between HRA and the client nursing homes, had been drawn ‘ambiguously’ and ‘deliberately’ in a way that did not reflect the true nature of the relationship between the parties.96

7. Structural vulnerability: rights, obligations, and incentives under the subclass 457 visa scheme Critics point to a number of high-profile underpayment cases as evidence that the subclass 457 visa was and is operating outside of its original objective of allowing business access to highly skilled workers. These critics contend that the scheme provides a simple means by which employers may avoid terms and conditions provided to local workers through the exploitation of vulnerable semi-skilled subclass 457 visa holders.97 For critics, the question was and remains whether the structural vulnerabilities of visas issued under the 457 subclass mean that arrangements entered into under them are inherently exploitative, or whether it is possible, particularly in view of the reforms 93 R McCallum, ‘Australian Labour Law, Migration and the Performance of Work’ in M Crock and K Lyon (eds), Nation Skilling: Migration, Labour and the Law (Desert Pea Press 2002) 121. 94 Armstrong v Healthcare Recruiting Australia Pty Ltd & Anor (No 2) [2008] FMCA 1050. 95 96 Armstrong (n 94) 5. Armstrong (n 94) 6–8. 97 J Howe, ‘The Migration Legislation Amendment (Worker Protection) Act 2008: Long Overdue Reform, But Have Migrant Workers been Sold Short?’ (2010) 23 AJLL 251; P Mares, ‘The Permanent Shift to Temporary Migration’ in S Perera, G Seal, and S Summers (eds), Enter at Own Risk? Australia’s Population Questions for the 21st Century (Black Swan Press 2010).

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enacted in 2008, to retain a system of temporary labour with sufficient safeguards to minimize instances of exploitation. The Deegan Report noted that visa holders in sponsorship arrangements with their employers were particularly vulnerable to exploitation for a number of reasons, including: 1. a lack of awareness of workplace rights under Australian laws;98 2. the existence of an established two-step pathway from temporary entry under the 457 visa subclass to permanent residence,99 meaning that subclass 457 visa holders may perceive that a complaint could jeopardize permanent residence through sponsorship with an employer and the permanent skilled migration programme;100 3. poor English skills that can hamper communication between employer and employee, putting the employee at a disadvantage;101 4. reliance upon migration and recruitment ‘agents’, both in Australia and offshore;102 5. sponsorship arrangements mean that there is a structural reliance on a sponsor who exerts considerable power over them as an employer and an associated lack of mobility of employment.103

IV. Fair Work, Fair Go? 1. The contemporary enforcement regime Amidst growing criticism of the scheme, the conservative Liberal–National Coalition Government proposed legislative reforms in 2006,104 though there was a change of government before the bill could be enacted. Following an integrity review of the subclass 457 visa regime carried out by Barbara Deegan of the Australian Industrial Relations Commission,105 the Rudd Labor Government implemented its own reforms in Parliament by way of the Migration Legislation Amendment (Worker Protection) Act 2008 (Cth) (Worker Protection Act). In this final section of our chapter, we will examine the ability for enforcement of the rights of subclass 457 visa holders in light of reforms implemented by the Labor Government. At time of writing, these reforms were subject to further review following Australia’s reversion to a conservative Liberal– National Coalition Government in late 2013. The Migration Act provides that a person who is an approved sponsor must satisfy the sponsorship obligations.106 Significant sanctions now apply for employers who fail to comply with their sponsorship obligations. Importantly, while the Migration Act 98 99 100 101 102 103 104 105 106

Deegan, Issues Paper 1 (n 64) 31. Migration Regulations, Sch 2, Items 175.211(b)(i)(B). Deegan, Visa Subclass 457 Integrity Review: Final Report (n 91) 49. Deegan, Visa Subclass 457 Integrity Review: Final Report (n 91) 52. Deegan, Visa Subclass 457 Integrity Review: Final Report (n 91) 63. Deegan, Visa Subclass 457 Integrity Review: Final Report (n 91) 66. Migration Amendment (Employer Sanctions) Bill 2006 (Cth). Deegan, Visa Subclass 457 Integrity Review: Final Report (n 91). Migration Act, s 140H(1).

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provides the machinery for the creation of sponsorship obligations, the substantive obligations remain in the Migration Regulations. The Minister continues to be vested with extensive powers. In an attempt to address the specific issues outlined in the Deegan Review, sponsorship obligations include obligations to: ensure non-discriminatory employment practices;107 cooperate with inspectors;108 ensure equivalent terms and conditions of employment (namely to pay the market salary rate—see n 121);109 pay the costs of the sponsored person to leave Australia;110 pay the prescribed costs of the Commonwealth of locating and removing a former visa holder;111 keep records112 and provide these to the Minister if requested or to the Department if and when circumstances change;113 secure at least one reasonable offer of appropriate accommodation;114 ensure that the sponsored person works in the position nominated;115 and not to attempt to recover inappropriate costs from the sponsored employee.116 The Migration Regulations were changed under Labor to increase the required level of English language proficiency—a reform reversed in March 2014 by the conservative Government.117 The subclass 457 visa scheme was also linked to its own, slightly smaller, gazetted list of occupations.118 Many of the semi-skilled workers who could be sponsored under the prior regime must now be sponsored under work agreements between a sponsoring employer and the Minister.119 Most importantly, the Labor Government reformed the manner in which acceptable salary rates were calculated. The Minimum Salary Level, in conjunction with concessional discounts for workers in regional areas, had meant that rates of pay for persons under the subclass 457 visa regime were, overall, significantly lower than those of equivalent local workers. The Migration Regulations now provide that a sponsor must ensure that the terms and conditions offered to the sponsored employee are ‘no less favourable’ than those that would be offered to an Australian permanent resident or citizen doing the same work in the person’s workplace at the same location.120 This is defined under the policy as being a ‘market salary rate’ and it is expected that the employer will have reference to workplace instruments and legal rights arising under the Fair Work Act.121 The visa holder’s base rate of pay will be determined, in the absence of formal agreement between the employer and employee, by reference to the

107

108 Migration Regulations, reg 2.59(f )(ii). Migration Regulations, reg 2.78. 110 Migration Regulations, reg 2.79. Migration Regulations, reg 2.80. 111 112 Migration Regulations, reg 2.81. Migration Regulations, reg 2.82 and reg 2.83. 113 114 Migration Regulations, reg 2.84. Migration Regulations, reg 2.85. 115 116 Migration Regulations, reg 2.86. Migration Regulations, reg 2.87. 117 The Migration Amendment (2014 Measures No 1) Regulation 2014 amended the Migration Regulations to omit the definitions of ‘English proficiency’ from the Subclass 457 visa criteria and approval of nomination criteria under reg 2.72. This enables the relevant English proficiency levels, including type of test and the scores that the applicant or holder must achieve, to be specified in a separate legislative instrument made by the Minister. 118 Minister for Immigration and Citizenship (Cth), Specification of Occupations for Nomination in Relation to Subclass 457 Business (Long Stay) and Subclass 442 (Occupational Trainee) Visas (IMMI, 10/085, 15 February 2011). 119 120 Migration Regulations, Sch 2, Item 457.223(2). Migration Regulations, reg 2.79(2). 121 PAM3: Sponsorship Applicable to Division 3A of Part 2 of the Act—Sponsorship Obligations, ss 11–20. 109

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relevant modern award.122 Workers engaged under the subclass 457 visa regime are now likely to be covered by the Fair Work Act,123 giving them recourse to the institutions of the Fair Work regime to enforce their terms and conditions of employment, along with access to the ‘general protections’ provisions of the Act and remedies for unfair dismissal. Shortly before losing office in 2013, further changes were made in what can only be described as a politically charged environment for subclass 457 visa holders. Amid claims that foreign workers were still facing abuse124 and could be taking the place of local workers, the Labor Government re-introduced Labour Market Testing (LMT) as a requirement for sponsors. The scheme was accepted by the in-coming conservative Liberal–National Coalition, which implemented the changes on 23 November 2013. At time of writing, testing was required for all subclass 457 visa occupations save those exempted from LMT by legislative instrument. In practice, LMT is not required for professional and managerial occupations classed in groups 1 and 2 of the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics.125 Within this scheme, exemptions are also made for obligations arising from international trade agreements.126 Whether LMT will survive the conservative Government’s push to simplify this area of migration law is an interesting question.127

2. The role of enforcement agencies under the new regime i. The Minister and the Department of Immigration The reforms flowing from the Worker Protection Act retain two structural features of the previous regulatory regime. First, the substantive rights and obligations of sponsoring employers and sponsored employees remain in the Migration Regulations. Secondly, significant discretionary power under the legislation remains vested in the Minister. Where the sponsorship obligations that are prescribed by the regulations are not complied with, the Minister is empowered to cancel the approval of the sponsor and/or bar that person from future sponsorship arrangements,128 issue infringement notices, or apply to a court for a civil penalty order.129 There is now also provision in the Migration Act for employees to recover amounts from employers who have 122

PAM3: Sponsorship Applicable to Division 3A of Part 2 of the Act—Sponsorship Obligations. Fair Work Act, ss 13 and 14 (definition of ‘National System Employee’). 124 See ABC Television 7.30 story at . 125 See Migration Amendment (Temporary Sponsored Visas) Act 2013 inserting ss 140GBA–140GBC in the Migration Act. See also further legislative instruments amending the Migration Act: specified period in which labour market testing must be undertaken (F2013L01953—IMMI 13/136) (s 140GBA); specification of occupations exempt from labour market testing (F2013L01952—IMMI 13/137) (s 140GBC); determination of international trade obligations relating to labour market testing (F2013L01954—IMMI 13/138) (subs 140GBA(2)). 126 See s 140GBA(2) and Determination of international trade obligations relating to labour market testing (F2013L01954—IMMI 13/138). 127 One of the new Government’s early actions in 2014 was to institute (yet another) inquiry into the subclass 457 visa scheme. See . 128 129 Migration Act, ss 140K–140N. Migration Act, ss 140Q and 140R. 123

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breached sponsorship obligations, including through a small claims process.130 The Migration Act and Migration Regulations also provide extensive power to inspectors appointed by the Minister to enter and inspect a workplace where it is suspected that there are breaches of sponsorship obligations.131 Upon entry and where the inspector suspects that a contravention has taken place, an inspector will have the power to ask for name and identification,132 and to request the production of relevant documents within seven days.133 Failure to comply with such requests can result in the imposition of civil penalties.

ii. The Fair Work Ombudsman The conservative Liberal–National Coalition Government created the Office of Employment Advocate (OEA) in 1996 as part of its vision of the increasing role of individual bargaining in the workplace. The OEA was designed partly to assist with bargaining by way of advice, especially in relation to assisting employers and employees to enter into AWAs, and partly to have an institutional role in the filing and registration of AWAs. This was supplemented by the enforcement powers of the Office of Workplace Services, an inspectorate that had existed in one form or another since the 1930s, though at the time this office was criticized as under-resourced.134 The role of the OEA became more prominent when AWAs were implemented as the central mode of bargaining and the OEA became responsible for supervising all agreements. Additionally, the Office of Workplace Services found its enforcement powers increased. In response to public disquiet in 2007, the Government enacted a last-minute addition to the OEA’s duties of policing the contents of AWAs according to a hastily inserted ‘fairness’ test where none had existed previously. The lack of capacity for the OEA to keep up with demand resulted in it becoming mired. The Fair Work regime, while delivering on a promise by the incoming Labor Government to abolish the OEA, created the Fair Work Ombudsman (FWO), an office that mirrored many of its functions, but also took up the inspectorate and enforcement roles of the Office of Workplace Services. The FWO is charged with the promotion, monitoring, investigation, and enforcement of compliance with the Fair Work Act and employment instruments.135 This includes the power to either refer a matter to relevant authorities,136 or to commence proceedings in a court or in Fair Work Australia.137 It also has statutory power to issue compliance notices and to accept written undertakings from employers where a contravention of the Fair Work Act is suspected and to apply to the Federal Court, the Federal Magistrate’s Court, or a designated State or Territory Court for orders where that undertaking has been contravened.138 Within the Australian historical context, the FWO is a unique enforcement agency. It serves an increasingly prominent role as a front line aid to employees who believe that they are being exploited at work. It 130 131 132 134 136 138

Migration Act, ss 140S–140U. Migration Act, ss 140V–140XJ; Migration Regulations reg 2.102C. 133 Migration Act, s 140XE. Migration Act, s 140XF. 135 Owens, Riley, and Murray (n 19) 137. Fair Work Act, s 682(1). 137 Fair Work Act, s 682(1)(e). Fair Work Act, s 682(1)(d). Fair Work Act, s 715.

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has been active in pursuing audits and investigations on its own motion or at the request of the public, and runs these campaigns within each of the individual states. The FWO has stated on a number of occasions that it considers visa holders to be ‘vulnerable’,139 and it pursues a variety of methodologies to enforce standards and educate employers as to their obligations. For example, in August 2009, the FWO engaged with twenty-seven hospitality businesses within a district in Darwin in which it was known that many employees were ‘backpackers, international students, young workers and employees working under the subclass 457 visa scheme’.140 Initially, Fair Work Inspectors distributed information packs along with a self-audit checklist to twenty-seven employers. Four of these businesses were subjected to an external audit. Employers are required to comply with a request from the FWO to provide records141 and there is case law to suggest that Courts are willing to infer underpayment in the absence of appropriate records, especially where there is evidence of an employer’s otherwise sophisticated business practice.142 On receipt of those records, in this case it was found that one of these four employers had failed to pay employees at the level required by the relevant modern award.143 The FWO has also engaged in specific ‘campaigns’ in response to media reports that subclass 457 visa holders were being employed in preference to local workers in North-West NSW.144 The methodology was similar to the approach above. In this case, only four of the ten employers audited were found to be compliant. Five employers were found to be non-compliant for payslip and record-keeping reasons; one was found to paying their workers in a manner inconsistent with ‘Federal rates of pay’, though the media release notes rather cryptically that the employees of this business were not financially disadvantaged.145 The FWO has also engaged in a similar ‘education and audit’ campaign of convenience store franchisees on the request of the franchisor.146 In this case, it appears that the franchisors were actively involved in the investigative process and assisted the Fair Work inspectors in analysing information.147 It is a matter for concern that all of the campaigns mentioned turned up high levels of non-compliance.

iii. The focus of enforcement and cooperation between agencies In a recent submission to the 2012 Fair Work Act Review, United Voice, a union with a large proportion of its membership working in the hospitality industry, advocated for a 139 Fair Work Ombudsman, ‘Young Hospitality & Visa Worker Campaign’ (Current Campaigns— Tasmania, November 2011) accessed 22 March 2014. 140 Fair Work Ombudsman, ‘NT—Smith Street Education and Compliance Campaign—Final Report’ (Fair Work Ombudsman August 2010) 1. 141 Fair Work Ombudsman, ‘Smith Street Education and Compliance Campaign’ (n 140) 2. 142 Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730 [10]–[11]. 143 Fair Work Ombudsman, ‘Smith Street Education and Compliance Campaign’ (n 140) 2. 144 Fair Work Ombudsman, ‘NSW—Far North West Compliance & Audit Education Campaign 2010— Final Report’ 2010. 145 Fair Work Ombudsman, ‘Far North West Compliance & Audit Education Campaign’ (n 144) 2. 146 Fair Work Ombudsman, ‘VIC—7-11 Stores Audit Campaign: Final Report’ (Fair Work Ombudsman, July 2010) 1. 147 Fair Work Ombudsman, ‘Stores Audit Campaign’ (n 146) 4.

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strengthening and focusing of the role of the FWO with respect to the protection of rights of migrant workers. Specifically, United Voice called for whistle-blower protections for migrant workers and for the regulator to be given power to delegate its enforcement powers to union officials.148 United Voice was given express support in a supplementary submission by the Australian Hotels Association, representing the hospitality industry, in their supplementary submission to the Review, though the AHA unsurprisingly qualified their support by rejecting United Voice’s call for increased union involvement in enforcement by way of increased rights of entry or institutional roles for union officials.149 These submissions are notable for their synchronicity and this bipartisan support in conjunction with the high levels of noncompliance found in the campaigns listed above would suggest that there is scope to consider further focus on migrant workers, including a formalized cooperation with DIAC. DIAC and the FWO have entered into a memorandum of understanding,150 and where serious systematic exploitation of migrant workers is alleged in a hearing, FWC members may order that the transcript of proceedings be sent to DIAC.151 The FWO and DIAC both publish and distribute an information sheet outlining the rights of employees who have entered Australia under the subclass 457 visa regime.152

3. Remedies for dismissal As ‘national employees’ under the Fair Work regime, subclass 457 visa holders are likely to be subject to the general protections and have access to remedies for unfair dismissal. Under the Fair Work Act, a person will be protected from unfair dismissal provided they have been continuously employed for at least six months (or twelve months for small businesses)153 and they meet other conditions.154 Fair Work Australia has the ability to provide a remedy of reinstatement or compensation upon application by a person who has been dismissed155 and where that dismissal was ‘harsh, unjust or unreasonable’.156 A genuine redundancy cannot be an unfair dismissal.157 Importantly, it must be established that the employee has been dismissed, though this can include where the employee resigns due to a conduct or a course of conduct engaged in by their employer.158 148

United Voice, Submission to the Department of Education, Employment and Workplace Relations Fair Work Act Review (2012) 3. 149 Australian Hotels Association, Supplementary Submission to the Department of Education Employment and Workplace Relations Fair Work Act Review (2012) [5.1]–[5.2]. 150 K Malyon, ‘Employment Related Visas, Compliance and Prosecutions’ (Unpublished Conference Paper, Immigration Lawyers Association of Australasia Conference, 10 March 2012) 23. 151 See Krishnakanth v Saai Bose Pty Ltd [2010] FWA 4678 at 70. Cf Akhtar v Rays Snack Bar and Spicy Food [2011] FWA 6213. 152 Fair Work Ombudsman and Department of Immigration and Citizenship, ‘457 Visa Holders—Your Rights at Work’ (Fact Sheet: DIAC11/01361, 2009) accessed 22 March 2014. 153 Fair Work Act, ss 382(a) and 383. 154 Namely, they are either covered by an enterprise agreement or a modern award or their income is less than the high-income threshold Fair Work Act, s 382(b). The threshold is currently set at AUD118,100. Fair Work Regulations 2009 (Cth), reg 2.13. 155 156 Fair Work Act, ss 390(1) and (2). Fair Work Act, s 385(b). 157 158 Fair Work Act, s 385(d). Fair Work Act, s 386(1)(b).

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The vulnerability of a 457 visa holder in their capacity as an employee has meant that Fair Work Australia has acknowledged that a dismissal can be ‘harsh’ for the purposes of the test of ‘harsh, unjust or unreasonable’ due to the reliance by an employee on their sponsoring employer to remain in Australia or find other sponsored employment within twenty-eight days. While the list of factors of which FWC must take notice in determining whether a dismissal is harsh, unjust, or unreasonable does not expressly include a consideration of the vulnerability of an employee’s position, FWC is given a wide discretion to consider any matter that it considers relevant.159 In Webster v Mercury Colleges,160 Senior Deputy President (SDP) Drake ordered compensation when she held that the dismissal of a sponsored English as a Second Language (ESL) teacher working at a private college was unfair due to its harsh effect on Mr Webster. Mr Webster had conducted a class on the correct usage of an expletive and had been summarily dismissed. While Drake SDP held that this had been a valid reason for termination,161 she found further that the dismissal had been harsh due to its summary operation and the employer’s knowledge that it could result in Mr Webster’s being required to leave the country within twenty-eight days. In Paternella v Electroboard Solutions,162 an American salesperson sponsored by his employers under the 457 visa scheme who had been dismissed for a final instance of many aggressive interactions with management and his colleagues, was awarded a small amount in compensation for unfair dismissal. While the decision was largely dependent on an assessment that the administrative handling of the dismissal by the employer, a mid to large commercial concern, was insufficient in that it failed to appropriately discipline and warn Mr Paternella,163 Commissioner Asbury (now Deputy President (DP) Asbury) was at pains to point out that Mr Paternella, as the holder of a 457 visa, was in ‘an extremely vulnerable position’ and that the sponsorship arrangement further constrained his ability to find further work by the conditions of his visa.164 Unfair dismissal may also provide remedies where an employer dismisses an employee on the basis that their subclass 457 visa is due to expire. There is case law that stands for the proposition that even where an employer has a statutory obligation to terminate an employee, such a termination will be considered to have been done on the initiative of the employer.165 While the Fair Work Act provides that the element of ‘dismissal’ will not be made out where the employment was for a specified period of time and termination occurs at the end of this period,166 and the finite nature of a subclass 457 visa can be considered as an element in the formation of the contract between employer and employee,167 contractual terms providing for employment to be brought to an end with notice or payment in lieu will suggest that the employment contract is not for a specified period of time.168

159

160 Fair Work Act, s 387. Webster v Mercury Colleges Pty Ltd [2011] FWA 1807. 162 Webster (n 160) [38]. Paternella v Electroboard Solutions Pty Ltd [2011] FWA 323. 163 164 Paternella (n 162) [76]. Paternella (n 162) [80]–[81]. 165 166 Fraser v Sydney Harbour Casino Pty Ltd (1997) 79 IR 472. Fair Work Act, s 386(2)(a). 167 Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust t/as Fletcher International WA [2010] FWA 2667 [29]. 168 Elgin Nogaliza (n 167) 31. 161

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However, while the Fair Work regime provides remedies for unfair dismissal, it is notable that compensation was ordered rather than reinstatement in the cases discussed. Mr Webster subsequently left Australia169 and Mr Paternella found further employment. The problem is best illustrated in Prasad v Alcatel-Lucent.170 AlcatelLucent purported to make Mr Prasad redundant. He was an Indian national whom they had sponsored on a 457 subclass visa. Mr Prasad at first accepted the terms of this redundancy, apparently in the hope of gaining alternative employment with Alcatel-Lucent. Mr Prasad also claimed to be initially unaware of his ability to challenge the purported redundancy on the basis of unfair dismissal until months after the deadline for application of fourteen days had passed, and claimed further that he then further delayed his application in the hope of coming to an amicable arrangement and being re-employed by his sponsor.171 During this time, he engaged with a career advisory service provided by his former employer and lodged over 140 applications with it and its associated entities. However, Commissioner Thatcher regarded Mr Prasad’s failure to take any legal advice in the initial period of his retrenchment to be fatal to his request for an extension to the time for application for unfair dismissal.172 This case is illustrative of two related vulnerabilities, being a lack of knowledge of the institutions relating to the regulation of employment, and the significant disincentive to engage in an acrimonious dispute with a sponsor.

V. Ongoing Controversy and Future Directions As mentioned earlier, on 25 May 2012, then Immigration Minister Bowen announced that the Australian Government had entered into its first Enterprise Migration Agreement (EMA), a form of labour agreement under the subclass 457 visa regime whereby the project owner or prime contractor of a resources sector project with a capital expenditure of over AUD2 billion may enter into an ‘umbrella arrangement’ of sponsorship.173 The project was agreed with Australia’s richest woman, Gina Rinehart, in relation to a major iron ore mining project in Western Australia. While subject to requirements relating to the training and employment of local workers, particularly indigenous workers,174 such agreements have raised concern. This is because the subject matter of EMAs remains largely a matter of ministerial discretion and their content is not made public.175 A minor political furore followed as it was suggested that a subsequent minister, Chris Bowen, approved the application for the sponsorship of more than 1,700 workers under the EMA without reference to the office of Prime Minister. Calls for the decision to be reversed were made by the union movement and

169

170 Webster (n 160) [47]. Prasad v Alcatel-Lucent [2010] FWA 7804. 172 Prasad (n 170) [35]–[37]. Prasad (n 170) [41]. 173 C Bowen, ‘First Enterprise Migration Agreement Approved’ (Media Release, 25 May 2012) accessed 22 March 2014. 174 Bowen (n 173). 175 J Cheong Tham, ‘457 Reasons for Reform’ The Sydney Morning Herald (29 May 2012) accessed 22 March 2014. 171

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also by individuals within the federal Labor caucus.176 The controversy suggests historical echoes of older attitudes to temporary labour migration, but also an evolution of those attitudes. Despite these protests, it is clear that temporary workers with appropriate skills will be needed in the remote areas of Australia where the construction of extractive industry infrastructure is assessed to be necessary for the nation’s economy and overall development. Dr Joanna Howe examined recent reforms to the Migration Act and Migration Regulations designed to ameliorate the endemic problems of underpayment, overwork, and indenturing within the 457 visa regime. She argues that Australia must have an open conversation as to whether the shift from permanent migration, which in itself acted as a structural safeguard against exploitation, is desirable at all.177 Other critics question whether the lack of full citizenship rights for workers can ever be justified.178 However, in view of the continuing reliance of primary industry sectors on new arrangements for labour agreements, and the expansion of the seasonal worker scheme, it seems likely that temporary labour migration is only set to increase in Australia.179 The Fair Work Ombudsman and the Department of Immigration and Citizenship continue to exercise their recently increased statutory powers to monitor the terms and conditions on which these workers are employed. It is trite, but nevertheless true, to say that Australia, with the exception of its indigenous peoples, remains a country of relatively recent migrants and while concerns continue to be raised about the protection of local jobs, Australians are increasingly tolerant of temporary workers. Significant cases of underpayment continue to occur180 and while the system is now arguably structurally fairer, this tolerance is likely to be dependent on the consistent ability of Australian agencies to ensure these workers’ rights can be appropriately enforced and that Australian terms and conditions are not undercut.

P Coorey, ‘Hold Your Nerve Business Urges PM’ The Sydney Morning Herald (29 May 2012) accessed 22 March 2014. 177 178 Howe (n 97) 251. Mares (n 97) 74–6. 179 In February 2014, the new Coalition Government announced a further independent review of the subclass 457 visa programme. The Assistant Minister for Immigration and Border Protection emphasized the support of employers in regional areas and ensuring that employers were not subject to ‘undue administrative burden’. See: Senator Michaelia Cash, ‘Independent Review of 457 Visa Programme’, accessed 28 March 2014. 180 See Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258. 176

Select Bibliography Adler L, Tapia M, Turner L (eds), Mobilizing against Inequality: Unions, Immigrant Workers, and the Crisis of Capitalism (Cornell University Press 2014) Alberti G, Holgate J, and Tapia M, ‘Organising Migrants as Workers or as Migrant Workers? Intersectionality, Trade Unions and Precarious Work’ (2013) 24(22) International Journal of Human Resource Management 4132 Albin E, ‘From “Domestic Servant” to “Domestic Workers”’ in Fudge J, McCrystal S, and Sankaran K (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) Albin E, ‘Union Responsibility to Migrant Workers: A Global Justice Approach’ (2014) 34(1) Oxford Journal of Legal Studies 133 Albin E and Mantouvalou V, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) 41 Industrial Law Journal 67 Ambrosini M, ‘Immigration in Italy: Between Economic Acceptance and Political Rejection’ (2013) 14 Journal of International Migration and Integration 175 Anderson B, Doing the Dirty Work? The Global Politics of Domestic Labour (Zed Books 2000) Anderson B, ‘Why Madam has so many Bathrobes: Demand for Migrant Domestic Workers and the EU’ (2001) 92 Tijdschrift voor Economische en Sociale Geografie 18 Anderson B, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment and Society 300 Anderson B, ‘Mobilising Migrants, Making Citizens: Migrant Domestic Workers as Political Agents’ (2010) 33(1) Journal of Ethnic and Racial Studies 60 Anderson B, Us and Them? The Dangerous Politics of Immigration Control (Oxford University Press 2013) Anderson B, Clark N, and Parutis V, New EU Members? Migrant Workers’ Challenges and Opportunities to UK Trade Unions: A Polish and Lithuanian Case Study (Trades Union Congress 2007) Anderson B and Rogaly B, Forced Labour and Migration to the UK Oxford (COMPAS and the Trades Union Congress 2005) Anderson B and Ruhs M (eds), Who Needs Migrant Workers? An Introduction to the Analysis of Staff Shortages, Immigration and Public Policy (Oxford University Press 2010) Anderson B and Ruhs M, ‘Reliance on Migrant Labour: Inevitability or Policy Choice?’ (2012) 20(1) Journal of Poverty and Social Justice 23 Anderson B and Shutes I (eds), Migration and Care Labour: Theory, Policy and Politics (Palgrave 2014) Anderson B, Ruhs M, Rogaly B, and Spencer S, Fair Enough? Central and East European Migrants in Low Wage Employment in the UK (COMPAS 2006) Ashtiany S, Britain’s Migrant Workers (Fabian Society 1976) Barmes E, ‘Learning from Case Law Accounts of Marginalized Working’ in Fudge J, McCrystal S, and Sankaran K (eds), Regulating Legal Work: Challenging Legal Boundaries (Hart Onati Series 2012) Barnard C, ‘ “British Jobs for British Workers”: The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market’ (2009) 38 Industrial Law Journal 245 Barnard C, ‘The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law’ (2009) 38 Industrial Law Journal 122 Barnard C, Deakin S, and Ryan L (eds), The Future of Labour Law: Liber Amicorum Bob Hepple QC (Hart 2004) Basok T, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (McGill-Queen’s University Press 2002)

448

Select Bibliography

Basok T, ‘Counter-Hegemonic Human Rights Discourse and Migrant Rights Activism in the US and Canada’ (2009) 50 International Journal of Comparative Sociology 183 Basok T, Inclan S, and Noonan J, ‘Citizenship, Human Rights and Social Justice’ (2006) 10 Citizenship Studies 267 Bauder H, Labor Movement: How Migration Regulates Labour Markets (Oxford University Press 2006) Beier L and Ocobock P (eds), Cast Out: Vagrancy and Homelessness in Global and Historical Perspective (Ohio University Press 2008) Bell M, ‘Irregular Migrants: Beyond the Limits of Solidarity?’ in Borgmann-Prebil Y and Ross M (eds), Promoting Solidarity in the European Union (Oxford University Press 2010) Benhabib S, The Rights of Others: Aliens, Residents and Citizens (Cambridge University Press 2004) Benhabib S, Coopan V, and Resnick J, (eds) Citizenship, Borders and Gender: Mobility and Immobility (Yale University Press 2009) Bhabba J, ‘Border Rights and Rites: Generalisations, Stereotypes, and Gendered Migration’ in Walsum S and Spijkerboer T (eds), Women and Immigration Law: New Variations on Classical Feminist Themes (Routledge Cavendish 2007) Bogg A, ‘Sham Self-Employment in the Supreme Court’ (2012) 42 Industrial Law Journal 328 Bogg A and Novitz T, ‘Race Discrimination and the Doctrine of Illegality’ (2013) 129 LQR 12 Bogg A and Novitz T, Voices at Work: Continuity and Change in the Common Law World (Oxford University Press 2014) Bogusz B, Cholewinski R, Cygan A, and Szyszczak E (eds), Irregular Migration and Human Rights: Theoretical, European and International Perspectives (Martinus Nijhoff 2004) Bommes M and Geddes A (eds), Immigration and Welfare: Challenging the Borders of the Welfare State (Routledge 2000) Bosniak L, ‘Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention’ (1991) 25 International Migration Review 737 Bosniak L, ‘Citizenship and Work’ (2002) 27 North Carolina Journal of Law and Commercial Regulation 497 Bosniak L, ‘Critical Reflections on “Citizenship” as a Progressive Aspiration’ in Conaghan J, Fischl M, and Klare K (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford University Press 2004) Bosniak L, ‘Citizenship, Noncitizenship, and the Transnationalization of Domestic Work’ in Benhabib S, Coopan V, and Resnick J (eds), Citizenship, Borders and Gender: Mobility and Immobility (Yale University Press 2009) Bosniak L, ‘Arguing For Amnesty’ (2013) 9(3) Journal of Law, Culture and the Humanities 432 Bucken-Knapp G, Defending the Swedish Model. Social Democrats, Trade Unions, and Labor Migration Policy Reform (Lexington Books 2009) Carens J, ‘The Rights of Irregular Migrants’ (2008) 22 Ethics and International Affairs 163 Carens J, Immigrants and the Right to Stay (MIT Press 2010) Carens J, The Ethics of Immigration (Oxford University Press 2013) Carrera S and Guild E, ‘An EU Framework on Sanctions against Employers of Irregular Immigrants: Some Reflections on the Scope, Features and Added Value’ (2007) 140 CEPS Policy Brief 1 Caruso B, ‘Immigration Policies in Southern Europe: More State, Less Market?’ in Conaghan J, Fischl M, and Klare K (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford University Press 2004) Castells M, ‘Immigrant Workers and Class Struggles in Advanced Capitalism: The Western European Experience’ (1975) 5(10) Politics and Society 33 Castles S, ‘Guestworkers in Europe: A Resurrection?’ (2006) International Migration Review 741 Castles S and Kosack G, Immigrant Workers and Class Structure in Western Europe (Oxford University Press 1973)

Select Bibliography

449

Cavanagh M, Guest Workers: Settlement, Temporary Economic Migration and a Critique of the Government’s Plans (Institute for Public Policy Research 2011) Cerna L, ‘The Varieties of High-skilled Immigration Policies: Coalitions and Policy Outputs in Advanced Industrial Countries’ (2009) 16(1) Journal of European Public Policy 144 Chetail V and Bauloz C (eds), Research Handbook on International Law and Migration (Edward Elgar 2014) Chiaromonte W, Lavoro e diritti sociali degli stranieri. Il governo delle migrazioni economiche in Italia e in Europa (G Giappichelli Editore 2013) Chloewinski R, ‘International Labour Law and the Protection of Migrant Workers: Revitalizing the Agenda in the Era of Globalization’ in Craig J and Lynk S (eds), Globalization and the Future of Labour Law (Cambridge University Press 2006) Chloewinski R, ‘The Human Rights and Labor Rights of Migrants: Visions of Equality’ (2008) 22 Georgetown Immigration Law Journal 177 Cleveland S, ‘Legal Status and Rights of Undocumented Workers’ (2005) 99 American Journal of International Law 460 Collins H, ‘Theories of Rights as Justifications for Labour Law’ in Davidov G and Langille B (eds), The Idea of Labour Law (Oxford University Press 2011) Conaghan J, Fischl M, and Klare K (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford University Press 2004) Crock M, ‘Migration Law and the Labour Market: Targeting the Nation’s Skills Needs’ in Frazer A, McCallum R, and Ronfeldt P (eds), Individual Contracts and Workplace Relations (ACIRRT Working Paper No 50, 1997) Crock M and Berg L, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia (The Federation Press 2011) Crock M and Ghezelbash D, ‘Secret Immigration Business: Policy Transfers and the Tyranny of Deterrence Theory’ in Singh S (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013) Crock M and Lyon K (eds), Nation Skilling: Immigration, Labour and the Law in Australia, Canada, New Zealand and the United States (Desert Pea Press and Australia Pacific Migration Research Network 2002) Currie S, Migration, Work and Citizenship in the Enlarged European Union (Ashgate Publishing 2008) Dauvergne C, Making People Illegal: What Globalization Means for Migration and Law (Cambridge University Press 2008) Dauvergne C and Marsden S, ‘The Ideology of Temporary Labour Migration in the Post-Global Era’ (2014) 18 Citizenship Studies 224 Davidov G and Langille B (eds), Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work (Hart 2006) Davidov G and Langille B (eds), The Idea of Labour Law (Oxford University Press 2011) Dewhurst E, ‘Agencies of Slavery: The Exploitation of Migrant Workers by Recruitment Agencies’ (2006–2007) 3 Texas Wesleyan Law Review 377 Dewhurst E, ‘The Right of Irregular Immigrants to Outstanding Remuneration under the EU Sanctions Directive: Rethinking Domestic Labour Policy in a Globalised World’ (2011) 13 European Journal of Migration and Law 389 Dewhurst E, ‘Models of Protection of the Right of Irregular Immigrants to Back Pay: The Impact of the Interconnection between Immigration Law and Labor Law’ (2014) 35(2) Comparative Labor Law and Policy Journal 217 Dummett A and Nicol A, Subjects, Citizens, Aliens and Others (Weidenfeld and Nicolson 1990) Edwards A, ‘Part Four: Gainful Employment’ in Zimmermann A (ed), The 1951 Convention relating to the status of refugees and its 1967 Protocol: a Commentary (Oxford University Press 2011)

450

Select Bibliography

Engblom S, ‘Labour Migration, Trade in Services, Equal Treatment, and the Role of the EU’ in Karlsson J and Pelling L (eds), Moving Beyond Demographics: Perspectives for a Common European Migration Policy (Global Utmaning 2012) Equality Commission for Northern Ireland, The Role of the Recruitment Sector in the Employment of Migrant Workers: A Formal Investigation (Equality Commission for Northern Ireland 2010) Farahat A, ‘ “We Want You! But . . .” Recruiting Migrant and Encouraging Transnational Migration Through Progressive Inclusion’ (2009) 15 European Law Journal 700 Fudge J, ‘Global Care Chains, Employment Agencies and the Conundrum of Jurisdiction: Decent Work for Domestic Workers in Canada’ (2011) 23 Canadian Journal of Women and the Law 235 Fudge J, ‘Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (Working Paper No 11–15, Metropolis British Columbia 2011) Fudge J, ‘Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (2012) 34 (1) Comparative Labour Law & Policy Journal 95 Fudge J and MacPhail F, ‘The Temporary Foreign Worker Program in Canada: Low-skilled Workers as an Extreme Form of Flexible Labour’ (2009) 31 Comparative Labor Law and Policy Journal 5 Fudge J, McCrystal S, and Sankaran K (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) Fudge J and Mundlak G, ‘Justice in a Globalizing World: Resolving Conflicts Involving Workers Rights Beyond the Nation State’ (2013) EUI Working Papers LAW No 2013/06 Fudge J and Strauss K, Temporary Work, Agencies, and Unfree Labor: Insecurity in the New World of Work (Routledge 2013) Garcia R, ‘Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labour Laws’ (2002–2003) 36 UMJLR 737 Goldring L, Berinstein C, and Bernhard J, ‘Institutionalizing Precarious Migratory Status in Canada’ (2009) 13 Citizenship Studies 239 Goldring L, Berinstein C, Bernhard J, and Landolt P, ‘Caught in the Work-Citizenship Matrix: the Lasting Effects of Precarious Legal Status on Work for Toronto Immigrants’ (2011) 8 Globalizations 325 Gordon J, ‘We Make the Road by Walking: Immigrant Workers, the Workplace Project and the Struggle for Social Change’ (1995) 30 Harvard Civil Rights—Civil Liberties Law Review 407 Gordon J, Suburban Sweatshops: The Fight for Immigrant Rights (Belknap/Harvard University Press 2005) Gordon J, ‘What the United States can Learn from the New EU Migration to Britain’ Issue Brief (The Chief Justice Earl Warren Institute on Law and Social Policy, University of California, Berkley Law School May 2011) Gordon J, ‘Tensions in Rhetoric and Reality at the Intersection of Work and Immigration’ (2012) 2 UC Irvine Law Review 125 Gordon J, ‘Misconceptions about Labor and Migration’ in Anja Weisbrock and Diego Acosta (eds), Global Migration: Myths and Realities (Praeger International 2014) Gordon J, and Lenhardt R, ‘Rethinking Work and Citizenship’ (2008) 55 UCLA Law Review 1161 Greer I, Ciupijus Z, and Lillie N, ‘The European Migrant Workers Union and the Barriers to Transnational Industrial Citizenship’ (2013) 19 European Journal of Industrial Relations 5 Griffith K, ‘U.S. Migrant Worker Law: The Interstices of Immigration Law and Labor and Employment Law’ (2009) 31 Comparative Labor Law and Policy Journal 125 Griffith K, ‘Undocumented Workers: Crossing the Borders of Immigration and Workplace Law’ (2012) 21 Cornell Journal of Law & Public Policy 611 Groenendijk K, ‘The Long Term Residents’ Directive, Denizenship and Integration’ in Baldaccini A, Guild E, and Toner H, Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart Publishing 2007) 429–50 Guild E, Immigration Law in the European Union (Kluwer Law 1999) Guild E and Mantu S (eds), Constructing and Imagining Labour Migration (Ashgate Publishing 2011)

Select Bibliography

451

Guild E and Minderhoud P (eds), First Decade of EU Migration and Asylum Law (Koninklijke Brill 2012) Guiraudon V, ‘The Marshallian Tryptich Reordered: The Role of Courts and Bureaucracies in Furthering Migrants’ Social Rights’ in Bommes M and Geddes A (eds), Immigration and Welfare: Challenging the Borders of the Welfare State (Routledge 2000) Gümüs Y, ‘EU Blue Card Scheme: The Right Step in the Right Direction?’ (2010) 12 European Journal of Migration and Law 435 Guthrie R and Taseff R, ‘Dismissal and Discrimination: Illegal Workers in England and Australia’ (2008) 24 International Journal of Comparative Labour Law and Industrial Relations 31 Gyo C, ‘Migrant Workers in Germany’ (2009) 31 Comparative Labor Law and Policy Journal 47 Hardy J, Eldring L, and Schulten T, ‘Trade Union Responses to Migrant Workers from the “New Europe”: A Three Sector Comparison in Norway, Germany and the UK’ (2012) 18(4) European Journal of Industrial Relations 347 Inghammar A, ‘The Employment Contract Revisited. Undocumented Migrant Workers and the Intersection between International Standard, Immigration Policy and Employment Law’ (2010) 12 European Journal of Migration and Law 193 Joppke C, ‘Trends in European Immigration Policies’ in Burgess J and Gutwirth S (eds), A Threat Against Europe? Security, Migration, and Integration (Brussels University Press 2011) Leary V, ‘Labor Migration’ in Alexander Alienikoff T and Chetail V (eds), Migration and International Legal Norms (TMC Asser 2003) Leary V, ‘The Paradox of Workers’ Rights as Human Rights’ in Compa L and Diamond S (eds), Human Rights, Labour Rights and International Trade (University of Pennsylvania Press 2003) Lenard P and Straehle C (eds), Legislated Inequality: Temporary Labour Migration in Canada (McGill-Queens University Press 2012) Lucio M and Perrett R, ‘The Diversity and Politics of Trade Unions’ Responses to Minority Ethnic and Migrant Workers: The Context of the UK’ (2009) 30 Economic and Industrial Democracy 324 Lutz H, Migration and Domestic Work: A European Perspective on a Global Theme (Ashgate 2008) MacKenzie R and Forde C, ‘The Rhetoric of the “Good Worker” versus the Realities of Employers’ Use and the Experiences of Migrant Workers’ (2009) 23(1) Work, Employment and Society 142 Mantouvalou V, ‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 Industrial Law Journal 395 Mantouvalou V, ‘Modern Slavery: The UK Response’ (2010) 39 Industrial Law Journal 425 Mantouvalou V, ‘The Many Faces of Slavery: The Example of Decent Work’ (2012) 14(2) Global Dialogue 73 Mantouvalou V, ‘What Is to Be Done for Migrant Domestic Workers?’ in Bernard Ryan (ed), Labour Migration in Hard Times (Institute of Employment Rights 2013) Mantouvalou V, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor’ (2013) 34 Comparative Labor Law and Policy Journal 133 Mantouvalou V and Ryan B, ‘The Social and Labour Rights of Migrants in International Law’ in Rubio-Marin R (ed), Human Rights and Immigration (Oxford University Press 2013) Martin P and Miller M, ‘Employer Sanctions: French, German and US Experiences’ (ILO International Migration Paper 36, 2000) Mathew P, Reworking the Relationship Between Asylum and Employment (Routledge 2012) McCallum R, ‘Australian Labour Law, Migration and the Performance of Work’ in Crock M and Lyon K (eds), Nation Skilling: Immigration, Labour and the Law in Australia, Canada, New Zealand and the United States (Desert Pea Press and Australia Pacific Migration Research Network 2002) McCann D, ‘New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms’ (2013) 34 Comparative Labor Law and Policy Journal 167 McDowell L and Christopherson S, ‘Transforming Work: New Forms of Employment and their Regulation’ (2009) 2 Cambridge Journal of Regions Economy and Society 335

452

Select Bibliography

McKay S (ed), Refugees, Recent Migrants and Employment: Challenging Barriers and Exploring Path Ways (Routledge 2008) McKay S, Craw M, and Chopra D, Migrant Workers in England and Wales: An Assessment of Migrant Worker Health and Safety Risks (Health and Safety Executive Research Report Series RR502 2006) McKay S, Markova E, and Paraskevopoulou A, Undocumented Workers’ Transitions: Legal Status, Migration and Work in Europe (Routledge 2011) Menz G, The Political Economy of Managed Migration (Oxford University Press 2008) Milkman R, ‘Immigrant Workers, Precarious Work, and the US Labor Movement’ (2011) 8 Globalizations 361 Morris L, Managing Migration: Civil Stratification and Migrants’ Rights (Routledge 2002) Mullally S and Murphy C, ‘Migrant Domestic Workers in the UK: Enacting Exclusions, Exemptions and Rights’ (2014) 36 Human Rights Quarterly Mundlak G, ‘Workers or Foreigners? The “Foundational Contract” and Democratic Deficit’ (2003) 27 Iyumei Mishpat 423 (Hebrew) Mundlak G, ‘Litigating Citizenship Beyond the Law of Return’ in Willen S (ed), Transnational Migration to Israel in a Global Context (Lexington 2007) Murray S, ‘Hoffman, Its Progeny and the Status of Undocumented Workers’ (2011) 11 Wyoming Law Review 615 Neal A, ‘Migrant Workers and the United Kingdom Labor Market: Some Trends and Implications of Twenty-First Century International Labor Migration Flows’ (2009) 31 Comparative Labor Law and Policy Journal 91 Nielsen R, ‘The Charter of Fundamental Rights and Migrant Workers’ Welfare Rights’ in Neergaard U, Nielsen R, and Roseberry L (eds), Integrating Welfare Functions into EU Law. From Rome to Lisbon (DJF Publishing 2009) O’Donnell A and Mitchell R, ‘Immigrant Labour in Australia: The Regulatory Framework’ (2001) 14 AJLL 269 Olney S, ‘The ILO, Gender Equality, and Trade Unions’ in Moghadam V, Franzway S, and Fonow M (eds), Making Globalization Work for Women (State University of New York Press 2011) Ontiveros M, ‘To Help Those Most in Need: Undocumented Workers’ Rights and Remedies Under Title VII’ (1993–94) 20 New York University Law Review and Social Change 607 Ontiveros M, ‘Immigrant Workers’ Rights in a Post-Hoffman World: Organizing Around the Thirteenth Amendment’ (2005) 18 Georgetown Immigration Law Journal 651 Ontiveros M, ‘Female Immigrant Workers and the Law: Limits and Opportunities’ in D Cobble (ed), The Sex of Class (ILR Press 2007) Ontiveros M, ‘Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs’ (2007) 38 University of Toledo Law Review 923 Ontiveros M, ‘Immigrant Workers and the Thirteenth Amendment’ in Tsesis A (ed), The Promises of Liberty (Columbia University Press 2010) Ontiveros M, ‘Building a Movement with Immigrant Workers: The 1972–74 Strike and Boycott at Farah Manufacturing’ (2011) 15 Employee Rights and Employment Policy Journal 479 Ontiveros M, ‘A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers’ (2012) 27 Wisconsin Law Journal, Gender and Society 133 Parreñas R, ‘The Construction of Migrant Domestic Workers as “One of the Family” ’ in Anderson B and Shutes I (eds), Migration and Care Labour: Theory, Policy and Politics (Palgrave Macmillan 2014) Pecoud A, ‘The United Nation Convention on Migrant Workers’ Rights and International Migration Management’ (2009) 23 Global Society 333 Piore M, Birds of Passage: Migrant Labor and Industrial Societies (Cambridge University Press 1979) Rogaly B, ‘Intensification of Workplace Regimes in British Horticulture: The Role of Migrant Workers’ (2008) 14 Population, Space and Place 497 Roth P, ‘Migrant in New Zealand’ (2009) 31 Comparative Labor Law and Policy Journal 67

Select Bibliography

453

Rubio-Marin R (ed), Human Rights and Immigration (Oxford University Press 2013) Ruhs M, ‘Greasing the Wheels of the Flexible Labour Market: East European Labour Immigration in the UK’ in Smith-Bozek J, Labour Mobility in Europe (Centre for European Policy Analysis 2007) Ruhs M, The Price of Rights: Regulating International Labor Migration (Princeton University Press 2013) Ruhs M and Anderson B, ‘Migrant Workers: Inevitability or Policy Choice?’ in Willem Holtslag J, Kremer M, and Schrijvers E (eds), Making Migration Work. The Future of Labour Migration in the European Union (Dutch Scientific Council for Government Policy 2013) Ruhs M and Anderson B, ‘Responding to Employers: Skills, Shortages and Sensible Immigration Policy’ in Jurado E and Brochmann G (eds), Europe’s Immigration Challenge: Reconciling Work, Welfare and Mobility (IB Tauris 2013) Ruhs M and Martin P, ‘Numbers vs Rights: Trade-offs and Guest Worker Programs’ (2008) 42(1) International Migration Review 249 Ryan B, ‘Employer Enforcement of Immigration Law after Section Eight of the Asylum and Immigration Act 1996’ (1997) 26 Industrial Law Journal 136 Ryan B, ‘The Evolving Legal Regime on Unauthorized Work by Migrants in Britain’ (2005) 27 Comparative Labor Law and Policy Journal 27 Ryan B (ed), Labour Migration and Employment Rights (Institute of Employment Rights 2005) Ryan B, ‘The European Union and Labour Migration: Regulating Admission or Treatment?’ in Toner H, Guild E, and Baldaccini A (eds), Whose Freedom, Security and Justice?: EU Immigration and Asylum Law and Policy (Hart 2007) Ryan B, ‘Integration Requirements: A New Model in Migration Law’ (2008) 22 Journal of Immigration Asylum and Nationality Law 303 Ryan B, ‘Transnationalism and Labour Law: The “British Jobs” Protests of 2009’ in Moreau M (ed), Before and After the Economic Crisis: What Implications for the ‘European Social Model’? (Edward Elgar 2011) Ryan B, ‘In Defence of the Migrant Workers Convention: Standard-Setting for Contemporary Migration’ in Juss S (ed), The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013) Ryan B (ed), Labour Migration in Hard Times (Institute of Employment Rights 2013) Ryan B and Mantouvalou V, ‘The Social and Labour Rights of Migrants in International Law’ in Rubio-Marin R (ed), Migration and Human Rights (Oxford University Press 2013) Sassen S, ‘Global Cities and Survival Circuits’ in Ehrenreich B and Hochschild A (eds), Global Woman: Nannies, Maids and Sex Workers in the New Economy (Henry Holt 2002) Shachar A, ‘The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes’ (2006) 81 New York University Law Review 148 Smith R, ‘Prosecute, Prevent, Protect: Migrant Labor, Forced Labor, and Human Rights’ in Gross J and Compa L (eds), Human Rights in Labor and Employment Relations: International and Domestic Perspectives (LERA 2009) 164 Sofer A, ‘Federal Protection, Paternalism, and the Virtually Forgotten Prohibition of Voluntary Peonage’ (2012) 112 Columbia Law Review 1607 Solanke I, Making Anti-racial Discrimination Law (Routledge 2011) Steinfeld R, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (University of North Carolina Press 1991) Steinfeld R, Coercion, Contract and Free Labor in the Nineteenth Century (Cambridge University Press 2001) Strauss K, ‘Challenging Hegemonic Deregulation? The UK Gangmaster Licensing Authority as a Model for the Regulation of Casual Work’ (Working Papers in Employment, Work and Finance WPG 09-18, Oxford, 2009) Strauss K, ‘Coerced, Forced and Unfree Labour: Geographies of Exploitation in Contemporary Labour Markets’ (2012) 63 Geography Compass 149

454

Select Bibliography

Strauss K, ‘Unfree Again: Social Reproduction, Flexible Labour Markets and the Resurgence of Gang Labour in the UK’ (2013) 45(1) Antipode 180 Tapia M, and Turner L, ‘Union Campaigns as Countermovements: Mobilizing Immigrant Workers in France and the United Kingdom’ (2013) 51 British Journal of Industrial Relations 601 Van Walsum S, The Family and the Nation. Dutch Family Migration Policies in the Context of Changing Family Norms (Cambridge Scholars Publishing 2008) Van Walsum S, ‘The (Non)Regulation of Domestic Work in the Netherlands’ (2011) 23 (1) Canadian Journal of Women and the Law 141 Vosko L, ‘Temporary Work in Transnational Labor Regulation: SER-centrism and the Risk of Exacerbating Gendered Precariousness’ (2008) 88 Social Indicators Research 131 Vosko L, ‘Less than Adequate: Regulating Temporary Agency Work in the EU in the Face of an Internal Market in Services’ (2009) 2 Cambridge Journal of Regions Economy and Society 395 Vosko L, Managing the Margins: Gender, Citizenship, and the International Regulation of Precarious Employment (Oxford University Press 2010) Vosko L, ‘Out of the Shadows? The Non-Binding Multilateral Framework on Migration (2006) and Prospects for Using International Labour Migration to Forge Global Labour Market Membership’ in Davidov G and Langille B (eds), The Idea of Labour Law (Oxford University Press 2011) Waldinger R and Lichter M, How the Other Half Works: Immigration and the Social Organization of Labor (University of California Press 2003) Wickramasekara P, ‘Globalisation, International Labor Migration and the Rights of Migrant Workers’ (2008) 29 Third World Quarterly 1247 Wiesbrock A, ‘Free Movement of Third-Country Nationals in the European Union: the Illusion of Inclusion’ (2010) 35 EL Rev 455 Williams J, ‘Low Skill Temporary Migration in New Zealand: Labour Market and Human Rights Law as a Framework’ (Institute of Policy Studies Working Paper 09/09 2009) Wilkinson M, with Craig G and Gaus A, Forced Labour in the UK and the Gangmasters Licensing Authority (Hull University 2010) Wishnie M, ‘Immigrant Workers and the Domestic Enforcement of International Labor Rights’ (2001) 4 University of Pennsylvania Journal of Labor and Employment Law 529 Wishnie M, ‘Emerging Issues for Undocumented Workers’ (2004) 6 University of Pennsylvania Journal of Labor and Employment Law 497 Wishnie M, ‘Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails’ (2007) University of Chicago Legal Forum 193 Wishnie M, ‘Labor Law After Legalization’ (2008) 92 Minnesota Law Review 1446 Wishnie M, ‘Proportionality: The Struggle for Balance in US Immigration Policy’ (2010) 72 University of Pittsburgh Law Review 431 Wishnie M, ‘Immigration Law and the Proportionality Requirement’ (2012) 2 UC Irvine Law Review 415 Wishnie M, Proportionality in Immigration Law: Does the Punishment Fit the Crime in Immigration Court? (Immigration Policy Center 2012) Wishnie M and Fisk C, ‘The Story of Hoffman Plastic Compounds, Inc. v. NLRB: Labor Rights Without Remedies for Undocumented Immigrants’ in Cooper L and Fisk C (eds), Labor Law Stories (Foundation Press 2005) Woolfson C, Herzfeld Olsson P, and Thörnqvist C, ‘Forced Labour and Migrant Berry Pickers in Sweden’ (2012) 28(2) International Journal of Comparative Labour Law and Industrial Relations 14 Zietlow R, ‘Free at Last! Anti-Subordination and the Thirteenth Amendment’ (2010) 90 Boston University Law Review 255

Index A-2 nationals see EU-2 nationals A-8 nationals see EU-8 nationals abuse of migrant workers 21, 26, 34, 142, 149, 160, 172–78, 204–05, 370–71, 381, 400, 403 Africa 80, 145, 147, 174, 275, 303 backpay, right to 230 see also South Africa African American 190–91, 310–12, 322 age 55, 64, 138, 147–48, 181, 184–85, 266, 287, 297, 370–71, 406 see also equality and non–discrimination, discrimination on grounds of agency 5, 8, 20–22, 66, 81, 83, 87, 149, 198–200, 203–07, 277, 409–10, 436–37 fees 21, 91, 205, 277 licensing 21, 89–97 see also gangmaster agency workers 22, 202, 205, 211, 409–10 EU law 198–200 see also labour relations, triangular Agricultural Wages Board 79, 82–86, 91, 96, 203 see also minimum wage agricultural work 14, 18, 33, 65, 79–82, 182, 188 see also seasonal work Albin, Einat 4, 18–22, 136–37, 140, 148, 156–57, 159, 165, 386, 408, 415 alienation 304, 313, 315 Anderson, Bridget 4–7, 17–19, 24, 41, 65–67, 138, 153–55, 166, 178, 369, 384–85, 401, 403 anti-discrimination see equality and non–discrimination Anti-Slavery International 160, 171 Arab region backpay, right to 231, 237 Association of Southeast Asian Nations (ASEAN) backpay, right to 231 asylum seekers 39, 75, 110, 113–15, 352–53, 426 see also Common European Asylum System; refugee Australia 3, 5, 15 Australian Workplace Agreements 434–35 backpay, right to 232 blackbirding 427 fair work regime 433–35, 440–45 labour law 25, 426–27 migration law 5–6, 15, 422–23, 426–30 subclass 457 temporary migration programme 25, 58, 63–64, 428–38 temporary visa 422–23, 431–38 White Australia Policy 5, 426–29 au pair 29, 166, 168, 182, 370 backpay, right to 16, 216–21, 237–38 Council of Europe 226 ILO 222, 224–25 see also under specific countries and regions

Barnard, Catherine 4, 7, 15, 18, 21, 24–25, 104, 197, 201, 307 Benhabib, Seyla 3, 6 benefit claimant 17, 29, 36, 38 see also social security; welfare state binding policy 19, 141–43, 145–46, 148, 150 see also migration status; tied labour Bogg, Alan 4, 16, 18–21, 25, 90, 94, 202, 212, 255, 375, 377 Bosniak, Linda 138, 157, 224 British Empire 5–6, 32, 168, 314 see also colonialism Brazil backpay, right to 234 domestic work 25, 401, 403–04, 411, 416, 419 labour law 25, 406, 408 Bulgaria 42, 79, 86–88, 97, 104, 177, 194, 344 Canada 62, 64, 161–65, 410 Carens, Joseph 11, 16, 394 Chiaromonte, William 3–4, 17–18 China backpay, right to 232 Cholewinski, Ryszard 17, 23 citizenship 40, 62, 138 EU see Citizenship of the Union Commonwealth citizen 314–16 see also nationality; naturalization Citizenship of the Union 4, 6–7, 14, 24, 30, 42, 48 citizen worker 33, 134, 139 collective agreement 152–54, 182, 415–16, 418, 433–34 coverage 341–42, 411, 414 Israeli construction sector 144–47, 158 Sweden 76, 341–42, 345–46 see also trade unions collective bargaining and action 20, 188–89, 272–73, 345–48, 391, 433–34 right to strike 109, 191, 391, 395 sectoral collective bargaining 144, 146–47, 153, 158, 342 see also trade unions collective labour law 21, 182, 342, 363, 376–79, 387–89 Collins, Hugh 326, 330, 375, 385 colonialism 5, 32, 314–15, 322, 425–28 see also British Empire competition 50, 56 between migrant and local workers 36, 39, 219 undercutting 35, 61, 76, 194 compulsory labour see forced labour Common European Asylum System 106, 110, 114–15 see also asylum seekers; refugee common law 181, 243–44, 366–67 see also common law doctrine of illegality

456

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common law doctrine of illegality 4, 16, 21, 166, 217, 255, 363, 366–71 construction sector 18–19, 67, 97 Israel 19, 141, 143–47, 151–52 constitutional law 22 Israel 22, 143 Italy 127–133 US 22 corporate social responsibility 25, 379 Costello, Cathryn 19 Council of Europe 168, 226, 282–83, 287–88, 350, 389–90 Commissioner for Human Rights 173, 361 European Court of Human Rights 19, 174 European Social Committee 22, 226–27 collective complaints 285–86 compliance monitoring 284–85 interpretative approach 286–87 Countouris, Nicola 380 criminal law 23, 93–94, 96, 240–43 as blunt instrument 12, 93 forced labour 14, 161, 169–73 human rights 19, 22, 167 and human trafficking 14, 22, 96, 161–62, 167–69, 176–79 ‘modern day slavery’ 160–61 Croatia 103–04 Crock, Mary 1, 5, 15, 25 Cyprus 104, 115, 173, 386 Czech Republic 414 Davies, ACL 14, 18–22 debt 188 debt bondage 91, 142, 182, 306 see also indentured servitude indebtedness and underwork 205 detention immigration detention 39, 219, 262 prison labour 39 Dewhurst, Elaine 4, 14, 16–17 discrimination, see equality and non–discrimination dismissal 182, 252–55 disciplining through 204–05, 410 pregnancy 205 remedies 207, 210–11 unfair dismissal 207, 210–11, 213, 253–54, 366–69, 407, 443–45 dissent at work 306–13 and migration status 23–24, 303–04, 319–21 see also exit, voice, and loyalty; Hirschman, Albert doctrine of illegality see common law doctrine of illegality domestic work 19, 24, 33, 39, 67, 137, 147–52, 161, 399–405, 407–08 Canada 161–65, 410 enforcement of labour rights 419–21 ILO domestic workers convention 279–80, 405–21 public–private divide 164–65, 399–400, 402, 416–19 social security and pay 414–16 South Africa 406–07, 415, 420–21 trade unions 21, 150, 153, 188, 399, 410–12

UK 161, 164 see also migrant domestic workers dual labour market 46–47 see also Marxism employer 14, 50, 65, 137, 153–54 preference for migrant workers 13–14, 19, 45, 53–59, 60–61, 65–68, 193, 247–48 employer associations 13, 20, 22, 45, 53–59, 140, 153–54 Association of Contractors and Builders in Israel 144 Confederation of British Industry (CBI) 57–58 Confederation of German Employers’ Associations (BDA) 54–56 employer checks and sanctions (for employing irregular migrants) 8, 14, 16, 23, 218 defences 241–23 EU 16, 240 UK 240–43, 245–46 US 240–41 employment agency see agency employment 83, 201 applicable law 15, 197–201 contract of 15, 18, 29, 31, 33–35, 83, 134, 139, 201, 232, 366–68, 372–75, 412 relationship 33, 42, 138–39, 148, 212, 248–52 at will 181 see also common law doctrine of illegality employment law see labour law enforcement of labour rights 7, 15, 92–97, 206–08, 216–21, 438–45 difficulties for migrant workers 7, 15, 24, 97, 186–87, 194–95, 209, 211–13, 218, 224, 233, 355–57, 371–72, 438 fair employment agency 24, 214–15 employment tribunal 195, 207–08 language barriers 210, 361 Engblom, Samuel 9, 14 Engels, Frederick 6, 47 equality and non-discrimination 8, 12, 20, 23, 129–31, 245–48, 326–27 between citizens and non-citizens 124, 129, 134, 138–39, 156–59, 184–85, 262–64, 266–67 direct discrimination 328–29 in employment and occupation 124, 248–50, 270–71 indirect discrimination 130, 328 non–discrimination on grounds of age 181, 184–85, 287 disability 181, 184–85, 213 migrant status 10, 23, 184–85, 189, 223, 247–48 nationality 100–01, 181, 184–85, 223, 246, 262–64 religion 24, 181, 184–85, 210, 213, 327–37 race and ethnicity 23, 161, 181, 184–85, 210, 213, 244 sex 161, 181, 184–85, 213, 415 right to 128–29, 226, 228–30, 260–62, 307 see also intersectionality Estonia 116, 194 ethnic minority 23, 148, 304–05, 317–19

Index EU-2 42, 51, 79, 86–88, 97, 104, 177, 194 see also EU enlargement; specific EU-2 countries EU-8 24, 51, 56, 77, 104, 167, 194–95, 197, 208–10, 212–14, 341, 343–44 see also EU enlargement; specific EU-8 countries EU Citizenship see Citizenship of the Union EU enlargement 51, 98, 103–05 Croatia 104 transitional measures 77, 79, 86–87, 103–05, 194, 196, 341, 342 see also EU-2; EU-8 European Committee on Social Rights see Council of Europe European Union 6, 62, 98 backpay, right to 227–28 see Citizenship of the Union see Common European Asylum System employer checks and sanctions 16, 227–28 equality law 23–24, 128, 333–37 see EU enlargement see also free movement of services see also free movement of workers single market 6, 51–52, 98, 104, 116–18 exit, voice, and loyalty 303–04, 306–09 and shifting 304, 310–13, 321–323 see also dissent at work; Hirschman, Albert fair employment agency 24, 214–15 see also enforcement family reunification 6, 100, 105–06, 111–12, 115–17, 288–89, 333 feminism 24, 310, 400–05 forced labour 13–14, 26, 31, 91, 161, 163 Article 4 ECHR 169–74, 226, 391–93 ILO indicators 172, 179 migration status 19 see also indentured servitude; slavery Fredman, Sandra 13, 18, 21–22, 24–25, 207, 214, 326 free movement of services 6, 9, 15, 44, 48, 51–52, 357–60 see also posted workers free movement of workers 6, 100–03, 197, 244, 358–60 transitional measures 77, 79, 86–87, 103–05, 194, 196, 341 Freedland, Mark 156, 250, 380 freedom of association 22, 91, 150, 272–73, 363–66, 381–83, 390–91, 410–12 for irregular migrants 20–21, 185–89, 272–73, 368–69, 384–86, 394–97 obstacles for migrants 20–21, 33, 81, 142, 211, 214, 363–66 see also collective bargaining and action; trade unions freedom of establishment 6, 197 Friedman, Milton 49 Fudge, Judy 7, 12, 18–19, 21–22, 24, 135–36, 140, 148, 154 gangmaster 21–22, 81, 83, 89–90, 92, 205, 207 see also agency Gangmasters Licensing Authority 21–22, 79, 88–97, 207 gender 161, 181, 184–85, 213, 415

457

gendered division of labour 24, 68, 148, 162, 164, 399 and race 310–13 see also feminism; sex; women Germany 13, 103–04, 115–16, 240, 276 backpay, right to 234–35 Confederation of German Employers’ Associations (BDA) 54–56 labour market regulation 13, 46–47, 51, 54–56, 68, 74 Gordon, Jennifer 68, 363, 383, 385–86, Greece 381 backpay, right to 234 guest worker 69, 182, 187–88, 190–91 Guild, Elspeth 6–7, 14, 22, 100–01, 103, 105–06, 109 Gulf Cooperation Council (GCC) 33–34 headscarf see hijab highly skilled migrants 14, 34, 54–58, 63–64, 68–69, 71–72, 76–77, 108–09, 112–13 hijab 319, 325, 332 see also discrimination on grounds of religion; Muslim; niqab; religion Hirschman, Albert 213, 303–04, 306–08, 321–22 Hoffman Plastic v National Labour Relations Board 16, 185–86, 190, 235–36, 365, 395–96 Honig, Bonnie 41 Hounga v Allen 16, 90, 166, 232, 255, 303, 370–71 Howe, Sean 5, 15, 25 human rights 3, 12, 19–20, 22, 161, 167, 190 civil and political rights 22, 157, 190 limited protection for migrants 22, 135 social rights 17–18, 23, 124, 128–32, 157, 282–84, 288 see also Council of Europe; labour rights; UN human trafficking 13–14, 22, 34–35, 187 criminal law 14, 22, 96, 161–62, 167–69, 171–74, 176–79 links with migration control 174, 176 Palermo Protocol 12, 167 Hungary 210 identity document 5, 171, 241, 370 retention 142, 160, 163, 172, 187, 191, 205, 212, 277 illegal immigrant, see irregular migrant immigration law, see migration law indentured servitude 17, 29, 34–35, 436 blackbirding 427 see also forced labour integration of migrants 24, 131, 337 EU policy 24, 333–37 see also multiculturalism UK policy 326–27 Inter-American Court of Human Rights 22 Advisory Opinion on rights of irregular migrants 17, 22, 190, 228–30, 365, 395 backpay, right to 225, 228–30 International Labour Organization 12, 17, 21, 23 backpay, right to 222, 224–25 Committee of Experts 265, 267, 270–75, 278–79 Committee on Freedom of Association 272–74 equality and non–discrimination 23, 128, 190, 264–73 supervisory bodies 23, 265, 267–69, 271, 274

458

Index

intersectionality 24, 310 see also equality and non–discrimination intra-company transferee 16 see also posted workers Ireland 3, 6, 16, 74, 77 backpay, right to 232–33 Irish workers 6, 37, 47 irregular migrant 10, 16, 126, 131–32, 142, 216, 274–76 unionization 20–21, 185–89, 272–73, 368–69, 384–86, 394–97 Israel 136, 141 binding policy 19, 141–43, 145–46, 148, 150 construction sector 19, 141, 143–47, 151–52 domestic care sector 19, 21, 141, 143, 147–52 Italy 3, 17, 121–22 access to labour market 124–27 immigration policy 122–24 social rights, access to 17–18, 124, 127–32 regularization of status 3, 17, 123, 126, 133 jobs ‘British jobs for British workers’ 20, 36, 61, 194 global jobs 63, 280–81 Kafala system 33–34 see also tied labour Kahn-Freund, Otto 4 Kalayaan 161, 167–69, 174, 176 see also NGOs labour intermediary, see agency see also agency workers; gangmasters labour law 1–2, 7–18, 20–22, 24–26, 40, 134, 139, 156–59, 161–62 division of objectives 9, 13–14, 26 division of subjects 9, 13–14, 17–18, 26, 157–58 labour–supply objectives 9 personal scope 10, 201 worker–protective objectives 9, 11, 14, 16, 25 see also under specific countries labour market 40, 98, 121–22 bifurcation 7, 46, 51, 59 demand for migrant workers 8, 18, 50, 54–59, 65–68, 122, 125, 136, 155 dual labour market 46–47 European or national? 6–7, 14, 98, 108–09, 114, 116–18 preferential access for local workers 4, 13–14, 61–63, 68–78 ‘Community preference’ 62–63 protectionism 61–62, 68–78, 122 regulation 9, 44, 47–48, 54–59, 68–77 segmentation 7, 44–45, 105, 114, 135, 145 supply of workers 7–8, 13, 155 labour rights 22–23, 81, 180–82, 201–02, 207 collective labour rights 21–22, 182, 342, 363, 376–79, 387–89 enforcement 7, 15, 92–97, 206–08, 216–21, 438–45 as human rights 22, 387–89 right to quit 22, 33, 35, 143, 187 right to work 186, 243–44 see also equality and non-discrimination; freedom of association

labour relations 33, 42, 138 triangular 8, 81–82 laïcité 334–36 Latvia 210 licensing 21, 89–97 see also agency; Gangmasters Licensing Authority Lithuania 196 McCallum, Ron 5, 15, 25 master-servant relations 9, 17, 29, 31–32, 40 Mantouvalou, Virginia 4, 16–22 Marx, Karl see Marxism Marxism 47, 53, 162 class 49–50 dual labour market 46–47 ‘dull compulsion of economic relations’ 35 free labour 19, 29, 33–35, 163 unfree labour 33–35, 163, 165–66, 169 Menz, Georg 6–7, 9, 13–15, 50–51, 136, 139–40 Mexico backpay, right to 234 migrant 4, 29–30, 41 economic 35, 50 family 6, 30, 99, 105–06, 115–17 labour 44–45, 48, 50, 53–54 low skilled 34, 48, 55, 175 temporary 25, 58, 63–64, 276–78, 428–38 undocumented see also highly skilled migrant; irregular migrant migration law 1–26 Australia 5–6, 15, 25, 63–64, 422–23, 426–38 and employer associations 13–14, 19, 44–45, 53–59, 140 points–based system 55, 57, 63–64, 167 sectoral regulation 18, 86–88, 136–40 UK 86–88, 314–15 migrant domestic workers 18–19, 24, 188, 401, 413–14 enhanced precarity 163–65, 400 forced labour 161, 163, 169–70 Israel 19, 21, 141, 143–44, 147–52 ties to employer 19, 161, 165–66, 176–77, 277 see also tied labour unionization 21, 188, 279 UK Overseas Domestic Workers Visa 19, 160–61, 167, 169, 174–79 see also domestic work; Kalayaan migrant workers 30, 33, 266–68, 274–276, 287–88 migration status 4–5, 7, 15–16, 19, 65–66, 121–22 discrimination on grounds of 10, 23, 184–85, 189, 223, 247–48 and dissent at work 23–24, 303–04, 319–21 insulation of labour rights from 16, 22, 183, 187, 221, 229 as personal status 4, 8, 10–11 and precariousness 4, 7, 25, 135, 142, 161, 276–78, 433–38 regularization of status 3, 17, 123, 133 temporary 25, 58, 63–64, 276–78, 428–38 minimum wage 39, 51–53, 84–85, 142, 166, 185–86, 188, 218, 407, 414 agricultural 84–85, 91 collectively agreed 53 exemption for immigration detainees 39 statutory 51–52, 84–85, 342

Index Sweden 51, 342, 352–55 UK 39, 84, 91, 194–95, 202–06, 213–14 mobility 5, 17, 29, 31, 33–34, 36–37, 41 see also vagrancy mobilization of migrants 166–67, 169, 174 Morecambe Bay 21, 81 multiculturalism 326–27, 331–32 Mundlak, Guy 134–35, 139, 142, 144–45, 147–48, 150, 155, 158, 385, 387 Muslim see religion, Islam National Health Service (NHS) 304–5, 307–09 nationality 3, 5, 29, 40, 100–01, 181, 184–85, 223, 246, 262–64 neoliberalism 45, 48–49, 51–52, 162 and labour market deregulation 50–52, 82 and authoritarianism 48–49 see also Friedman, Milton New Zealand backpay, right to 234 NGOs 22, 58, 137, 140, 149, 153, 155, 160 see also Anti–Slavery International; Kalayaan niqab 329 see also discrimination on grounds of religion; hijab; Muslim; religion Novitz, Tonia 4, 16, 18, 20–21, 25 Occupied Palestinian Territories 141, 144–45, 147–48, 153 O’Cinnéide, Colm 18, 22 Olney, Shauna 17, 23 Ontiveros, Maria 16–17, 20, 22–23 passport see identity document peonage 181–82, 189 see also slavery Piore, Michael 7, 47, 53 Poland 196, 210 Poor Laws 6, 36–37 posted workers 4, 13, 15, 48, 51, 197–200, 344–350 see also free movement of services; intra-company transferee; Viking Line and Laval Poulantzas, Nicos 49 prostitution 12, 40 see also sex work protectionism see labour market protectionism public-private divide 164–65, 399–400, 402, 416–19 see also domestic work; feminism race 23, 32, 41, 145, 148, 206, 304–05, 317–19, 404 and gender 310–13, 318 and migrant background 313–17, 320–21 see also intersectionality race discrimination 23, 161, 181, 184–85, 210, 213, 244 race relations 316–17, 328 racialized stereotypes 166, 170, 311, 319 see also equality and non–discrimination racism and xenophobia 34, 122, 304–05, 311–12, 424, 426–27 religion 24 Anglicanism 325

459

Christianity 40, 325, 328–30 discrimination on grounds of 24, 181, 184–85, 210, 213, 327–37 Islam 328–30, 334, 336, 396 Judaism 144–45, 147–48, 325, 328 Protestantism 325 Roman Catholicism 325 Sikhism 328, 330 regularization 3, 17, 123, 133 Italy 17, 123, 126, 133 refugee 56, 110, 114–16 see also asylum seeker; Common European Asylum System right to work for irregular migrants 217 Roma 29, 41, 190 see also Citizenship of the Union Romania 42, 79, 86–88, 97, 194 see also EU–2; EU enlargement Ruhs, Martin 4, 7, 13–14, 18–19, 64–65, 67–68, 70, 72 Ryan, Bernard 1, 12, 14, 20, 23, 25, 135, 240, 247, 255, 362, 367, 369, 388 Sciarra, Silvana 3–4, 17 seasonal work 4, 10, 18, 22, 80, 87–88, 109–10, 113–14 see also agricultural work sectoral regulation of work 14, 18, 21, 82, 134–37, 143–159 self-employment 10, 48, 139, 145, 196–97, 202 independent contractor 10, 188 sham self–employment 18, 21, 211, 372–74 serf 30–31, 40, 392 servitude 13, 19, 34 and slavery 34 see also forced labour; indentured servitude sex see gender sex work 40–41 see also prostitution Sharma, Nandita 162 skilled migrants see highly skilled migrants slavery 19, 33–35, 160, 163 chattel slavery 10, 182, 189–91 and gendered, racialized stereotypes 34, 166 ‘modern day slavery’ 13, 34, 143, 160–62, 165–67, 170, 178–79 Thirteenth Amendment 20, 22, 180 see also forced labour Slovakia 116, 194, 196, 210 Slovenia 116, 194, 210 social care work see domestic care work social rights 17–18, 23, 124, 128–32, 157, 282–84, 288 assistance for migrants 294–99 gainful occupation 293–94 limited protection for migrants 189–93, 299–302, 393–94 social security benefits 29, 36, 38, 42, 100, 105, 109, 116, 128–31, 218, 267, 299–302, 416 non–contributory benefits 122, 129–30 see also benefit claimant Solanke, Iyiola 6, 23–24

460

Index

South Africa apartheid 401, 403–04, 406 backpay, right to 234 Commission for Conciliation, Mediation and Arbitration 407, 420 domestic work, regulation of 21, 406–07, 415, 420–21 trade unions 21 Domestic Workers and Allied Trade Union 21, 410 Congress of South African Trade Unions 411–12 Spain 32 statehood 3, 29, 40–41, 77, 144, 162 authoritarian étatisme 48 and territory 15, 29, 40, 425–26 Steinfeld, Robert 32–33, 35 Strauss, Kendra 12, 18–19, 22, 24 supermarket 39, 97, 206, 212 Sweden 14 collective agreement 76, 341–42, 345–46 labour market regulation 15, 75–77, 341–42, 348, 350–58 minimum wage 51, 342, 352–55 Swedish Construction Workers Union 346–49 temporary migration programme 25, 58, 63–64, 68–77, 276–78, 428–38 see also visa third-country national 6, 7, 16, 48, 99, 106–118, 124–27, 129 Thirteenth Amendment 20, 22, 180 tied labour 11, 19, 22, 33, 141–43, 145–46, 148, 150, 161, 165–66, 182–83, 187, 190–91 see also binding policy; Kafala system; migration status ties see tied labour tort law and common law doctrine of illegality 369–71 statutory torts 369 see also common law trade unions 20, 25, 33, 91, 137, 140, 152–54, 158–59, 361–62 and irregular migrants 20–21, 185–89, 272–73, 368–69, 384–86, 394–97 see also collective agreement; collective bargaining and action; freedom of association Israeli trade unions 22, 152–54, 158–59 Histadrut 142, 144–47, 152 Koach LaOvdim 150 Maritime Union of Australia 423–24 and migrant workers 142, 146, 152, 158–59, 214, 362–63 South African trade unions Congress of South African Trade Unions 411–12 Domestic Workers and Allied Trade Union 21, 410 Swedish Construction Workers Union 346–49 Trades Union Congress (UK) 97, 362 trafficking in persons see human trafficking Truth, Sojourner 310

undocumented migrant, see irregular migrant unfree labour 17, 29, 33–35, 163, 165–66, 169 see also Marxism United Kingdom 13, 15–16, 46, 56–59, 66–67, 71–74 employer checks and sanctions 240–43, 245–48 integration policy 326–27 migration policy 39, 43, 56–59, 71–74 multiculturalism 326–27, 331–32 United Nations human rights 260–64 equality and non-discrimination, right to 190, 222–23, 260–64 migrant rights 222–23 Special Rapporteur on the Human Rights of Migrants 261–62 Universal Periodic Review (UPR) 261, 280 United States 3 backpay, right to 16, 186, 235–36 documented resident workers (DRW) 182 employer checks and sanctions 183 employment at will 181 guest and visa workers 69, 182, 187–88, 190–91 labour law 20, 180–82 lawful permanent resident aliens 182 migration policy 64 protectionism 68–71 Thirteenth Amendment 20, 22, 180 undocumented workers 182–83, 185–87 see also Hoffman Plastics vagrancy 5, 17, 29, 31–32, 35–37, 40 Van Walsum, Sarah 6, 169 Vickers, Lucy 24, 327, 330 Viking Line and Laval 9, 15, 51–53, 346–47 see also free movement of services; labour market; posted workers; Sweden visa 30 guest and visa workers (US) 69, 182, 187–88, 190–91 H1-B programme (US) 68–71 Overseas Domestic Worker visa (UK) 19, 160–61, 167, 169, 174–79 subclass 457 temporary visa (Australia) 422–23, 431–38 Tier 2 visa (UK) 71–74, 175 see also temporary migration programme Vosko, Leah 135, 138, 154 vulnerability in labour relations 8, 26, 97, 138, 142, 165, 184 wage 14, 31–32, 35, 39, 46–47, 50–53, 61, 69–70, 163 Agricultural Wages Board 79, 82–86, 91, 96, 203 ‘fair and reasonable’ 223, 416, 426 non-payment 205, 224 paid annual leave 85–86 payment during suspension 251–52 real wage stagnation 46 underpayment 205, 224, 277, 436 see also backpay, right to; minimum wage welfare state 29, 36, 48, 11 see also benefit claimant; social security benefits women 31, 35, 68, 170, 267

Index Arab 147–48 intersectionality 24 migrant black 23–24, 303 Mizrachi Jewish 148 Non-migrant black 23–24, 303 Palestinian 147–48 see also gender work 30 agricultural work 14, 18, 33, 65, 79–82, 182, 188 construction work 18–19, 67, 97 ‘dirty, dull and dangerous’ 47 domestic work 19, 24, 33, 39, 67, 137, 147–52, 161, 399–405, 407–08 hazardous work 14, 81

461

seasonal work 4, 10, 18, 22, 80, 87–88, 109–10, 113–14 World Trade Organization (WTO) General Agreement on Trade in Services (GATS) 357, 359, 424, 430 working time 152 holiday 85–86 toilet breaks 212 underwork 205 working day 85, 91, 142, 150, 152, 166, 181, 407 xenophobia see racism and xenophobia Zatz, Noah 39–40