Temporary Labour Migration in the Global Era

The Regulatory Challenges

Joanna Howe, Rosemary Owens, Joanna Howe, Rosemary Owens

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509906291
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

In the global era, controversies abound over temporary labour migration; however, it has not previously been subjected to a sustained socio-legal analysis on a comparative basis, critiquing the underpinning concepts conventionally accepted as fundamental in this area. This collection of essays aims to fill that void. Complex regulatory challenges arise from temporary labour migration. This collection examines these challenges and the extent to which temporary labour migration programmes can be ethical, equitable and efficacious and so deliver decent work for workers. Whilst the tendency for migration law to divide labour law's worker-protective mission has been observed before, the authors of the chapters comprising this collection seek not only to interrogate why and how this is so, but to go further in examining the implications and effects of a wide range of regulatory mechanisms on temporary labour migration.

Part I

Introduction

1

Temporary Labour Migration in the Global Era

The Regulatory Challenges

JOANNA HOWE AND ROSEMARY OWENS

I.INTRODUCTION

IN THE GLOBAL era, controversies abound over temporary labour migration, either undertaken through programmes designed specifically for that purpose or as an adjunct to migration for non-labour purposes. However, remarkably, there has been little scholarly attention paid to the ways in which these controversies converge around the issues of temporariness and regulation. Temporary labour migration in the global era has not previously been subjected to a sustained socio-legal analysis on a comparative basis, critiquing the underpinning concepts conventionally accepted as fundamental in this area. This collection of essays aims to fill that void.

A basic question to ask might be whether this ‘new’ global phenomenon is really new at all. In many ways, temporary labour migration today echoes colonial indentured labour and older forms of guest work, for example, Chinese labour in Malaya and the Dutch East Indies, and Indian ‘coolies’ in the West Indies.¹ As Europe industrialised, demand for labour increased exponentially, and a number of countries such as Germany, France and Switzerland designed temporary worker programmes between 1870 and 1914 to prevent workers from settling permanently. The period after the two world wars led to a new flourishing of temporary worker programmes as countries sought to rebuild.² For example, Britain’s ‘European Worker Scheme’ aimed to recruit 90,000 temporary workers, largely from the ranks of refugees.³ Not dissimilarly, although on a much larger scale, North America’s ‘Bracero Program’ oversaw the annual entry of over 100,000 Mexican seasonal workers into the United States between 1942 and 1965.⁴ Although decreed ‘dead’ over two decades ago after a faltering in the nascent new global economy led to falling demand for migrant labour,⁵ temporary worker programmes are once again ‘de jour’ amongst policy-makers, characterised as producing a ‘triple win’ for all involved.⁶

Despite its long pedigree, national governments and supranational institutions continue to grapple with the complex regulatory challenges arising from temporary labour migration. The objective of this collection is to understand why this is so, and to explore the extent to which temporary labour migration programmes can be ethical, equitable and efficacious and so deliver decent work for these workers. Whilst the tendency for migration law to divide labour law’s worker-protective mission has been observed before,⁷ the authors of the chapters comprising this collection seek not only to interrogate why and how this is so, but to go further in examining the implications and effects of a wide range of regulatory mechanisms on temporary labour migration.

In this collection, we explore the tendency of regulation in the global era to privilege the interests of capital. To a large extent the role and purpose of temporary labour migration has become one of unlocking and maximising the entrepreneurial potential and profit-maximising capabilities of capital. This has been made possible through the process of global economic integration which has transformed temporary labour migration so that it can occur en masse, not only through targeted programmes like those with which we are historically familiar, but also, and especially, through economic zones permitting the free movement of people, and typified through the approach to regulating the global trade in services. The deference to the needs of Global Inc (to borrow a term deployed by Cathryn Costello and Mark Freedland in their chapter),⁸ which is inherent in the design of most contemporary temporary labour migration programmes in receiving states, is derivative of a seemingly unquestioned economic philosophy that temporary labour migration programmes need to be less regulated by government and driven instead by the needs of business, with market responsiveness, timeliness and flexibility as the key indicators of success.

Acknowledging capital as a primary beneficiary of temporary labour migration is not to deny its transformative potential for migrant workers. Temporary labour migration is now, even more than it ever was, deeply aspirational, as migrant workers seek to take advantage of increased remuneration and job opportunities available abroad. However, the desire of many to improve their life chances through temporary labour migration has encouraged the increasing commercialisation of migration, which has opened up new global possibilities for capital, via its myriad entrepreneurial endeavours, to exploit. Contemporary labour migration, with its emblematic features of worker precarity and temporality, has proven the perfect fodder for capital’s interests, and the law regulating work has struggled to respond. Whilst international law has tended to focus on the principle of equal treatment to address the problems arising from migrant workers’ precarious status in the labour market, this collection raises fresh concerns about the realisation of this principle in practice. A recurring theme, borne out in several of the ensuing chapters, is not only the failure to deliver to temporary migrant workers the same wages and conditions as that of their counterparts in the local workforce, but also the use of migrant labour sometimes to the exclusion of local labour in the poorest paid and least well regulated sectors of the labour market. Viewed in this light, implicit in a number of contributions to this volume is the idea that ‘dignity at work’ might provide a stronger normative framework and ordering principle in regulating temporary labour migration.⁹

In developing regulatory responses to the myriad challenges arising from temporary labour migration, this collection is situated at the interface of migration law, labour law, trade law, human rights, refugee and asylum law, criminal law and national security law. Complex interactions between these disparate regulatory regimes produce both unintended consequences as well as challenges and possibilities. On one level, a regulatory response to the problems arising from excessive reliance on employer demand and the capital-driven nature of temporary labour migration programmes produces a case for tempering capital, and in particular employer requests to access temporary migrant labour, through the use of quotas, caps, occupational shortage lists and other similar but distinct regulatory mechanisms. On another level, a different set of responses reframes the regulatory responsibility in terms of national governments and supranational institutions to realise the dignity of migrant workers without constraining employer demand. Two contributors favour this macro-level approach. Martin Ruhs argues for a structural redesign of temporary migrant worker programmes so that a trade-off is allowed between some rights in return for access, and Alexander Reilly develops a normative case for giving migrant workers the possibility of transforming their temporary status into citizenship.¹⁰ By way of contrast, a third set of responses is to develop new and innovative regulatory methods to address the challenges posed by temporary labour migration. Some of the methods explored in this collection involve regulating the supply chain for migrant labour, through developing worker-driven codes of conduct and restricting recruitment costs, as well as strategic innovations by labour inspectorates in enforcing the rights of temporary migrant workers. Such regulatory responses, although not without merit and indeed often effective in their own right, tend to operate at a more micro level.

This collection explores these themes using a socio-legal approach, conscious that the legal regulation of temporary labour migration does not evolve separately from the political, economic and social contexts in which it is embedded. Nor can temporary labour migration be understood without an interdisciplinary approach; not only are disparate law disciplines required, but also the contributions of economics, political science and sociology. Because the receiving state is predominantly responsible for regulating temporary labour migration, the essays in this collection analyse the regulatory practices of countries that host migrant workers: Australia, Austria, Canada, Italy, Spain, Sweden, the United Kingdom and the United States. It also examines how supranational organisations, such as the International Labour Organization (ILO) and the World Trade Organization (WTO), regional governance structures such as the European Union (EU), and multilateral and bilateral free trade agreements have sought to develop and disseminate new legal norms around temporary labour migration.

A.Defining Temporary Labour Migration

Defining ‘temporary labour migration’ is no straightforward matter.¹¹ One approach to the definition of temporary labour migration today is to limit consideration to those who migrate on a temporary basis primarily for the purpose of work.¹² These are the migrant workers who are participating generally in state-sponsored temporary labour migration programmes, such as ‘skilled temporary labour’, ‘seasonal worker’ or ‘circular labour’ migration schemes. While there may be particular policy and regulatory issues relevant to these groups, some other scholars have argued that such an approach elevates ‘form over substance’, and risks ignoring the reality of the vast numbers of people who may have migrated on a temporary basis for other purposes, but who participate in the labour market during the (temporary) period of their stay in either a transit or destination country.¹³ Indeed a socio-legal approach invites an examination of the distinction between temporary labour migration conventionally understood and, for example, other migrants who also work on a temporary basis (eg students, holiday makers, trafficked workers or the providers of international services).¹⁴ As several contributors to this volume remind us, the potential for exploitation of these workers is compounded by either their lack of a visa or their use of a visa for a non-work purpose.¹⁵ Tham, Campbell and Boese’s chapter, for example, charts the precarious labour market status of international students working in the Australian hospitality industry. Moreover, the politics of temporary labour migration in developed countries often leads to governments tacitly accepting these visa holders to meet low-skill labour shortages.¹⁶ Excluding these workers from analysis ignores their contribution as workers and fails to draw attention to this growing underclass of workers invisible to the law, thus perpetuating and indeed exacerbating their exploitation. Further, because many temporary migrant workers ultimately remain long term in their destination country, with or without permission to do so, the boundary between temporariness and permanency must also be interrogated. Discourses about other groups of migrant workers, whether permanent, temporary for non-labour market purposes or undocumented, may also influence understandings of temporary migrant labour, raising in turn questions about the nature of membership, allegiance, belonging and identity in the global era—a subject that Alexan...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• List of Contributors
• Part I: Introduction
• Part II: Global Economic Integration and the Regulation of Temporary Labour Migration
• Part III: Temporary Labour Migration in Pursuit of Economic Efficiency
• Part IV: Temporary Labour Migration and the Production of Precarity
• Part V: Challenges in Realising Decent Work for Temporary Migrant Workers
• Part VI: Contesting Temporariness: Status and the Social Effects of the Legal Regulation of Temporary Labour Migration
• Part VII: The Global Challenge of Temporary Labour Migration: Regulatory Responses and Possibilities
• Index
• Copyright Page