Challenging binaries: Why we need new ways to talk about people who move for work

5 October 2020

Manoj Dias-Abey - Lecturer in Law, Law School, University of Bristol

Tonia Novitz - Professor of Labour Law, Law School, University of Bristol

Marco Rocca - Researcher, National Centre for Scientific Research, University of Strasbourg

The legal characterisation of people who move across borders for work has profound implications for their labour rights. In Part One of this two-part blog, three legal scholars consider some of the binaries used to justify their legal characterisation and suggest that we need a new way to discuss this phenomenon. The authors begin by considering the inside/outside jurisdiction binary.

We come together as three researchers who have, in a variety of ways, been engaged in research into the regulation of those people who move for work. Between us, we have examined North American seasonal and temporary workers’ programmes, the European Union (EU) ‘posted worker’ regime, and the operation of Mode 4 trade in services under the General Agreement on Trade in Services (GATS). Whilst each of these modalities involve the movement of natural persons across designated national borders, their legal characterisation varies. In this short blog post, we seek to identify and deconstruct three binaries that are apparent in each area. Politicians and policymakers draw on these binaries to justify a range of questionable policy measures, which often have the effect of perpetuating discrimination on grounds of sex and race, exacerbating pay poverty, and increasing vulnerability to exploitative working conditions. Scholars sometimes unthinkingly reproduce these binaries in their academic work out of a mistaken desire to maintain policy relevance. We think it is high time that some of these binaries are named and exposed. Left undisturbed, the logic underlying these programs risk further eroding national labour regulation, a point which we explore in our conclusion.

We contend that there are at least three prominent binaries which merit exposure. The first is the binary divide between being ‘inside’ or ‘outside’ a country, namely within or outside jurisdiction. We see borders and jurisdiction as more flexible than this construction permits. The second concerns time, namely the distinction between ‘temporary’ and ‘permanent’ movement. We believe this neither captures the hopes and desires of those moving, or the nature of the labour market gaps in receiving countries. Linked to the idea of temporariness and permanence is often the distinction between ‘low-’ and ‘high-skilled’ workers, with workers demarcated as having ‘low skills’ being given access to temporary (such as seasonal or short term visas incapable of enabling permanent residence) and those with what are perceived as more valuable skills being placed on a separate track for entry. We are concerned with the ways in which the construction of skill is conflated with wage levels, having profound discriminatory effects particularly for women. It seems to us that the construction of these false binaries can be understood as serving certain private interests, rather than the governments or citizens of the countries in which these are manifested. Deconstruction of these false binaries would be a route to more transparent, logical and fair migration policy which would serve broader public interests.

When workers move across borders, the labour rights and enforcement regimes that apply to them do not always correlate with the legal regulation of the territory in question. The labour standards that apply to workers in a specific country will vary depending on the migration status or route of entry of the worker into the country. We may remain conceptually wedded to the idea that legal jurisdiction neatly correlates with cartographic borders, however, in practice, borders are ‘shifting’. The Canadian scholar, Ayelet Shachar developed the idea of the shifting border in order to analyse the ways in which states expand and shrink borders through various legal contortions to exclude certain migrants whilst facilitating the entry of others deemed more valuable. We believe that the notion of the shifting border can help illuminate how the movement of people across borders for the purposes of work also impact upon traditional conceptions of legal sovereignty.

As states see themselves less as democratically self-governing entities and more as a mechanism to attract commercial investment to boost income, so-called borders have changed. A prime example is the idea of the Export Processing Zone (EPZ), notorious for being an area of ‘exception’ or ‘exclusion’, which will attract foreign manufacturers (or today service providers) by exempting the zone from application of employment and labour laws standards applicable by the state in question. In this way, the boundaries of state control are subtly shifted. Moreover, this can take place in ways which are not geographically based. EPZs may be in a particular region of a country, but more frequently can extend across the entire territory applying to particular industrial sectors, such as textiles. The current UK Conservative government is now proposing ‘Freeports’, which it seems will operate in a comparable way.

The malleability of the concept of ‘border’ is also visible in the EU legal framework for posted workers. These workers, sent by their employer to a different Member State to carry out a contract for services, are excluded from the standard rules of free movement of workers, and, notably, from the principle of equal treatment. This legal construction is justified by the assumption of their return home after the provision of services. Because of this, the legal reasoning goes, they never really belong into the labour market of the receiving state. Though they have physically crossed a border, their wages and working conditions are still being covered by the sending state, while the application of a closed list of minimum standards of the receiving state is permitted by the EU directive as an exception to this principle. During their stay, they are also excluded from the social security system of the receiving state, a situation which has seen many of them left without protection when blocked from returning home during the Covid-19 crisis. The reason given is that these workers never gain ‘access to the labour market’, a fiction introduced by the European Court of Justice and imitated and sustained on the global stage under Mode 4 of GATS and the Annex on Movement of Natural Persons Supplying Services Under the Agreement.

In the case of temporary labour migration programme, workers tend to be governed by the labour laws of the receiving state. Whilst there have been some notable exceptions to this—such the Canadian Temporary Foreign Worker Program which briefly allowed employers to pay 15% less than local workers—for the most part the principle of equal treatment prevails as a matter of formal law once the workers are inside the receiving state. However, employer beliefs around workers’ expectations, their vulnerability to challenge exploitation due to employer-tied visas, and weak government enforcement in sectors in which migrant workers dominate, means that in practice foreign workers are provided with inferior pay and conditions of work compared with local workers. The ideological construction of guestworkers as outsiders condition their treatment within the border to create various zones of exception.

In Part 2 of this blog, the authors will consider the operation of the permanent/temporary and skilled/unskilled binaries.

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