Challenging binaries: Why we need new ways to talk about people who move for work
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
In the second part of this two-part blog, we consider binary divides constructed between the permanent/temporary and the skilled/unskilled. We conclude that, when taken together with the inside/outside binary divide discussed in part 1 we need to start challenging such distinctions. This would involve rethinking some familiar assumptions regarding protection by states of private commercial interests
Read Part 1 of this blog series.
Time: Permanent/temporary migration
Just as the inside/outside binary we analysed in our first blog post, the distinction between temporary and permanent migration is also a misnomer, suggestive of a stark distinction that cannot be maintained in reality. States started to turn to temporary labour migration in the closing decades of the twentieth century as a means of mediating between the needs of capital who seek workers, and the demands of nativist populations who demand that a shrinking pool of public goods be reserved for citizens. The so-called temporariness of the migration justified states to deny these workers access to state welfare, right to family life, restrictions on labour market mobility, and limitations on the right to organise. This is particularly the case for temporary labour migration programmes that facilitate the migration of ‘low-skilled’ workers.
The permanent/temporary binary operates in the area of posted workers also. The response of the revised Posting of Workers Directive in 2018 to address repeat-posting, speaks of a practice where in reality, there is long term dependence on jobs outside one’s home country. The opposition to the setting of an upper limit of 12 months (renewable for 6 more) is also telling when it comes to the definition of what is a ‘temporary’ presence in a given country. In the same vein, the fact that a posted worker will remain affiliated to the social security system of her own home state (and hence excluded from the one of the receiving state) for up to 24 months stretches the notion of ‘temporariness’ to the extreme.
Even the utilisation of skilled temporary labour deployed in the short term (often in corporate settings) under the GATS Mode 4 schedule, is suggestive of the dependence of migrant workers on repeated international postings, frequently to a country of which they already have experience. Notably, what is temporary is not defined in Article 1 of the GATS or even the accompanying Annex. In practice ‘the time frames set out in WTO members’ commitments on Mode 4 range from several weeks up to 3 – 5 years, depending on the countries, sectors and professions involved’.
Even in the case of temporary labour migration, the permanent/temporary distinction cannot be sustained analytically. First, although temporary labour migration is often presented as filling short-term labour market gaps, through their use, employers become dependent on migrant workers, and as a result, these workers become a structurally embedded feature of certain industries. Second, it is not always the case that the migrating workers desire short-term entry to their destinations. We have seen academic writing which suggests that when admitted to a country on officially a ‘temporary’ basis, a worker may regard this brief trip merely as a small facet of a broader life plan, which entails return to their home country. We see this as an unduly narrow construction of human desires and hopes; plans may change, as new places and people are encountered. Such a vision also neglects those workers who conceive a temporary experience precisely as a stepping stone to a more permanent form of migration.
Labour market needs: Skilled/unskilled workers
The other dubious dichotomy is that frequently gets made is between the ‘skilled’ and ‘unskilled’. The notion of skill is notoriously difficult to assess. Canadian policymakers, for example, use a national occupation matrix that combines job duties, work tasks and level of training to measure skill. In the UK, a cruder measure is used—skilled workers are those who hold a certain qualification level and earn above a certain salary threshold.
Martin Ruhs’ empirical research demonstrates that most advanced industrial countries privilege forms of so-called skilled migration, although the reasons for this are not always so clear. One reason may be that states, in the thrall of economistic ways of seeing the world, see greater economic benefits accruing from the migration of these workers (eg greater human capital, productivity growth etc.) and less likelihood of wage competition. Even as states compete with each other for skilled workers, they go to great lengths to limit the migration of those deemed low-skilled. The UK’s post-Brexit immigration plans have been justified by the Home Secretary on the explicit bases that it wants to ‘reduce the levels of people coming to the UK with low skills’. In circumstances where states allow low-skilled immigration, it is often on the basis that it is temporary as in the case of Canada’s Low-Waged Stream of its Temporary Foreign Worker Program. As discussed above, temporary forms of migration come with a variety of restrictions attached.
The posting of workers regime does not differentiate on the basis of skills. However, it is routinely presented as a tool to address skills shortages in the European Union. From a quantitative point of view, the phenomenon is also highly concentrated in labour-intensive but very specialised sectors, like construction. Still, as we mentioned before, neither of these characteristics is deemed sufficient to guarantee posted workers the benefit of equal treatment with local workers or access to local social security systems.
The Mode 4 regime under GATS does not as an instrument ostensibly discriminate on the basis of ‘skills’. Instead, contracting parties have the option to make specific undertakings to be bound under Mode 4 in relation to particular ‘sectors’ in respect of certain types of workers, which are then registered in their ‘schedule of commitments’. Those commitments must be clear regarding the scope of ‘market access’ (GATS Article XVI) and ‘national treatment’ (GATS Article XVII), as well as the date from which the commitment begins and any time limit. A State can choose a full commitment under GATS or one which is very limited, and there remains, obviously, the possibility of making no commitment at all. A common practice is to limit the temporary movement of natural persons to ‘professionals, managers and highly skilled workers’; low-skilled workers are, instead, supplied through ad hoc bilateral agreements such as ‘guest worker programs’, which means that states can evade any GATS or other legal obligation to admit low-skilled workers from more than a handful of countries.
We believe that the skilled/unskilled binary is deeply problematic. ‘Skill’ is not an objective category and our understandings are impacted by social conditioning. For example, childcare is often considered a low-skilled profession, although in practice, the range of proficiencies required to perform this role effectively are enormous. Even expanding our understandings of skill may not be enough to make this a worthwhile notion of retain. The crisis engendered by the Covid-19 pandemic has revealed that our societies rely upon the work of a range of undervalued workers—those who collect our refuse, stock or supermarket shelves, and provide intimate care for our elderly. Moreover, differentiation between access to migration on the basis of level of income is likely to have indirectly discriminatory effects on women, given the pervasiveness of a gender pay gap across the globe.
We have tried to untangle how various binaries operate in the areas of temporary labour migration, posted workers, and GATS Mode 4 provision of services. We have sought to demonstrate that, while these binaries are used to defend restrictive migration policies, they are fudged when convenient. For example, what is inside or outside a border is infinitely malleable in the context of EPZs. What is ‘temporary’ can mean six months in the EU and as much as five years under GATS Mode 4. It can even mean repeated temporary migration to a particular country over a period of years.
The definition of ‘skilled’ labour can ebb and flow depending on an arbitrary setting of an annual salary, which then has palpable (and even discriminatory) effects for the worker concerned. The last point is that these problematic and puzzling binary divides do not stand alone. They interact. So, the permeability of borders can be linked to the understanding of how borders may be reinvented for purposes of trade and labour, i.e. through so called ‘temporary migration’ in the form of provision of services. Likewise, the formal division between so-called temporary and permanent access to migration is bifurcated around the notions of ‘low’ and ‘high’ skill. They all need to be challenged to bring down the entire policy edifice, which stands on highly dubious foundations.
Finally, we think it time to point to the ‘employer-driven’ nature of this binaries which can trap workers within either the sending or destination country according to the perception of where corporate profitability lies. The spatial and temporal logics embedded within these binaries, as well as our modes of valuing certain types of workers over others, have resulted in a regulatory structure that privileges the needs of capital at the expense of national regulation and workers. We argue that all three binaries need to be rethought, alongside comfortable assumptions of a coalescence between private commercial and public interests.
5 October 2020
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.
18 January 2022
New research shows that, after the EU referendum, people were less likely to move if they were aligned with the Brexit preferences of their district.