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ABSTRACT
This article illustrates how blacklisting can function as a modality of deportability among temporary migrant workers participating in a programme touted as a model of ordered migration internationally, with attention to sending state action. In 2010, Local 1518 of the United Food and Commercial Workers Union applied successfully to British Columbia's Labour Relations Board to represent a group of circular migrants engaged under Canada's Seasonal Agricultural Worker Programme. Yet less than a year later, the union complained of unfair labour practices on the part of not only the host state employer and certain employees but sending state officials who select and assign workers to Canadian employers, contending that they blocked the visa reapplications of union members eligible for recall and improperly interfered in a decertification application. On account of the unique empirics available through this case, its analysis offers a window into practices which are routinely obscured but nevertheless central to how deportability operates.
Acknowledgements
I am grateful to Nicole Bernhardt, Kim McIntyre and Corey Ranford for their research assistance and to those who agreed to participate in interviews towards the research project of which this study is a part.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. On organizing efforts undertaken by Local 1518 with BC SAWP employees in the early 2000s, involving various growers, see Russo (Citation2012); and Jensen (Citation2013).
2. Although the State of Mexico formally responded in the proceedings of the BCLRB and BCSC, officials of its Ministry of Labour and Social Provision (MOL) and government agents stationed at its Vancouver consulate were principally involved in this case. By referring to Mexico, I thus by no means intend to suggest that the state is a unitary actor.
3. An analysis of the Mexican state's appeal to the BCSC is beyond the scope of this inquiry. It is, nevertheless, noteworthy that Mexico was sufficiently concerned with having its actions revealed that it took the matter to the province's highest court and proceeded with its challenge even after gaining immunity from the BCLRB and, furthermore, that the BCSC rejected the Mexican state's arguments with regard to the scope of immunity, permitting the conduct of its officials to be considered in the case against the employer and certain employees.
4. One example relates to the layoff and premature repatriation of fourteen SAWP employees at Floralia Plant Growers Ltd, a BC farm neighbouring Sidhu. But, while these employees were laid-off the day before a vote to certify their union, their employer was able to justify the layoffs to the BCLRB on the basis of poor weather conditions (for commentaries considering this case, see Russo Citation2012, Chap. 3; Jensen Citation2013, Chap. 4).
5. The research involving human subjects was approved by York University's Research Ethics Board (Certificate No. e2013–139). Qualitative interviews were taped and transcribed to ensure accuracy. Although all interviewees granted permission to use their names, given my concern with institutional dynamics, I opt to use the titles rather than the names of Mexican officials except when they are part of the narrative in tribunal proceedings.
6. This qualitative dimension was investigative; it sought to uncover the ‘stories' behind the legal case and the written and oral testimony offered by the various parties. Questions posed of key informants aimed to discern actions and events which the parties identified with deportability as it is lived by temporary migrant workers with the prospect of return, by querying informants' knowledge of how workers' rights and their exercise are perceived and received and of the mechanics of blacklisting.
7. For Preibisch (Citation2010, 104), for example, even aspects of the SAWP that make it preferable to other temporary migrant worker programs in agriculture can undermine workers' rights: foremost its promotion of legal channels for repeat migration on a temporary basis rather than pathways to permanency.
8. For a salient analysis of the H2-A program, see for example, Ness (Citation2011).
9. As a Mexican consular employee responsible for worker transfer testified in the case examined below, three applications are typically submitted for every one position annually (BCLRB Citation2012b, Day 4). Moreover, SAWP employees grew from 18,696 to 29,025 of all temporary migrant workers present in Canada between 2003 and 2012, approximately 5000 of whom were placed in BC that year (HRSDC Citation2013, 68).
10. In the early 2000s, Canada introduced a series of highly de-regulated temporary migrant work programs, including two encompassing agriculture, that impeded unionization by: opening it up to migrants from an unlimited number of sending states; limiting the tenure of migrant workers' employment; and, permitting private recruiters that, while they do not enjoy the same immunity as sovereign nations, are less accountable in the absence of bilateral agreements enunciating workers' rights (For an incisive commentary on their introduction, see Hennebry Citation2008, 356).
11. Provinces (with different labour laws) have joined the SAWP at different times. BC joined in 2004.
12. They are to last a minimum of 240 hours (over a period of 6 weeks or less) and a maximum of 8 months and are only permitted between January 1 and December 15 (see e.g. HRSDC Citation2013, S. I, para 1 (a)).
13. The terms of the SAWP employment agreement operating in BC reflect those adopted in other provinces. As of 2015, BC SAWP employees were, for example, to receive a minimum wage (at least the equivalent of $10.49/hour), the employer was to pay for return air travel, and accommodation costs to workers were regulated (at a rate of $5.36 per day not exceeding $826.00 during a stay).
14. Direction given to consular officials under the Vienna Convention on Consular Relations (1963), which Mexico ratified in 1965, also reflects and reinforces this de facto employer advocacy. By characterizing consular officials functions as ‘protecting in the receiving State the interest of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law', this convention falsely assumes that sending states (as corporate bodies) and their nationals have the same interests when, for example, sending states may view unionization as a threat to their remittances bringing consular officials' roles of protecting nationals abroad into conflict with the overarching interests of the state (VCCR Citation1963, Schedule 2, Art. 5 (a)).
15. Two such former employees were themselves engaged initially by the Mexican consulate in Vancouver, technically a Canadian employer, under the Temporary Foreign Worker Program; indicative of their own deportability, one reported that s/he feared forfeiting prospects for permanent residency if s/he didn't comply with supervisory demands (Former consular employee. Interviewed by author. Vancouver, 26 July 2014).
16. Robles, however, did eventually travel to Canada to work on a farm that summer.
In documenting his placement, the union indicated that, after participating in a May press conference at the Mexican Senate denouncing the blacklisting of union activists from the SAWP, Robles received a call from Mexico's MOL offering him work in Quebec (UFCW Local Citation1518 Citation2011, paras 10–13).
17. Implicating the employer indirectly, the Chair (BCLRB Citation2014, para 80) also indicated that, ‘[w]hile the evidence did not point to a particular person that identified union supporters to the Consulate, it is likely this information came from someone working on the farm.’
The BCLRB (Citation2014, para 82) limited itself to this inference because it lacked evidence ‘establish[ing] that the employer identified Robles as a supporter of the union … ’ Highlighting difficulties in obtaining such ‘smoking gun’ evidence, a lawyer for the union emphasized subsequently that ‘unions will rarely have that kind of evidence. That's something that the employer is going to hide as much as they can, if it happened’ (Lawyer for UFCW. Interviewed by author. Vancouver, 25 July 2014).
18. For example, a firewall should be created between consular officials overseeing SAWP locally and MOL records of employees maintained for the purposes of their reassignment on grounds specified in bilateral and collective agreements.
19. For example, to deter blacklisting, automatic reinstatement could be provided for workers who report blacklisting unless employers and/or sending and host state officials can demonstrate otherwise.