When governments create unfreedom: rehumanizing migrant domestic workers

ABSTRACT

Taking the new Canadian legislation on migrant domestic workers as an illustration, this article suggests that framing temporary migrant work programs in a discourse of economic labor markets has a dehumanizing effect and tends to obscure both the reality experienced by the workers (within and beyond the workplace) and the forces at play in the creation of these experiences. Ultimately, such a discourse can even serve to justify regulatory frameworks that violates workers’ basic human rights and maintain global inequalities. Building on the concepts of informality, unfree labor relations and precarious work, we suggest that a rehumanization process built around the workers dignity is necessary, in order to fully recognize the responsibility of governments in the construction of migrant domestic workers’ unfreedom and thus bring to light the illegality of these types of regulatory frameworks. In the end, respecting temporary migrant workers’ dignity should translate into an institutional change where these workers not only get to participate in the law-making processes, but also in the very framing and shaping mechanisms of these institutions.

KEYWORDS:

• Labor Law
• Immigration Law
• Human Rights
• Migrant Workers
• Precarity

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

^* During the publication process of this article, important legislative changes have been made affecting migrant caregivers in Canada. These changes include two new five-year pilot projects allowing access to permanent residency after 24 months of work experience with occupation-specific work permits. While these changes have generally been met with positive reactions, the annual cap on permanent application has been maintained and the concrete effects remain unknown. For more details: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/caregivers.html

1. Part of an allocution from the former Immigration Minister Chris Alexander at a news conference in Toronto. (Levitz 2014) .

2. With the time constraint, changing an employer means having to find a new employer and apply for a new work permit. This process usually takes several months during which the worker has no authorization to work for anyone in Canada. It also entails losing several months of the employee 48 months time limit to apply for permanent residency. Therefore, because of the risk of losing their employment, a benefit-cost analysis usually leads the worker to refuse to file a complaint. For a detailed analysis, see (Dumont-Robillard 2015).

3. For instance, their isolation in private households becomes a lack of proof for uncorroborated testimony. The impossibility to provide official salary statements (because the employer never met his obligation to this regard) or the tax declaration of the employer stating the full payment of salary (while the employer was actually paying the worker cash only a fraction of the amount) become a lack of proof of unpaid salary. The fact that a worker has been forced or lured into leaving the country under false pretenses is not considered a sufficient ground to be relieved of her failure to file the complaint within 90 days (These are all examples drawn from my own personal experience as a legal representative of migrant domestic workers before the Labor Standard Commission of Quebec.)

4. Indeed, given the timeframe requirement, finding a new work quickly becomes paramount to preserve the possibility of access to permanent residency. Whereas caregivers used to be able to work either as a childcare provider or as a special needs care provider (for elderly or handicapped people) in the computation of their 24 months requirement, they now see their employment possibilities severely restrained.

5. For a description of the Canadian Language Benchmark, see (CIC 2012).

6. For a comprehensive description and analysis of the realist ethical approach to labor migration policies, see (Ruhs and Chang 2004).

7. While the authors do not suggest where States should situate their labor migration policies on this number vs rights scale, they state that strict rights-based approaches fail to account for this trade-off.

8. For more details on these financial advantages for the Canadian government, see for instance: Macklin 2002.

9. For a complete analysis of the application of section 7 of the Charter to non-citizens, see Singh v Canada (Minister of Employment and Immigration) (1985) 1 S.C.R. 177.

10. Section 1 of the Charter provides that it ‘guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

11. See also Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997) 3 S.C.R. 3, at para. 281 and Schachter v. Canada (1992) 2 S.C.R. 679, at 709.

12. After abolishing the employer-tied work permit, the Israeli government amended the law to issue geographically-tied work permits, thus upholding the workers unfreedom. For a complete analysis of the Kav LaOved’s case and its subsequent developments, see (Depatie-Pelletier 2018).

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Notes on contributors

Myriam Dumont-Robillard

Myriam Dumont-Robillard is a Canadian lawyer involved in the promotion and defence of migrant workers’ rights, especially migrant domestic workers in Canada. She is currently pursuing doctoral studies at McGill University Faculty of Law (Doctor of Civil Law) and she is a member of the McGill’s Labour Law and Development Research Laboratory. Her research focusses on theoretical and practical approaches to guarantee an effective access to justice for migrant workers. Her professional experience includes community work, legal representation, legal research, advocacy and student training.