‘What is exploitation and workplace abuse?’ A classification schema to understand exploitative workplace behaviour towards migrant workers

ABSTRACT

Migrant workers and domestic workers more broadly, suffer multiple forms of exploitation but the interaction of these forms lacks theorisation. The scholarship on exploitation includes modern slavery studies, Marxism and aligned accounts of unfreedom that help clarify the position of migrant workers. Yet, none of these accounts exhaust the array of exploitative practices that migrant workers face and these approaches often privilege economic violations over other types. This paper argues that a five-type classification schema – adding criminal infringement, denial of leave entitlements, safety violations and discrimination to economic violations – best encompasses the exploitation that migrant workers experience. Drawing upon a new database of 907 court cases litigated by 1912 migrant workers in four countries, it demonstrates that while economic violations predominate they often interact with these other four types of abuse. It suggests that both policy analysis and theoretical accounts of exploitation and abuse should address a broader array of workplace violations, which may provide a jumping-off point for further empirical studies of exploitation.

KEYWORDS:

• Migrant workers
• exploitation
• abuse
• empirical
• labour law

Acknowledgements

This research is supported by Anna Boucher's Australian Research Council Discovery Early Career Researcher Grant and a University of Sydney SOAR Prize. Anna Boucher is grateful to the following legal research assistants in assisting in constructing the Migrant Worker Rights Database: Tatiana Altman, Nina Dillon Britton, Angus Brown, Umeya Chaudhuri, DeCarol Davis, Tess Deegan, Eda Gunaydin, Nela Salamon and Robert Seals. Thanks to Adam Morton, Yane Svetiev, Simon Rice, Gareth Bryant, Chris Hillard and Luara Ferracioli.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 As noted below, some Marxist scholars (such as Brass 1986) also use the term ‘unfree’ labour to define forms of bondage in capitalism, suggesting a linkage between unfree labour theory and Marxism.

2 Others, such as John Roemer, have conceived of this ‘labour surplus’ in terms of the ownership over the means of production (property relations) rather than the labour exchange itself. If inequality would have lessened under a different ownership system, then there has been exploitation in the first instance (Roemer 1982). This approach is difficult to relate to contemporary capitalist wage labour relationships as it is principally concerned with inequalities in ownership of property, not employment.

3 Injury was included in Marx’s rich descriptions of English factories (Marx 1990, Chapter 15) and in Engel’s The Conditions of the Working Class in England (2001). An alternate analysis is that physical injury is tied to the alienation of labour. More recent studies have considered how aspects of workplace conditions can increase both economic exploitation and injury, for instance studies of piece work (Wrench and Lee 1982).

4 See however Capital I on indigenous persons and under-analysed aspects of ethnicity (Marx 1990, Chapter 10). To some extent, Marxist approaches also consider exploitation through gendered and racialised lenses to understand how hierarchies of inequality are justified and perpetuated (Callinicos 1995, Marx 1990, Selwyn and Miyamura 2014, p. 643).

5 While a central proponent of labour law, Otto Kahn-Freund’s earlier work was critical of the pacifying effects of labour law and its potential to ‘suppress class contradiction’ (Kahn-Freund 1931), his later work was seen as more supportive of a separation of labour law and trade union organising, as in the thesis of collective laissez-faireism, see Kahn-Freund (1959, p. 225). This led some to argue that his exposition of labour law theory was divorced from its earlier social democratic responsibility to mediate class conflict (Lewis 1979, Ewing 1998).

6 As such, it does not cover resolved, settled or unpublished decisions. A codebook and annex will be made available on author’s website following publication.

7 The instances where undocumented migrants have access to legal protections and where they do not vary across the six labour law jurisdictions and four countries considered. However, often employment law protections are in place, at least at law. This issue is explored further in Author x

8 Krippendorff’s Alpha > 0.67 was achieved for all indicators considered in this paper. Further details of intercoder reliability are available in the online annex.

9 Dymski (1992, p. 299) argues that the two threats of racial domination to exploitation are structural – a greater risk of underpayment compared with workers not of that racial group and a greater risk of unemployment following dismissal for racialised minorities – but also ascriptive or perceptual – assumptions made by the employer about the nature of the worker based on their racial grouping.

10 For some of the jurisdictions the indicator set in the database is thus an improvement on what the laws in that jurisdiction provide.

11 We refer to classification schema rather than a typology because a typology involves multidimensional variation within each class, whereas a classification system does not. As the central point of variation in this classification is across rather than within each class, classification is the best descriptor (Bailey 1994, p. 4).

12 This is different from forced labour: it encompasses instances where the person’s forced labour relates specifically to sexual servitude, sexual slavery or compulsory sexual labour that is unrecompensed.

13 The exact legal definitions of these crimes across the different jurisdictions in included in the codebook.

14 This is mainly the offence of failing to keep information regarding payslips, which is largely an issue in Australia. Further details of these forms of violations, including the relevant statutory or common law basis can be viewed in the codebook, see endnote 6.

15 Further details on these indicators are available in the codebook, see endnote 6.

16 The relevant courts and tribunals here being the NSW Workers Compensation Commission (Australia), the Ontario Workers Compensation Appeals Tribunal, the Ontario Workplace Safety and Insurance Appeal Tribunal.

Additional information

Funding

This work was supported by the Australian Research Council Award DE17010080; SOAR Prize, University of Sydney, 2019–2020; Laffan Fellowship, University of Sydney, 2014–2015.

Notes on contributors

Anna Boucher

Anna Boucher is an Associate Professor in Political Science and Public Policy at the University of Sydney. She holds degrees in politics and law, from Sydney University and the London School of Economics. Her research focuses upon immigration policy and its intersection with the welfare state, gender equality, industrial relations and employment law as it impacts upon immigration. Her work has been published in international journals, books and presented before intergovernmental and government agencies. She is a regular commentator in the news on immigration issues.