Post‐national citizenship, social exclusion and migrants rights: Mexican seasonal workers in Canada

Abstract

In the past few decades, migrants residing in many European and North American countries have benefited from nation‐states' extension of legal rights to non‐citizens. This development has prompted many scholars to reflect on the shift from a state‐based to a more individual‐based universal conception of rights and to suggest that national citizenship has been replaced by post‐national citizenship. However, in practice migrants are often deprived of some rights. The article suggests that the ability to claim rights denied to some groups of people depends on their knowledge of the legal framework, communications skills, and support from others. Some groups of migrants are deprived of the knowledge, skills, and support required to negotiate their rights effectively because of their social exclusion from local communities of citizens. The article draws attention to the contradiction in two citizenship principles—one linked to legal rights prescribed by international conventions and inscribed through international agreements and national laws and policies, and the other to membership in a community. Commitment to the second set of principles may negate any achievements made with respect to the first. The article uses Mexican migrants working in Canada as an illustration, arguing that even though certain legal rights have been granted to them, until recently they had been unable to claim them because they were denied social membership in local and national communities. Recent initiatives among local residents and union and human rights activists to include Mexican workers in their communities of citizens in Leamington, Ontario, Canada, are likely to enhance the Mexican workers' ability to claim their rights.

Notes

Tanya Basok, Centre for Studies in Social Justice, University of Windsor, 401 Sunset Avenue, Windsor, Ontario N9B 3P4, Canada; e‐mail: [email protected]

Brubaker (1992) contends, ‘Viewed against the backdrop of the loss of sovereign control over admission to the territory and access to civil and socioeconomic rights, state’s continued sovereign control over admission to citizenship stands out' (p. 180). Canefe (1998) recognizes the importance of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families as a significant human rights instrument with some international dictate. He acknowledges that the UN and ILO support the rights of migrant workers in terms of the provision of fair wages in conditions of equal pay for equal work, decent living and working conditions, equal opportunity in the work place, and availability of rest, leisure and periodic holidays. Yet he points out that these provisions are primarily recommendations for the states hosting migrant workers and they do not possess an obligatory nature. Castles and Davidson (2000, p. 19) seem to be even more sceptical of the impact that the UN Convention on the Rights of Migrant Workers and Members of Their Families can make on international migrants since it has been signed only by a few emigration countries.

Schuster and Solomos (2002) point out that national citizenship ‘remains the single most important means of protecting migrants and minorities within Europe from being excluded or expelled from a European state’ (p. 49). Brubaker (1992) remarks that citizenship would add complete protection against expulsion, access to public sector employment, and eligibility for those few social services and benefits that are limited to citizens (p. 180).

In 1996, for instance, 2934 out of the 4187 Mexican workers selected to participate in the Canadian program had been requested by their employers (FARMS, 1999).

According to the 1996 Census, carried out by Statistics Canada, there were only 75 Spanish‐speaking immigrants residing in Leamington.

The ‘Agreement for the Employment in Canada of Seasonal Agricultural Workers from Mexico’, signed by the employer and the employee, stipulates that ‘for each six consecutive days of work, the worker will be entitled to one day of rest’, although it does make it possible for employers to request ‘the worker’s consent to postpone that day until a mutually agreeable date'. In practice, during the peak season, many Mexican farm workers are asked to work seven days a week (including half a day on Sunday) and they feel compelled to comply with the request.

No Mexican worker interviewed in the Leamington area has been offered a paid holiday by the employer and the payment of the vacation pay has been subject to the employer's whims. The application of the Employment Standards Act is complicated by the distinction it makes between ‘harvest’ and ‘farm’ workers. Only harvest workers are entitled to paid public holiday and vacation benefits and only if they have been employed for 13 weeks as harvesters. Most Mexicans work in Canada for more than 13 weeks but during the term of their employment they perform numerous tasks, some related to harvesting and others to preparation of the soil, packaging, and some post‐harvest activities. It requires accurate book‐keeping on the part of the growers to establish whether the workers have been employed as ‘harvesters’ for the specified period. Most growers in Leamington chose not to bother making the required calculations. They deny paid public holidays to all Mexican workers and the amount of vacation pay varies from one grower to the next. Some growers also use vacation pay as a reward and therefore some workers receive the full vacation pay; some workers claim to receive only 2% and some none at all.

Growers are required to have the migrants' living quarters examined by provincial ministries of health prior to receiving an approval to hire migrant workers. Some workers, however, complain of deplorable working conditions, including overcrowding, extreme heat or cold, substandard sanitation, and a shortage of appliances.

A small number of placements are also available in Quebec and Manitoba.

In most Canadian provinces agricultural workers are denied the right to organize. In the early 1990s the Ontario New Democratic Party government of Bob Rae granted agricultural workers the legal right to organize under the Agriculture Labour Relations Act. In 1995 Bill 91 was repealed by the Conservative Party. The United Food and Commercial Workers Union, which had started unionizing workers in a mushroom plant near Leamington, launched a lawsuit. In December 2001 the Supreme Court of Canada found that the denial of the right to organize to agricultural workers was unconstitutional. The Supreme Court requested that the Ontario government change the law (Hill, 2002; Schmitz, 2002). The law that came out in Fall 2002 gave agricultural workers the right to form and maintain associations but not to strike or bargain collectively (Hill, 2002). The bill also denied the right to organize to migrant workers who, according to the provincial legal experts, fell under federal rules (Windsor Star, 8 October 2002, p. A5).

Additional information

Notes on contributors

Tanya Basok

Tanya Basok, Centre for Studies in Social Justice, University of Windsor, 401 Sunset Avenue, Windsor, Ontario N9B 3P4, Canada; e‐mail: [email protected]