Abstract
The newly released book Migrant Labour and the Reshaping of Employment Law, edited by B. Ryan and R. Zahn, aims to provide a thematic and comparative perspective regarding the relationship between labour migration and employment law in a selection of highly-developed countries, namely, Australia, Canada, Germany, Italy, the Netherlands, Spain, the United Kingdom, the United States and, in addition, the European Union. Acknowledging that migrant labour is necessary for labour markets in these countries, this book examines the implications of (changes in) labour migration for (national) employment law systems. Whereas each chapter covers a specific country, the book kicks off with contributions regarding the equality of treatment-premise of migrant workers, followed by an analysis of their exploitation and several reflections on the reconciliation of migration and employment law, amongst others, by taking into account the ethics of labour migration along with several rationales for regulation. Despite the abundant research on migrants and their labour position, labour migrants continue to be a vulnerable category of mobile workers. Therefore, the authors – comprised of leading migration and employment law scholars – wish to highlight migrant workers’ interests and the obstacles they face, and to pose labour migration-related questions with a view to promoting greater recognition thereof. In doing so, the book emphasises the relationship between migration and employment law – both inherently contributing to the proper functioning of labour markets – which becomes increasingly important considering that labour migration towards highly-developed countries is growing. This means that changes in migration trends require a re-evaluation of existing employment law regimes. Consequently, this book provides an appropriate overview of the current employment law situation of migrants and how it interacts with previous and current labour migration trends – and whether they act as communicating vessels.
Furthermore, the assumption taken in this book entails the idea that local workers and migrant workers find themselves in different socio-economic positions with divergent needs and wishes. This hypothesis is explored for multiple migrant statuses, such as (il)legal, (un)authorised, and (ir)regular migrants, intra-EU posted workers, and non-EU migrant workers. For these statuses, the thematic overview is incredibly diverse, focusing on (unpaid) wages, undeclared work, the right to work (permits), and enforcement mechanisms. Other topics covered include general (fair and decent) working conditions, such as access to employment and termination of the employment contract, forced labour, and collective bargaining. Hence, labour migration requires adequate legislation, on facilitating the entry of migrants and regulating their exit – and everything in between.
While the book effectively delves into the specific themes explored in each chapter, focusing on individual countries, it becomes evident that it thoroughly elucidates the vulnerability of migrant workers in comparison to local workers when viewed as a whole. It does so in various ways. First, it becomes clear that the attitude towards foreigners highly depends on the national situation over which migrants generally do not have any influence. For example, F. Camas Roda (Spain) explicitly notes that residence and work permits are only granted to foreigners if no Spanish national (or EU citizens or other documented migrants) can fill the job vacancy in Spain. Second, it also shows how employment law may contribute to the situation of migrant workers but simultaneously might make their position more precarious – the employment protection of migrant workers is, in principle, dependent on their legal status. Nevertheless, the migration status and worker rights are disconnected in some countries. T. De Lange (Netherlands) demonstrates that sometimes employers are (unwillingly) pushed to use irregular migrant labour due to the absence of (feasible) legal migration paths, especially for low-wage labour. In the same vein, W. Chiaromonte (Italy) states that the limitations and conditions of the current complex legislation precisely prevent migrants from entering Italy legally. Furthermore, M. Zou emphasises that higher-skilled migration programmes are more open and flexible than those for admitting lower-skilled migrants. Hence, migrant workers are not on an equal footing with local workers, nor are they with other migrant workers. Additionally, she proceeds with caution as more equal treatment for current migrants might lead to more restrictive entry policies for potential migrants. Third, the treatment of labour migrants also depends on the history and culture of a particular country. The relatively strict regime towards labour migrants in Australia finds, for example, its justification in its culture of control. A particularly striking example is provided by M. Ontiveros (United States), who refers to the history of non-citizen workers in the United States, specifically in relation to slavery, to highlight the recurring issue of the dependency of migrant workers today on their employers in the host country. Last, S. Marsden (Canada) makes a critical remark about the difference between formal and substantive equality, in which the latter takes into account the structural characteristics of vulnerable migrant workers. In summary, each chapter contributes in its own manner to the storyline of migrant workers being treated unfavourably compared to local workers.
Moreover, the comparative aspect of the book is to be found in the first (introductory) chapter. Here, B. Ryan illustrates employment law reforms as a consequence of labour migration based on the ‘varieties of capitalism’ typology, comparing liberal market economies (such as Australia, Canada, the UK and the US), co-ordinated market economies (such as Germany and Sweden) and mixed regimes (such as Italy and Spain). Accordingly, he puts forward a more general comparative account, while a comprehensive comparative overview – as aimed for – is lacking. The book’s overall message would have benefited from a concluding chapter discussing each country’s approach towards each theme for each migrant status. Such all-encompassing comparative understanding is hampered because each chapter focuses on a different country with different labour migrant statuses and employment themes – even though there is some overlap on the relevant status and employment conditions of migrant workers. Also, such a chapter could have shed light on the potential to extrapolate the reconciliations discussed in the EU and Britain to the other highly-developed countries. This would go beyond a mere description of the measures taken by individual countries and analyse what extrapolation from one country to another, for example, via best practices, means. Thus, how reconciliations could be useful in other countries remains unclear. Also, whereas the book provides perspectives from highly-developed countries worldwide, no countries from South America or Asia are examined. This is a missed opportunity to provide a truly global comparative overview. Other highly-developed countries from these regions could have included Hong Kong, Singapore, Japan, South Korea, Costa Rica, and Chile, for example. Generally, the book centres around the Global North.
In conclusion, this book successfully presents a detailed overview of the interrelationship between migrant labour and employment law for each of the highly-developed countries. It disentangles statutory entitlements as well as case law – explicating the distinction between the civil and common law systems involved – and is substantiated by a wide variety of examples for each country. Considering that it focuses mainly on employment law-related questions, it nevertheless demonstrates that migrant workers are confronted with obstacles from multiple legal fields: public to civil law and criminal to administrative law. It reveals the contradiction between, on the one hand, the need for migrant workers and, on the other hand, their vulnerability and exploitation. Therefore, it provides a relevant overview of the contemporary legal situation of labour migrants for academics, practitioners and policymakers concerned with migration and labour migrant statuses and their treatment in employment – from entry opportunities to exit obligations – in the relevant highly-developed countries. Nonetheless, although the book aims to provide a comparative recapitulation, it is not provided in one comprehensive chapter. While each chapter provides an overview of the relevant country, the actual one-on-one comparative analysis is left to the reader. Overall, the book is an important piece of academic literature that puts migrants’ needs and wishes – and the obstacles they face in working abroad – centre stage. Consequently, it nurtures the current debates regarding the substantive employment law that ought to apply to foreign labour migrants in order to enhance their legal position in national employment law.
