Labour struggles for workplace justice: Migrant and immigrant worker organizing in Canada

Introduction

Immigrant and migrant workers have long histories of self-organizing for justice and dignity in Canada. Since colonization, Canadian society has been built upon the dispossession of Indigenous Peoples and waves of migrant and immigrant labour, including thousands of indentured Chinese workers who endured dangerous working conditions in the railways and mines in the 19th century (Annian, 2006; Thobani, 2007). While relying on immigration as a key source of labour, Canadian immigration policies have often been highly restrictive, particularly through temporary foreign worker programs that prevent both labour market mobility and permanent settlement in Canada. The employment conditions of workers in these programs, as well as those experienced by racialized immigrant workers more broadly across the labour market, have become highly contested in contemporary times as these workers and their allies engage in struggles for workplace and economic justice.

As in other high-income capitalist labour markets, in recent years, temporary labour programs have become increasingly common (Preibisch and Binford, 2007). These programs provide states with the means to promote economic openness, deal with labour shortages and resolve political concerns over the permanent settlement of immigrants (Hollifield, 2004). Temporary migrant workers generally hold low-wage, insecure jobs that are difficult to fill due to these conditions. These types of programs create forms of economic, political and social exclusion, whereby migrants are granted limited access to a labour market, but with restrictions on residency and citizenship rights, thus creating a form of labour force stratification based on legal status (Castles, 2004; Engelen, 2003). Moreover, with the erosion of union power and the deregulation of the labour market, increasing numbers of all workers – not only migrant/racialized immigrant workers – in Canada face precarity and uncertainty. Vosko (2000, 2010), for example, draws on feminist political economy in critiquing approaches to understanding temporary agency work/workers, and dubs the dominant approaches to theorizing the labour market as ‘SER [Standard Employment Relationship]-centric’. She argues that the SER (based on the pillars of a bilateral employment relationship between employee and employer, standardized working time, continuous employment) is already not the norm for many workers.

In this context, migrant workers, labour organizations and migrant worker allies have engaged in a wide range of organizing initiatives. These have included both court challenges to secure legal rights to unionization and grassroots alternatives to traditional forms of unionization through workers’ centres. Here, we explore the dynamics of labour organizing among migrant and immigrant workers in Canada, focusing on two case studies that enable an in-depth assessment of each of these emerging strategies. First, we examine recent efforts to unionize migrant farmworkers in the Seasonal Agricultural Workers’ Program (SAWP). Exempt from many basic labour standards, SAWP workers experience seasonal employment characterized by long hours and low wages. As seasonal farmworkers, they are prohibited from unionizing in some provinces. Nonetheless, unions and migrant worker allies have engaged in farmworker organizing initiatives, including legal challenges to secure freedom of association rights. We focus on a series of ongoing legal challenges undertaken largely by the United Food and Commercial Workers (UFCW) that began in 1995. We then turn to the case of the Immigrant Workers’ Centre (IWC) in Montreal, Québec, which formed in 2000 to provide a safe place for migrant and racialized immigrant workers to come together around problems in their workplaces. The IWC is engaged in individual rights counselling, as well as popular education and political campaigns that reflect the general issues facing migrant and racialized immigrant workers, including dismissal, immigration status, exploitation by temporary employment agencies and sometimes inadequate representation by their unions. The IWC’s activism includes fostering and maintaining alliances with a broad range of community, national and international immigration, labour and social justice movement networks. We explore the possibility of workers’ centres as a democratic, grassroots alternative or counterpart to traditional forms of unionization. We conclude by assessing the limits and possibilities of these strategies, particularly in terms of the implications for labour organizing among the growing number of temporary foreign workers in Canada.

Temporary foreign labour programs’ rapid expansion

Since the mid-1990s in Canada, there has been a marked shift from entries of workers at high-skill levels (occupations requiring university education) to workers at lower-skill levels, especially those requiring occupational-specific training or a high-school diploma (Citizenship and Immigration Canada (CIC), 2010). Moreover, the number of workers entering Canada as temporary foreign workers has grown significantly in relation to the number entering as permanent residents (Valiani, 2007), with Ontario and Alberta as the top destinations for temporary foreign workers. Between 2002 and 2008, the number of temporary foreign workers present in Canada (on 1 December) rose by 148% (CIC, 2009). In 2010, almost 183,000 temporary foreign workers entered Canada (CIC, 2011).

The SAWP ¹ is considered a ‘model’ temporary foreign worker program by policymakers because its practice creates a permanent flow of temporary foreign workers (Basok, 2007). The program primarily recruits male workers, with the two leading source countries being Mexico and Jamaica (CIC, 2005). The workers’ period of employment in Canada ranges from six to 40 weeks, with a minimum of 40 hours of work per week, though this can often greatly exceed 60 hours. Under the Employment Agreements regulating the program, farm labourers are paid an hourly wage just over Canadian minimum wage levels, and are provided with health care coverage throughout their period of employment. Employers are responsible for covering transportation costs for their employees to and from their home country and providing accommodation for the duration of the employment contract. Once their seasonal contract ends, migrants have to return home until the next growing season (Gibb, 2006; Preibisch and Binford, 2007; Thomas, 2010). Essentially, the program facilitates the incorporation of migrant workers from the Caribbean and Mexico into seasonal agricultural production as unfree migrant labour (Satzewich, 1991), with echoes of earlier indentured migrant labour such as the Chinese railroad workers, as workers in the program are neither permitted to seek employment outside their specified contract nor apply for permanent residence within Canada.

Reflecting the model of the SAWP, in July 2002, the federal government developed a ‘Low-Skilled Pilot Project’ for occupations requiring either a high-school diploma or a maximum of two years’ job-specific training. As part of the program, employers are expected to assist foreign workers to find accommodation, pay full airfare to and from the home country, and provide medical coverage until the worker is eligible for provincial health insurance. The Low-Skilled Pilot Project initially placed a 12-month time limit on employment contracts for foreign workers, with the requirement that the worker return home for a minimum period of four months before applying for another work permit. This was subsequently increased to periods of up to 24 months (Human Resources and Social Development Canada (HRSDC), 2007), and in April 2011, to a maximum of four years. ² Under the newest regulations, once they have reached the four-year limit, workers must wait four years before they can reapply. In 2009, 80,192 workers had entered Canada through this program under the ‘Intermediate and Clerical’ category, and 23,633 under the ‘Elemental and Labourers’ category (excluding SAWP and the Live-in Caregiver Program (LICP)) (CIC, 2010).

This expanded program extends the principles established by the SAWP to a wide range of low-skill occupational categories. As with the SAWP, workers are employed under conditions of unfree wage labour as they are neither permitted to circulate in the labour market nor able to apply for permanent residency through the program. The lack of both labour market mobility and capacity for permanent residency means that workers in the program work under highly precarious conditions. Moreover, the program creates a high degree of labour flexibility for employers, as it is based solely on short-term labour demands. The expansion of the Temporary Foreign Worker Program constitutes another growing example of the ways in which racialized migrant workers are constructed as highly exploited labour in the contemporary labour market.

Ontario migrant farmworkers – the legal struggle to organize

Labour organizing among workers employed in the SAWP is particularly challenging due to a range of factors, including: employer repression of organizing drives; employers pitting racialized groups against one another to avoid unionization; and employers repatriating workers who support unionization (Preibisch, 2010; UFCW, 2007). In Ontario, farmworkers have historically been exempt from labour relations legislation that facilitates freedom of association and collective bargaining. Contemporary farmworker organizing in Ontario has its roots in the efforts of the Canadian Farmworkers Union (CFU), formed in 1980 by migrant farmworkers in British Columbia, who have had the legal right to unionize since the 1970s (Bush, 1995). The CFU pushed for a minimum wage, maximum hours of work and improved health and safety protections, and established an office in Ontario. The union faced intense resistance from agricultural employers and growing opposition from the (conservative populist) Social Credit government that had taken power in British Columbia. By the end of the 1980s, financial constraints forced a scaling back of organizing efforts, including closing the Ontario office.

Since the 1990s, the UFCW has spearheaded a campaign through the legal system to win the legal right to organize and bargain collectively for agricultural workers in Ontario. ³ While the campaign takes place within the courts, it is accompanied by efforts to organize agricultural workers into certified bargaining units and negotiate collective agreements with employers if and when certification is achieved.

The federal Industrial Relations and Disputes Investigation Act 1948 and the Ontario Collective Bargaining Act 1943 excluded agricultural workers in Ontario from association and bargaining rights because it was claimed that ‘farm enterprises had such low profit margins that they could not pay higher wages’ (Butovsky and Smith, 2007: 81). In Ontario, this was maintained until the 1990s, when the New Democratic Party (NDP) government introduced the Agricultural Labour Relations Act (ALRA), which gave non-seasonal agricultural workers the right to unionize. It also allowed for dispute settlement through mediation and final offer selection arbitration. This legislation banned strikes, however, because of the risk to perishable produce.

A legal challenge regarding freedom of association rights for agricultural workers began in 1995, following the decision of the Progressive Conservative (PC) provincial government to overturn the ALRA, eliminating the right to unionize for farmworkers. The UFCW had recently organized a group of farmworkers in Leamington, Ontario. In response to the government’s actions, the union launched a court challenge, claiming that this exemption was a violation of the Charter of Rights and Freedoms. This complaint eventually made its way to the Supreme Court of Canada, which, in 2001, ruled that agricultural workers have rights to association under the Charter (Dunmore vs. Ontario). The Supreme Court gave the Ontario government 18 months to draft legislation that would ensure that the constitutional rights of farmworkers were respected (UFCW, 2004).

In response, in 2002, the PC government introduced the Agricultural Employees Protection Act (AEPA), which established the right for farmworkers to form associations. The AEPA failed to include a legal obligation for employers to bargain collectively, however, thus effectively undermining the rights that the legal challenge had sought to establish in the first place. In April 2004, three agricultural workers from Rol-Land Farms and the UFCW applied to take the Ontario government to court to defend the right to association, as the employer refused to recognize the union (UFCW, 2004).

The protracted path through the courts continued. In 2008, the Ontario Court of Appeal supported UFCW’s challenge that claimed the prohibition on farmworker unions was a violation of the Charter. The ruling ordered the Liberal government to provide legislation to enable farmworker collective bargaining by November 2009 (UFCW, 2009). This ruling was reinforced by the June 2007 Supreme Court BC Health Services decision that protected collective bargaining as part of the Charter right to freedom of association (UFCW, 2010b).

The Ontario government appealed the 2008 decision, however, leading to a further legal battle at the Supreme Court. In April 2011, the Court upheld the appeal, finding that the AEPA did not contravene the Charter (Faraday et al., 2012). The Court stated that labour relations relies on a ‘meaningful process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith’. In this context, ‘good faith’ negotiation requires that the parties ‘meet and engage in meaningful dialogue’, but does not impose a specific method of collective bargaining and it does not oblige the parties to reach an agreement. ⁴

In conjunction with pursuing legal strategies, the UFCW has undertaken organizing campaigns on farms in Québec, Manitoba, Ontario and British Columbia (Preibisch, 2010; UFCW, 2007). The first collective agreement covering seasonal migrant workers in Canada was ratified by SAWP workers at Mayfair Farms in Portage la Prairie, Manitoba, in June 2008 (UFCW, 2008), though this local agreement has since been decertified. A number of organizing drives have also been undertaken in British Columbia. In 2008, workers at Greenaway Farms in Surrey, British Columbia, voted to join the UFCW, as did workers at Floralia Plant Growers in Abbotsford, British Columbia. Finally, in Québec, the UFCW has collective agreements at four agricultural operations and, at the time of writing, was negotiating a new collective agreement at a fifth, with two more certification applications before the labour board (UFCW, 2010a). ⁵ In April 2010, the Québec Labour Relations Board (QLRB) certified a UFCW bargaining unit at a farm near Mirabel. The decision hinged on the provision in the Québec Labour Code regarding union organizing on farms with three or more workers employed continuously throughout the year, which excluded many large farms that principally employed seasonal workers. The QLRB found that whether the workers are seasonal or year-round, they should have the constitutional right to organize and bargain collectively. ⁶

Although securing legal rights is considered by some to be a primary way to ensure economic justice for migrant workers, the pursuit of collective bargaining rights through the courts is not without its critics. For example, Butovsky and Smith (2007) argue that pursuing labour justice through the courts is a reformist, top–down approach that creates real limits in terms of the capacity to truly address the root of the problems faced by migrant workers in Canada. In terms of the specific outcome in this case, as can be seen above, the legalistic approach resulted in a protracted engagement with the court system, which ultimately did not lead to the needed transformation. This does not mean that a legalistic strategy should be completely abandoned; however, as Butovsky and Smith (2007: 94) suggest, ‘an effective, forward-looking policy must subordinate such methods to a strategy centred on the mobilization of labour’s ranks in direct mass action’. ⁷ The dilemma they highlight is the need to develop grassroots, democratic, worker-centred organizations that can provide the organizational capacity to truly confront employers and the state, an approach we consider in the following section.

Another critique of the legalistic strategy revolves around the structural impact of the legal system on the organization of trade unions. Specifically, the legacy of the post-Second World War legislation that accorded workers in Canada collective bargaining rights also imposed a web of legal constraints that simultaneously circumscribed those rights, with the impact being that the scope of both collective bargaining and trade union action became severely constrained (Fudge and Tucker, 2001; Panitch and Swartz, 2003; Wells, 1995). While this legal framework enabled economic gains for union members and organizational expansion during the subsequent years, it also channelled union action away from workplace activism and towards bureaucratization, thereby weakening the capacity of the movement to engage in broader social struggle. In this context, other organizational forms and strategies may be needed in order to fundamentally challenge (rather than reform) the relations of exploitation experienced by migrant workers.

Workers’ centres and migrant and immigrant worker organizing

Migrant and immigrant workers and their allies have also undertaken alternative forms of organizing through workers’ centres. There is an established network of workers’ centres in the US and a growing number in Canada. These centres are meant to provide a democratic space for workers to come together and organize for change. While critiques of legalistic strategies often posit a dichotomy of organizing models between top–down legal approaches versus grassroots, worker-centred initiatives, we present workers’ centres as an alternative, but one that may sometimes also build on legal strategies to expand the scope of organizing migrant and racialized workers. We now turn to the IWC in Montreal as an example to illustrate these kinds of initiatives.

Montreal’s IWC was set up in 2000 as a community-based workers’ organization in Montreal’s diverse, working-class neighbourhood of Côte-des-Neiges by some Filipino-Canadian union and former union organizers, and other activist and academic allies. Two of the IWC’s founders had been union organizers who found that much of their recruitment and education to support a union drive had to happen outside the workplace, which was difficult. The idea of the IWC was to provide a safe place outside of work where workers could discuss their situation. The organizers also critiqued the unions: for them, once the unions got a majority of workers to sign cards and join up, the processes of education and solidarity built into the organizing process were often lost as union ‘bureaucrats’ came to manage the collective agreement. The IWC was intended to operate instead as a community-based workers’ organization in which workers themselves would drive the agenda.

The IWC engages in individual rights counselling and casework, as well as popular education and political campaigns that reflect the general issues facing immigrant workers: dismissal, problems with employers and sometimes inadequate representation by their unions. Often, these arise from individual cases and form the basis for campaigns and demands, which are expressed collectively. Labour education is a priority, targeting organizations in the community and increasing workers’ skills and analysis. Workshops on themes such as the history of the labour movement, the Labour Standards Act and collective organizing processes have been presented in many organizations that work with immigrants, as well as at the IWC itself. Developing leadership among immigrant workers in order to take action on their own behalf is also an important goal for the IWC. Support for self-organizing, direct action, coalition-building and campaigning are used to win gains for workers and to build broader awareness of and support for systemic change in relation to their working conditions and, often, immigration status. As IWC organizer Mostafa Henaway (2012: 146) puts it, the IWC:

tries to build from an organizing model that incorporates radical traditions, going back to basics, focusing on outreach, collective organizing, casework, and education. At times, there are many challenges faced in balancing all of these facets in the organization; but each facet has proven to be critically important to the political work of the centre, such as weekly outreach outside Metro [subway] stations, building relationships with both communities and individual immigrant workers, or attempts to collectivize the casework and individual issues faced by workers, and to respond in a politicized way. The foundation of this organizing has come from these principal organizing methods, in addition to a flexibility in tactics and strategy, due to ever-changing economic conditions in Montreal, and globally.

The IWC sits between traditions of labour unions and community organizing. Traditionally, work-related issues have been the concern of the labour movement, acting on the assumption that the best way for workers to have a strong voice and bargaining power is through unions. However, while building good relationships with many unions and union activists, the IWC sees that union representation can sometimes be limited because of the difficulties in organizing migrant and racialized immigrant workers. New forms of labour organizing are needed in the current context and require support both for and from trade unions. The IWC works at both levels with the goals of serving, organizing and educating those who are not unionized. While supporting worker efforts to unionize, it also helps them get adequate services from their unions. The union–community relationship is developed through many of the IWC’s activities, including building alliances with younger union activists, supporting immigrants in organizing, and helping them negotiate conflicts with their trade unions. The relationship between the IWC and traditional unions is evolving on terms of mutual respect. The IWC is often in a better position than unions to more quickly focus on, identify and react to issues raised by immigrant and migrant workers, and lead joint campaigns with unions and community organizations around issues of mutual concern. Several trade unionists sit on the IWC’s board, and, since 2010, there has been growing collaboration with a number of Quebec trade unions over the exploitation of temp agency workers.

In Canada, the IWC is active in alliance-building between im/migrant worker justice organizing and other groups and networks that work more broadly on issues of immigration justice. These include No One Is Illegal, Solidarity Across Borders, Justicia 4 Migrant Workers and others working on issues of racial profiling and security certificates. These groups and movements organize broader campaigns that mobilize across organizations and bring people together to challenge the general condition of migrants. The IWC has presented at municipal, provincial and federal hearings about the conditions and needs of migrant and immigrant workers. The IWC also fosters education and mobilization about the interconnections between its casework and its various campaigns. These include: fighting for workers’ compensation coverage for domestic workers and new immigrants to Québec; taking cases of laid-off workers to the Commission des normes du travail; supporting immigration/status cases with public campaigns and media work; campaigning for an end to the three-month delay on accessing Medicare imposed by the Québec government on new immigrants and foreign workers; lobbying; and building and sustaining coalitions and networks with other groups that are struggling for a more just future, in Montreal, across Québec, Canada and internationally. Those connections between the local and the global are key to understanding the context, breaking the sense of isolation around what sometimes seem like individual cases of abuse and strategizing about how to mount and mobilize effective collective campaigns.

Some of the challenges and limitations of the IWC model arise from the very predicaments of the immigrant and migrant workers with whom it works. Precarious immigration status adds another layer of complexity to labour organizing strategies, as does the often isolated, atomized and non-union nature of the employment in which many of these workers are engaged. It is also difficult to build long-term, collective workers’ power among workers on temporary visas, who will return home and perhaps be replaced by new workers, or even among landed immigrant workers labouring for low pay on the margins of Canadian society in precarious, often casual employment. Sometimes, a labour victory for migrant workers can be won; but they are forced to leave the country anyway because of their immigration status.

Likewise, organizing outside of the workplace has both strengths and challenges. Its strengths include the fact that such organizing can sometimes build upon pre-existing community networks and involve families in labour struggles in ways that workplace-focused labour union organization rarely does. Challenges include sustaining an organization financially, which, until now, has entailed a mixture of donations from individuals and labour unions, various small academic and other grant monies, and myriad fund-raising initiatives. Supporting the self-organization of workers has also had successes and setbacks. In some labour struggles, such as the protracted L’Amour apparel factory dispute which became a major IWC campaign, laid-off workers came together as a committee to organize and fight for fair compensation for years worked, with IWC organizers and others playing a supporting role. This campaign included challenging provincial and federal government agencies for failing to protect local textile and apparel manufacturing in the pursuit of free trade, which has left workers vulnerable while protecting the competitive position of the companies. In other cases, it has been harder to build and sustain such collective action among workers.

However, the IWC’s persistent outreach to immigrant and migrant workers (often through leafleting neighbourhoods and near worksites, cultural events such as MayWorks, and word of mouth), its survival for over a decade, and its extensive, diverse alliances and networks help give it credibility, as do successful case and campaign work and support for other labour struggles. In 2011, for example, IWC activists were at the forefront of building community support and an ad hoc alliance of Montreal social activists organizing solidarity actions during the lockout of postal workers by Canada Post. The IWC is engaged in a long-haul education process to foster understanding about the situation of migrant and immigrant workers whose styles and traditions of organizing may not fit with traditional trade union models. As Mathew (2005) reminds us, migrant and immigrant workers can and do bring their own histories of struggle and organizing strategies from their countries of origin to the new countries in which they labour.

The IWC is not a membership-based organization, relying instead on activists, volunteers and student interns, as well as a board comprised of academics, labour unionists and activists from different generations, all with strong links to various communities, unions and networks. The IWC works with workers from diverse and often temporary worksites, with differing, sometimes precarious immigration status and complex family lives. Building a membership-based organization in such conditions is a different proposition from that of organizing landed immigrants working primarily in one sector and dealing with one set of working conditions. Hence, participation and leadership among migrant and immigrant workers has tended to be based around the collective cases and campaigns that the IWC supports.

With the collective bargaining rights of all workers under renewed attack, are there lessons to be learned from the flexible tactics and strategies of the IWC for wider labour struggles? Can centres like the IWC create sustained structured relationships among workers that enable them to assert power and control over working conditions and wages and the social conditions of working-class life? The IWC both supports building unions and maintains a commitment to different modes of organizing that are less constrained by union bureaucracy, and that have a presence in community spaces and struggles not always integrated into the workplace focus of traditional union organizers. Furthermore, it is active in building a political movement that not only straddles domestic labour and other social justice struggles, but also maintains an important transnational element.

Conclusion

The two cases explored in this article highlight some of the contradictions and dilemmas faced by migrant and immigrant workers and their allies in organizing to improve working conditions and, more fundamentally, challenge the exploitation experienced through employment in the Canadian labour market. In terms of the legal challenges to secure collective bargaining rights, it is certainly the case that legalized collective bargaining offers gains for workers employed in unionized worksites. But the process of securing this right is double-edged. The challenges through the courts are time-consuming and resource-intensive. They are a top–down approach led by a bureaucratic organization often detached from the grassroots workers it aims to represent (in relation to IWC labour struggles and legal strategies, see Law and Will, 2012). Furthermore, once collective bargaining is secured through a legal framework, it enmeshes workers in the same legalistic framework that has both sustained and contained working-class organizations in Canada since the time of the post-war settlement. Yet legal strategies and individual cases can also be a component of broader struggles to win concessions for workers if they are integrated into a political program to bring about systemic political and economic change.

Turning to the IWC, we see forms of urban labour organizing that build on traditions of community unionism, and are connected to broad domestic and international social movement and activist networks. With its emphasis on supporting workers’ self-organization and direct action and building political campaigns from individual casework, the IWC arose to address the unmet needs of racialized immigrant and migrant workers dealing with traditional labour unions. Today, with the growth of temporary foreign labour programs in Canada of concern to a range of forces concerned with social justice, many labour unions, facing both internal pressures from their own members and external pressures from initiatives like the IWC, are becoming more responsive to the demands for justice and dignity from migrant and racialized immigrant workers, regardless of their immigration status. Therefore, it is important not to view the IWC as a replacement for, or in competition with, labour unions. While there are sometimes unresolved tensions between the two forms of labour organization, in particular, due to the bureaucratic and top–down approach characteristic of trade unions, it would seem that increased collaboration and mutual support will be an important component in future workers’ struggles in Canada. The significance of the work undertaken by trade unions, workers’ centres and other migrant labour activists lies not simply in organizing a marginal vulnerable workforce; it should be seen in the larger context of the fightback against the on-the-ground impacts and the economic crises wrought by global capitalism. As the expansion of the use of temporary foreign workers enhances employers’ ability to create a sense of fear and austerity and deny decent work with job security in order to generate profits, organizing among a changing working class and their day-to-day issues arising from precarious work is a key way to highlight the impacts of globalization in Canada, and is as critical as fighting for public services and against privatization and outsourcing.