Abstract
Reviewed by: Joanna Howe, The University of Adelaide, Australia
Laurie Berg’s monograph Migrant Rights at Work makes an important contribution to labour migration scholarship. She exposes the prevailing and seemingly intransigent approach of using immigration controls to regulate the entry of temporary migrant workers into Australia as producing precarity for migrants at work. Her insights into the role of immigration controls and immigration enforcement in reconstituting the employment relationships of temporary migrant workers are powerfully and evocatively illuminated by analysis of case law, media reports and recent inquiries. Her approach, which builds on the emerging Australian and international scholarship in the field of labour migration, makes an original and significant contribution to unpacking the normative and regulatory challenges facing the global phenomenon of temporary labour migration.
Berg begins by identifying the precarity produced through the legal regulation of temporary labour migration. She conceives four windows into this precarity which exists to varying degrees for temporary migrant labour, unauthorised migrant labour and trafficked labour. First, she examines the direct impact of visa conditions pertaining to work which operate to constrain temporary migrant workers’ engagement in the labour market. For example, in the case of Australia, visa condition 8107 for temporary skilled migrants which requires 457 visa holders to have an employer-sponsor, and visa condition 8105 for international students restricting their hours of work to 40 hours per fortnight, are two types of immigration rules which restrict the freedom of movement of temporary migrant workers in the Australian labour market. Second, Berg examines the barriers to temporary migrant workers’ enforcement of employment rights and their challenges in accessing legal remedies. Third and relatedly, she interrogates the capacity of immigration laws to significantly transform the legal context of a temporary migrant worker’s employment relationship. For example, in the case of unfair dismissal, she shows how this statutory individual right is beyond the reach of most temporary migrant workers and that even when they do bring a claim, they face a much more limited suite of remedies. She also explores the limitation of workers’ compensation schemes for 457 visa holders. Fourth, Berg reveals how the various personal circumstances of individual workers can enhance their precarity in the labour market by strengthening the hand of the employer.
Berg’s analysis of migrant workers’ precarity is clear, sharp and confronting. One cannot help but be convinced by her thesis that immigration law and policy needs to be rethought with respect to temporary migrant workers. She identifies an unresolved ethical challenge at the heart of debates around temporary labour migration – between a desire to protect wages, conditions and job opportunities for resident workers and the rights of migrants to equal treatment and dignity at work stemming from a shared humanity under international human rights treaties. Berg identifies the limitations of an equality and rights-based approach, instead developing a theory of relational impact to show why temporary migrant workers should be afforded a range of legal protections. She proposes three forms of fundamental migrant agency which should be recognised under the law. In my view, Berg’s proposals if implemented, would go a long way to ameliorating the disadvantaged position of temporary migrant workers in the Australian labour market.
Berg avoids a siloed approach to critiquing labour migration. She looks past visa pathways for a specific work purpose and includes in her frame, visas for a non-work purpose. In this way, Berg’s monograph develops an interesting and nuanced understanding of the myriad and different ways in which precarious work is produced under each of these visa types. Her socio-legal approach invites an examination of the distinction between temporary labour migration conventionally understood and, for example, other migrants who work on a temporary basis (e.g., students, holiday makers and trafficked workers). Berg understands that the potential for exploitation of these workers is compounded by either their lack of a visa or their use of a visa for a non-work purpose.
Policymakers and politicians would do well to listen to Berg. She establishes that the situation confronting temporary migrant workers in Australia is less about individual vulnerability or individual choices leading to non-compliance, but one of systemic and embedded precarity created and shaped by government regulation of employment and immigration. In this way, she recasts the debate as not being about some ‘vulnerable’ temporary migrant workers in the hands of a few ‘rogue’ employers but more about an immigration system which produces a distinctive class of non-citizen labour. She observes how laws, public institutions and relationships can address vulnerabilities or create systems of further exclusion. Her analysis is timely, given the Coalition Government’s 2016 election policy ‘Protecting Vulnerable Workers’ which focused on identifying individual vulnerable workers and increasing sanctions on employers for non-compliance with workplace laws. Berg argues that these types of solutions often end up penalising the very group they are meant to help as she says migrant workers bear the greater costs of immigration penalties, even when targeted at employers, because when the employment relationship breaks down, it is frequently the migrant worker who has their visa cancelled or their income source removed. Instead, Berg prefers policy solutions which reduce migrant workers’ dependencies on employers, enhances their labour market mobility and increases their agency by empowering migrant workers to influence policy formation.
Berg’s work will be of enduring relevance and use to those interested in understanding, critiquing and reforming temporary labour migration worldwide. Although she uses Australia as her central case study, Berg’s monograph is flush with incisive analysis and references to alternative approaches in the regulation of temporary labour migration in other receiving states, such as Canada, the US, the UK and New Zealand. Her insights, therefore, are not geographically bound to Australia but provide an essential foundation to critique the conventional analysis by the World Bank and OECD that temporary labour migration produces a ‘triple win’ for all involved. She challenges this orthodoxy and suggests that in order for the triple win to be realised in practice, there must be proper instruments of governance which protect temporary migrant workers by recasting migrant worker exploitation from an immigration law violation to a labour law abuse. Berg’s work goes beyond contemporary accounts and critiques of temporary labour migration. She provides a prescient, compelling and thorough analysis of Australian temporary labour migration in the global context.