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Newman, Andrew --- "The legal precariousness of temporary migrant agricultural work: A comparative Canadian and Australian perspective" [2021] PrecedentAULA 34; (2021) 164 Precedent 43


THE LEGAL PRECARIOUSNESS OF TEMPORARY MIGRANT AGRICULTURAL WORK

A COMPARATIVE CANADIAN AND AUSTRALIAN PERSPECTIVE

By Dr Andrew Newman

On the assumption that temporary migrant work will return to pre-COVID-19 levels in coming years, this article will focus on how migration and labour law regulated temporary migrant agricultural work in Canada and Australia as at July 2019. It will then consider how the regulation of such work ought to be reformed in the future to achieve better outcomes for temporary migrant workers.

This article draws from my PhD (Law) thesis, which examined these questions through a case study analysis of the Canadian Seasonal Agricultural Worker Program (CSAWP) and the Australian Seasonal Worker Program (ASWP). The particular focus of the studies was on the regulation of wage levels and security of employment (reasonable notice of termination, unfair dismissal and stand down and recall rights) in both Canada and Australia.[1]

CANADIAN WAGE REGULATION AND CSAWP WORKERS

In nearly all cases, CSAWP workers were paid wages that approximated the minimum wage and the wage structure itself was flat, providing for an extremely minimal increase per season. This minimum wage fell well short of the benchmark set in the thesis for a decent wage, being CAD $19 per hour with a possibility of wage increases due to the acquisition of seasonal skill and experience.[2]

The connection between migration and labour law in the CSAWP was found to be strong and direct. Wages were regulated by the standard form employment contracts (SFECs), which are prescribed as a condition of employer and worker approval to participate in the program by the Canadian Government. The SFECs must be signed by the prospective employer and CSAWP worker prior to the approval of the application to hire a CSAWP worker and prior to the worker’s submission of an application for a visa to work in Canada. In this sense, the SFECs amount to contracts of adhesion – the terms are presented to workers, and also to employers, on a ‘take-it-or-leave-it’ basis, without the possibility to modify terms prior to acceptance. Parties are not formally permitted to negotiate another wage level, bonuses or other production-related incentive pay.

The SFECs do not fix specific wage rates in the body of the contracts themselves but usually set wages at the prevailing wage’, which is meant to be equivalent to the median wage of an agricultural harvest worker in the employer’s region. Importantly, the setting of this ‘prevailing wage’ is performed by the Canadian Government, rather than the parties, a tripartite tribunal (such as the Fair Work Commission in Australia) or through collective/enterprise bargaining. In this sense, CSAWP workers are subject to a wage-setting mechanism that is led by migration law and is specific to them alone.

The wage rates set by the Canadian Government under the SFECs also varied significantly from their purported purpose of reflecting the actual market median occupational ‘prevailing wage’. My research demonstrated that there was little to no scrutiny or consideration of regional market wages by the Canadian Government according to their own search tools and wage resources. While many of the wages tables showed a wide range of potential wages, with highs and lows and variation among regions, the ‘prevailing wage’ was nearly always set at a rate that reflected the provincial minimum wage (generally CAD $11 to $14 per hour at the time of analysis, being 2015 and 2018) rather than the market rate.

One exception to SFEC-based wage-setting was collective bargaining. In the rare circumstances in which collective agreements applied to CSAWP workers, workers’ wages were slightly higher than their SFEC-covered counterparts and they did receive some increases based on the acquisition of seasonal experience. Collective bargaining also altered the usual wage negotiation process of the CSAWP workers and employers who were covered by an agreement, as they were not required to agree to a specific wage rate before obtaining the legal right to hire and to work. The process of wage negotiation and visa approval were therefore formally decoupled at law. Unfortunately, collective bargaining in Canada is based on a Wagner Act model[3] of individual workplace certification and is subject to broad exclusions in relation to the agricultural sector. Collective bargaining rights in Canada are hard won, weakly institutionalised and easily lost; and are therefore an ineffective source of broad-based wage improvements for temporary migrant workers.

AUSTRALIAN WAGE REGULATION AND ASWP WORKERS

By contrast, the wage analysis in relation to ASWP workers was perhaps the most surprising finding of the thesis. It concluded that ASWP workers did, in certain circumstances, receive a decent wage according to the benchmark of AUD $25 per hour (as at 2015) and AUD $28 per hour (as at 2018), often from the outset of the employment relationship. Unlike the flat wage structure of the CSAWP, the wages of ASWP workers appear to rise significantly with further seasonal participation in the program and thus also met the benchmark in relation to wage increases with the acquisition of seasonal service.

The setting of wage rates in the ASWP relied far less on the migration law structure of the program and had much better outcomes in terms of providing decent wages to temporary migrant workers. Unlike in Canada, the Government of Australia was not responsible for determining the rates specific to temporary migrant workers. Nor was it responsible for imposing any particular ‘prevailing wage’ rates as a condition of the approval of employers to hire or workers to obtain a visa. Rather, the migration law parameters of the ASWP regulates wage rates by extending Australian labour law of general application to ASWP workers. Prospective employers are required to identify the applicable industrial instrument and pay Australian wages pursuant to it. In the case of ASWP workers, they are largely paid according to the Horticulture Award (the Award) or, in rarer circumstances, applicable enterprise agreements.

An analysis of wage statistics collected with respect to the ASWP as at 2019 and the provisions of the Award demonstrated that the structure and content of the Award provided comparatively decent wage rates for ASWP workers in a number of ways, including piece rates for productive workers, casual loadings, and classification advancements tied to educational programs. Through a wage analysis of workers returning over the course of multiple seasons, it was demonstrated that seasonal experience was translating into increased wages, despite the absence of ongoing permanent rights of residency.

The significance of this decoupling of wage-setting from the granting of a visa was that ASWP workers, unlike their CSAWP counterparts, were not required to accept a low and flat rate of pay as a condition of applying for a work visa. Their offer letters were not contracts of adhesion in the sense discussed in relation to CSAWP workers and did not strictly confine either the content of their wage rate or the process of wage negotiation.

SECURITY OF EMPLOYMENT IN CANADA AND CSAWP WORKERS

With regard to the CSAWP, the relationship between migration and labour law was direct and tightly bound due to the terms of the SFECs. The SFECs are expressly fixed-term in relation to the form of employment relationship. The fixed-term contractual form of the SFECs restricted rights and entitlements by severing continuity of employment at the end of each season. CSAWP workers, as a result of this lack of legal continuity, failed to obtain reasonable notice entitlements under common law or employment standards legislation in accordance with the length of seasonal service. Stand down and recall rights were also limited by the requirement for continuity under employment standards legislation. Unfair dismissal rights and protections extended only to the very few unionised CSAWP workers who were covered by a collective agreement.

There were however certain innovative collective agreements which, in contrast to the SFECs, recognised what was in effect ‘migrant worker leave’ for CSAWP workers. These periods of legally protected leave covered the duration of the repatriation to the worker’s home country while preserving the employment relationship between the worker and their employer. This preservation of legal continuity, in turn, allowed CSAWP workers who were covered by such agreements to accrue rights and entitlements to reasonable notice, unfair dismissal and recall rights (under the terms of the agreement itself and pursuant to employment standards legislation).

However, the role of the labour-supplying countries in refusing to issue work permits to workers who have been provided with a negative evaluation (by the employer or consular officials from the labour-supplying country) appears to be an important dimension of CSAWP workers’ reluctance to engage in certification campaigns and collective bargaining. This is in part because, once dismissed, CSAWP workers no longer have the legal right to work in Canada. Their ability to be reselected to participate in the program in subsequent seasons is subject to approval by the labour-supplying Government, which is not within the jurisdiction of remedial orders made by a Canadian tribunal. In this way, the precarious migration status of workers and their ‘deportability’ fundamentally affects their ability to access and exercise collective bargaining and other labour law rights.

Opportunities for reform

The SFECs must be executed, in their current fixed-term form, as a condition of approval to participate in the program as both a worker and an employer. However, the SFECs themselves could be amended by inserting a standard form term recognising the legal continuity of the employment relationship across seasonal engagements. Such a term may, for example, read as follows:

This contract of employment is one of indefinite term, subject to the worker passing a period of probation of three months and complying with all conditions of the CSAWP work visa and Canadian migration laws.

Any period of time in which the worker is required by law to leave Canada shall constitute unpaid leave, with the right of the worker to be recalled in subsequent seasons being maintained, unless this contract is lawfully terminated by the employer in accordance with discharge for cause.

The termination clauses could mirror those unfair dismissal protections currently negotiated in the United Food and Commercial Workers (UFCW) agreements; for example, they could provide for ongoing rights of residency on the employer’s premises with an expedited arbitration and right to reinstatement. The SFECs could also be amended to include recall rights based on seniority (measured by hours worked across multiple seasons) with probationary periods served in one season only. So long as the contract does not stipulate that the worker enter, reside and work in Canada without a work visa, it does not directly conflict with the migration law parameters of the program.

Another key manner in which the security of the employment of CSAWP workers is regulated is through employment standards legislation. Such legislation in both Ontario and British Columbia is tied to the standard employment relationship model and currently prevents CSAWP workers from accruing rights and entitlements due to the fixed-term nature of the SFECs. Employment standards legislation could be reformed to permit the accrual of notice of termination requirements on a non-continuous seasonal basis. Workers who are laid off one season but return in a subsequent season should be deemed to have continuous, ongoing employment for the purposes of accruing reasonable notice entitlements. Further options available under Canadian employment standards legislation would be to extend the definition of ‘temporary lay-off’ or other recognised leave. A broadened definition of these terms could preserve the employment relationship by stipulating that any period of time spent outside of Canada (under the terms of the CSAWP) does not sever the employment relationship for the purposes of accrual of notice of termination pay or recall rights. These amendments would again reflect the aim of creating legally protected forms of migrant worker leave. Finally, unfair dismissal protections should be removed entirely from the realm of Canada’s manifestly unsuitable Wagner Act model of collective bargaining and be enacted into statute. Temporary migrant workers who challenge the termination of their employment ought also to have a right to maintain their legal status and place of residency until an expedited determination of their claim.

SECURITY OF EMPLOYMENT IN AUSTRALIA AND ASWP WORKERS

The migration law surrounding the ASWP does not expressly and specifically disadvantage ASWP workers with a prescribed fixed-term contract of adhesion as the CSAWP does. The ASWP requires only that an offer letter be provided by the employer, but it does not dictate or restrain the content of that offer beyond stipulating that it comply with Australian minimum standards and include a ‘duration of employment’. While ASWP workers are frequently engaged as casuals or on a fixed-term basis, this is not dictated by the migration law parameters of the scheme – rather, employers tended to use their broad discretion to designate workers as casuals or fixed-term employees under domestic common law and/or under the terms of the Award.

As with wage rates, the ASWP relies heavily on the domestic labour law led approach to determining the security of employment rights and entitlements. While this was found to be advantageous to workers in terms of wages, it is not advantageous with respect to security of employment. The ongoing central role that continuity of employment plays in Australian security of employment law often excludes temporary workers of all descriptions from the capacity to accrue rights and entitlements and, in any event, is not financially worth litigating for workers. In this sense, ASWP workers are subject to many of the same disadvantages that are suffered by local fixed-term, casual or seasonal workers. In particular, notice of termination entitlements and unfair dismissal protections are linked to continuous service requirements, which fixed-term employees cannot generally accrue.

The short-term and single employer-tied nature of the visa also increases the dependence of ASWP workers upon their employers and limits their ability to enforce what rights they do have. Unfair dismissal claims are extremely time-sensitive, given the possibility of reinstatement and the loss of residency rights for unemployed temporary migrant workers. ASWP visas ought to provide a right of residence during the expedited determination of such wage and security of employment-related complaints.

Opportunities for reform

There are several potential ways that migration and labour laws surrounding security of employment could be reformed to reduce the legal precariousness of temporary migrant work. Australian labour law could also recognise a legally protected form of ‘migrant worker leave’, which would preserve the legal continuity of the employment relationship and thus permit the accrual of rights and protections in accordance with the length of seasonal non-continuous service.

The most direct option for reform to achieve this goal would be for the Australian Government to impose a standard form contract as a condition of participation in the program, with wording similar to that noted above in relation to the CSAWP. Such a standard form contract would preserve continuity of employment during periods of unpaid mandatory repatriation. However, given the hazards associated with creating specific laws applying to migrant workers alone, it may be preferable to minimise the role of special contractual arrangements in favour of general labour law reform aimed at extending notice, unfair dismissal, and stand down and recall rights to all legally precarious workers, including ASWP workers.

Another way to reflect the concept of ‘migrant worker leave’ would be to amend the unfair dismissal provisions of the Fair Work Act 2009 (Cth) (FW Act) by altering the definition of ‘reasonable expectation of continuing employment’[4] to expressly cover non-continuous temporary migrant workers employed in consecutive seasons. The concept of ‘reasonable expectation of ongoing employment’ is already used by the FW Act to extend protections to ‘regular casuals’ who similarly face gaps in the protective network of employment laws due to their legally precarious non-continuous status. The extension of this model would benefit ASWP workers and is conceptually similar – to recognise what is in fact, if not at law, an ongoing employment relationship.

Another desirable and direct way to recognise the seasonal service of temporary migrant workers – both with respect to unfair dismissal and with respect to National Employment Standards/Award provisions related to notice of termination – would be to recommend that the definition of continuity should not be interrupted for periods of mandatory return of ASWP workers to their home jurisdiction. The FW Act currently states that continuous employment is not broken by certain unpaid ‘excluded periods’,[5] including community leave;[6] stand down that applies under an enterprise agreement or contract of employment;[7] or ‘a period of leave or absence of a kind prescribed by the regulations’.[8] The regulations alone could thus be amended to include a period of mandatory unpaid ‘migrant worker leave’ without the need for legislative amendment or the drafting of a new standard form agreement. This option has the benefit of simplicity. The wording of the regulation would trump any offer of employment that sought to depart from it in the same way as current forms of recognised leave would be exempt from contractual terms to the contrary. Enterprise bargaining efforts could also, as with the UFCW agreements, address the unique disadvantages faced by temporary migrant workers by extending the following clauses:

• seniority is calculated based on days and hours worked for the employer;

• continuity of employment continues to accrue across multiple seasonal engagements despite periods of lay-off and repatriation;

• recall is based on seniority, measured seasonally;

• probationary employment need only be completed in the first season;

• a purported termination is not effective until the ASWP worker has had time to adjudicate any dispute related to their termination; and

• ASWP workers be provided ongoing right of residence until the final determination of any dispute in relation to their employment.

CONCLUSION

The conclusion of my thesis was that the legal precariousness of temporary migrant workers depends on the migrant status of the worker, the form of the employment relationship at law and the characteristics of the employment relationship. Despite the inherent vulnerability created by temporary status, legal precariousness can be reduced through a range of reforms. In relation to security of employment, these reforms should be aimed at recognising what in effect amounts to ‘migrant worker leave’, which would permit the accrual of rights and entitlements that reflect the length of a worker’s seasonal service despite periods of mandatory repatriation. With respect to wages, the best outcomes for temporary migrant workers come through domestically and collectively determined standards, which permit the growth of wages with the acquisition of skill and experience.

Dr Andrew Newman is a barrister at the Victorian Bar.


[1] A Newman, The legal precariousness of temporary migrant work: Case studies of the Canadian Seasonal Agricultural Worker Programme and the Australian Seasonal Worker Programme’ (PhD thesis, July 2019) <https://minerva-access.unimelb.edu.au/handle/11343/225736>. I refer you to the thesis for an expansive discussion on any of the points contained in this article, including consideration of the literature, case law, legislation, wage statistics and government reports and inquiries supporting my conclusions.

[2] The benchmarks were set in the thesis based on a literature review of what constituted a ‘living wage’ in each country. A number of alternative benchmarks are considered in the thesis.

[3] The National Labor Relations Act (1935), also known as the Wagner Act, is the foundational American labour relations legislation. This legislation was replicated in the provinces of Canada due to the large presence of American-owned branch plants. A common feature of the Wagner Act model is the workplace level certification by which unions become the exclusive bargaining agent and representative of workers in the bargaining unit. In this sense, workplaces in Canada are either ‘unionised’ or not unionised and are subject to significantly different legal regulation depending on their union or non-union status. While this model resulted in widespread union membership and collective bargaining agreement coverage in the post-WWII period, private sector union membership and agreement coverage has dropped significantly with the decline of the industrial economy and manufacturing. The process by which a workplace becomes unionised via workplace voting or union membership card check off is often subject to contentious certification campaigns and employer resistance.

[4] Fair Work Act 2009 (Cth), s384(2).

[5] Ibid, s22(3).

[6] Ibid, s22(2)(b)(i).

[7] Ibid, s22(2)(b)(ii).

[8] Ibid, s22(2)(b)(iii).


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