When is a worker not a worker? When caught in the migrant trap!

At a conference in June 2005 organised by the Institute of Employment Rights, a very informed audience debated recommendations put forward by the Institute on issues surrounding labour migration and employment rights.

The consultative conference was the culmination of six months’ work by an Institute Working Group involving academics, lawyers, trade unionists and NGOs. The final step for the project was the launch of a book at a TUC fringe meeting in Brighton on Wednesday 14th September 2005.

Starting with Gangmasters
The Conference was opened by Jim Sheridan, the MP responsible for guiding the Gangamasters Licensing Act through the Commons. After outlining the main contents of the Act, Sheridan went on to highlight some of the challenges in ensuring that “the Act does what it says on the tin”!

According to Sheridan, by far the most significant aspect of the Act is the fact that under the legislation everyone working in the designated industries are to be classified as legal workers. “So whether a worker is regular or irregular, documented or undocumented, indigenous or migrant – if they work in agriculture, horticulture, shellfish gathering or food processing and packaging – they will be entitled to the same legal protection as other UK workers”.

But the Act also has a weakness in that it is very restricted in its application. As Jim Sheridan said “What we need to do now is argue for the same legal protection to be offered to each and every migrant worker in each and every industrial sector”. click for Jim Sheridan’s speech

Bernard Ryan, Chair of the Working Group went further. He noted that the extreme vulnerability of migrant workers and the ability of employers to exploit those they employ (and on whose labour their profits are based) highlights fundamental flaws in UK laws. He welcomed the fact that as well as developing policies on migrant labour “the project provides an ideal opportunity to re-examine UK employment law in the light of the experiences faced by migrant workers”.

History of migration policy in the UK
Don Flynn, from the Joint Council for the Welfare of Immigrants noted that historically, it is difficult to trace the link between immigration policy and employment law as traditionally they had been treated as autonomous areas. He welcomed the drawing together of the two aspects as positive. But on a more negative note he highlighted the way the law has increasingly focused on surveillance, monitoring and legal action as a way of controlling migrant labour.

Don went on to briefly examine four periods of immigration policy in the UK from the 1905 Aliens Act, through the post Second World War period, the 1990s and on to what he refers to as a “new approach to immigration policy” as developed by New Labour. That approach he says is based on the belief that immigration is an inevitable and necessary part of the contemporary world and that the role of policy is to ensure that immigration should be limited to the interests of British business. To achieve this aim of “managed migration” new technologies of surveillance – including biometric identity cards – would have to be deployed as well as the assistance of third party agencies, including welfare services and employers. Placing employers as frontline enforcers of immigration control was reinforced in the government’s five-year strategy for asylum and immigration policy published in February 2005.

According to Don, such a policy of control based on the political and economic aim of assisting British business opens up issues of “political acceptability”. As he notes, such a policy will be “regarded by many as illiberal, draconian and disproportionate” giving rise to “disruptive challenges… as sections of society define their own interests as being inimical to the control regimes envisaged by government”. click for Don Flynn’s paper

Employment rights and migrant workers
So what are the issues? Speaking on the problems associated with unauthorised workers, Laura Dubinsky identified two main issues. First, the low level of benefit and support offered to those allowed to stay in the UK but denied a right to work. This situation forces many migrants into the murky (and unregulated) world of unauthorised work. She argued that the best way to restrict the reserve army of desperate workers willing to take employment at any cost is to ensure that migrants are not left destitute in the UK.

Second, Laura noted that while a law already exists whereby employers can be prosecuted for employing unauthorised workers, of the 22 prosecutions taken, only 8 have been convicted. More alarmingly, there is ample evidence to suggest that the brunt of detection is born not by the exploiting employer but by the desperate migrant facing deportation.

As noted by Don, the Government has suggested tightening up the procedures employers need to follow when employing possible migrants. But Ms Dubinsky said that evidence from the US suggests that such a plan would contribute to an increase in discriminatory practices against workers perceived to be migrants. It would also impede the ability of migrant workers to complain about their conditions or to organise into unions. Using employers as front line immigration inspectors and enforcers “provides them with a big stick to hang over the heads of their insecure workforce”. Rather, we should return to the position whereby employers are not responsible for checking employees’ immigration status. click for Laura Dubinsky’s paper

Sonia McKay then outlined the Working Group’s recommendations for improved employment rights – some migrant-specific but others of relevance to the wider labour force.

One of the main points raised related to the legal status of a contract. It was argued that employment status should not depend on the immigration status of the worker. Once an employment contract is agreed, it should be enforceable in law. Too many migrant workers find their pay withheld and their holidays refused yet have no redress because the contract is deemed “unlawful” in the courts.

Another common problem faced by migrants is identifying the most appropriate person for enforcing their terms and conditions. Too often responsibility for delivering holiday entitlement, minimum wage rates, working hours and even health and safety issues fall through the multi-employer network of agents, subcontractors and end-users. To correct this it is proposed that the law should presume that the Agency or the company – or both – are responsible for ensuring workers receive their statutory employment rights.

To highlight just one further recommendation, Sonia argued that a new category should be introduced into the Race Relations Act making it an offence to discriminate against a worker based on their immigration status. This would offer another avenue for ensuring employers do not exploit the vulnerability of migrant workers. click for Sonia McKay’s paper

Employment rights and immigration policy
Bernard Ryan then considered the Government’s policy on immigration – identifying the existing schemes (work permits, Sector Based Schemes, Seasonal Agricultural Workers Scheme, A8 Nationals etc) and suggesting where improvements could be made. He was critical of the Government’s most recent five-year strategy and said that the focus of immigration policy should not be “what can migrants do for us” but rather “what can we do together to develop a well ordered labour market”.

On specific proposals Bernard said restricting the ability of work permit migrants to change employers and giving employers of migrant workers formal responsibility for compliance with immigration law, reintroduces the old concept of “master and servant”. It tied the worker to the employer regardless of treatment or conditions. He suggested replacing the sector based points system with a generalised system, removing the restrictions on the right to change employer and giving all workers access to social assistance as and when they cease employment. click for Bernard Ryan’s paper

Steve Gibbons then highlighted the main international treaties protecting the rights of migrant workers. He went on to say, however that without a strong political will in the UK, the fundamental principles set out in those international laws would be lost. Moreover the UK have refused to ratify some of the more relevant Treaties and Conventions – something around which trade unions should be campaigning.

He noted that many of the rights related only to documented workers, leaving some of the most vulnerable without assistance. He argued that fundamental rights should flow as a consequence of the employment relationship and should apply to all just as the principle of the right to a free trail, to life and to freedom from torture applies to all.

But Steve also highlighted the need to build on international law through education, training and bi-lateral agreements. He suggested regulating work at a transnational level by using codes of conduct negotiated on a tripartite bases involving employers, unions and government.

A level playing field?
Finally Nick Clark said that xenophobia could be traced back not to migrant workers taking jobs but employers exploiting the vulnerability of unprotected migrant workers by paying lower wages and thereby depressing wage levels across whole sectors. He noted that while Tesco, Arriva and Bovis are profiteering by reducing labour costs, migrant workers are being forced through destitution into accepting jobs on or below the national minimum wage. He called for national agreements like the Construction Industry Agreement to be universally applicable to all workers within the sector as a way of removing the inbuilt advantage enjoyed by employers.

He went on to note that even those employers not providing written statements or pay slips, paying below the national minimum wage or even employing undocumented workers, have a “get out of jail free” card simply by cooperating with inland revenue and immigration services. But workers receive no such dispensation. This provides a huge advantage for the employer.

He went on to say that both government and unions can do something about the situation. Government could begin by ensuring that public sector contracts come with an employment rights ‘health check’. So the Brazilian woman cleaning the MoD officers, the Polish worker working on a public housing scheme and the many agency workers employed by the Post Office should all enjoy the same employment and trade union rights as UK workers.

Trade unions he said should rediscover the dirty end of the labour market. He noted that the UK already has a notoriously low level of legal protection for workers and migrant workers frequently have even lower levels with little knowledge or understanding of how to organise against such abuse. This hands a huge advantage to the employer and the distorting effect of the abuse ripples across the whole labour market. This can create fertile ground for xenophobia. The most effective weapons unions have is organising the unorganised and calling for equality and justice. He said “By strengthening the rights of migrant workers we will undermine the capacity of the unscrupulous to profit from divisions between workers”. click for Nick Clark’s paper

The conference also heard from Julio Mayor, Vice President of the Latin American Workers Association and from Mick Dooley, a UCATT Officer. Both outlined their experiences of the difficulties faced by migrant workers and the need for union organisation.

Carolyn Jones
Director
cad@ier.org.uk