scholarly journals The Legal In/Security of Temporary Migrant Agricultural Work: Case Studies from Canada and Australia

2013 ◽  
Vol 18 (2) ◽  
pp. 361
Author(s):  
Andrew Newman
Keyword(s):  
Case Studies ◽  
Migrant Worker ◽  
Employment Relationship ◽  
Collective Agreement ◽  
Labour Law ◽  
Agricultural Worker ◽  
Agricultural Work ◽  
Temporary Migrant ◽  
Unfair Dismissal ◽  
Employment Rights

Despite differing labour law systems and program structures, temporary migrant agricultural workers under the Canadian Seasonal Agricultural Worker Program and Australian Seasonal Worker Program often possess minimal security of employment rights and protections, despite potentially lengthy periods of consecutive seasonal service to the same employer. Such lesser rights and protections are partly due to the central role played by continuity of service in determining the length of reasonable notice periods and the strength of unfair dismissal protections and stand-down/recall rights. Although it is often presumed that the temporary duration of the seasonal work visa necessarily severs the legal continuity of the employment relationship, such is not the case. This article argues that security of employment rights and protections can be re-conceptualised to recognise non-continuous seasonal service within the current parameters of a fixed-term work visa. In both Canada and Australia this could be accomplished through contractual or collective agreement terms or through the amendment of labour law legislation. Such reforms would recognise a form of unpaid ‘migrant worker leave’, whereby the legal continuity of employment would be preserved despite periods of mandatory repatriation, thus allowing accrual of security of employment rights and protections.

Introduction

2019 ◽  
pp. 1-10
Author(s):  
Leah F. Vosko
Keyword(s):  
Bargaining Unit ◽  
Management Program ◽  
Collective Agreement ◽  
Agricultural Worker ◽  
Migration Management ◽  
Temporary Migrant ◽  
Migrant Work ◽  
Significant Phenomenon ◽  
Migration Experiences

This introductory chapter provides an overview of temporary migrant work. In the age of migration management, temporary migrant work is a significant phenomenon in many countries where relative labor shortages fuel demands for temporary migrant work programs (TMWPs) that provide comparatively low labor standards and wage levels. In this context, workers laboring transnationally in such programs are turning to unions for assistance in attempt to realize and retain access to rights. Yet even those engaged in highly regulated TMWPs permitting circularity—or repeated migration experiences involving one or more instances of emigration and return—confront significant obstacles tied to their deportability. This book tells the story of Mexican nationals participating in a subnational variant of Canada's model of migration management program, the Seasonal Agricultural Worker Program (SAWP). It explores how these workers organized to circumvent deportability, but despite achieving union certification, securing a collective agreement, and sustaining a bargaining unit, ultimately remained vulnerable to threats and acts of removal.

Getting Organized

2019 ◽  
pp. 42-64
Author(s):  
Leah F. Vosko
Keyword(s):  
Bargaining Unit ◽  
Collective Agreement ◽  
Agricultural Worker ◽  
Just Cause ◽  
Labour Relations ◽  
Legal Proceedings ◽  
Work Program ◽  
Temporary Migrant ◽  
Migrant Work

This chapter details the attempts of the union representing Seasonal Agricultural Worker Program (SAWP) employees at Sidhu & Sons to organize, gain certification, and secure a first collective agreement for a bargaining unit encompassing participants in a temporary migrant work program (TMWP) permitting circularity. Through an analysis of the legal proceedings surrounding United Food and Commercial Workers Union (UFCW) Local 1518's bid for certification, it explores SAWP employees' two important motivations for organizing: namely, to preempt termination without just cause prompting premature repatriation and to secure mechanisms for recall suitable to workers laboring transnationally. Local 1518, in seeking to represent SAWP employees, came up against tensions arising both from the Labour Relations Board's (LRB) understanding of its role of facilitating access to collective bargaining under the Labour Relations Code (LRC) and from limits posed by the parameters of the TMWP in play. Consequently, the unit obtained certification, but only on a restricted basis. At the same time, it introduced mechanisms aiming to limit termination without just cause prompting premature repatriation and offered novel provisions on recall and seniority.

scholarly journals The Role of Human Dignity in the Assessment of Fair Compensation for Unfair Dismissals

2017 ◽  
Vol 15 (4) ◽  
pp. 101
Author(s):  
Stella Vettori
Keyword(s):  
South African ◽  
Employment Relationship ◽  
Free Enterprise ◽  
Labour Law ◽  
Unfair Dismissal ◽  
Business Efficiency ◽  
Fair Compensation ◽  
Economic Reality ◽  
Underlying Reality

South African labour law is concerned with the attainment of fairness for both the employer and the employee. In weighing up the interests of the respective parties it is of paramount importance to ensure that a delicate balance is achieved so as to give credence to commercial reality as well as an individual's right to dignity. In other words the attainment of fairness in the employment relationship must give cognisance not only to surrounding socio-economic reality but also to human rights. The environment within which the world of work operates has at its core a free enterprise economy. Ultimately, an employer should generally not be penalised to the extent that it is crippled and unable to continue operating. It is argued in this article that in ascertaining what constitutes appropriate compensation for an unfair dismissal, the underlying reality that labour law operates in a free enterprise system must be and is given cognisance to by the legislation and the courts. At the same time in ascertaining what constitutes fair compensation for unfair dismissal due regard must be had not only to the labour rights contained in the Constitution but also to other rights protected in terms of the Constitution, most importantly, the rights to dignity and equality. The fact that the basis of the employment relationship is commercial and an employer is entitled and even encouraged to make profits is reflected in our law by the fact that there are caps on the amount of compensation for unfair dismissal in the interests of business efficiency and certainty. However, an analysis of relevant case law demonstrates that this can never be at the expense of a person's dignity. Hence the notion that the employment relationship is relational. This is reflected by the interpretation given to the legislation by the courts. Where there has been discrimination or an impairment of the employee's dignity, there are no such limits as to the amount of compensation a court can award. If there has been unfair discrimination, the courts may even award punitive and non-pecuniary damages.

Deportability among Temporary Migrant Workers

2019 ◽  
pp. 11-41
Author(s):  
Leah F. Vosko
Keyword(s):  
Migrant Workers ◽  
Bargaining Unit ◽  
Collective Agreement ◽  
Agricultural Worker ◽  
Essential Condition ◽  
Work Program ◽  
Policy Paradigm ◽  
Migration Management ◽  
Temporary Migrant ◽  
Migrant Work

This chapter develops the argument that deportability, as it applies to participants in a temporary migrant work program (TMWP) permitting circularity, is an essential condition of possibility for migration management. Under this paradigm, TMWPs—such as the Seasonal Agricultural Worker Program (SAWP)—which are perceived to represent “best practices” by, for example, offering participants the prospect of return, simultaneously sustain this approach to governing migration and represent its limit, including in contexts in which unionization is permissible. The legal struggle of SAWP employees of Sidhu & Sons to unionize, secure a first collective agreement, and maintain bargaining unit strength gives substance to these claims. It reveals how deportability is lived among temporary migrant workers and the central modalities through which it functions. As such, these SAWP employees' experience provides rich empirical evidence for a grounded critique of migration management revealing that, despite its call for “regulated openness,” this global policy paradigm introduces new modes of control.

THE RULES OF REMUNERATION OF THE WORKER COOPERATIVE MEMBERS

2021 ◽  
Vol specjalny II (XXI) ◽  
pp. 377-386
Author(s):  
Tomasz Duraj
Keyword(s):  
Employment Relationship ◽  
Labour Law ◽  
The Subject ◽  
The Right ◽  
Worker Cooperative ◽  
Economic Risks

The subject of the foregoing study is an analysis of the specific rules for the remuneration of members of a worker cooperative who, by contributing to the organisation, participate in the economic risks associated with its operation. Each member of a worker cooperative is guaranteed the right to participate in the profit (balance surplus) of the cooperative, but at the same time participates in covering its losses up to the amount of the declared contribution. This special status of members of a worker cooperative, together with the obligation to work for that organisation on the basis of an employment relationship, has an impact on the remuneration of that category of workers. This can be seen in the structure of their remuneration, which consists of the current salary and the share of the balance surplus to be distributed among the members in accordance with the rules laid down in the statutes. Moreover, the current salary of a member of a worker cooperative and his share of the balance surplus are under protection provided by labour law for the remuneration of the employees.

Unfair dismissal in the Mauritius context: a comparative study

2018 ◽  
Vol 60 (6) ◽  
pp. 1299-1312
Author(s):  
Ambareen Beebeejaun
Keyword(s):  
Design Methodology ◽  
Research Work ◽  
Procedural Fairness ◽  
Content Type ◽  
Monetary Compensation ◽  
Unfair Dismissal ◽  
The Subject ◽  
The Law ◽  
Employment Rights ◽  
Practical Recommendations

Purpose The purpose of this study is to critically analyse the concept of unfair dismissal and to assess the extent to which the Employment Rights Act 2008 is affording protection to employees in Mauritius. The purpose of this study is to also demonstrate that as employees form an integral part of their workplace, their employment cannot be terminated without substantive and procedural fairness. The paper will provide some recommendations to cater for loopholes in existing Mauritius employment legislations. Design/Methodology/Approach To critically examine the topic, the black letter approach is adopted to detail legislations and judgments of courts on the subject matter. A comparative analysis with some other jurisdictions’ employment legislations is also carried out to define, explain and examine the concepts of dismissal, substantive causes such as misconduct and procedural fairness. Findings From the methodologies used, it is found that a substantial reason is not sufficient to conclude whether a dismissal is fair. The law of unfair dismissal has introduced some procedural safeguards to protect the employee from being unfairly and unjustifiably dismissed. The procedural requirements act as guidelines to employers and if they are not followed properly, the dismissal will be unfair. Unfair dismissal needs to be accompanied by remedies from employers, and monetary compensation has been found to be the most appropriate remedy. Originality/Value This paper is amongst the first research work conducted in Mauritius that compares the law of unfair dismissal and its implications with the laws of England and South Africa. The study is carried out with a view to provide practical recommendations in this area of employment law to the relevant stakeholders concerned.

scholarly journals Vision d'une révision du Code du travail

2005 ◽  
Vol 20 (4) ◽  
pp. 901-934
Author(s):  
Pierre Verge
Keyword(s):  
Collective Bargaining ◽  
Third Party ◽  
Collective Agreement ◽  
Labour Law ◽  
Legal Rules ◽  
Third Party Intervention ◽  
General Law ◽  
Legal Provisions ◽  
Labour Standards ◽  
Substantive Law

Would a codification of labour law — in the Continental meaning of the word, and not a mere consolidation of existing statutes — enhance the development of this field of law ? Would the resulting instrument be likely to generate more appropriate ways of dealing with labour situations, whether or not they pertain to a collective bargaining context ? Adjective as well as substantive law would have to be involved in such an exercise. The latter aspect raises the fundamental issue of the proper relationship between the general law — civil law essentially — and labour law. What degree of autonomy is necessary to the integrity of the specialized law ? Conversely, to what extent is the general law to be relied upon to provide the necessary second-line set of legal provisions ? For instance, the two sets of legal rules entertain different views as to the termination of the employment relationship and as to the effect of a collective agreement. A well-integrated body of labour law should, in the author's opinion, govern comprehensively labour situation. The codifying process would also aim at eliminating internal discrepancies and a simpler, more accessible legal subsystem would emerge. As to the adjective aspects of labour law, the identification of desirable forms of third-party intervention relating to both collective bargaining and labour standards legislation could lead to appropriate jurisdictional arrangements. In the case of industrial conflicts, of particular interest are the flexible powers of intervention with which the Canada and British Columbia labour boards are endowed. Consideration should also be paid to certain European models — namely the Conseil de prud'hommes — which allow both conciliation and adjudication to take place in the solving of normative law conflicts of application. A full-fledged Labour Code would indeed invite the setting up of a more authentic Labour Court.

THE EMPLOYER’S RISK PRINCIPLE

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 83-91
Author(s):  
Łukasz Pisarczyk
Keyword(s):  
Employment Relationship ◽  
Strict Sense ◽  
Labour Law ◽  
Personal Risk ◽  
Normative Principle ◽  
Risk Principle ◽  
Application Scope

The article discusses the employer’s risk as a principle of labour law. The idea of employer’s risk is that the employer bears the consequences of obstacles in the performance of the employment relationship that it has not caused. The author distinguishes the obstacles: not related (the employer’s risk in a strict sense) and related to the employee (personal risk). As a rule, the employer bears the risk of circumstances not related to the employee. The nature as well as the application scope of regulations allow to formulate a normative principle of the labour law. At the same time the employer bears the risk of the obstacles related to the employee only in cases specified in the labour law, both: statutory standards as well as autonomous provisions. As a result, the personal risk of the employer cannot be considered to be a normative principle of the labour law.

Conclusion

2019 ◽  
pp. 110-120
Author(s):  
Leah F. Vosko
Keyword(s):  
Migrant Workers ◽  
Policy And Practice ◽  
Agricultural Worker ◽  
Work Program ◽  
Incremental Change ◽  
Migration Management ◽  
Legal Case ◽  
Temporary Migrant ◽  
Migrant Work

This concluding chapter reflects on the significance of the legal case of the Seasonal Agricultural Worker Program (SAWP) employeess at Sidhu & Sons for expanding understandings of the meaning of deportability and its applicability to temporary migrant work program (TMWP) participants laboring not only in Canada but also in other relatively high-income host states embracing migration management and the measures it prescribes. Obstacles to limiting deportability writ large will persist so long as migration management dominates paradigmatically. Nevertheless, in combination with the forward-looking organizing efforts already being undertaken by unions and worker centers, in areas where unionization is difficult to achieve partly because of the still-dominant Wagnerian-styled model of unionization, certain modest interventions in policy and practice hold promise in forging change and curbing deportability among temporary migrant workers. Because the foregoing case study focused on the SAWP, the alternatives outlined in this chapter primarily address this TMWP. Given, however, that the SAWP is often touted as a model of migration management, they seek to provide meaningful avenues toward incremental change in other TMWPs in Canada and elsewhere.

The Contractualisation of Labour Law

2018 ◽  
pp. 33-47
Author(s):  
John Gardner
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Work Relations ◽  
Contractual Relationship ◽  
The World ◽  
British Labour ◽  
The Common ◽  
The Law ◽  
Main Ideas

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

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