Protecting the Labour Rights and Human Rights of Migrant Domestic Workers – A Labour Regulation Approach
By Professor Judy Fudge –
Women who cross national borders in order to work in the households of other peoples’ families are very vulnerable to exploitation.Their precarious work situation is a function both of their precarious migrant status – typically they are admitted to the country in which they work on visas that tie their ‘rights’ to work and to reside in that country to an on-going employment relationship with a specific employer – and their employment within private homes. Employment agencies, which recruit and place domestic workers across national boundaries, are crucial actors in the construction, maintenance and reproduction of global care chains, in which women from the South migrate to the North or to contiguous countries in the South in order to provide domestic work. Employment agencies have long been associated with abusive practices, such as charging fees to workers and fraud, in the recruitment and placement of domestic workers. They also draw upon and contribute to an on-going process of racialising domestic work.
The path-breaking Domestic Workers Convention, adopted by the International Labour Convention in 2011, specifically targets (in Article 15) employment agencies in the recruitment of migrant workers, and urges Member States to ‘determine the conditions governing the operation of private employment agencies recruiting or placing domestic workers, in accordance with national laws, regulations and practice’ and to ‘ensure that adequate machinery and procedures exist for the investigation of complaints, alleged abuses and fraudulent practices concerning the activities of private employment agencies in relation to domestic workers.’ Similarly, the ILO’s Private Employment Agencies Convention, 1997 (No. 181) prohibits the charging of fees to workers and emphasizes the need for regulation when it comes to the recruitment of migrant workers.
Despite the ILO’s emphasis on a labour regulation approach to dealing with exploitative or abusive practices by employment agencies towards migrant domestic workers, criminal sanctions such as those targeting trafficking and forced labour attract much greater public and official attention. While there are cases of extreme abuse that amount to forced labour under Article 4 of the European Convention of Human Rights, as the 2012 European Court of Human Rights decision, CN v. the United Kingdom,  ECHR 1911 (see previous post) demonstrates, this focus on the sharp edge of exploitation diverts attention from much more widespread abusive practices, such as charging fees and misrepresenting terms and conditions of employment to migrant domestic workers. Moreover, even from a labour regulation perspective, too much attention is paid to providing migrant domestic workers with an after-the-fact complaint mechanism. This solution is unlikely to be successful since, owing to their precarious immigration status and their isolation in private homes, domestic workers are too often unable or unwilling to lodge complaints.
Greater attention should be paid to dealing with the root cause of the problem – unscrupulous and unregulated employment agencies that are key actors in global care chains. The recent example of one Canadian jurisdiction, Manitoba, shows how it is possible to design a regulatory regime that addresses some of the recurring problems associated with employment agencies engaged in recruiting migrant workers.
In 2008, Manitoba enacted The Worker Recruitment and Protection Act, which provides a comprehensive foreign worker recruitment regulatory scheme composed of two interrelated parts: employer registration and foreign recruiter licensing. Employers wishing to recruit a foreign worker must apply to register with the employment standards branch, and indicate whether or not they are using a foreign worker recruiter. The Immigration Branch then contacts and informs the employer that it is responsible for reimbursing the worker any recruitment costs that the worker may have paid to anyone during the recruitment process. Not only can employers be held responsible for illegally charged placement fees, these fees can also be treated as wages, and returned to workers via wage collection processes. The employment contract information that the employer provides to immigration officials as part of the visa process is deemed to be the minimum standard enforceable under the province’s Employment Standards Code.
The regulatory structure’s second main piece is the licensing of foreign worker recruiters, which is divided into three parts: qualifications, financial disclosure and bonding. Foreign worker recruiters are regulated as distinctly defined entities, which are extensively vetted, supervised and bonded. They are prohibited from acting simultaneously as immigration consultants for migrant workers and placement agencies for employers so as to avoid conflicts of interests. This firewall, along with heightened supervision, discourages the blending of legal with illegal fees. The licensing measures also provide a form of quality assurance, and ensure that those employers requiring professional assistance are dealing with reputable and accountable members of the recruitment sector. The substantial bond that is levied as part of the licensing process can be used to reimburse foreign workers for any fees collected from them at any time by any person during the recruitment process. In addition to civil recovery of illegally charged fees, there are significant penalties for contraventions.
Legislation is a necessary but not sufficient condition of adequate regulation. What is distinctive about Manitoba is the extent to which the different levels of government (in Canada immigration is primarily the responsibility of the federal government whereas employment is generally a matter of provincial jurisdiction) and different agencies (involving immigration, border control and employment standards officials) have linked and consolidated their resources to stop abusive recruiters. This regulatory regime has resulted in a shift towards direct employer recruitment and away from the use of recruiters. The few agencies that continue to recruit migrant workers to Manitoba are highly regulated and well capitalised.
Eradicating irresponsible brokers who operate as ‘flesh peddlers’ at the bottom of the labour market will not guarantee that migrant domestic workers who work and live-in private home will be treated with dignity and in accordance with international norms. Nevertheless, as the example of Manitoba demonstrates, it could put an end to some of the most prevalent abusive practices. Effective regulation of transnational labour brokers would also better ensure that the costs of the care deficit in the global North are not be borne by the women of the global South who cross borders to perform this essential work.
Judy Fudge is the Leverhulme Visiting Professor, Kent Law School and Lansdowne Chair in Law, University of Victoria.
This post draws upon a presentation given to the OxHRH on 20 February 2013. A recording of this presentation can be accessed here.