An array of exploitative practices harm workers in contemporary workplaces. In this blog piece, I focus on the issue of exploitation in detail by considering a group that is often affected by workplace infringements, namely migrant workers. Their exploitation has been raised as a concern in the media, in policy reports, in political debates and in both historical and contemporary political economy analysis . Yet, we lack at present theoretical and empirical approaches that account for the interaction of economic forms of exploitation with other types of abuse that can occur in workplaces.
My recent article in New Political Economy provides a new five-type classification schema of exploitation and workplace abuse. I argue that a schema of exploitation based on a classification of empirically demonstrated violations most accurately encompasses the array of infringements that can occur against migrants in the workplace. The schema draws its categories from labour law scholarship and practice. The evolution of labour law shows that the emergence of labour rights from restrictions on child labour, through to the development of reasonable working hours, work, health and safety laws and, more recently, the addition of antidiscrimination provisions. This history assists in developing the five-type classification of exploitation that my paper sets out: i) criminal infringements, ii) economic violations of wage and hour entitlements, iii) safety violations, iv) various forms of denial of leave entitlements and v) workplace discrimination. In demonstrating both theoretically and empirically how economic violations can coexist with and are exacerbated by other violations, my paper advances our understanding of exploitation and abuse in the migrant worker space.
To empirically map this schema, the paper drew upon a new primary evidence source, the Migrant Worker Rights Database. This database comprises 907 legal cases brought by migrant workers seeking to enforce their rights in Australia, Canada (Ontario, Alberta and British Columbia), the United Kingdom and the USA (California). The database covers all published cases brought in these jurisdictions between 1996 and 2016, from low-level tribunals through to the highest courts of appeal on the public record. The Database covers employment law violations but also a variety of other claims brought by migrants seeking to enforce their workplace rights, such as criminal, tortious, human rights and antidiscrimination claims. A key selection criterion for the case list was that the migrant’s alleged violation occurred in the workplace and not outside the course of their employment. Collectively, across the six labour law jurisdictions, my article assesses 907 cases involving 1912 migrants who alleged 2640 different violations.
Using the Database, I focused on violations that are substantiated by the decision of a judge or tribunal member, rather than allegations of violations by the migrant. Table 1 below sets out substantiated violations according to the five major classes of exploitation across the four countries. As is clear, in all jurisdictions, claims related to economic interests are the largest grouping of substantiated violations, ranging from 92 per cent of all successful claims of events in Australia down to 53 per cent in the United Kingdom. On average, 81 per cent of the violations brought by the migrants are economic in nature. Next comes discrimination-based claims (10 per cent), followed by criminal infringements (5 per cent), safety violations (4 per cent) and denial of leave and other workplace entitlements (0.1 per cent). In short, consistent with expectations, a large majority of the patterning of workplace violations is economic in nature (related to wages and conditions), however this does not capture the entire landscape of possible violations.
Table 1: Number of migrants with successful claims of events, by violation category and jurisdiction
|Criminal infringements||29 (4%)||8 (2%)||14 (18%)||32 (8%)||83 (5%)|
|Economic Violations||698 (92%)||213 (54%)||41 (53%)||415 (84%)||1367 (81%)|
|Safety Violations||28 (4%)||30 (8%)||1 (1%)||5 (1%)||64 (4%)|
|Denial of Leave and Entitlements||0||1 (0.3%)||0||1 (0.2%)||2 (0.1%)|
|Discrimination||4 (1%)||140 (36%)||21 (27%)||12 (3%)||177 (10%)|
Source: Migrant Worker Rights Database
Economic violations standalone 96 per cent of the time, however in two per cent of these cases they are combined with criminal and discrimination violations. This supports the point, argued in more detail in my New Political Economy article, that discrimination can be a means to exacerbate economic deprivation. In a third of these cases in the database, the discrimination type is race. One startling example is the Canadian case of Monrose v Double Diamond Acres 2013 where a seasonal agricultural worker from St Lucia was racially vilified, denied 25 per cent of his wages and was ultimately dismissed. The Human Rights Tribunal of Ontario found that he had been dismissed in a discriminatory manner. Cases such as Monrose and the accompanying quantitative data, reinforce the views of critical race Marxist scholars and theorists of unfreedom that economic and racial injustice have a mutually reinforcing effect.
The next highest concurrent violations are economic and discrimination on the basis of trade union membership, which relates to the view that exploitation is often not only economic but also has a political basis. By way of example, in the case of Australian Licensed Aircraft Engineers Association v International Aviation (2011), an Indonesian migrant worker employed as an aircraft engineer in Australia, Mr Djoko Puspitono, was unlawfully dismissed following trade union activity. As such, he experienced both an economic loss (dismissal) and a denial of his right to collective action. He also received a negative assessment of his working capacity to the Indonesian airline, Garuda, which meant he would return to Indonesia without viable employment opportunities. The court found in his favour and issued a considerable remedy. This example demonstrates the intersection of economic and discrimination claims that can feature in migrant worker cases.
Although the bulk of substantiated claims for workplace violations in the Database are economic (81 per cent) not all are and there is sometimes overlap with other areas – especially discrimination. This provides support for the argument that workplace exploitation and abuse, while predominately an economic phenomenon, has other components. Clearly, economic injustice is a significant aspect of any empirical understanding of exploitation. At the same time, only considering economic violations overlooks how other forms of abuse – criminal violations, safety, leave and discrimination – can exacerbate or reinforce economic infringements, or indeed exploit a worker in economically irrational but still deeply problematic ways. For instance, an employer may not extract a financial benefit through harsh racial discrimination – such behaviour may even lead to financial loss for the employer – and yet the effect upon the migrant employee may be very damaging and thus exploitative. Moving beyond a wage-based conception of exploitation to consider these other violations is important, not only to capture the full scope of workplace exploitation and abuse, but also because it paints a more accurate picture of what is actually occurring in court cases brought by migrant workers. Future studies can consider the relationship between exploitation, abuse and modern slavery in their analysis of workplace violations.
Such a framework is potentially useful for policymakers in devising comprehensive policies to address the mistreatment of migrants in workplaces in a way that tracks across law and regulation. It is also useful for legal advocates in their understanding of what migrant workers actually experience in the workplace, on a system-wide level. Further, to the extent that many of these infringements may also apply to workers with citizenship status, such an approach could be useful in refining general analytical and empirical approaches to concepts of exploitation and workplace abuse. However, given their visa vulnerability, migrants may be more brazenly subjected to exploitation than those with citizenship.
This blog forms part of Chapter 1 in my forthcoming book Patterns of Exploitation: Understanding Migrant Worker Rights in Advanced Democracies (Oxford University Press, New York) in 2022.
This blog piece is a shortened version of my article in New Political Economy.