Abstract
This article explores how model temporary migrant worker programs (TMWPs) that permit seasonal return can institutionalize deportability or the possibility of removal among participants with legal status. It draws on the cases of two groups of workers who participated in the British Columbia–Mexico Seasonal Agricultural Workers Program (SAWP) and who managed to unionize and secure collective agreements (CAs). The author argues that the design and operation of SAWP constrains workers’ capacity to see out fixed-term contracts and to realize the promise of seasonal return. These inherent constraints lead to a form of institutionalized deportability, even among participants covered by CAs crafted to mitigate the possibility of unjust termination and premature repatriation and to address workers’ precarious transnational situation. Focusing on how deportability operates, the article analyzes immigration and labor laws and policies, CAs, key informant interviews, and testimony before British Columbia’s labor relations tribunal along with the decisions of that tribunal.
Keywords
The regularization of undocumented workforces through temporary migrant worker programs (TMWPs) is often cast as a sensible and politically feasible approach to legalization and a proverbial “triple win” scenario for all parties involved (Winters, Walmsley, Wang, and Grynberg 2003; Ruhs and Martin 2008). Viewed as a mechanism for expanding legal avenues for migration among workers from the global South, TMWPs are promoted by international organizations such as the World Bank, the Global Commission on International Migration, and the International Organization on Migration as the way forward in global migration policy (Vertovec 2008). The renewed emphasis on TMWPs (Castles 2006; Newland 2009) suggests that the legal status associated with such forms of regularization results in better employer practices and worker outcomes, particularly within the agricultural sector, in which irregular migration is common and mistreatment of workers is well documented (Vivian 2005). For example, studies suggest that most migrant workers favor the greater security of temporary legal status and seasonal employment associated with Canadian-based programs that permit re-entry over other time-limited alternatives and particularly over the persistent insecurity associated with undocumented status (Basok 2000; Martin 2006: 29).
Canada’s most long-standing TMWP in agriculture, the Seasonal Agricultural Workers’ Program (SAWP), is often touted as a model of migration management. SAWP has high levels of state involvement on both sides of the travel continuum and promotes circularity (Hennebry and Preibisch 2012). At first, the SAWP appears to provide a promising alternative to the political difficulties characterizing periodic large-scale legalization programs that lead to permanent residency status. The program also appears to offer a legal and legitimate channel for predictable and continued access to employment, characterized by established terms and conditions, among populations otherwise likely to be undocumented, while simultaneously solving employers’ persistent labor supply problems through the provision of a reliable steady pool of seasonal workers. Prevailing criticisms of the TMWP, however, relate, for example, to inadequate housing and health care, as well as to social isolation and gender bias in recruitment (see Gabriel and MacDonald 2004; Hennebry and McLaughlin 2012; Preibisch and Grez 2013). An examination of the SAWP’s interface with labor relations regimes in provinces where unionization among agricultural workers is permissible 1 raises further cautions for countries considering emulation. Weaknesses in the program’s architecture for workers’ rights and protections are well documented in the literature (see especially Basok 2002; Preibisch 2010; Gabriel and MacDonald 2012). Yet aspects of the SAWP’s design and operation illustrate how even managed TMWPs that offer the prospect of return can institutionalize deportability or the possibility of removal (De Genova 2002, 2010), even in contexts in which participants exercise their rights to organize and bargain collectively. This outcome calls into question the assumption that such modes of extending legal status to migrants temporarily (i.e., while they are present in the receiving state) necessarily bring about demonstrable improvements in employer practices and worker outcomes.
Investigating how TMWPs that permit circularity can institutionalize deportability even among temporary migrant workers with ostensibly secure legal status, this article considers the case of two groups of seasonal agricultural workers participating in British Columbia’s (BC) variant of the Canada–Mexico SAWP that managed to unionize and secure collective agreements (CAs). I argue that although the SAWP extends legal status to participants while they are in Canada, the TMWP does not represent a “best practice” model given the limits that are placed on workers’ capacity to see out their fixed term (i.e., seasonal) contracts in the receiving state and to realize the promise of future employment built into program architecture that even novel CAs are unable to transcend. By evaluating the efficacy of provisions of two CAs crafted to mitigate unjust termination and denial of seasonal contract renewal and/or disqualification from the program, I reveal the ways in which threats and acts of deportation are built into the design of the SAWP and its operation among unionized participants.
In exploring how the SAWP institutionalizes deportability among participants, even those who manage to unionize and obtain CAs, the ensuing analysis unfolds in five parts. The article first offers a conceptual discussion that defines deportability and examines to whom it can apply. It suggests that SAWP participants endure threats and acts of deportation despite their legal status in the receiving state. The article then reviews three strands of scholarship pertinent to the analysis of TMWPs in Canada: sociological studies of temporary migrant workers’ experience, legal and policy analyses of the parameters of TMWPs and their effects, and literature on the political economy of labor migration.
Against this backdrop, I elaborate the methodological approach adopted herein, which aims to specify the how of deportability among participants who manage to unionize and negotiate CAs under the SAWP. More specifically, I examine how the possibility of removal is built into the design and practical operation of immigration and labor laws, policies, and guidelines surrounding the Canada–Mexico SAWP and its BC variant. Next, the section developing the empirical analysis describes the SAWP and explores why the program is often cast as a model of “migration management” that offers a “triple win” for workers and for the sending and receiving states (UN 2006). Focusing on those aspects of the program central to participants’ prospects for future employment, I then investigate readmission processes carried out by sending state officials, which are informed by employer evaluations, and examine how such processes affect the gains made possible among workers who are accorded legal status. I find that readmission processes institutionalize deportability as a feature of the SAWP’s architecture.
Further, I explore why and how SAWP employees at several farms in BC sought to use their rights to organize and bargain collectively as a bulwark against deportability, with a focus on provisions they secured in CAs to bolster their eligibility for renewable fixed-term employment contracts. This aspect of the investigation highlights the novelty and strengths of provisions that address grievance and arbitration procedures, seniority, recall, and layoffs in BC-based CAs encompassing SAWP employees. It nevertheless underlines their fragility in light of unjust threats and acts of termination (normally prompting premature repatriation) and non-renewal due, in part, to limitations of such CAs tied to the parameters of the SAWP, which give primacy to sending and receiving states’ laws and policies, as well as protocols and guidelines carried out by their respective officials, regulating temporary migrant work on account of their sovereign control over emigration/immigration. With an emphasis on what can be learned by inquiring into the how of deportability, the final section outlines a series of measures for moderating unjust threats and acts of termination and non-renewal to bolster the efficacy of CAs applicable to temporary migrant workers. I suggest that in the absence of such measures, even “model” TMWPs fail to approximate the certainty afforded by legalization programs ranging from initiatives that provide for the gradual transition to permanent residency to large-scale amnesties; for this reason, countries considering emulation should proceed with caution. The article thereby concludes that because of the parameters of the TMWP, scaling up the best provisions of CAs secured by SAWP employees, such as those achieved in BC, remains only a partial antidote to these TMWP participants’ institutionalized deportability, which inevitably makes the promise of future employment conditional.
The Legal Status Provided by TMWPs Permitting Circularity: A Bulwark against Deportability?
The past few decades have witnessed the growing use of deportation—“the removal of aliens by state power from the territory of that state, either ‘voluntarily’, under threat of force, or forcibly”—in liberal democratic states (Walters 2002: 268). Consequently, an expanding scholarly literature is now devoted to historicizing and denaturalizing deportation as a form of expulsion (for some recent US examples, see contributions to De Genova and Peutz 2010; Hahamovitch 2011; Mezzadra and Neilson 2013; Wong 2015). This literature demonstrates empirically that, as a practice, deportation is by no means new but rather exists within a wider history of political and administrative practices linked to removal (Walters 2002) and that its exercise is constitutive (Hindess 2000) of, or at a minimum, “re-emphasizes the mutually exclusive territorial claims on which the entire state system depends” (Collyer 2012: 277).
Scholarly observations of the rising prominence of deportation in an “age of migration” (Castles and Miller 2009) and of states’ broader efforts to tighten up the application of border controls for the most vulnerable migrants have generated a new concept distinct from de facto deportation but reflecting its logic, to encompass the threat of removal—the notion of “deportability” (De Genova 2002). Conceived by De Genova (2002: 439) as “the possibility of being removed from the nation state,” deportability is a particularly powerful notion because, unlike deportation per se, it captures a social condition and an accompanying set of social practices that effectively render migrant workers’ labor power as disposable. Often operating in tandem with formal protocols on repatriation, social practices associated with deportability do so partly through the diffusion of (softer) disciplinary forms of subjectification involving the administrative entrenchment of insecurities into workers’ daily lives through, for example, employer surveillance made possible by the physical setup of participants’ lodgings and the provision of local transport by supervisors or consular employees as well as systems of employee evaluation lacking transparency (Vosko 2016).
Deportability was first used to describe the conditions facing undocumented workers. The term was developed in the United States to capture the situation of workers who lack legal status in a host country and are thus working without government sanction and under constant threat of deportation. Consequently, some scholarly explorations of real-world cases theorize inclusion through illegalization or the transposition of physical borders into undocumented workers’ everyday lives (Talavera, Núñez, and Heymen 2005). Other scholars are concerned, quite concretely, with “the ‘illegal’ migrant” as “a deportable subject, whose position in . . . the labour market is marked by and negotiated through the condition of deportability, even if actual removal is a distant possibility . . . [but nevertheless functions as] a threat that . . . [is] the background to a whole series of lifetime activities” (Mezzadra and Neilson 2013: 146, emphasis added). In this context, although it is often ad hoc, the much-discussed antidote to deportability is “legalization,” conceived as processes allowing “‘unauthorized’ . . . residents to become lawful permanent residents . . . and ultimately . . . citizens” (Kerwin 2010: 1). 2 Yet, despite deportability’s conceptual origins and the focus on undocumented migrant workers in its application, it can also capture the experience of temporary migrant workers who hold legal status in long-established immigrant-receiving countries such as Canada, where TMWPs are significant, especially those in seasonal agriculture with the prospect of return (Binford 2009, 2013; Basok, Bélanger, and Rivas 2014; Vosko 2016). TMWPs vary in their form, responding typically to sectoral and regional demands. During the period in which temporary migrant workers hold valid work permits, however, participants (and their family members, if they are permitted to accompany them) 3 normally have formal labor and social rights that are unavailable to their undocumented counterparts. For example, in Canada temporary migrant workers are covered by provincial or, where applicable, federal employment standards legislation geared to nonunionized employees and establishing minimum terms with respect to minimum wages, hours of work, vacations and leaves, and other workplace rights. Work permits granted in connection to TMWPs targeting workers deemed to be “low-skilled,” however, infrequently provide migrants with direct pathways to permanent residency and/or citizenship—and programs that permit circularity, such as the SAWP, actively trade off such a pathway for providing participant employees with openings for future re-entry and re-employment. 4
Additionally, despite holding legal status for the duration of their work permit (i.e., fixed-term seasonal), workers participating in such circular TMWPs face a unique manifestation of deportability that encompasses the threat of dismissal from future employment in the receiving state (Binford 2009: 508). Under the SAWP, for example, which technically allows for unlimited re-entries on a seasonal basis, both the need to perform work to the satisfaction of particular employers, on account of the issuance of closed work permits, in order to remain in Canada for the full duration of their fixed term employment contracts and the need to meet criteria for readmission repeatedly, arguably encouraging participants to “disciplin[e] themselves and other migrants to comport themselves in a particular way” (Basok et al. 2014: 1394), sharply differentiate the legal status provided under the SAWP from legalization leading to permanence.
Binford (2013: 50) summed up the situation well in noting that “when a worker [engaged under the SAWP] is fired, the contract becomes voided and the right to remain in Canada is immediately suspended.” Accordingly, the worker shifts from “a legal temporary worker into an ‘illegal’ who must be ‘deported’.” Undocumented workers face limited access to rights and protections and are confronted baldly by deportability. Yet once they are citizens, and usually once they are permanent residents, 5 those fortunate enough to be in the right place at the right time to benefit from legalization programs can neither be deported nor threatened with deportation. By contrast, although participants in TWMPs that permit seasonal return, such as the SAWP, do have certain rights and protections associated with their legal status, to retain these rights and protections they must be deemed eligible for readmission repeatedly, meaning they are in constant fear of losing the possibility of future employment in the receiving state.
Studying Deportability among SAWP Participants
The ensuing analysis builds on the insights and approaches of variants of three strands of literature pertinent to the analysis of TMWPs in Canada: sociological studies of temporary migrant workers’ experience, legal and policy analyses of the parameters of particular TMWPs and their effects, and scholarship on the political economy of labor migration.
Through rich qualitative analyses, sociological studies of workers’ experiences offer evidence of the precarious conditions of migration and employment confronting many workers enrolled in Canadian-based programs; moreover, some studies probe participants’ veritable fear of deportation (see, e.g., Binford 2009, 2013; Basok et al. 2014) and its various modalities (e.g., blacklisting) (Vosko 2016). They thereby open space for examining the operation of deportability among TMWP participants with the prospect of return, including those who hold formal rights to organize and bargain collectively and who seek to exercise those rights with apparent success.
Understanding the institutional design of TMWPs, such as the SAWP, framed jointly by both immigration and labor law and policy, is also central to illuminating the inner workings of deportability. To this end, legal and policy analyses offer insights into programs encompassed by Canada’s Temporary Foreign Worker Program and the parameters of laws and policies that bring them into being. Some such analyses examine how, and to what degree, participants in different TMWPs are accorded rights and protections vis-à-vis work, security, and settlement (see, e.g., Rajkumar et al. 2012). Others offer finely grained investigations of the legal regulation of exit and entry of TMWP participants, such as those engaged in programs geared to filling “low-skilled” occupations (see, e.g., Fudge and McPhail 2009). Still others explore “paper” versus “practical” rights and protections accorded to particular groups (see, e.g., McLaughlin, Hennebry, and Haines 2014). A further subset of legal and policy analyses probes the ways in which collective and protective labor laws and policies apply to specific groups of TMWP participants. 6
Finally, a third strand of informative scholarship, on the political economy of labor migration, situates TMWPs in the context of global trends of regional integration, neoliberalism, the globalization of care, and global labor mobility (on the Canadian case, see, e.g., Gabriel 2012; for a review of trends beyond Canada, see Plewa and Miller 2005 and Castles 2006). This strand includes interventions charting the roots of Canada’s utilization of migrant workers on a temporary basis (see, e.g., Sharma 2006) as well as the evolution of particular variants (see, e.g., Satzewich 1991), the relationship between the push toward North American continental integration and the growth of TMWPs (see, e.g., Gabriel and MacDonald 2004, 2012), and their significance in the face of labor market deregulation (see, e.g., Bauder 2006). The subset of this literature considering agriculture shows how TMWPs in this sector, including the long-standing SAWP (which turned 50 in 2016), reflect neoliberal trends toward labor flexibility, global agribusiness, the internationalization of labor markets (see, e.g., Preibisch 2010), and the significance of labor import under globalizing capitalism.
Building on these three complementary strands of scholarship, the current inquiry attempts to reveal how deportability functions through administrative and bureaucratic structures and procedures applicable to temporary migrant workers with the prospect of return. Focusing on certain “how” questions, this study seeks to reveal what is often hidden from view—namely, the practical operation of immigration and labor laws, policies, and programmatic guidelines. This approach to investigation helps demonstrate that the design and implementation of the SAWP institutionalizes deportability among temporary migrant workers, including those who hold formal rights to organize and bargain collectively and who exercise them in their attempts to preempt termination without just cause and to bolster their eligibility for renewable fixed-term employment contracts.
To begin to understand the how of deportability under the SAWP, particularly the (often subtle) means through which it operates, the current investigation analyzes immigration and labor laws and policies surrounding the Canada–Mexico SAWP and its BC variant informed by case law of BC’s labor relations tribunal. It addresses the situation of SAWP employees, as well as the terms of CAs reached between two growers and the respective bargaining units represented by the United Food and Commercial Workers Union (UFCW) Local 1518 that managed to attain certification. The examination of case law includes documentary analysis of submissions and written and oral testimony given to the British Columbia Labour Relations Board (BCLRB), which is often inaccessible, supplemented by key informant interviews with individuals involved in the labor relations cases under study. The key informant interviews informing this article were conducted as part of a larger study, which took place annually during the summers of 2011 through 2017, seasonal periods in which participation in the SAWP is at its height. Here, these interviews are used in an interpretative fashion, that is, to help discern aspects of testimony that unearth deportability’s operation and provisions of CAs aimed at mitigating its manifestations, reached through protracted processes at the BCLRB and also involving superior BC courts. 7
Through such multiple methods, the inquiry seeks to reveal deportability’s significance to the design of the SAWP as a TMWP permitting circularity—and how it undermines the benefits of the otherwise prized legal status it offers—in a manner that neither legal and policy analysis nor sociological studies of TMWP participants’ experiences can expose independently.
Situating Canada’s SAWP: A Model of “Migration Management”?
Canada’s SAWP is unique for its continuity since the inception of its precursor in 1966 (Preibisch 2010: 408–9) and for its provision of circular migration—that is, “repeated migration experiences involving more than one emigration and return” such that participant employees are enabled to “move back and forth between their countries of origin and a destination country.” Canada’s program is one of several variants of TMWPs operating in agriculture—euphemistically known as “guest worker” programs—embraced by industrialized countries alongside the US Bracero and German guest worker programs that began in the post–WWII period (Wickramasekara 2011: 9). Indeed, controlling unsanctioned migration was the central impetus that prompted Canadian immigration officials to admit Mexican migrants into the program in 1974, which targeted participants from the Caribbean exclusively in the preceding period (Satzewich 2007: 271–72). Recent years have been characterized by an upsurge of policy interest in such “managed” migration schemes 8 in response to the contention that, if they are properly designed, TMWPs allowing for circularity can represent a “triple win” for receiving states, sending states, and migrants (Agunias and Newland 2007). In this context, the SAWP is often cast favorably as a model. From the receiving state perspective, as well as that of employers therein who are permitted to engage workers of their choice, including those whom they have hired previously, its gains relate chiefly to the fact that this TMWP is designed to fill persistent labor shortages. Where possible, employers must hire Canadians first (i.e., before resorting to temporary migrant workers) but, at the same time, seasonal labor shortages in contemporary agriculture, marked by the transition from family to agribusiness, are understood to be ongoing (Satzewich 1991). From sending states’ vantage point, in turn, the SAWP provides predictable employment for emigrants who are required to return to their country of origin in the off-season, where they are encouraged to invest significant portions of their earnings, including through remittances. 9 Finally, for participants, the prospect of unlimited seasonal return, together with the SAWP’s minimum terms of engagement, makes the program desirable relative to most TMWPs. The sum of this “triple win,” in the words of Carlos Obrador, Mexico’s former vice-consul to Toronto, is that the SAWP reduces “illegal migration.” In this regard, the TMWP is cast as a “best practice” example of migration management, that is, of “how migration can work in an ordered legal way” (Obrador as cited by Gabriel and MacDonald 2012: 104).
The SAWP is also positioned as a model because it is a prototype of “regulated openness”—the centerpiece of migration management—a moniker for sending and receiving states’ co-development of shared policy objectives, harmonized norms and priorities, and mutually beneficial institutional arrangements (Ghosh 2012). The program functions on the basis of oversight on the part of both Canada, as the receiving state, and the participating sending states of Mexico, Jamaica, Trinidad and Tobago, and members of the Organization of Eastern Caribbean States. It is governed by two bilateral agreements between Canada and the Commonwealth Caribbean and between Canada and Mexico, which result in Memoranda of Understanding (MOU). Operational guidelines for the program, outlining the respective responsibilities and obligations of the parties (i.e., sending and receiving governments) as well as of workers and employers, are annexed to the MOUs. These MOUs and guidelines exist alongside standard employment agreements that set out terms negotiated by the Canadian government, employer representatives drawn from industry associations (e.g., the Fondation des Enterprises en Recrutement de la Main-d’oeuvre of Quebec [FERMES], the Foreign Agricultural Resource Management Services originating in Ontario [FARMS], and the BC Agricultural Council 10 ), and sending states. Under the SAWP, standard employment agreements contain a range of terms, including broad provisions on the scope and period of employment, as well as provisions related to worker protection, such as on accommodation, transportation, rest periods, insurance for occupational and non-occupational injury and disease, wage levels, and so on, and provisions enumerating employer prerogatives, such as on the early cessation of employment and/or premature repatriation. Notably, in the BC case, there is also a province-specific standard employment agreement (i.e., the BC–Mexico standard employment agreement) (ESDC 2016b), which has coexisted with a Canada–Mexico variant since this province joined the SAWP in 2004 and is updated annually. Most terms of this agreement nevertheless resemble those operating at the federal level and/or elaborate details particular to the regulation of agriculture in BC. Furthermore, the provisions of CAs secured by SAWP employees with BC growers, as well as interviews with lawyers representing bargaining unit members in their negotiation, suggest that the Canada–Mexico standard employment agreement, specifically the (more punitive) baseline it spells out for governing termination and repatriation is decisive in BC (Lawyer. Interviewed by author. Vancouver, July 20, 2015).
Reflecting its migration management orientation, the SAWP is administered jointly by Canadian immigration and labor officials 11 and sending states. Considering its Canada–Mexico variant, of focus herein, Canadian officials determine labor market needs. As with most other TMWPs operated by Canada and geared to filling low-skill positions, the process involves labor market impact assessments (LMIAs). LMIAs are administered by Employment and Social Development Canada (ESDC), which encompasses Canada’s federal labor department and Service Canada. When the assessments are positive (i.e., when labor shortages are confirmed), they yield closed work permits (i.e., permits tied to a specific employer) that are required for migrants to be admitted to the country and to engage in seasonal agriculture work. 12
Through the work of Canadian consulates abroad, ultimately Canadian officials (normally federal immigration officials) provide workers with access to visas to Canada; however, such documentation is provided indirectly through Mexican authorities, who dispense the visas to participants they have selected for admission and readmission once the required processes and documentation are complete. In certain instances, federal labor officials inside Canada can also help fulfill employee requests to transfer employers, although such requests are not uniformly granted. In theory, the transfer of SAWP participants is possible. In practice, however, it is difficult for the employees concerned to navigate such arrangements largely because of the existence of closed work permits, a feature of this TMWP that intensifies already-unequal power relations between employer and employee and thereby further entrenches participants’ subordinate position.
Additionally, although SAWP participants are employed in Canada (i.e., after they are admitted and engaged by an employer), the regulation of labor and employment is largely a provincial matter. Government officials at this level are responsible for ensuring that this group of temporary migrant workers has access to the qualified set of minimum employment standards available to agricultural workers under, in this case, BC’s Employment Standards Act (Vosko 2014: 460), and the right to organize and bargain collectively as permissible in agriculture in this province.
Mexican officials, based principally at the Ministry of Labor and Social Provision (MOL) in the interior, are responsible for initial worker recruitment and selection and aspects of documentation. They work primarily with federal Canadian immigration and labor officials, who issue visas, verify health screenings, and conduct other mandatory screenings. Adhering to SAWP’s requirement that sending states post government agents within Canada to assist in program oversight, Mexico also assigns consular officials roles involving transport, placement, health and safety, and mediation of on-farm disputes. Additionally, alongside their receiving state counterparts, Mexican officials based domestically and posted abroad regulate aspects of readmission. They contribute to determining not only workers’ initial but also their future participation in the SAWP. As part of the readmission process, such officials rely on mandatory employer evaluations of SAWP participants, which take place at the conclusion of each fixed-term employment contract and involve the assessment of whether a given worker performed well enough to be invited back (or “named”) to the same farm employer or sent to another farm employer for the following season. 13 To gain sending state support for readmission, if Mexican participants desire work in Canada for the following season, they are typically required to obtain a favorable employer evaluation, which, until 2010, was to be submitted by the SAWP participant concerned to a regional office of Mexico’s MOL upon return to the sending state (STPS 2011, n.d.). 14 Thereafter this evaluative process was integrated into the SIMOL system (Sistema de Movilidad Laboral or “labour movement system”), an electronic log used for tracking SAWP participants, which grants sending and host states as well as employers access to certain information but avoids alleged employee manipulation when delivering evaluation forms to Mexico’s MOL (Local union organizer. Interviewed by author. Vancouver July 19, 2017).
The opaque evaluation process has been self-described as an attempt to improve “the selection process of the seasonal agricultural workers program” (STPS n.d.). In practice, however, this process reflects the imperative that Mexico fulfill the preferences of Canadian-based employers and effectively encourages SAWP participants to tolerate unfair labor practices in order to secure positive evaluations and future participation in the SAWP (see, e.g., Basok 2002: 120, 141–43; Binford 2009: 511). Indicative of the magnitude of employer power in this long-standing circular TMWP, this evaluation process thus potentially undermines participants’ prospects for seasonal return, arguably workers’ foremost “win” under the SAWP model. The weight given to employer evaluations in selection for readmission is, moreover, reinforced by employers’ ability to cease or terminate fixed-term employment contracts for any reason at any time without the prospect of employee appeal. Such ability is granted under the Canada–Mexico Agreement for the Employment in Canada of Seasonal Agricultural Workers from Mexico (ESDC 2016a) or under the standard employment agreement at the federal level. This standard employment agreement dictates that, after consulting with a Mexican government agent, an employer is entitled “to prematurely cease the WORKER’S employment” on the grounds of “non-compliance, refusal to work, or any other sufficient reason,” which weakens the provisions that establish the period or term of employment. This clause reveals how the design and operation of the SAWP institutionalizes deportability, giving employers the power to trigger the premature repatriation of SAWP employees without justification (ESDC 2016a: X.1, emphasis added in preceding quotation). Furthermore, only in instances of premature repatriation, when the worker was requested by name, does the employer bear the full cost of return. In most other cases, the worker must cover the cost (fully or partly), although in select circumstances and contexts, government agents may determine that Mexico is required to cover such cost.
Such provisions for premature cessation of employment lessen workers’ “wins” considerably. Temporary migrant workers know that future employment in Canada can never be assured, which gives further credence to critical analyses of migration management and underlines its new forms and strategies of control (Geiger and Pécoud 2010) to which this contribution and others subscribe (see, e.g., Gabriel and MacDonald 2012; Basok et al. 2014). Workers are also well aware—or become aware through Mexican consular officials stationed in Canada (Vosko 2016), for example—of provisions in the standard employment agreement that permit their termination and therefore repatriation to Mexico at any moment, not to mention the possible consequences of such repatriation for their future prospects with regard to migration for employment (Binford 2013: 189, 232). Some groups encompassing SAWP employees who work in provinces that make rights to organize and bargain collectively available to workers in agriculture have sought to use these formal rights to organize against their deportability. Such employees have sought to preempt unjust termination and to bolster their eligibility for, and access to, future fixed-term employment contracts through provisions of CAs.
Collective Agreements as Protection against Unjust Termination, Premature Repatriation, and Denial of Contract Renewal
In the early 2000s, workers (including SAWP employees) at three BC-based growers—Greenway Farms Ltd., Floralia Plant Growers Ltd., and Sidhu & Sons Nursery Ltd.—successfully secured collective representation through certification 15 with Local 1518 of the UFCW. 16
Motivations behind Unionization
Given the legal status accorded to them while stationed in Canada, SAWP employees pursued unionization on the assumption that obtaining formal representation and securing CAs offered a potential check on arbitrary actions against temporary migrant workers by employers and by officials of receiving and sending states. Among employees at the three growers and their chosen union, specific motivations for pursuing certification emerged in their disputed attempts to obtain certification at the BCLRB. These motivations included concerns to secure protection against unjust termination, to preempt repatriation for reasons other than just cause, and to regulate recall as a means of encouraging the circularity originally intended in the SAWP (UFCW Local 1518 2009b: para. 9). Casting employees’ demands in the language of “dignity and respect” for migrant agricultural workers, which the union took to mean “that workers are not terminated and repatriated with little or no notice,” as indicated in its bid to represent a bargaining unit of SAWP employees at Sidhu & Sons Nursery Ltd., the UFCW pursued certification as a means of limiting SAWP employees’ deportability (UFCW Local 1518 2009b: para. 9). It concluded that CAs, by regulating employer actions, could potentially temper uncertainties engendered by provisions and associated practices of a TMWP permitting circularity, but could by no means ensure future employment. As the UFCW noted further, “without a collective agreement,” SAWP employees “have no ability to compel the employer to show proper cause for dismissal, particularly when the employee in question is no longer in the country” (UFCW Local 1518 2009a: para. 10). In making this claim, the union offered evidence of termination without just cause on the part of the BC growers, followed by threats and acts of repatriation. For example, it described one situation in which eight SAWP employees at the grower Village Farms were told they would be repatriated because “they drank too much, they were bad workers, and that they had contacted the union.” In this case, the employer went so far as to take the workers to the airport (and have their baggage checked) but was prevented from repatriating the workers upon the arrival of a Mexican Consular official who responded to a call from the UFCW (UFCW Local 1518 2009a). The UFCW also recounted several instances in which Mexican and Guatemalan employees were unjustly terminated and repatriated after being seen with union officials at church services (UFCW Local 1518 2009a). Cumulatively, such threats and acts of termination without just cause on the part of BC growers led SAWP employees and their union to seek CAs containing provisions aimed at curtailing unjust termination and preventing premature or untimely repatriation.
Collective Agreement Provisions
After bargaining units encompassing SAWP employees were certified at Sidhu & Sons Nursery Ltd. and Floralia Plant Growers, a protracted process characterized by small but symbolic successes (Vosko 2014), UFCW Local 1518 secured first contracts by way of arbitration with the two growers. These CAs contained similar (and, in some cases, identical) provisions. Foremost, with respect to attempts to bolster circular temporary migrant workers’ legal status by using CAs as a bulwark against deportability, were those conditions that elaborated grievance and arbitration processes, defined seniority, and regulated layoffs and recall as they responded to union members’ major concerns regarding unjust termination, repatriation, and the renewal of fixed-term employment contracts. More broadly, in an attempt to prop up legislated protections against unfair labor practices, both CAs also included terms stating that discrimination and harassment against employees in response to membership or participation in the union was intolerable and required the employer to comply with the provincial Human Rights Code.
Beyond the minimum rights and protections under SAWP, these CAs provided terms regulating wage rates, leaves of absence, health and safety, and so on (Sidhu & Sons Nursery Ltd. and UFCW Local 1518 2010 [hereafter Sidhu & Sons/UFCW 2010]; Floralia Plant Growers Ltd. and UFCW Local 1518 2012 [hereafter Floralia/UFCW 2012]). In the case of wages, for instance, both CAs contained provisions providing that all employees are to receive the applicable prevailing rates for SAWP employees in BC (i.e., under governmental agreements), as determined annually by ESDC, plus additional payments to be introduced each year of the three-year term of the CAs. Each CA also had unique provisions applicable to SAWP employees exclusively; namely, provisions for leaves of absence for those requesting to return to their country of origin (at the employee’s expense) because of a death in their immediate family and provisions for storage of personal property (e.g., overalls, raincoats, boots, jackets, and bikes) during the off-season on the presumption of their return to the same farm in subsequent seasons.
In addressing SAWP employees’“dignity and respect” concerns with regard to unjust termination, resulting typically in repatriation, both CAs elaborated staged complaint mechanisms, dictating rigid time limits for each step in grievance and arbitration processes related to the termination of SAWP employees attentive to their tenuous residency status (i.e., circumstances in which she or he could be repatriated) (Sidhu & Sons/UFCW 2010: articles 12 and 13; Floralia/UFCW 2012: articles 13 and 14). For example, in the event of such a discharge, the CA between Sidhu & Sons Nursery Ltd. and Local 1518 required that a grievance challenging termination be filed within three days of the SAWP employee’s receipt of a notice of the discharge (Sidhu & Sons/UFCW 2010: article 12.07). Furthermore, in cases in which a grievance challenged the termination of employment for just cause, and the SAWP employee was to be subject to repatriation, a grievance application for expedited arbitration had to be processed within 24 hours. An arbitrator then had to convene a hearing within five days, complete it within 10 days of the first day of the hearing, and issue an award within five days of the hearing (Sidhu & Sons/UFCW 2010: article 13.02). In such situations, this CA also made provisions for discharged SAWP employees to continue to reside on the premises of the employer, and thus remain in Canada, until the matter was resolved. Collectively, such provisions on grievance and arbitration procedures sought to preempt unjustified premature repatriation, specifically, repatriation flowing from termination in cases in which an arbitrator deemed the employer lacked just cause. The CAs aimed to counter the deportability engendered by terms of the Canada–Mexico standard employment agreement that permitted the premature cessation of employment, and specifically to curtail the risk of unjust termination carried out by BC growers who had the goal of threatening or triggering the repatriation of specific workers and/or groups of workers on the basis of their presumed support for or association with unions.
In a novel attempt to create fair and standardized contract renewal or recall procedures, casting the seasonal period in which migrant workers return to the sending state as a feature of the employment relationship, both CAs also specified that “seniority of SAWP employees [“foreign workers” in the case of Floralia] in prior seasons shall be maintained” (Sidhu & Sons/UFCW 2010: article 7.01; Floralia/UFCW 2012: article 7.01). They thus required the respective employers to keep seniority lists maintaining the priority of foreign workers in prior seasons. The agreement between UFCW Local 1518 and Sidhu & Sons, for example, noted that “[u]pon completion of the SAWP Employee’s probationary period [of 5 months, effectively the duration of one season], his or her seniority shall be calculated based on accumulated hours worked, whether in the current season or prior seasons” (article 7.01). Seniority was considered broken only if the SAWP employee was duly discharged and not reinstated through the grievance procedure and/or arbitration, voluntarily quit or resigned, was absent from work without prior written approval from the employer (unless the SAWP employee offered a reason satisfactory to the employer), had not worked for eight months, or failed to return to work on the completion of an authorized leave without a satisfactory reason (Sidhu & Sons/UFCW 2010: article 7.02). Season-to-season seniority was thus a central component of the CA’s answer to providing members greater assurances of future employment.
Correspondingly, though they differed in their degree of detail, both CAs contained provisions on layoffs, dictating that they be conducted “in reverse order of seniority,” unless there were volunteers. In accordance with MOUs and operational guidelines as well as the standard employment agreement, however, the CAs indicated that SAWP employees could be laid off before workers who held more secure residency statuses (Sidhu & Sons/UFCW 2010: articles 16.03 and 16.04; Floralia/UFCW 2012: article 20.03). In requesting employees through the SAWP, the employer was asked to list those who had completed the probationary period “in order of seniority” and to copy the union (Sidhu & Sons/UFCW 2010: articles 16.07 and 16.08; see also Floralia/UFCW 2012: articles 20.5 (a) and (d)). Collectively, these provisions amounted to a procedure for regulating recall based on season-to-season seniority. They thereby responded to the view of the UFCW national and its membership that issues surrounding repatriation, the right to grieve in the face of unfair treatment, and seniority and recall were predominant concerns (UFCW Local 1518 2009b: para. 13). As with provisions that addressed termination, through the provisions on recall, these CAs aimed to check employer power over SAWP employees’ future in Canada. They addressed the actions of sending states as well. By way of collectively negotiated terms, the CAs sought to limit the potential consequences of the standard employment agreement that gave employers significant control over readmission. Nevertheless, both CAs still acknowledged that employers did not have the formal authority over the selection of SAWP employees. Rather, Mexico retained its power of selection because it could effectively deny readmission to otherwise eligible participant employees. Consequently, for example, as the CA operating at Floralia Plant Growers Ltd. indicated, “where substitution is made beyond the control of the Employer, the Employer will not be held to be in violation of the [Collective] Agreement” (Floralia/UFCW 2012: article 20.05 (d)).
In addition to facilitating greater season-to-season continuity in employment for unionized employees than the circular migration permissible (but by no means guaranteed) under the SAWP, in both CAs terms regulating recall through seniority thereby sought to limit sending states’ use of negative employer evaluations to penalize union supporters. Such terms amounted to collectively negotiated protections against deportability and arbitrary actions by employers and by government officials in the receiving state—actions which were otherwise permissible under the SAWP. Formally, both CAs sought to constrain employers’ capacity to decline to invite back, or fail to recommend for readmission at another Canadian farm, otherwise eligible recently unionized temporary migrant agricultural workers (i.e., those with sufficient seniority for recall).
The Limitations of Collective Agreements
Such CA provisions, in particular those related to selection and readmission processes, nevertheless had limitations tied to the sending and the host states’ autonomy over processes of emigration and immigration and thereby their authority over policies regulating temporary migrant work. Broadly, neither CA was “to conflict with the terms of the SAWP Agreements” and, in instances of conflict, “the terms of [the] SAWP [were to] govern” (Sidhu & Sons/UFCW 2010: articles 4.01–4.03; Floralia/UFCW 2012: articles 4.01–4.03). Furthermore, in practice, in cases in which employees challenged termination of employment for just cause, CA provisions that provided for expedited grievance applications and timely arbitration hearings were undermined by the wide variety of permissible reasons available to growers in justifying early cessation of employment under the Canada–Mexico standard employment agreement. And, in cases in which, upon termination, a unionized SAWP employee is repatriated before she has the opportunity to make a grievance application, the provision for expedited grievance and arbitration processes was a hollow victory, as there was nothing in the CAs to prevent premature repatriation by the receiving state per se. Nor, in instances of unfounded premature repatriation occurring prior to an arbitration hearing, was there much (beyond moral suasion) to encourage Mexico to select unjustly repatriated SAWP employees for readmission, thereby reinstating their eligibility for, and access to, future fixed-term employment contracts.
Although a CA was not yet in place, the experience of a group of SAWP employees at Floralia Plant Growers Ltd. gives credence to this contention. In this case, a group of SAWP employees were terminated on the same day the grower received an application for certification, and they were repatriated prematurely shortly thereafter. In response, the union appealed to the BCLRB, arguing that the terminations constituted an unfair labor practice, as defined by the BC Labour Relations Code ( BCLRC 1996), as they affected a group of SAWP employees known to be union supporters in the context of a certification drive. To counter the union’s claim, however, the grower cited weather as the reason for termination and the BCLRB ultimately accepted its justification as weather conditions are an acceptable ground (i.e., a “sufficient reason”) of premature cessation of employment under the Canada–Mexico standard employment agreement (ESDC 2016a).
CA terms providing that the seniority of SAWP employees in prior seasons be maintained were also undermined by the overarching dictum that growers must always hire available nationals first, dependent upon available jobs and job seekers. This requirement contributed to the negotiation of provisions that mandated separate seniority lists for domestic and foreign workers. Similarly, CA provisions governing recall were weakened by the fact that, once the fixed-term employment contract is complete, employers were under no obligation to rehire SAWP employees, or a worker migrating under any other TMWP for that matter, even if their labor needs persisted. To fulfill their (often ongoing) labor needs, growers could cease hiring SAWP employees entirely, reduce their numbers by attrition, or resort to hiring through TMWPs in which contract renewal was not permitted. The existence of these possibilities meant that routine mechanisms for preserving bargaining unit strength supported by collective labor legislation, such as the fair application of recall procedures, were inevitably ineffective, which poses ongoing challenges to the stability of bargaining units that encompass SAWP employees.
Several such pitfalls are illustrated in the circumvention of recall provisions in the CA applicable to SAWP employees at Sidhu & Sons Nursery Ltd. In this case, in 2011 the visa reapplications of a number of SAWP employees who were eligible for recall and were invited back by their employer were blocked by Mexican officials who oversaw the process of selecting and assigning workers to Canadian employers. As a result, these workers were unable to return to take up the fixed-term employment contracts officially on offer. 17 In response, UFCW filed a complaint with the BCLRB, claiming that Mexico and its Vancouver consulate had engaged in anti-union tactics. In making this complaint, the union argued that by not permitting union members supportive of these activities to return to Canada (i.e., by blacklisting workers viewed to be pro-union), the Mexican government was in violation of the BCLRC. They emphasized that the sending state’s actions breached aspects that prohibited interference with the formation or selection of a trade union, the dismissal of a person because of her decision to become a member of a trade union, and the attempt—including by intimidation, dismissal, the threat of dismissal or any other threat—to compel or to induce an employee to refrain from becoming or continuing to be a member of a union (BCLRC 1996: section 3, 6.1).
Mexico countered with a claim of immunity, which it based on Canada’s federal State Immunity Act (1985). Mexico also took its claim to superior BC courts and ultimately argued successfully that the BCLRB has no jurisdiction over the actions of its officials in the interior or abroad. The BCLRB nevertheless allowed the union’s complaint against certain employees and the employer to proceed and, despite Mexico’s attempts to have all evidence related to the conduct of its officials’ suppressed, the board admitted such evidence with the blessing of the BC Supreme Court and the BC Court of Appeal. In the final analysis, the BCLRB found neither of these parties to have violated the BCLRC. Nevertheless, on the basis of rare evidence obtained by the union that confirmed the blacklisting of one SAWP employee, the board concluded that Mexican officials’ conduct affected workers’ exercise or potential exercise of rights guaranteed under the BCLRC and refused to count the decertification vote. Despite the existence of a CA containing recall provisions designed to encourage circularity through the operation of season-to-season seniority, the BCLRB was unable to respond to unfair labor practices characterized by threats and acts of blacklisting, a modality of deportability exercised, in this instance, by sending state officials.
In such ways, CAs secured by SAWP employees at Floralia Plant Growers Ltd. and Sidhu & Sons Nursery Ltd., despite their inclusion of novel terms, were insufficient in minimizing the effects of the trade-off between the prospects for potentially renewable fixed-term employment contracts—enabled by the legal status accorded to these regularized temporary migrant workers—and the deportability integral to agreements governing the SAWP.
Moderating Institutionalized Deportability
The case of Canada’s SAWP, widely and internationally touted as a model of migration management, illustrates how TMWPs that permit circularity can institutionalize deportability among migrant workers who benefit from legal status while they are present in the receiving state. This deportability, which emanates partly from central aspects of formal agreements, as well as laws and policies, means that such TMWPs are inferior alternatives to legalization programs that lead to permanent residency, even for those employees who manage to unionize and negotiate CAs. As the agreements described above demonstrate, CAs can provide frameworks for regulating employment relationships in seasonal agricultural work, as well as offer novel provisions aimed at curtailing threats and acts of deportation. Yet, as long as employees’ temporary legal status is conditioned by fixed-term employment contracts tied to one employer by virtue of the issuance of closed work permits and the permissibility of circulation across borders is tenuous, deportability appears to be an inevitable byproduct of the SAWP.
In the current period, the most promising means available to buffer the effects of deportability among SAWP employees are threefold: setting limits on the permissibility of the premature cessation of employment, leading typically to repatriation due to the issuance of closed work permits; allowing SAWP employees unsuitable to the grower to whom they are assigned to change employers; and, introducing measures to police readmission processes more closely (e.g., processes surrounding employer evaluations, recruitment, the provision of visas, and placement).
First, with regard to the premature cessation of fixed-term employment, formally modifying the Canada–Mexico standard employment agreement to permit premature termination exclusively in instances of just cause is a potential option—one that could contribute to stamping out unjust premature termination prompting repatriation, in practice, especially in provincial jurisdictions, such as BC, where there is historical evidence of it. Making this modification could, moreover, work well alongside the introduction of a reverse burden of proof requiring the employer to demonstrate that any termination (applicable to union and non-union SAWP employees) is justified and has no relationship to an employee’s beliefs about or participation in unions. The merits of this measure are that it recognizes geopolitical inequalities that surround temporary migration for employment and hence, the inevitably precarious situation (i.e., in terms of both employment and immigration) of SAWP employees. At the same time, since seasonal contracts are of limited duration, implementing this option would not involve undue employer obligations.
Second, eliminating the requirement for a closed work permit—or ideally providing for open work permits, as advocated by the Coalition for Migrant Workers’ Rights Canada, or, at a minimum, permitting a greater measure of mobility by providing sector-wide permits among SAWP employees entering Canada—would complement setting principled parameters around provisions for the premature cessation of employment as it too could contribute to averting unnecessary repatriation. In instances in which SAWP employees were successful in securing alternative employment, it would also minimize costs to the original sponsoring employer.
Third, from a different angle, readmission processes need to be more transparent. On the receiving state side of the equation, especially in industries characterized by long-standing labor shortages, safeguards protecting the number of migrants engaged through the program annually could be put into place in the interest of preserving openings for participating SAWP employees to return. To complement such measures, on the sending state side of the equation, modified MOUs could mandate greater transparency in admission and readmission processes and, at a minimum, establish guidelines for fostering circularity and how to apply this principle fairly to participants. The MOUs could also underline that employees’ union status, activity, or perceived views about unions should not affect readmission.
Together, these three types of interventions would contribute to improving the efficacy of CAs, and thereby make emulation more desirable, particularly in contexts such as the United States, where immigration reform directed at regularizing undocumented workers continues to be a topic of major debate.
Conclusion
The foregoing inquiry has sought to illuminate how the SAWP, through its interface with immigration and labor laws, policies, and protocols, institutionalizes deportability. I have also proposed interventions to scale up the strongest provisions adopted in CAs, such as those secured by BC-based SAWP employees that establish procedures for grievances and arbitration in cases of termination and for obtaining seniority and recall. These interventions offer promise for substantive gains within the parameters of this model program. Still, such measures are not a panacea. Although they could blunt the effects of manifestations of deportability documented herein, their adoption would by no means ensure SAWP employees’ prospects for future employment given inbuilt limits of the TMWP, such as the sending state’s ultimate power over readmission and growers’ ultimate ability to hire available nationals. In view of these limitations, even TMWPs that permit circularity and are touted as “best practices” given their contribution to “ordered legal migration” are qualitatively inferior to programs designed to lead to full legal status. While TMWPs like the SAWP do offer many gains over their more highly de-regulated counterparts, legalization programs typically afford the possibility of not only permanent residency but eventually citizenship status. In turn, such opportunity provides its beneficiaries unrestrained mobility in the labor market, thus making it possible for them to escape the low wages and persistent insecurities that characterize employment in industries such as agriculture and/or to work openly to improve these conditions.