Safeguarding the rights of migrants workers: Another challenge for labour law?
Professor Kübra Dogan-Yenisey is currently a visiting researcher at the Institute of European and Comparative Law.
ABSTRACT
The vulnerability of migrant workers in the labour market and their risk of exploitation are depicted in migration studies. Nevertheless, in general, labour lawyers and trade unions maintain their silence facing with the ‘intersection and interaction’ between migration and labour law as observed by Mark Freedland and Cathryn Costello. The reasons of such silence may give us insights into deeper challenges. The purpose of this study is to survey different legal statuses granted to migrant workers and argue that it is necessary for labour law to develop its own perspective as regards migrant workers.
The first parth of this study provides a general overview of the migrant statuses. Both ILO Conventions No. 97 on Migration for Employment (Revised) and No. 143 on Migrant Workers defines the ‘migrant for employment’ as ‘a person who migrates from one country to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment’. Based on this definition, two parameters to analyse the legal status of migrants could be defined: ‘With an aim of employment/without an aim of employment’ and ‘regularity/irregularity'. A diagram based on these two axes may cover the general picture of different migrant statuses and their impacts on the labour market. Moreoever, the deconstruction of the concept of irregularity may give important insights as regards the invalidity of a contractual relationship.
The second part of this study will focus on the ‘instrumentalisation’ of labour law by migration regulations and its consequences. Even though human rights law provides a certain level of protection against the severe forms of exploitation, a labour law perspective will be more apt to correct vulnerabilities related to power inbalances in the employment relationship.