2019 CAFLP Conference Panel Recap: “Labour Law and Unfreedom: Access to Justice for Migrant Farm Workers”

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The panel “Labour Law and Unfreedom: Access to Justice for Migrant Farm Workers” featured three speakers who described and problematized Canada’s current framework for migrant agricultural labour.

Fay Faraday, of the Faculty of Law at Osgoode Hall, began the November 8th panel by inviting the members of the audience to introduce themselves. Discovering that the audience was filled with a variety of people in academia, private and public law practice, and farmers’ unions, Faraday noted the power in the room and spoke to the importance of “not just absorbing information and then letting it slide.” To that end, a sheet was passed around during the discussion for each audience member to commit to some type of action in response to the issues raised.  

Faraday then addressed those in the room who had described themselves as new to issues of migrant workers’ exploitation in agriculture, saying, “You haven’t missed anything, because there is still a lot of work to be done.” She emphasized that the state of migrant workers’ rights under Canada’s Seasonal Agricultural Worker Program (SAWP) has changed very little over the past thirty years. She also explained that in order to understand SAWP, we must understand various aspects of history, specifically slavery, racialized immigration law in Canada, and indentured labour performed by prisoners of war and Indigenous peoples. Faraday observed that SAWP’s establishment in the 1960’s represents just one incarnation of racialized, indentured labour over 150 years of Canadian history.

With the conversation situated, Shane Martínez of Martínez law described some technical aspects of SAWP. He explained that the program enables migrant workers to be brought to Canada under one of two main contracts, negotiated either between Canada and Mexico or Canada and Caribbean nations. However, he explained that the workers themselves are never given a seat at the negotiation table. Instead, representatives of Canada, the sending nation, and the prospective employer make all the decisions about what workers’ contracts will guarantee – and fail to guarantee. Under the program, workers are not entitled to a minimum wage, overtime pay, breaks, or collective bargaining rights. Under the program, workers are also employed through closed work permits, which make it illegal for them to leave their jobs and work for another employer.

The program protects employers’ ability to dismiss workers and send them home when employers so choose, while depriving workers of any legal recourse. In this context, workers who have organized to oppose their severely inadequate labour conditions have been sent home, not permitted to return in following seasons, or even purposefully divided from their fellow organizers in successive years and spread out across farms in a classic ‘divide and conquer’ approach. Martínez and Faraday explained that although recent legislative reforms to SAWP have modified the ‘closed’ nature of the permits, they have done so by implementing a process that is logistically near impossible for workers to navigate. First, the process requires workers to gain consent in order to be transferred from their current employer, which Faraday noted would likely result in immediate deportation if attempted. Second, workers can only access the transfer process by getting themselves to an immigration office in person, or by applying online despite many bunkhouses where workers live lacking internet access.

Justice 4 Migrant Workers organizer Chris Ramsaroop was adamant that although SAWP maintains exploitative conditions for workers, he did not want to see the program repealed entirely. Instead, he advocated reform to create pathways to permanency. He argued for “status on arrival” for migrant workers, while Martínez noted, “If you’re good enough to work, you’re good enough to stay.”

Drawing the panel to a close, Faraday stressed that SAWP is actually operating exactly the way it was designed to, and explained that the program “depends on people being marginalized so that they will continue to come back,” year after year. “These programs don’t work if there is economic equality between the Global North and Global South,” she said. Each of the panelists pointed to a need for broad, systemic change in order to remedy the inequalities upheld by SAWP. Audience questions focused on this theme as well, and tied in connections to settler-colonialism and the ongoing accumulation of land.