Tenuously Unionised: Temporary Migrant Workers and the Limits of Formal Mechanisms Designed to Promote Collective Bargaining in British Columbia

Abstract

Abstract Temporary migrant work is a central feature of labour markets in many host states, and an increasing cause of concern for its potential impacts on workers’ rights and protections. In Canada, as elsewhere, policymakers utilise it as a regulatory device to lower labour standards. In this context, workers labouring transnationally are turning to unions for assistance. Yet they are confronting obstacles to securing access to their labour rights through representation. This article analyses one example involving a group of temporary migrant agricultural workers engaged seasonally on a British Columbian (BC) farm under Canada’s Seasonal Agricultural Worker Program (SAWP) seeking union representation. It considers the question, confronting courts and tribunals in host states across the OECD, of meaningful access to collective bargaining for temporary migrant workers. Focussing on how the BC Labour Relations Board determines an appropriate bargaining unit, the inquiry demonstrates that temporary migrant workers are ill-served by mechanisms aimed at promoting collective bargaining. Although the union involved in the case secured a certification, the outcome was tenuous unionisation. The resulting collective agreement contained provisions augmenting workers’ job security by facilitating their circular movement between the sending and host state. However, the structure of the SAWP, which reinforces workers’ deportability, together with the limits of the prevailing regime of collective bargaining in BC, modelled on the US Wagner Act, contributed to a certification that was weakly institutionalised and underscored labour law’s subsidiarity to legal frameworks governing work across borders.