Clashing laws: exploring the employment rights of undocumented migrants.

• Author: Bihari, Luiz Arthur

I. INTRODUCTION II. THE REALITIES OF UNDOCUMENTED WORKERS IN CANADA III. THE BRITISH EXPERIENCE i. Undocumented Migration in the UK ii. Hall v Woolston Hall and the Doctrine of Illegality in Employment Relationships iii. Earlier Proceedings iv. Illegality in Contract Law v. Illegality in Tort Law vi. Vakante and the Legacy of Hall v Woolston Hall vii. Lessons from the UK Experience IV. THE AMERICAN EXPERIENCE ii. American Jurisprudence Prior to the IRCA ii. IRCA and Hoffman Plastic iii. Narrowing the Scope of Hoffman Plastic iv. Lessons from the American Experience V. THE INTERNATIONAL EXPERIENCE VI. THE CANADIAN EXPERIENCE i. The Canadian Doctrine of Illegality ii. The Case Law After Still v MNR iii. The Approach of Labour Tribunals and Arbitrators to Undocumented Workers VII. CONCLUSION I. INTRODUCTION

This paper seeks to understand how immigration law limits the access of undocumented workers to employment and labour law protections. While immigration law presupposes the capacity of the state to create distinctions between categories of residents, employment law has a universal mandate. The definition of employee in Canadian employment and labour legislation makes no explicit mention of the distinction between citizens and non-citizens. However, due to the paucity of Canadian decisions in this area of the law and the non-existent literature on the topic as applied to Canada, it is not clear whether and to what extent undocumented workers have guaranteed rights under these statutes and whether they have any recourse to the courts when, for example, they have been wrongfully dismissed, have been victims of unfair labour practices, or have suffered discrimination in the workplace.

This paper strives to elucidate the state of the law in Canada regarding employment rights of undocumented migrants through an analysis of the British, American and international experiences on this topic. This analysis reveals a set of diverging directions, demonstrating the existence of different legal principles animating the debate about the rights of undocumented workers in each of these jurisdictions. While American courts have sought to balance the competing policy interests underlying immigration and labour laws, British courts have sidelined employment rights altogether through their reliance on the common law doctrine of illegal contracts. Meanwhile, the Inter-American Court of Human Rights and the International Labour Organization have emphasized the vulnerability of migrant workers to human rights abuses and indicated a preference for broader protection of these workers under domestic laws.

Canadian courts, arbitrators and tribunals have issued only a very limited number of decisions dealing with the rights of undocumented workers in Canada. So far, the Canadian experience has followed a middle path between the British and American approaches. On one hand, the Federal Court of Appeal in Still v Minister of National Revenue ["Still v MNR"] (1) has developed a modern interpretation of the doctrine of illegality that allows public policy considerations to have an influence on the determination of the rights of undocumented workers under federal welfare legislation. On the other hand, the Ontario Labour Relations Board has offered an alternative path to the federal Court's approach, shielding labour laws from the immigration regime in dealing with applications for union certifications.

In the absence of a clear indication on how the courts will react to a number of other employment-related issues, this paper concludes with an argument in favour of extending labour and employment protections to undocumented workers, as this approach is more attentive to both rights-based concerns and the policy objectives behind immigration and employment laws.

II. THE REALITIES OF UNDOCUMENTED WORKERS IN CANADA

Several labels are applied to express the condition of migrants who enter, work, and remain in a country without adequate compliance with the immigration framework: irregular, unauthorized, undocumented, non-status, illegal, etc. Although these expressions might be interchangeable, this paper mostly refers to these migrants as 'undocumented workers' in order to highlight their lack of status in the labour market. However, lack of status to work does not imply that these migrants did not acquire appropriate authorization to enter and remain in the country. Magalhaes et al offer a succinct definition of this phenomenon, describing 'undocumented workers' as people who are involved in the labour force by "legally entering the country and (a) not respecting the limits of their visa or (b) overstaying their visa permitted time, as well as by illegally entering the country, including those smuggled across the border." (2) Indeed, the majority of undocumented workers in Canada initially arrived through official channels, entering the country as "refugee claimants, sponsored immigrants, or as individuals with valid student, work, or visitor visas." (3)

While the magnitude of this type of migration is much higher in other countries, reaching upwards of 11 million in the United States, (4) the estimates in Canada still point to a significant number of unauthorized migrants working in the Canadian underground economy, ranging from 200,000 (5) to 500,000. (6) These migrants are concentrated in the urban centres of the country, typically involved in low-wage and/or high-risk jobs. According to the Ontario Construction Secretariat, "there were 76,000 non-status immigrants in Ontario's construction industry alone." (7) Despite this considerable number of undocumented workers in Canada, the issue has attracted little academic or policy attention: "migrant illegality is largely a non-issue and certainly not a significant research area." (8)

This population receives very little protection or support in the legal system. As described by Omidvar and Richmond, "these people make silent contributions to our economy, often through exploited labour, while being denied basic social and health services for lack of documentation." (9) Employers significantly benefit from this illegal labour force, acquiring an unfair competitive advantage by paying less for their services and exposing these workers to higher risks. Furthermore, research on this issue in the United States has revealed that undocumented workers "are less likely to cause industrial unrest, demand safe working conditions, seek union assistance if disputes arise ... [and] resort to courts to pursue legal remedies," (10) even though remedies might indeed exist in certain circumstances.

A recent report series published in the first week of November 2009 in the Toronto Star provided many illustrations of the perils faced by undocumented workers in Canada, including stories like that of Mac Akela, (11) a top chef in India who came to Canada through the Temporary Foreign Worker program. He ended up cheated by his employer, who refused to pay the promised salary and by his immigration lawyer, who took $1,470 to file an application that was never filed. In dire financial need, Akela was forced to live in a shelter and join the underground economy as an undocumented worker, suffering further abuses from subsequent employers.

Although they might remain in the country legally, migrants like Akela are left in an uncertain state vis-a-vis their status as workers. The following sections of this paper will explore whether these undocumented workers can claim rights and remedies under labour and employment regimes in cases of wrongful dismissal and discrimination in the workplace.

III. THE BRITISH EXPERIENCE

The common law has long established that "no court will lend its aid to a man who founds his cause upon an immoral or illegal act." (12) A contract may not be enforced, or will be considered void ab initio, when it depends on an illegal act or intends to accomplish an illegal purpose. Illegality is not limited to criminality and may arise "from either statute law, where it is established that a contravention of a statute has occurred, or at common law where the courts consider that the terms of the contract offend public policy." (13)

The doctrine of illegal contract has obvious implications for the situation of undocumented workers who do not possess official authorization to enter the labour market. Indeed, this doctrine has been determinative in barring access for undocumented workers to employment and labour rights in the United Kingdom.

1. Undocumented Migration in the UK

According to the Home Office, there were around 500,000 illegal immigrants in the UK in 2005. (14) This figure greatly surpasses the mere 10,000 estimated by the Immigration service only a decade before. (15) This considerable increase parallels the enactment of legislation trying to control the effects of unauthorized migrant work.

The Asylum and Immigration Act 1996 (16) was the first act to criminalize the employment of undocumented workers in the UK. (17) Section 8 of this statute imposed sanctions on employers hiring employees subject to immigration control and without authorization to work. (18) A decade later, the British government enacted even tougher employer sanctions under the Immigration, Asylum and Nationality Act 2006, allowing for prison sentence for employers knowingly hiring undocumented workers in conjunction with similar fines available under the old section 8 of the Asylum and Immigration Act 1996. (19)

However, even before the enactment of these two pieces of legislation, an employment contract with an undocumented worker could still be considered illegal under other acts. Section 24 of the Immigration Act 1971 (20) established an offence for anyone who, having only a limited leave to enter or remain in the country, fails to observe the conditions of the leave. The Theft Act 1968 also provided for the offence of obtaining property by deception, which included the use of fraudulent documents by an...