Mexico is party to all the core UN human rights conventions including the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, all 8 ILO core conventions and the domestic workers convention. Largely due to Mexico’s long history of emigration to the United States for work, the 1917 Constitution itself includes specific provisions relating to fair recruitment, requiring employment placement services to be free, contracts with foreign employers to be notarised by a government entity, and specifying that foreign employers must cover the cost of workers’ repatriation. More detailed regulation of private recruiters of migrant workers was developed relatively recently, with Mexico enacting significant changes to the Federal Labour Law and the Regulation of Worker Placement Agencies (RACT) in 2012 and 2014 respectively. The RACT regulates the role of employment agencies at various stages of the recruitment process, including in relation to advertisements, information dissemination, selection, transport, placement into employment, and return to Mexico. It has limited application, however, in regard to unregistered intermediaries who carry out the bulk of recruitment to North America, and who are often involved with unethical and abusive practices. A senior official told us that this “legal gap” has a real-world impact on the ability of STPS (the labour ministry) to tackle such practices. Workers who migrate through the SAWP with Canada are recruited by the government rather than private agencies, with the bilateral MOU and associated SAWP contract providing the framework for this more tightly regulated recruitment.
Canada’s legal and regulatory framework applying to migrant workers and labour recruitment cuts across its federalised governance structures, with the federal government taking primary responsibility for immigration, and provincial authorities responsible for labour protections, including the regulation of labour recruitment. The core federal framework is the Immigration and Refugee Protection Act (IRPA), which underwent significant amendments in 2014-2015. Along with its accompanying regulations (IRPR), it outlines the conditions that employers must meet in order to hire migrant workers, which include a number of fair recruitment measures. Immigration consultants are also regulated nationally, with a 2019 act establishing a self-regulatory body with expanded authorities, subject to what the government told us will be “significant oversight”, to replace the previous self-regulating body. Provincial legislation varies in scope and content: some provinces have additional employment protections for migrant workers and specific licensing requirements for labour recruiters of migrant workers, while others cover migrant workers under standard employment standards and labour recruitment provisions. The variance in treatment depending on the province of destination, and the interplay between federal and provincial legislation, creates a high degree of regulatory complexity, while provinces where regulations and monitoring are weakest are attractive jurisdictions for exploitative recruiters and employers. In agriculture, a major sector for low-wage migrant workers, workers in many provinces face exclusion from key employment protections on working hours, wages and holiday, as well as bars on unionisation, which have been upheld by the Supreme Court and led to stern ILO criticism. Civil society organisations, labour unions and employers actively participate in government consultations and discussions, as well as in parliamentary reviews in recent years on the TFWP, immigration consultants, and trafficking.
Recommendations to the Mexican government:
- Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181)
- Revise the Federal Labour Law and the RACT:
- to provide the STPS with explicit authorities to investigate and penalize unlicensed labour recruiters and intermediaries.
- to stipulate that labour recruitment fraud is a violation that can be investigated by the STPS regardless of whether it is performed by licensed and unlicensed recruiters or intermediaries.
- to ensure that authorities can require recruiters to provide workers with financial compensation beyond repatriation costs.
Recommendation the Canadian federal government:
- Ratify the ILO Private Employment Agencies Convention, 1997 (No. 181) and work with provinces and territories to ensure its implementation.
- Give increased political importance to federal/provincial/territorial working groups, with a view to coordinating legislation related to worker protections, labour recruitment, and immigration consulting; consider options to develop agreed inter-provincial minimum standards regarding the rights and protections of migrant workers.
- Where inconsistencies in provincial application of employment standards may be undermining Canada’s efforts to meet its commitments to international treaties, review the possibility of using Constitutional authorities for the Parliament to legislate in areas related to employment “declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces” (s. 92.10.(c)). Areas where there could be advantages from federal legislation in employment could include, for example:
- The ability for migrant workers to form and join unions in all industry sectors, noting that this would be consistent with Canada’s international commitments under the ILO conventions 87 and 98 on the freedom of association and the right to collective bargaining.
- Strengthen the legislative authorities for the federal government to require employers to compensate migrant workers, including ensuring that migrant workers are considered as a party in employer-worker disputes and inspections.
- Develop a national framework for regulating, licensing, and penalizing labour recruiters involved in international recruitment of migrant workers, noting that the federal government already regulates licensed immigration consultants who are often involved in labour recruitment processes.
Recommendations to Canada’s provinces and territories:
- Remove restrictions on freedom of association that prevent migrants or other workers from exercising their legitimate right to form or join trade unions.
- Remove blanket exemptions from employment standards legislation that leave migrants or other workers without basic legal protections, with respect to their working conditions, for example working hours, breaks, and wages.