Inclusive Solutions: Advancing Worker Protections in Seasonal Schemes

Scholars and rights advocates have long critiqued the Seasonal Migrant Worker Schemes as models of regulated labour migration that serve as platforms for legitimising the marginalisation of racialised migrant workers from the Global South, fuelling and consolidating industries worth billions of dollars.[1] Despite having legal status in the country of destination, these individuals are systematically isolated from community life. Social and political inequities, such as incredibly restrictive work permits, including the imposition of ‘tied employment’, label them as “permanently temporary” disposable labour for export.[2]

As part of strategic litigation in the realm of seasonal worker schemes is a proposed class-action lawsuit against the Government of Canada on the “racist and discriminatory” origins of ‘tied employment’ in the Seasonal Agricultural Worker Program (SAWP) and the Temporary Foreign Worker Program (TFWP) - Agricultural Stream.[3] Tied employment conditions the worker’s authorisation to work and reside in Canada to continued employment at a specific agricultural employer, and through mandatory terms of contract that authorize the employer to terminate the worker’s employment and so cause the worker to be repatriated.[4] The plaintiffs claim that by restricting the worker’s freedom to withdraw their labour and change employers, the terms of employment create a ‘relationship of heightened dependency and exploitation’[5] , subjecting vulnerable farmworkers to even greater risks of abuse, resulting in work- related harms.

This case underpins the self-perpetuating marginalisation inherent in seasonal worker schemes, preventing workers’ interests and rights from being voiced and considered. The fear of deportation and job insecurity puts a systemic onus on workers to navigate the system as it is and prevents them from reporting concerns of violations, in turn absorbing workplace abuse or mistreatment. On the other hand, there have been several allegations of employers globally normalising and reinforcing exploitation of the workers through everyday practices by leveraging the precarity in these schemes.[6] One such example is that of a charge of 77 counts of aggravated human trafficking by National Prosecution Authority of Finland against Jukka Kristo, the former CEO of Polarica Marjanhankinta, and his Thai business partner, Kalyakorn Phongphit. The two are alleged to have fabricated a scheme that subjected Thai workers to forced labour and degrading conditions in the wild berry fields of Finland during the harvest season of 2022.[7]

Similarly, the UK’s seasonal worker scheme is not immune to the wave of litigation concerning rampant exploitation within its framework. Earlier this year, a Nepali fruit picker who migrated to the UK under the scheme brought a case of indirect discrimination before the Employment Tribunal. Shortly after, another worker’s harrowing experience within the seasonal worker scheme formed the basis of a test case against it. The case argues that the very design of the scheme is such that it inherently breaches workers’ right to be protected from modern slavery and labour exploitation. What emerges from these individual cases is a stark realisation of a broader systemic issue – a glaring power imbalance between workers and employers. Each courtroom confrontation amplifies dissent, challenging the very essence of schemes that exist to regulate and serve but leave many at high risk of exploitation and abuse.

While we witness the progress of these cases as the right steps in the direction of accountability and hopefully reform, it is imperative to note that key barriers for workers in these schemes include a lack of oversight mechanisms, lack of spaces and opportunities for workers to voices grievances and concerns, geographic isolation, transportation and language barriers, and limited knowledge and ability to navigate services and access support. The aggregated impact of these barriers leads to a systemic lack of legal and social protections for this group.

As conversations around worker-rights within seasonal worker schemes take the centre stage in the international community, it becomes increasingly crucial to establish safe spaces for contextualising the challenges faced by workers first-hand. In line with emerging regulations and reputational risks around risks of adverse impacts caused by operations, businesses should take all measures to devise grievance mechanisms that are accessible to and trusted by workers. Workers must be included in the design and implementation of these mechanisms so they can be truly legitimate and effective. Whilst accountability is key, it is also important that businesses facilitate redressal and remediation of harms as part of their responsibility to respect human rights.

Furthermore, governments must take decisive action to strengthen policies and processes within these schemes. Labour quotas and bilateral agreements must be transparent and in line with international standards. No flow of migrants should take place without the correct infrastructure in the country of destination to support grievances and any need for redress. Human rights standards should be aligned with recognised international principles and norms. This should in turn be supplemented by worker education of rights and means of enforcing rights in destination country as well as access points for help in sending country.

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9201266/; https://agriculture.canada.ca/en/sector/overview

[2] https://irpp.org/research- studies/permanently-temporary

[3] https://www.aljazeera.com/news/2024/2/9/overtly-racist-lawsuit-challenges-canadas-migrant-farmworker-system

[4] https://goldblattpartners.com/wp-content/uploads/Palmer-v-AG-SOC.pdf

[5] Para 6, page 5 ibid

[6] https://bnnbreaking.com/world/finland/former-ceo-and-thai-partner-face-77-human-trafficking-charges-over-forced-labor-in-finlands-berry-fields

[7] https://bnnbreaking.com/world/finland/former-ceo-and-thai-partner-face-77-human-trafficking-charges-over-forced-labor-in-finlands-berry-fields