Discourse or Merely Noise? Regarding the Disagreement on Undocumented Migrants
Year: 2011
Type of text: Academic article
Published by: European Journal of Migration and Law. 12:2, s. 173-191
Language: English
Author: Markus Gunneflo & Niklas Selberg
Pages: 21
Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1559789
Short description of text
This text is mainly a political theoretical text using Jacques Rancière’s theorising of the political as a framework to analyse frames of consensus and dissensus on undocumented as workers, and their inclusion (criteria) in the nation-state, rights and unions. It uses one EU directive (Directive 2009/52/EC of The European Parliament and The Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, OJ 2009 L 168 30.6.09) and one Swedish piece of legislation (the amendment to the Aliens Act in 2008 allowing for “changing tracks”).
Most important results
“On 18 June 2009 the Council of the European Union and the European Parliament jointly adopted Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.” (178)
“The original Commission Proposal states that the proposal indeed does comply with fundamental rights since it does not affect third-country nationals’ rights as workers, such as the right to join a trade union, to participate in and benefit from collective bargaining and to enjoy working conditions that come up to health and safety standards.” (179)
“The statement concerning the third-country nationals’ rights as workers is particularly interesting in a Swedish context because of the insistence of major Swedish labour unions on the impossibility of organising undocumented migrants because of their work being illegal and that decriminalisation34 is necessary for the labour unions to organise them.” (179)
“SAC.50 At the LO congress in 2008 a petition demanding LO to organize undocumented migrant workers was rejected by a large majority of delegates.51 How should this decision be understood? When, on the presupposition of equality undocumented migrants seek membership of LO, LO cannot grant them membership because, embodying police logic, LO conceives these workers not as workers, although they perform work under an employment contract, but as undocumented migrants. Apparently, what counts for LO, is not that the work is performed on Swedish territory but that those who perform it belong to the nation and, according to the consensus, undocumented migrants do not. Hence, the consensus puts the right of residence before worker status, and thus establishes an inequality between workers: some are workers, others are undocumented migrants. The position of LO is supported by legal arguments.52 Such arguments are based on the understanding that the application of the law on employment protection, i.e. protection against certain unfair dismissals, presupposes a work permit,53 which cannot be obtained without the right to reside in Sweden. Other parts of labour law, de iure applicable to all work performed in Sweden,54 are de facto not applied to undocumented migrants. Thus, labour law rights are generally distributed according to the right to reside and work in Sweden, not according to the fact of actually working in Sweden. (186-187)
“The decision of LO was not to forbid the member unions of LO from organizing undocumented migrants. Some member unions support a “labour union centre” for undocumented migrants. The fundamental claim of the centre is that undocumented migrants have rights at work! However, the support offered appears to be mainly directed at providing information on “their rights on the labour market”,55 i.e. “advice on salaries, working conditions and health and safety issues at work”.56 Instead of answering the call from undocumented migrant workers acting under the presupposition of equality with full membership, the irregular “labour union centre” is created where undocumented migrants may receive support by informing themselves in order to be able to better consider their interests. The construction of this irregular platform is such that the undocumented migrants can relate to it only passively, while the core of a regular trade union is the active membership and organisation among the workers themselves.” (187)
“What is at stake when, for example, an undocumented migrant seeks membership of a Swedish labour union is not only the possibility for one person or collective to organise and enhance their working conditions but also the very conditions, ultimately the Westphalian nation-state system, that enable us to distinguish between workers and undocumented migrants in the first place.” (190-191)
Theoretical perspective/framework
Jacques Rancière’s theorising of the political (173)
Method
Unclear, but some kind of policy analysis
