Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration & Vulnerability in Labour Law, Oxford: Oxford University Press, 2014, 512 pp, hb, £70.00.

Date01 May 2016
Published date01 May 2016
DOIhttp://doi.org/10.1111/1468-2230.12196
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REVIEWS
Cathryn Costello and Mark Freedland (eds), Migrants at Work: Immigration
& Vulnerability in Labour Law, Oxford: Oxford University Press, 2014,
512 pp, hb, £70.00.
In devising the research project that has resulted in the publication of this
excellent collection, Cathryn Costello and Mark Freedland identified a sig-
nificant gap in the existing literature. As they explain in their introductory
chapter, labour migration and its regulation have a major impact on labour law,
but the extent of the impact is widely under-appreciated. With some notable
exceptions, scholars of labour law don’t always tend to give consideration to
migration, migration law and their intersection and interaction with labour
law, and where they do not, their understanding of the latter is likely to be
incomplete.
With the aim of redressing this oversight, and further elaborating its im-
portance, Costello and Freedland invited a group of scholars to address the
question, how do migration law and immigration impact on labour law? The
scholars were drawn from a range of jurisdictions and disciplines, and the re-
sulting contributions deal, from a variety of perspectives, with the rights of
migrant workers or particular groups of workers under international law and
within human rights regimes and domestic and regional legal systems, and with
questions of the approach taken by particular governments to the regulation
of migration and to associated matters including irregular work and human
trafficking.
The editors’ introduction does a marvellous job of organising the material
into a coherent whole, and, at the same time, sketching out the contours
of a new field of study. Having surveyed the many explanations offered by
contributors of the nature of the impact of migration and migration law on
labour law, the editors propose that the various types of impact identified
may usefully be grouped together with reference to the notion of division.
Migration and migration law may be understood, in the first instance, to create
or accentuate divisions in the ‘objectives’ of labour law. Labour law as a field
is shaped by a range of policy objectives and, most importantly, by the aim
of worker protection or emancipation, on the one hand, and of regulating
labour markets so as to achieve a range of market objectives, on the other:
greater flexibility, maximal market participation. Migration and immigration
law can tend to intensify divisions and tensions between these two types of
objective. In the case of ‘posted’ workers, for example, European Union law
has developed so as to bring into direct conflict the aim of protecting workers’
terms and conditions of employment, and the aim of increasing market access,
or labour supply, by facilitating cross-border service provision. In a series of
decisions dating from 2007, the Court of Justice interpreted the freedom to
provide services so as to comprise a right to pay workers posted to a host state
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016) 79(3) MLR 519–536
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Reviews
less than local rates. It thereby judged the objective of increasing market access
across national borders to trump that of protecting labour standards and wage
levels by means of domestic law, or local or national collective agreement. (For
explanation, see the contribution by Engblom in the volume, esp 344–350.)
As the editors go on to explain, immigration and migration law can also be
understood to create or intensify divisions between the subjects of labour law.
A disintegration of the ‘standard employment model’ is one of the principal
trends observable in the world of work since the 1980s. Throughout the devel-
oped world, the decline of manufacturing and rise of services, the weakening
of trade unions, and the pursuit by employers of ever-greater flexibility, have
each contributed to the marginalisation of full-time, open-ended contracts of
employment and the proliferation instead of a wide variety of contractual forms
and attendant ‘statuses’: fixed-term employee, agency worker, casual worker,
zero-hours worker, etc. Because of the way in which it determines the eligibil-
ity of individuals to enter into and remain in working relationships, migration
law creates additional kinds of ‘personal status’ – temporary worker, overseas
domestic worker, irregular worker – which interact with labour law’s own de-
termination of work status in varied and complex ways. As a result, increasingly
diverse sets of rules apply to increasingly diverse categories of workers; the ap-
plication of labour law becomes, as the editors put it, a ‘patchwork fragmented
according to the personal work status of each worker’ (10).
Having explained the relevance of the notion of ‘division’ to their project,
Costello and Freedland raise the question of the possibility of ‘re-integrative’
responses from within labour law, responses which would allow for the pur-
suit of worker protective or emancipatory and labour market objectives, in
a way which protected the rights of both migrant and local workers. The
suggestion of the editors here is that policies and laws which are focused
specifically on migrant workers are less likely to be re-integrative than those
which target sectors within which migrant workers are clustered, but address
the employment relations of locals as well as migrants. Later in the book,
Davies draws a similar distinction between what she calls an ‘immigration
control’ and an ‘employment’ policy agenda, illustrating why a shift in policy
priorities from the latter to the former may ultimately serve to damage the
interests of the majority of workers, migrant and local: ‘simply tackling the
worst forms of exploitation will not guarantee decent working conditions for
all’ (79).
Taken as a whole, the collection is an important one for the development of
labour law scholarship and, at the same time, a very interesting and thought-
provoking read. For me, one of the most engaging aspects lay with the variety
of approaches and methods adopted by the contributors in addressing the field
sketched out by the editors. In inviting scholars to consider the nature of the
impact of migration and migration law on labour law, the editors placed the
focus of the investigation squarely on labour markets. Migration can affect
labour supply and demand; it can increase labour market segmentation and
the role of intermediaries in the labour supply chain (7-8). Migration law
affects levels of migration and the ‘types’ of labour available for sale, defined
according to the skills and characteristics of the migrant workers and their
520 C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(3) MLR 519–536

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