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Filipina live-in caregivers in Canada: migrants' rights and labor issues (a policy analysis) Cuenca, Joseph Gerard B. 1998

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Filipina Live-In Caregivers in Canada: Migrants' Rights and Labor Issues (A Policy Analysis) by J O S E P H G E R A R D B . C U E N C A J . D . , T h e A t e n e o de M a n i l a U n i v e r s i t y S c h o o l o f L a w , 1995 B . A . , T h e U n i v e r s i t y o f the P h i l i p p i n e s , 1991 A T H E S I S S U B M I T T E D I N P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F L A W S i n T H E F A C U L T Y O F G R A D U A T E S T U D I E S (Faculty o f L a w ) W e accept this thesis as c o n f o r m i n g T o the required standard T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A N o v e m b e r 1998 © J o s e p h G e r a r d B . C u e n c a , 1998 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia \ Vancouver, Canada Date 3L PGfcMB&L )W DE-6 (2/88) Abstract A s i a n w o m e n make up the fastest g r o w i n g category o f the w o r l d ' s populat ion o f migrant workers . T h e thesis examines labor and immigrat ion policies o f Canada as a host country for F i l i p i n o w o m e n migrant workers . It also determines h o w Canada 's w o r k i n g environment for F i l i p i n o w o m e n migrant w o r k e r s is mapped out. T h e thesis is anchored o n three major concerns. T h e first is an analysis o f the Phi l ippines as a leading labor export ing country. T h e thesis expounds o n the state mechanisms p r o m o t i n g labor exportat ion and the corresponding problems that ensue. It is argued that a majority o f the problems o f labor migrat ion from the Phil ippines can be attributed to the inadequate policies and laws o f the government in the 1970s when labor export first f lourished. T h e second area o f concern is a situation analysis o f the F i l i p i n a migrant w o r k e r s w h o come to C a n a d a to w o r k as l ive- in caregivers. This discussion is focused o n Canada 's general f r a m e w o r k o f immigrat ion laws, foreign w o r k e r policies and the pertinent provinc ia l labor laws o f B r i t i s h C o l u m b i a . It analyzes h o w these pieces o f legislation have been shaped by Canada 's national policies. T h e thesis argues that Canada's regulations restricting the rights o f foreign domestic w o r k e r s and the marginalization o f their social mobi l i ty and status reflect the unequal relationship between the host and the sending countries. T h e third and most important concern is a pol icy analysis o f the L i v e - I n Caregiver P r o g r a m vis-a-vis migrants ' rights and labor issues. T h e thesis argues that Canada, through the continuation o f the L i v e - I n Caregiver P r o g r a m , provides F i l i p i n o domestic w o r k e r s inequitable w o r k i n g conditions. It is argued that since Canada is an international forerunner i n championing human rights, it becomes anachronistic that a cluster o f the country 's immigrat ion policies continue to advocate indentured f o r m o f labor. C a n a d a is i n a unique posi t ion, b o t h as a tradit ional immigrants ' country and as an international player, to blaze the trai l for international recognit ion o f migrant w o r k e r s ' rights. Canada must eliminate the double standards i n the L i v e - I n Caregiver P r o g r a m vis-a-vis the general immigrat ion policies. Therefore, it is argued that in order to maintain the high marks it has been receiving at the international level , Canada must eliminate t w o requirements o f the L i v e - I n Caregiver P r o g r a m : First , the two-year l ive- in requirement and second, the temporary migrant status o f l ive- in caregivers u p o n initial entry to Canada. L i v e - i n w o r k must be optional and not subject to the granting o f permanent residence status. T o preserve it international reputation, Canada must also make reforms o n the international level by ratifying and implementing international conventions. II FOR VINO & DUCCI Special thanks to Prof. Doug Sanders and Prof. Bill Black, Prof. John Borrows and Prof. Wes Pue, the B.C. Law Foundation, LL.M. '96, Lilian Ong, the women and staff at the Philippine Women's Centre and at the West Coast Domestic Workers' Association, and Gerry, Mary and Cindy at the Council. Ad Majorem Dei Gloriam Filipina Live-In Caregivers I Canada: Migrants' Rights and Labor Issues (A Policy Analysis) Abstract i i Acknowledgment i i i I. INTRODUCTION 1 A . B a c k g r o u n d 3 B . Objective and L i m i t a t i o n 7 C . M e t h o d o l o g y 9 H. THE PHILIPPINES AS A LEADING LABOR EXPORTING COUNTRY 11 A . Phi l ippine D e m o g r a p h i c s 11 B . P h e n o m e n o n o f Phi l ippine L a b o r M i g r a t i o n : B a c k g r o u n d 12 1. H i s t o r y o f Phi l ippine L a b o r M i g r a t i o n 15 2. S o c i o - E c o n o m i c and Cul tura l Reasons for O u t - M i g r a t i o n 18 3. T h e Feminizat ion o f L a b o r E x p o r t a t i o n 25 C. O v e r v i e w o f Bureaucrat ic Regulat ions and Protect ive M e c h a n i s m s 29 1. L e g i s l a t i o n 29 i . Const i tut ional Provis ions 29 i i . L a b o r L a w s 31 a. T h e Phi l ippine Overseas E m p l o y m e n t Adminis trat ion ( P O E A ) b. Welfare Funds and Remittance Schemes c. The Overseas W o r k e r s ' Welfare Adminis t ra t ion ( O W W A ) i i i . T h e M i g r a n t W o r k e r s and Overseas F i l ip inos A c t o f 1995 41 2. Protect ive M e c h a n i s m s 43 D . Regulat ions and Problems o f L a b o r E x p o r t a t i o n 47 IV 1. Regulat ions 47 2. Problems 50 i . I l legal Recruitment 51 i i . N o n - D o c u m e n t a t i o n 53 i i i . E x p l o i t a t i o n and D e - F e m i n i z a t i o n 58 m . F I L I P I N A L I V E - I N CAREGIVERS IN BRITISH COLUMBIA AND THE CANADIAN FOREIGN WORKER AND MIGRATION POLICD2S 64 A . A Prof i le o f F i l i p i n a L i v e - I n Caregivers i n B r i t i s h C o l u m b i a 65 B . Instruments o f Regulat ion and Protec t ion 68 1. Canada 's F o r e i g n W o r k e r Pol ic ies: Caribbean D o m e s t i c Scheme to the L i v e - I n Caregiver P r o g r a m 69 2. L a b o r Rights and Standards 75 3. Immigrat ion Cr i ter ia for L i v e - I n Caregivers 77 4. Support G r o u p s and M e c h a n i s m s 79 C. Analys is o f the L i v e - I n Caregiver P r o g r a m and the Immigrat ion and L a b o r Pol ic ies 82 IV. MIGRANTS' RIGHTS AND LABOR ISSUES IN THE CONTEXT OF THE LrVE-IN CAREGIVERS IN CANADA 92 A . A P o l i c y Analys is 92 B . C o n c l u s i o n 101 Bibliography 103 v I. INTRODUCTION I n 1993 the Department o f C i t i z e n s h i p and I m m i g r a t i o n C a n a d a started a nat ional consul tat ion process to obtain the current v iews about immigrat ion. A P u b l i c P o l i c y F o r u m f o l l o w e d i n 1994. In 1996, the M i n i s t e r o f Ci t izenship and Immigrat ion appointed three persons to an independent Immigrat ion Legis lat ive R e v i e w A d v i s o r y G r o u p ( A d v i s o r y Group) w h i c h was tasked to conduct a r e v i e w o f Canada's I m m i g r a t i o n legis lat ion and po l i c ies , and m a k e recommendat ions b y December, 1997. T h e A d v i s o r y G r o u p was g iven a w i d e mandate w i t h m a n y issues to consider. E s s e n t i a l l y , the A d v i s o r y G r o u p examined the suitabi l i ty o f the i m m i g r a t i o n and refugee leg is lat ion to the m i g r a t i o n trends i n the 21st Century. T h e R e v i e w consisted, ...of a re-evaluation of current immigration and refugee legislation through review and analysis of Canadian social, economic and demographic trends and their implications; comparative review and analysis of other countries' experiences with immigration policy, including the results of their own research and reviews; conducting interviews of key partners; and developing a series of options and recommendations to strengthen the legislative framework for dealing with immigration and refugee matters. T h e A d v i s o r y G r o u p i n v i t e d wri t ten submissions f r o m interested i n d i v i d u a l s and groups and hosted round-table discussions w i t h experts w i t h i n and outside government. T h e A d v i s o r y G r o u p received over 500 submissions. I n D e c e m b e r 1997, the legislat ive r e v i e w report 1 was submitted to the M i n i s t e r . I n i t , the A d v i s o r y G r o u p proposes two separate pieces o f legislation: one for Immigrat ion and Ci t i zenship 1 Not just numbers. A Canadian Framework for Future Immigration. Immigration Legislative Review. Minister of Public Works and Government Services, 1997. 1 and one o n Protect ion. T h e report consists o f ten chapters containing 172 recommendat ions . U n d e r Chapter 6, " B r o a d e n i n g Canada's E c o n o m i c Base: Se l f -Support ing Immigrants" , R e c o m m e n d a t i o n 75 states, [t]he Live-In Caregiver Program should be eliminated as a separate visa class and made, both in theory and in practice, entirely consistent with the Foreign Worker Program. The Immigration and Citizenship legislation should allow caregivers with a valid, permanent job offer to apply for landed immigrant status in the Self-Supporting Class. I n e x p l a i n i n g this recommendat ion, the A d v i s o r y G r o u p contends that, [caregivers should be allowed to live in or live out according to the arrangement they make with their employer By eliminating the General Occupations List, we are in effect removing the requirement that a caregiver must live in Canada for two years before applying for landing. . . [ A ] caregiver who meets the core standards for education, official language ability and age could qualify for immigration on the basis of a validated permanent job offer. W h i l e this is not the first t ime that Canada's i m m i g r a t i o n pol ic ies have been assessed i n such d e t a i l 2 the L i v e - I n caregiver P r o g r a m ( L C P ) is n o w cast i n doubt w i t h the I m m i g r a t i o n L e g i s l a t i v e R e v i e w . It is i n this sense o f urgency that the L C P forms the basis for this thesis. 2 In 1980, the Minister of Employment and Immigration commissioned a Task Force on Immigration Practices and Procedures to assess the Immigration Act and immigration procedures with an emphasis on workers on employment authorizations. 2 A. Background Between January and June 1997, some 357,209 Fi l ip ino 3 migrant workers were deployed to overseas jobs, according to the Philippine Overseas Employment Administration, the government agency primarily tasked with the administration of migrant workers. Meanwhile, the migrant workers sent home remittances amounting to US$1.5 billion in the first half of 1997. The Philippine government estimates that in 1995, about 4.2 mil l ion Filipinos were working abroad, 2.4 mill ion of whom had been "processed" or given documented status by the Philippine government. Overseas labor migration from the Philippines has become so extensive that the government routinely issues "information brochures" to migrant workers going abroad. These information materials aim to familiarize migrant workers with the culture and work ethics in specific host countries. For example, there are materials warning workers deployed as domestic workers in Saudi Arabia of the potential sexual harassment by Saudi men and physical abuse by their Saudi mistresses. Filipino migrant workers are repeatedly cautioned that they are at risk of rape in the Middle East. In June 1997 the Philippine Department of Labor and Employment also gave a warning to Fil ipino migrants not to accompany their employers to Egypt when their Middle Eastern employers vacation there. Many Middle Eastern families take Filipina domestic workers on vacation with them to Egypt where they are considered illegal aliens under Egyptian law. 4 Yet 3 "Filipino" refers to a man while "Filipina" refers to a woman. However, "Filipinos" is the collective term. 4 Miguel C. Gil, "Economic Indicator OFW remittances up 29%", [Philippine] Business-world, July 23, 1997. 3 despite these w a r n i n g signals f r o m the P h i l i p p i n e government, labor m i g r a t i o n to the M i d d l e East continues. E v e n the regional e c o n o m i c cris is i n A s i a that has weakened major A s i a n e c o n o m i e s hardly affected the number o f F i l i p i n o migrant workers t rave l l ing to A s i a n host countries, w h i c h rose i n 1997 to 235,129, accounting for a 25 per cent increase. 5 T h e present phenomenon o f F i l i p i n o overseas contract workers , or O C W , is steadily increas ing as d e p l o y m e n t for overseas w o r k continues unabated. T h e O C W p h e n o m e n o n is deeply entrenched i n the P h i l i p p i n e labor sector as an alternative o p t i o n to l o c a l e m p l o y m e n t . It is a regular topic w i t h i n P h i l i p p i n e soc ia l , cul tural and popular discourse. T h e migrant w o r k e r movement has assumed such an important place i n P h i l i p p i n e p o l i t i c a l institutions that it forms a material aspect i n the country's M e d i u m T e r m P h i l i p p i n e D e v e l o p m e n t P l a n (the M T P D P ) o f 1993. F o r m e r President F i d e l R a m o s launched this government p r o g r a m as part o f the "Phi l ippines 2 0 0 0 " , to serve as the country's blueprint for e c o n o m i c development. E s s e n t i a l l y , " P h i l i p p i n e s 2 0 0 0 " a ims to achieve an e c o n o m i c stabil ity for the P h i l i p p i n e s b y the year 2 0 0 0 and h u m a n development is one o f the factors i n the government's strategy. A s a concrete measure o f " P h i l i p p i n e s 2 0 0 0 " , the M i g r a n t W o r k e r s and Overseas F i l i p i n o s A c t o f 1995 6 (the M i g r a n t W o r k e r s A c t ) was enacted dur ing R a m o s ' term. T h e M i g r a n t W o r k e r s A c t seeks to institute measures for overseas e m p l o y m e n t and establish a higher degree o f protect ion for the welfare o f migrant workers . " P h i l i p p i n e s 2 0 0 0 " became the r a l l y i n g cry for R a m o s ' government. 5 Agence France Press, "Filipino Workers in Asia up in '97", Philippine Daily Inquirer, April 13, 1998. 6 Philippine Republic Act No. 8042 was signed into law on June 8, 1995. 4 H o w e v e r , crit ics o f R a m o s ' administration argue that the M T P D P and the M i g r a n t W o r k e r s A c t merely helped R a m o s institutionalize P h i l i p p i n e labor export. T h e o n l y certainty i n this debate is that the M i g r a n t W o r k e r s A c t is the latest addi t ion to the l o n g l ist o f acts, rules and regulations, pol ic ies and programs that attempt to deal w i t h the issue o f labor m i g r a t i o n o f four m i l l i o n F i l i p i n o workers . T h e P h i l i p p i n e government has established welfare and protect ion m e c h a n i s m s since the early 1970s dur ing the M a r c o s administrat ion. B u t i f n o t h i n g else, the mechanisms are almost always the result o f continued publ ic c lamor for state intervention i n the labor export movement . F i l i p i n o s first started migrat ing to Canada i n sporadic numbers during the third wave o f F i l i p i n o migrat ion, w h e n N o r t h A m e r i c a was i n need o f health workers . In 1967, w h e n C a n a d a re laxed its i m m i g r a t i o n requirements and introduced the point system, people f r o m A s i a were a l l o w e d to enter C a n a d a o n an equal foot ing w i t h people f r o m E u r o p e and the B r i t i s h Isles. T h e i n f l u x o f A s i a n i m m i g r a n t s into C a n a d a rose rapid ly , and by the 1990s A s i a d i s l o d g e d E u r o p e as the r e g i o n o f top source countries for Canada's immigrants . I n 1996 the top f ive i m m i g r a n t s came f r o m A s i a n countries. T h e P h i l i p p i n e s has been one o f the top sources i n recent years, r a n k i n g second, t h i r d and f i f th i n 1994, 1995 and 1996 respect ively . 7 I n the past years C a n a d a has fast become the coveted destination for F i l i p i n a migrant workers . T h e c o m m o n route for F i l i p i n a s to enter C a n a d a is through the L i v e - I n Caregiver P r o g r a m (the L C P ) . T h e L C P requires t h e m to "Immigration - Top Ten Source Countries", Facts and Figures 1996. Immigration Overview, Citizenship and Immigration Canada, Minister of Supply and Services Canada 1997. 5 w o r k as l i v e - i n caregivers 8 ( L I C s ) for a continuous per iod o f at least t w o years after w h i c h they can apply for permanent residence and for a chance to w o r k other than as L I C s . T h e p o s s i b i l i t y o f permanent residence and eventually, Canadian cit izenship, is a great source o f m o t i v a t i o n for F i l i p i n a s to apply under the L C P and migrate to Canada. It has repeatedly been c i ted b y the U n i t e d N a t i o n s as the best country to l i v e i n , and for F i l i p i n a migrant workers w h o are pushed by harsh economic realities to leave the Phi l ippines for better employment opportunities, to w o r k as L I C s i n C a n a d a seems a w e l c o m e respite. W h i l e Canada is not a trouble area i n terms o f the number o f cases o f abuse and explo i ta t ion , it cannot be ca l led a haven for F i l i p i n a migrant workers where they are treated equal ly w i t h the other sectors o f the labor force and where the c o m m o n exploitat ive tools o f the trade are eradicated. True to its effort toward being an egalitarian country where everyone c a n lay c l a i m to the fruits o f a democrat ic and just nat ion, C a n a d a has enacted the L C P to regulate the w o r k o f L I C s and a l l o w L I C s to apply for permanent residence status after a two-year per iod o f l i v e - i n work . H o w e v e r , this benefit is not a cause for rejoicing among the migrant workers because the bureaucratic route to acquire permanent residence status i n C a n a d a is d i f f icu l t and protracted. T h e L C P does not create an ideal employment mechanism for foreign domestic workers wherein their rights are secured and their protect ion is guaranteed. C a n a d a m a y be a dream destination for the domest ic workers , but it is not easy to enter and r e m a i n i n the country. The terms "live-in caregiver" and "domestic worker" are used interchangeably to refer to a person performing household work. 6 B. Objective and Limitation T h e thesis examines the n o t i o n o f C a n a d a as a host country for F i l i p i n a L I C s i n re lat ion to applicable legal mechanisms and determines h o w its w o r k i n g environment for F i l i p i n a L I C s is m a p p e d out. C a n it then be said that F i l i p i n a L I C s are accorded equal treatment i n their employment and migrant status i n the supposedly gender-equal, racial ly neutral , and egal i tarian Canada? It is important to pose the question o f whether or not C a n a d a is a n exemplary country insofar as the employment and l i v i n g conditions o f foreign domestic workers are concerned. The issue is significant to sending countries l i k e the P h i l i p p i n e s w h i c h can use the C a n a d i a n set-up i n its international c a m p a i g n for better e m p l o y m e n t standards and condi t ions i n p r o b l e m countries where cases o f abuse and exploi tat ion p r e v a i l . B u t i f the opposite holds true, n a m e l y that f o r e i g n domest ic workers i n C a n a d a i n fact w o r k and l i v e i n substandard condi t ions i n a high-standard society, then exposit ion and suggestions can be made as to w h y these workers are mistreated and h o w the situation can be recti f ied. T h e thesis is anchored o n three m a i n areas: T h e first area concerns the analysis o f the P h i l i p p i n e s as a leading labor export ing country. T h e thesis examines the state m e c h a n i s m s i n p r o m o t i n g labor exportat ion and the corresponding problems that ensue. It describes the P h i l i p p i n e government i n terms o f its legal obl igat ions towards F i l i p i n o migrant workers . T h e second area is a situation analysis o f the F i l i p i n a migrant workers w h o come to C a n a d a to w o r k as L I C s . T h e thesis discusses Canada's general f ramework o f i m m i g r a t i o n l a w s , the fore ign worker pol ic ies and the pertinent p r o v i n c i a l labor laws o f B . C . It analyzes h o w these pieces o f 7 l e g i s l a t i o n have been shaped b y Canada's nat ional pol ic ies . T h e t h i r d area w h i c h is the core analysis o f the thesis presents a p o l i c y analysis o n the L C P vis-a-vis migrants ' r ights and labor issues. T h e thesis argues that Canada, through the cont inuat ion o f the L C P . provides F i l i p i n a domest ic workers inequitable w o r k i n g condit ions l a c k i n g i n m a n y h u m a n and migrant rights. C a n a d a is a federal state c o m p o s e d o f several provinces w h i c h retain vast and autonomous p o l i t i c a l powers. Because o f this decentralized p o l i t i c a l set-up, the issue o f migrant w o r k e r s i n general a n d the L I C s i n particular cannot be c learly placed. W h i l e i m m i g r a t i o n is w i t h i n the d o m a i n o f the federal government, labor is an amorphous matter that is essential ly w i t h i n the p r o v i n c i a l domain . T h i s thesis studies the federal government's i m m i g r a t i o n set-up for the L C P . s p e c i f i c a l l y h o w the migrant workers enter C a n a d a and h o w their w o r k i n g condi t ions appear. T h e study o f their w o r k i n g condit ions is conf ined w i t h i n the metropol i tan area o f V a n c o u v e r . N e c e s s a r i l y then, the examinat ion o f Canada's F i l i p i n a L I C s is l i m i t e d to the p r o v i n c i a l labor laws o f B r i t i s h C o l u m b i a . S i m i l a r l y , there is no separate leg is lat ion o n domestic workers i n the P h i l i p p i n e s , as they f o r m o n l y a part o f the general scheme o f migrant workers. The thesis examines P h i l i p p i n e laws to the extent that they affect the situation o f female migrant workers . F i n a l l y , w h i l e there are m a n y k i n d s o f migrant workers f r o m the P h i l i p p i n e s i n Canada, this thesis o n l y addresses F i l i p i n a s w h o enter C a n a d a under the L C P or under previous C a n a d i a n fore ign domest ic workers ' programs. There are t w o other categories o f women's m i g r a t i o n f r o m the P h i l i p p i n e s w h o , for 8 purposes o f brevi ty o f this thesis, are not discussed but are w e l l w o r t h not ing. T h e y are the 'entertainers' whose m a i n destinations are Japan, B r u n e i and to a lesser extent, T a i w a n and Singapore. Japan's sex industry is a thr iv ing business but a disdained occupational workplace for Japanese w o m e n . Hence , foreign w o m e n are recruited to w o r k as entertainers w h o often end up as prostitutes. T h e other m i g r a t i o n movement is the business o f mai l -order brides w h i c h takes advantage o f Westerners seeking A s i a n w o m e n as desirable w i v e s or h o m e c o m p a n i o n s and F i l i p i n a s seeking a better l i fe by m a r r y i n g a foreigner. Countr ies such as G e r m a n y , A u s t r a l i a , Japan and T a i w a n are typica l destinations w i t h expectant grooms. W h i l e this set-up is not a labor m i g r a t i o n m o v e m e n t per se, it nevertheless w o r k s o n the assumption that the m e n p r o v i d e economic comfort to the w o m e n i n exchange for their household services and/or companionship. C. Methodology T h i s thesis evaluates the existing Canadian pol ic ies o n migrant workers i n the context o f F i l i p i n a domest ic workers w o r k i n g i n C a n a d a as L I C s . T h e p o l i c y analysis is the c u l m i n a t i o n o f the p r e v i o u s i n q u i r y o f the legal set-up o f the P h i l i p p i n e s and C a n a d a as the sending and host country respectively. T h e thesis is inspired by some present theories surrounding international labor m i g r a t i o n . L i n d q u i s t , i n his paper o n P h i l i p p i n e m i g r a t i o n networks , 9 suggests that the migrat ion movement between the sending and host country has been marked by two theories that str ive to i l lustrate m i g r a t i o n patterns. T h e first is the funct ional theory w h i c h focuses o n the Bruce A. Lindquist, "Migration Networks: A Case Study in the Philippines", Asian and Pacific Migration Journal, vol.2, no.l, 1993, at 78-80. 9 economic factors o f a migrant nation and the rational decisions o f its populat ion w h i c h m a y help br ing about the equal izat ion o f e c o n o m i c opportunities. T h e alternative theory is the structural perspect ive w h i c h emphasizes the g loba l e c o n o m i c scenario where m i g r a t i o n m o v e m e n t s are shaped b y external soc io-economic arrangements. T h e thesis freely ut i l izes either assumption, l i n k i n g the sending country (origin) w i t h the host country (destination) "to capture the dynamic nature of various migration flows."w T h i s thesis is n a r r o w l y focused o n female migrant workers f r o m the P h i l i p p i n e s p r i m a r i l y because they compose the majority o f F i l i p i n o citizens w o r k i n g abroad as domestic workers, and i n v i e w o f the increasing f e m i n i z a t i o n o f international labor m i g r a t i o n f lows. James A . Tyner , i n his article "the S o c i a l Construct ion o f Gendered M i g r a t i o n f r o m the P h i l i p p i n e s " 1 1 , contends that the social construction o f gender explains that "differences between women and men result from the development of sexist ideologies which confuse biological differences with sociological differences."12 Tyner goes further to argue that social construction o f gender must be perce ived not i n isolat ion but i n correlation w i t h social construction o f class, race or nationality. T h i s thesis adopts Tyner 's argument and clarif ies that gender considerations i n m i g r a t i o n f l o w s are inextr icably l i n k e d w i t h e c o n o m i c assumptions. 10 Ibid, at 80. 11 Asian and Pacific Migration Journal, vol.3, no.4, 1994, at 592-593. 12 Ibid, at 592. II. THE PHILIPPINES AS A LEADING LABOR EXPORTING COUNTRY A. Philippine Demographics T h e P h i l i p p i n e geography is an archipelago consist ing o f over 7,000 is lands. Because o f this fragmentation the people speak over 80 different dialects. F i l i p i n o , the l i n g u a franca, is spoken b y o n l y 50 per cent o f the populat ion. A l s o , the P h i l i p p i n e s is the o n l y A s i a n country w i t h a predominantly Cathol ic population. T h i s is a legacy f r o m four centuries o f Spanish c o l o n i a l rule. T h e present p o l i t i c a l system f o l l o w s the democratic style o f the U n i t e d States the second colonizer , w h i c h occupied the Phi l ippines i n 1898. D u r i n g this year, Spain " s o l d " the Phi l ippines to the U n i t e d States to settle the dispute over Cuba. T h e U n i t e d States was later ousted b y Japan during W o r l d W a r II. Af ter three years o f Japanese occupation, the U n i t e d States returned to the P h i l i p p i n e shores and helped free the Phi l ippines f r o m Japanese rule. Eventual ly , the Phi l ippines p r o c l a i m e d its independence i n 1946. W h e n F e r d i n a n d M a r c o s was elected as President i n 1965, the P h i l i p p i n e s ' e c o n o m i c per formance was second to that o f Japan i n A s i a . H o w e v e r , M a r c o s l e d the country into its darkest era. D u r i n g his dictatorial reign he imposed martial law, enriched his cronies and stashed away m i l l i o n s o f Pesos i n his foreign bank accounts, created p o l i t i c a l and soc ia l unrest, and committed numerous violations o f human and c i v i l rights. The assassination o f M a r c o s ' p o l i t i c a l arch r i v a l B e n i g n o A q u i n o o n A u g u s t 21 , 1983 o n his return from exi le i n the U n i t e d States triggered an outcry for po l i t i ca l change. In 1986, the M a r c o s dictatorship was o v e r t h r o w n w h e n 11 a n event k n o w n as 'People Power ' transpired i n M a n i l a . Hundreds o f thousands o f F i l i p i n o s p o u r e d out to the streets to b l o c k the tanks that M a r c o s h a d ordered i n his last attempt to maintain power. H e later f led w i t h his allies and C o r a z o n A q u i n o , the w i d o w o f B e n i g n o A q u i n o took over the presidency. A l t h o u g h A q u i n o d i d not fare w e l l i n her six-year term, she was able to preserve the n e w l y acquired democracy. F i d e l R a m o s succeeded A q u i n o as President i n 1992. In June 1998, Joseph Estrada became the P h i l i p p i n e s ' 13 t h President and the th i rd to be elected i n a free and democrat ic process since the late President M a r c o s f led the country i n 1986. B. Phenomenon of Philippine Labor Migration: Background I n the last years under President R a m o s ' regime, the P h i l i p p i n e e c o n o m y seemed to be p i c k i n g up. T h e P h i l i p p i n e s enjoyed a remarkable increase i n its G N P g r o w t h i n 1 9 9 6 . 1 3 Recent developments have painted a bright picture o f the country's future: T h e A P E C s u m m i t , h e l d i n M a n i l a last N o v e m b e r 1996, was a surprise success and sealed m a n y trade agreements w i t h n e i g h b o r i n g economies . T h e P h i l i p p i n e s o f 1996 was touted as the n e w " e c o n o m i c tiger" to w a t c h i n A s i a . 1 4 E v e n the International M o n e t a r y F u n d "was finally impressed and gave the country high marks for its ability to keep a tight lid on inflation and sustaining the economic upturn"}5 T h e Phi l ippines f inal ly completed its International M o n e t a r y F u n d program I n M a r c h 1998. 1 6 R a m o s opened peace talks w i t h the communist and M u s l i m rebels and r e c o n c i l e d r ight-w i n g m i l i t a r y rebels back to government ranks. P u b l i c perception o f President R a m o s ' 1 3 "1996 GNP growth registers at 6.8%", The Philippine Star, January 30, 1997. 1 4 Newsweek called the Philippines "Asia's new tiger" in its November 25, 1996 Asian issue. 1 5 "The Star's Top Ten Business Stories for '96", The Philippine Star, January 1, 1997. 1 6 Doris C. Dumlao, "RP free at last from IMF 'hold'", Philippine Daily Inquirer, March 29, 1998. 12 a c c o m p l i s h m e n t s were better than any p o l i t i c a l analyst had predicted w h e n he was elected i n 1992. F o r a moment, President R a m o s appeared to be o n the right track for the remainder o f his term w h e n he attempted to address and resolve every major publ ic issue that captured the p u b l i c interest. T h e migrant w o r k e r situation, one o f the country's m a i n problems that has caused nat ional embarrassment and a number o f h i g h prof i le resignations and terminations, was g i v e n a l o n g delayed response d u r i n g R a m o s ' term w h e n Congress enacted the M i g r a n t W o r k e r s A c t . O n e o f the major catalysts i n s o l i c i t i n g government act ion was the hanging o f F l o r C o n t e m p l a c i o n , a F i l i p i n a domest ic w o r k e r i n Singapore, for k i l l i n g a f e l l o w domestic w o r k e r and the latter's w a r d i n the first quarter o f 1995. T h e tragedy stirred the nat ional consciousness and c o m p e l l e d legislators to squarely address the P h i l i p p i n e migrant w o r k e r p r o b l e m to pac i fy an agitated and d ismayed nat ion. Further government act ion became necessary w h e n shortly after the incident i n Singapore another F i l i p i n a domestic worker, then 16-year o l d Sarah Balabagan, was sentenced to death i n the U n i t e d A r a b Emirates for k i l l i n g her employer w h o h a d repeatedly raped her i n one day. Balabagan's death sentence was commuted to a lighter penalty w h i c h c a n be attributed to extensive m e d i a coverage and strong p u b l i c pressure. B u t the damage was done. C o n t e m p l a c i o n was hanged according to schedule, despite a t i m i d p l e a f r o m the P h i l i p p i n e g o v e r n m e n t for c lemency , and later, for a stay o f execution. T h i s incident l e d to a nat ional outrage over the p l i g h t o f P h i l i p p i n e migrant workers , speci f ica l ly the vulnerable female domestic workers. There was also a strong p u b l i c c lamor for re-examining government measures 13 that w o u l d protect the workers abroad. Government actions to curb labor migrat ion or to control its f l o w were often met w i t h c y n i c i s m , and not without a reason. I n response to the C o n t e m p l a c i o n incident, d i p l o m a t i c ties w i t h Singapore were i n i t i a l l y d o w n s i z e d o n l y to be s l o w l y resumed after the flare had d i e d d o w n . 1 7 T h e government offered free and safe repatr iat ion to the P h i l i p p i n e s for those domestic workers w h o wanted to leave Singapore because o f explo i tat ion and abuse. A l t h o u g h sensing the unusual magnitude o f unrest the case tr iggered, the P h i l i p p i n e government was f u l l y aware that it h a d to be careful not to overt ly offend Singapore. G o v e r n m e n t had to ensure that the welfare o f F i l i p i n a domest ic workers e m p l o y e d i n Singapore was safeguarded. T h i s was a di f f icul t task, cons ider ing the outrage d i s p l a y e d b y the F i l i p i n o s . Because o f this p u b l i c reaction the Singaporean E m b a s s y and its off ice staff h a d to be guarded and p r o v i d e d w i t h security. M e a n w h i l e , several groups o f concerned F i l i p i n o s p u b l i c l y burned the Singaporean f lag, and m a n y feminist groups h e l d v i g i l i n key spots i n M a n i l a w h i l e they awaited the verdict o n Contemplacion's case. R a m o s suppl ied a bureaucratic so lut ion: A national c o m m i s s i o n was establ ished 1 8 that made up-to-date studies o n F i l i p i n o migrant workers deployed around the w o r l d . T h e c o m m i s s i o n travel led extensively i n host countries w i t h F i l i p i n o migrant workers . T h e c o m m i s s i o n was instrumental i n p u s h i n g for the passage o f the M i g r a n t W o r k e r s A c t . T h i s leg is lat ion is the c u l m i n a t i o n o f over t w o decades o f government grappl ing w i t h the p h e n o m e n o n o f P h i l i p p i n e labor m i g r a t i o n and the m y r i a d o f issues and problems it created. 1 7 The Philippine Embassy in Singapore was reduced on March 22, 1995 when the ambassador was replaced by a charge d'affaires. In April 1996 a new ambassador to Singapore prepared to assume his post, effectively ending the diplomatic friction with Singapore. 1 8 The commission was called the Gancayco Commission, named after the head of the commission, a former associate justice of the Philippine Supreme Court. 14 1. History of Philippine Labor Migration T h e Phi l ippines is arguably the world's largest exporter o f labor. F i l i p i n o workers c a n be f o u n d l a b o r i n g o n construct ion sites i n Saudi A r a b i a , l o o k i n g after c h i l d r e n i n H o n g K o n g and Singapore, entertaining i n T o k y o bars, dusting o f f furniture i n Italian mansions, d o i n g graveyard shifts as nurses i n the U n i t e d States and crewing ships i n the h i g h seas. T h e labor migrat ion f r o m the P h i l i p p i n e s f o r m a l l y began i n the early 1970s w h e n government openly endorsed overseas employment as a temporary means to curb the g r o w i n g u n e m p l o y m e n t rate. B u t the history o f labor m i g r a t i o n f r o m the P h i l i p p i n e s goes back m a n y decades. O r i g i n a l l y e n v i s i o n e d as a temporary p o l i c y , the P h i l i p p i n e government has n o w condoned over t w o decades o f nearly unabated m i g r a t i o n o f F i l i p i n o workers to v i r tua l ly every corner i n the w o r l d . M i g r a t i o n movements are traditionally perceived as an i n d i v i d u a l choice to "seek greener pastures", to start anew i n another country, or s i m p l y to achieve changes i n lifestyle. W h i l e the economic situation o f the country o f o r i g i n has often p layed as a st imulus for m i g r a t i o n , this has never been more apparent than i n the P h i l i p p i n e m i g r a t i o n movement. There were basical ly four major waves o f labor migrat ion i n P h i l i p p i n e h is tory . 1 9 T h e first w a v e occurred during the M a n i l a - A c a p u l c o G a l l e o n Trade where F i l i p i n o s assumed labor tasks aboard m a n y o f the trade ships. The second outf low began at the turn o f this century w h e n a n u m b e r o f The analysis of this section is partly based on a paper by Catherine Paredes-Maceda, "Responding to Filipino Migration Realities: A Framework for Cooperation", OCWs in Crisis: Protecting Filipino Migrant Workers, Ateneo Human Rights Center, Makati, Philippines, 1995, at 9, and Philippine Overseas Employment Administration, White Paper, the Overseas Employment Program, Department of Labor and Employment (DOLE), Republic of the Philippines, Manila: DOLE, April 1995, at 10. 15 F i l i p i n o workers travelled to H a w a i i as plantation workers . T h e number o f F i l i p i n o s g r e w f r o m a mere t w o hundred to such great proportions that at one point i n t ime, they f o r m e d about seventy per cent o f H a w a i i ' s labor plantat ion populat ion. Other F i l i p i n o migrants m o v e d to the U n i t e d States for t ra ining as students, and some relocated there to h o l d m e n i a l j o b s i n restaurants, hotels, ra i l road constructions, agricultural plantations and canneries. A p p l e and orange pickers were also i n demand i n Ca l i fornia , and F i l i p i n o s f i l l e d that need as w e l l . B y 1923 there were over 5,000 F i l i p i n o s be ing recruited year ly to w o r k i n f i sh canneries i n A l a s k a . A third wave o f F i l i p i n o immigrants to the U n i t e d States started after the Second W o r l d W a r w h i c h i n c l u d e d m i l i t a r y servicemen, y o u n g professionals, and students seeking higher studies. A s f o r m e r c o l o n i a l s o f the U n i t e d States, F i l i p i n o s c o u l d migrate to the U n i t e d States wi thout restrictions. A t about the same t ime, A u s t r a l i a and C a n a d a had begun to hire m e d i c a l workers . The last surge o f F i l i p i n o immigrants consisted m a i n l y o f O C W s and engineers w h o were i n h i g h d e m a n d i n o i l - r i c h countries l i k e Saudi A r a b i a , Iran and K u w a i t d u r i n g the 1970s. A l s o , a handful o f F i l i p i n o veterans m o v e d to the U n i t e d States to complete their natural izat ion pr iv i leges for serving the A l l i e d Forces dur ing W o r l d W a r II. D u r i n g the same p e r i o d , international ship owners began to scout for crews i n South East A s i a for w h i c h the P h i l i p p i n e s was a major source. B y 1983, j o b openings i n operations and maintenance as w e l l as i n service emerged i n the M i d d l e East. Nurses , hotel personnel, office clerks, professionals, laboratory and m e d i c a l technicians and other related w o r k e r groups took the opportunity . 16 It was dur ing the fourth m i g r a t i o n wave to the M i d d l e Eastern countries, r i c h i n o i l but poor i n labor sk i l l s and resources, that F i l i p i n o s found the greatest number o f w o r k opportunities to help i n the construction sites and o i l fields. The w o r l d demand for o i l during the mid-1970s produced extraordinary g r o w t h i n oil-revenues and p r o v i d e d the M i d d l e Eastern countries w i t h the f inancial resources to b u i l d n e w infrastructure. Init ial ly , these countries turned to their neighbors for inexpensive labor. Pakistan was a favorite sending country. Later , the P h i l i p p i n e s p r o v e d to be an addit ional source for a seemingly unending supply o f inexpensive but s k i l f u l and educated labor. T h i s led to the first regulatory response by the P h i l i p p i n e government w h e n it enacted the P h i l i p p i n e L a b o r C o d e (the L a b o r Code^ i n 1974. 2 0 T h e 1990s m i g r a t i o n m o v e m e n t can be considered the f i fth wave i n w h i c h a gradual shift o f e m p l o y m e n t destination. W o r k e r s began to try their l u c k i n ne ighbor ing Southeast A s i a n countr ies w h i c h emerged as the choice destinations. I n particular, Japan, T a i w a n , H o n g K o n g and Singapore are the countries s o l i c i t i n g the services o f F i l i p i n o workers . It is estimated that i n 1994, a lmost 212,000 land-based F i l i p i n o contract workers went to A s i a n countries w h i l e almost 313,000 were deployed to the M i d d l e East . 2 1 T h e f i f th w a v e also m a r k e d a shift o f labor m i g r a t i o n towards predominant ly female workers , most o f w h o m w o r k i n fore ign countries as domestic workers , nurses and entertainers. A m o n g the land-based workers deployed as o f 1994, M Philippine Presidential Decree No. 442 [1974]. 2 1 Philippine Overseas Employment Administration, White Paper, the Overseas Employment Program, Department of Labor and Employment (DOLE), Republic of the Philippines, Manila: DOLE, April 1995, at 5. 17 565,226 are female, w h i l e 291,916 are male w o r k e r s . 2 2 W h e n occupations i n p r o d u c t i o n and c o n s t r u c t i o n i n the M i d d l e East had been f i l l e d the service sector took over as the p r e v a i l i n g occupational category. Furthermore, because o f the disparate economic development i n the South East A s i a n reg ion, the r icher countries experience a shortage o f l o w - s k i l l e d labor, whereas the poorer countries (the P h i l i p p i n e s included) suffer f r o m labor oversupply o f u n d e r e m p l o y e d or u n e m p l o y e d cit izens. 2. Socio-Economic and Cultural Reasons for Migration W h e n the P h i l i p p i n e s declared its independence i n 1946 its nat ional e c o n o m y focused o n t w o aspects: a n international ly competi t ive and export-oriented agricultural sector and a smal ler u r b a n industr ia l and service sector. T h e P h i l i p p i n e government then adapted to an import-substitution strategy w h i c h ut i l ized the earnings f r o m agricultural exports. These resources were used to subsidize the development o f h o m e - g r o w n manufacturers w h o were shie lded f r o m f o r e i g n c o m p e t i t i o n through h i g h tariffs. H o w e v e r , the dedicat ion to such i n w a r d - l o o k i n g pol ic ies p r o v e d to be economical ly unsound. T h e P h i l i p p i n e s used capital- intensive p r o d u c t i o n techniques and imported labor saving machinery w h i c h was more suitable to industr ia l i zed countr ies . T h e result was predictable: rural workers stood i n l ine for j o b s i n protected urban industr ies and j o i n e d the i n f o r m a l e c o n o m y w h i l e w a i t i n g for employment . M a n y o f these u n e m p l o y e d and underemployed workers are n o w anxious to emigrate. T h e n President M a r c o s ' dec larat ion o f M a r t i a l L a w i n September 1971 paved the w a y for transforming the p lanned 2 2 Ibid, at 6. 18 temporary labor exportat ion as a permanent h u m a n resource p r o g r a m whereby disenchanted F i l i p i n o workers c o u l d escape the harsh pol i t ica l and economic situation. In 1979 the P h i l i p p i n e s was one o f the first countries to avai l o f the structural adjustment loans w h e n these were s t i l l at an experimental stage. B y the 1980s the Phi l ippines was suffering f r o m a f u l l - b l o w n debt cr is is as the e c o n o m y was tak ing b l o w s f r o m enforced debt payments and the structural adjustment programs. T h e structural adjustment loan program merely served to intensify the socio-economic c r i s i s . 2 3 T o d a y , the Phi l ippines experiences a populat ion growth o f about 2.1 per cent per a n n u m w h i l e the labor force is estimated to g r o w at 2.9 per cent per year. T h e p o l i t i c a l system, though democrat ic i n style, is beset w i t h the w a y s o f patronage and p r i v i l e g e . 2 4 T h e l o n g S p a n i s h rule i n s t i l l e d a system o f p o l i t i c a l e l i t i s m and entrenched f a m i l y dynasties often c o m p o s e d o f landowners i n powerful government positions. T h i s socio-pol i t ical cl imate has endured over the centuries and has created a tremendous gap between the r i c h and poor. T h e W o r l d B a n k estimated that the proport ion o f people l i v i n g i n poverty i n the P h i l i p p i n e s is 39 per cent as compared to 22 per cent i n Thai land, 19 per cent i n Indonesia, 14 per cent i n M a l a y s i a and 5 per cent i n South K o r e a . 2 5 Indeed, the e c o n o m i c elite i n the P h i l i p p i n e s is tremendously r i c h : T h e average income o f the richest fifth i n the Phi l ippines is almost 11 t imes the average i n c o m e per Antonio Tujan, Jr. The Crisis of Philippine Labor Migration. IBON: People's Policy and Advocacy Studies, May 1995, at 6. 2 4 David M . Foreman, "Protecting Philippine Overseas Contract Workers", Comparative Labor Law Journal, vol. 16, 1994/95, at 35. 2 5 "Steady Eddie", in Back on the Road, The Economist, May 11th, 1996, at 5. 19 h e a d . 2 6 T h e e c o n o m i c impl icat ions cannot be over looked. Industr ia l izat ion became m o r e important than the agricultural sector, even though the natural resources o f the P h i l i p p i n e s are conducive for farming industries. N a t i o n a l economic pol ic ies gave preference to urban over rural areas. T h e result was massive u n e m p l o y m e n t and underemployment i n the rural areas where farmers lost the incentive to t o i l o n land that d i d not belong to them. The population's exodus to the u r b a n areas was thus inevitable. B u t the e c o n o m i c woes were not so lved i n the 'urban jungles ' . T h e nat ional capital region, M e t r o M a n i l a , already suffering f r o m overpopulat ion, is n o w also o v e r c r o w d e d w i t h rural migrants unable to land jobs . Other urban g r o w t h problems have also emerged i n M a n i l a : traffic congestion, squatter and s l u m areas, and abject environmental condit ions . A s a result o f M e t r o M a n i l a ' s labor oversupply , the wages dropped. T h e L a b o r C o d e mandates a m o n t h l y salary o f P h i l i p p i n e Pesos ( P H P ) 550.00 to 800.00 for house h e l p e r s , 2 7 w h i c h is about C A N $ 2 8 . 0 0 to 4 0 . 0 0 . 2 8 In contrast, the salary for domest ic w o r k e r s i n H o n g K o n g is H K $ 3 , 7 5 0 . 0 0 , or P H P 1 2 , 6 0 0 . 0 0 2 9 w h i l e i n C a n a d a it is currently pegged at C A N S 1,232.00, or P H P 2 4 , 6 4 0 . 0 0 per month. Thus, it is no surprise that overseas w o r k is regarded as a n e c o n o m i c salvation. A n o t h e r p u s h factor for m i g r a t i o n was the pervasive landlessness a m o n g the peasant sector. A f t e r rega in ing democracy under the n e w l y instal led government o f President A q u i n o , the 2 6 Ibid. 2 7 The minimum wage indicated is over four years old, from Art. 143, Chapter III - Employment of Househelpers, as amended by Philippine Republic Act 7655, approved on August 19, 1993. 2 8 The figures are arrived at by using a CANS 1.00 = PHP20.00 exchange rate. 2 9 Supra, note 21, at 36. 20 Comprehensive A g r a r i a n R e f o r m L a w was enacted i n 1 9 8 8 3 0 (the C A R L ) . O n paper the C A R L seems impress ive . It stipulates that a l l p u b l i c and private agricultural l a n d is subject to the redistribution o f land. T h e C A R L imposes strict deadlines for lands to be redistributed. H o w e v e r , w h i l e the C A R L was a legislative success, its implementation was discouraging. L e g a l loopholes were soon taken advantage of. F o r example, lands or ig inal ly agricultural i n nature, and therefore w i t h i n the j u r i s d i c t i o n o f the C A R L , were q u i c k l y "declared" as residential or c o m m e r c i a l i n nature, b y setting up bogus construction activit ies. A l s o , government l a c k e d the necessary resources to q u i c k l y put the C A R L provisions into action, thus g i v i n g the landowners sufficient t i m e to convert their lands into non-agricultural ones. W h a t further c o m p l i c a t e d the i m p l e m e n t a t i o n o f the C A R L was the fact that anti-agricultural sentiments echoed i n the hal ls o f the Congress where unt i l today, ten years after the passage o f C A R L , legislators w h o are also large landowners ensure that land re form legis lat ion is stif led. I n fact, even then President A q u i n o , a landowner herself o f vast tracts o f land north o f M a n i l a , seemed hesitant to subject her land to the C A R L . 3 1 Thus , the protective mantle o f social justice i n the C A R L provis ions l a c k e d teeth i n its implementat ion stage and c o u l d not sustain the farmers and their fami l ies w h o cont inued to t i l l o n l a n d that was not their o w n . F o r m a n y disgruntled farmers, the s o l u t i o n to their problems was emigration, to the urban jungle o f M a n i l a , or migrat ion from the Phi l ippines . M Philippine Republic Act No. 6557. 3 1 Ironically, the first Speaker of the House of Representatives of President Joseph Estrada's administration is Rep. Jose Villar who is one of the Philippines' largest landowners. 21 T h e lure o f overseas e m p l o y m e n t becomes even more evident i f wage rates i n n e i g h b o r i n g countries are studied. Average wages i n Japan or H o n g K o n g are at least ten t imes higher than that o f the Phi l ippines . These regional wage disparities seemed to justi fy the sacrifices made for overseas w o r k . T h e substantial fore ign exchange earnings o n the part o f the government f r o m migrant workers' remittances and the increased purchasing power at home o f the migrant workers f inal ly institutionalized the O C W phenomenon. It is no surprise that the M a r c o s adminis trat ion turned to labor export pol ic ies to quel l the economic unrest i n the P h i l i p p i n e s . A study o n labor exporting countries suggests that sending country's rationale for labor export is premised o n three assumed developmental benefits: First, labour emigration is considered to be a rapid and inexpensive way to alleviate unemployment. Second, it is thought that the policy will improve the stock of human capital as workers return with skills acquired through their work experience abroad. Third, it is perceived that the remittances of workers will both help to alleviate the balance of payment problems and promote development through increased investment}2 These points s u m up the sentiments o f the p o l i c y makers o f the M a r c o s adminis trat ion d u r i n g the early 1970s. T h e government has since refined the pol ic ies into a sophisticated administrative m e c h a n i s m for labor export that is being studied for its commendable structure by other sending countr ies such as V i e t n a m and E g y p t . H o w e v e r , its degree o f success is another matter. T h e developmental benefits l isted above m a y h o l d true for the first years o f labor m i g r a t i o n , but it is doubtful whether they are v a l i d for the present situation. A l t h o u g h the u n e m p l o y m e n t rate o f the P h i l i p p i n e s was greatly reduced b y the constant emigrat ion trend it also bred c o m p l a c e n c y 3 2 C.W. Stahl, "Manpower Export and Economic Development: Evidence From the Philippines", International Organization for Migration, vol. xxvi, no. 2, June 1988, at 147. 22 i n government p o l i c y - m a k i n g . T h i s is part icular ly evident i n the pr ivat i za t ion o f the overseas recruitment system w h i c h government encouraged early on. A s w i l l be discussed b e l o w , the act ive part ic ipat ion o f the private sector i n recruitment m e c h a n i s m o f laborers created a m u l t i t u d e o f problems, both for the outgoing workers and the government. A l s o , w h i l e it is generally true that workers b r i n g home newly-acquired s k i l l s f r o m their overseas j o b s , studies have suggested that these ski l ls c o u l d have been learned at home as w e l l . A s a counter-argument, one c o u l d p o i n t out the "bra in d r a i n " effect o f labor migrat ion . S k i l l e d workers a n d m a n y professionals such as health workers succumb to the temptation o f overseas employment, leaving the r u r a l areas i n the P h i l i p p i n e s want ing i n badly needed health soc ia l service personnel and other professional ski l l s . It has also been posited that the labor m i g r a t i o n set-up makes it cost ly for sending countries to send their workers. O n the other hand, it is re lat ively inexpensive for host countries to accept temporary foreign workers because it is the sending countries w h o pay for the workers education and socia l services. F i n a l l y , w h i l e the issue o f remittances w i l l be discussed i n m o r e detai l b e l o w , some aspects can be examined br ief ly at this point . It is suggested that w h i l e remittances had and continue to have a tremendous effect o n the balance o f payment and foreign exchange reserves o f the P h i l i p p i n e s , studies have also s h o w n that the monies sent home are rarely invested i n job-generating activities. T h e y are instead used for direct s p e n d i n g such as purchase or renovat ion o f f a m i l y homes. It is also argued that, "[w]hile the record OCW remittances have kept the economy afloat especially in the midst of an economic crisis, there is danger to an excessive reliance on them".33 3 3 Florian A. Alburo, "Remittances, Trade and the Philippine Economy", Asian and Pacific Migration Journal, vol. 2, no. 3, 1993, at 271. 23 Thus, the long-standing socio-economic conditions that fuelled the debt crisis i n the P h i l i p p i n e s a n d caused a stagnant G D P growth and e c o n o m y throughout the 1980s acted as pressures for migrat ion. T h e h i g h rate o f unemployment and underemployment i n the i n f o r m a l labor sectors was another p u s h factor. A n addit ional reason is the generally h i g h l e v e l o f educat ion and t r a i n i n g o f F i l i p i n o labor i n contrast to its l eve l o f technologica l and industr ia l development. Further , problems o f poverty and landlessness st imulated m i g r a t i o n towards the urban areas where the labor situation is already overcrowded. T h i s urban g r o w t h p r o b l e m a n d labor oversupply also contributed to the labor exportation. C l e a r l y , the deteriorating P h i l i p p i n e economy played a key role i n shaping the migrat ion process i n the past. T h e P h i l i p p i n e government hopes that w i t h the improvement o f the G N P g r o w t h i n the last two years there w i l l be sufficient resources to establish a self-reliant economy and create compet i t ive jobs . B u t it w o u l d be incomplete to propose that the p h e n o m e n o n o f migrant w o r k e r s i n the P h i l i p p i n e s is so le ly due to the country's dearth i n e m p l o y m e n t opportunit ies , a l though labor exportat ion certainly p r o v i d e d a source o f decompressing the v a l v e o f poverty a n d u n e m p l o y m e n t . T h e impetus for emigrat ion is a c o m p l e x web o f interrelated factors: the e c o n o m i c s i tuation o f the P h i l i p p i n e s , facets o f s o c i o l o g i c a l and cultural d y n a m i s m a n d other actors (e.g., government pol ic ies advocating labor export, recruitment m e c h a n i s m s and networks) that fue l led a 'migrat ion mentality ' . 24 3. The Feminization of Labor Exportation F i l i p i n a s n o w compose the majority o f the migrant labor force. It is a part icular ly d isconcert ing real i ty that the government has to come to terms w i t h . Indeed, it is a massive case o f F i l i p i n o daughters, w i v e s and mothers lost to the world 's j o b markets i n the service sectors where the w o m e n w o r k predominant ly as domestic workers and entertainers. These are occupations that are t radi t ional ly m a r g i n a l i z e d , g i v e n l o w respect and inadequate protect ion i n the labor force. O b v i o u s l y , the large number o f exist ing private recruitment agencies makes it easier to lure unsuspect ing w o m e n f r o m far f lung provinces. B u t there is m o r e than mere existence o f recrui tment mechanisms that increases female labor m i g r a t i o n f r o m the P h i l i p p i n e s . T h e overseas occupations available to F i l i p i n o labor determined to a large extent the gender f l o w o f labor m i g r a t i o n . I n the early years, a predominant ly male labor force travel led abroad for construction w o r k to M i d d l e Eastern countries l i k e the K i n g d o m o f S a u d i A r a b i a , Iraq, K u w a i t and the U n i t e d A r a b Emirates. M a l e crew members for ships were also i n h i g h demand. D u r i n g this per iod the two adjunct agencies to the F i l i p i n o labor department that handled overseas labor were the Overseas E m p l o y m e n t D e v e l o p m e n t B o a r d and the N a t i o n a l Seamen B o a r d . D u r i n g the late 1980s and the early 1990s, the M i d d l e East h a d completed most o f its construct ion o f infrastructure; what it n o w needed were workers for the service sector. Hencefor th , m o r e F i l i p i n a s travel led to the M i d d l e East to f i l l posi t ions as domestic workers and nurses. It is est imated that f r o m 1984 to 1996, the Saudi A r a b i a n labor market absorbed over 2.5 m i l l i o n F i l i p i n o contract workers. H o w e v e r , at about the same t ime, w i t h i n A s i a , a distinct occupat ional pattern o f F i l i p i n o migrant workers emerged. The demand for F i l i p i n a domest ic workers i n this 25 r e g i o n rose p h e n o m e n a l l y m a r k i n g a shift f r o m the M i d d l e Eastern countries to the n e w l y i n d u s t r i a l i z e d A s i a n economies. W h i l e Saudi A r a b i a remains the top destination for F i l i p i n o w o r k e r s , H o n g K o n g , Japan, T a i w a n and Singapore are fast catching up. I n part icular, H o n g K o n g and Singapore are major host countries o f F i l i p i n a domestic workers. Cons ider ing the size o f the two countries, the total number o f F i l i p i n o workers that arr ived w i t h i n a p e r i o d o f twelve years is astounding: H o n g K o n g w i t h 525,000 and Singapore w i t h 131,000 workers . T h i s demand for F i l i p i n a domestic workers has developed as a result o f a large number o f H o n g K o n g and Singaporean w o m e n entering the labor force, thereby creating the need for h i r e d domest ic w o r k to p r o v i d e f a m i l y and home care. A closer l o o k at the pattern o f labor m o b i l i t y w i t h i n the Phi l ippines suggests that labor migrat ion f r o m the P h i l i p p i n e s is not the o n l y act ivi ty . A n o t h e r m i g r a t i o n act iv i ty , the rural-urban migrat ion, occurs f r o m rural and l i k e l y less developed areas o f the Phi l ippines to the urban, more developed places. O n e writer puts it succinct ly: The overall pattern is suggestive of a dualistic labor migration phenomenon, where domestic migration involves shifts ofpopulation from poorer to the richer regions, but not abroad, and a separate one from the richer regions to overseas destinations.3* A study has yet to be conducted that analyzes F i l i p i n a s w o r k i n g overseas as domest ic w o r k e r s w h o leave their homes and c h i l d r e n to the care o f other w o m e n f r o m the poorer regions o f the 3 4 Ashawani Saith, "Emigration Pressures and Structural Change in the Philippines", Manila: ILO/SEAPAT, draft, 1996, at 30, quoted in Dr. Rashid Amjad, "Philippines and Indonesia: On the Way to a Migration Transition", Asian and Pacific Migration Journal, vol. 5, nos. 2-3, 1996, at 353. 26 Phi l ippines . The Phi l ippines is thus a g o o d example o f the theory o f dual m i g r a t i o n m o v e m e n t at work . T h e class-based structure o f e m p l o y i n g domestic help dates back to c o l o n i a l t imes and st i l l exists i n a typ ica l urban F i l i p i n o f a m i l y w h i c h e m p l o y s a domest ic w o r k e r so that the w i f e h e r s e l f m a y consider w o r k i n g as one overseas. B u t this is not an analogous pattern to the emerging household structure i n developed countries where i n l i e u o f daycare faci l i t ies, m i d d l e -class famil ies enjoy the privi lege o f e m p l o y i n g a nanny. 3 5 W h a t occurs i n the P h i l i p p i n e set-up is h u m a n labor that handles tasks already being taken care o f b y machines and superior technology i n developed countries. T h e abi l i ty to hire a m a i d gives b o t h spouses the a b i l i t y to w o r k w h i c h often means overseas work, inc luding w o r k as a foreign domestic worker . Ironical ly then, w h i l e m o r e w o m e n f r o m host countries such as C a n a d a are entering the labor market, thereby emancipating themselves and f e m i n i z i n g the w o r k force, they are being replaced i n their t radi t ional household functions by F i l i p i n a domestic workers , w h o i n turn, are b e i n g de-f e m i n i z e d b y the bonded labor they perform. D e - f e m i n i z a t i o n , therefore, does not occur for the first t ime i n the host countries. The same phenomenon happens w i t h i n the sending countries such as the P h i l i p p i n e s . T h u s , the d u a l m i g r a t i o n pattern i n the P h i l i p p i n e s i n general and i n the urban cit ies such as M e t r o M a n i l a i n particular, provide favorable conditions for w o m e n to seek employment abroad. W o m e n w h o have migrated f r o m the poorer regions f i n d e m p l o y m e n t i n urban households because their employer migrates or intends to do so. In short, the other w a y o f l o o k i n g at the dual 3 5 The terms "domestic worker" and "nanny" are here used interchangeably. The latter is the preferred term in Canada. 27 migrat ion movement is a "graduated" labor movement , i n w h i c h w o m e n i n i t i a l l y migrate from the r u r a l areas to the urban cities, and after succeeding there, f i n a l l y migrate away f r o m the P h i l i p p i n e s for better compensated w o r k abroad. A s previous ly discussed one stimulus for labor migrat ion are the large wage differences between the P h i l i p p i n e s and overseas. There are also v i s i b l e e c o n o m i c benefits i n every f a m i l y that is related to a F i l i p i n a migrant worker that tantalize the underpaid w o m e n back home: the neighbor w h o s e sister or daughter has left to w o r k as a domestic w o r k e r p r o u d l y d i s p l a y i n g her latest Japanese electronic gadgets and p r o u d l y announcing her younger son's entry into univers i ty thanks to the remittances, or the c o u s i n w h o comes h o m e from w o r k as a H o n g K o n g nanny donning signature clothes. Sometimes this juxtaposi t ion leads to paradoxica l situations, l i k e the sight o f a satellite d ish i n the midst o f a squatter area where telephone lines are a l u x u r y and even tap water is a life-threatening scarcity. M o s t importantly, there seems to exist a cu l tura l attitude a m o n g w o r k i n g class F i l i p i n a s that romantic izes the n o t i o n o f t ravel ing abroad. T h i s is not surprising i f one considers the economic realities facing these w o m e n ; the best chance for t h e m to see the w o r l d is v i a the migrant labor route. It is already an enormous investment for rural w o m e n to migrate to the urban areas. Hence, i n a m o r b i d sense, some o f these w o m e n desire to make the voyage so they can w o r k abroad and experience travel at the same t ime. It turns t h e m into instant globetrotters and into f inancia l assets for the f a m i l y left back home. C. Overview of Bureaucratic Regulations and Protective Mechanisms 1. Legislation T h e P h i l i p p i n e government f o l l o w s the p r i n c i p l e o f separation o f powers and o f three co-equal branches o f government: the legislative, the executive and the j u d i c i a l branch. T h e p r i m a r y l a w o f the land, the 1987 P h i l i p p i n e Const i tut ion was overwhelmingly ratified i n 1987 i n a plebiscite c a l l e d for that purpose. T h e 1987 Const i tut ion and Presidentia l Decree N o . 4 4 2 w h i c h was decreed by President M a r c o s during the M a r t i a l L a w p e r i o d and w h i c h became the L a b o r C o d e p r o v i d e for the legis lat ive basis o f P h i l i p p i n e labor laws and pol ic ies . i. Constitutional Provisions T h e ratif ication o f the 1987 Const i tut ion established for the first t ime consti tut ional p r o v i s i o n s o f a preferential treatment o f the labor sector. A r t i c l e II o f the 1987 C o n s t i t u t i o n enunciates the Declarat ion o f Pr inciples and State Pol ic ies . It provides, among others, that, "[t]he State affirms labor as a primary social economic force ... it shall protect the rights of workers and promote their welfare"36, thus categorical ly protecting the rights o f laborers. Inherent i n the same provis ions o f the 1987 Consti tut ion is the protection o f the basic h u m a n rights o f every F i l i p i n o . T h e 1987 C o n s t i t u t i o n further provides that, 1987 Philippine Constitution. Article II, section 18: Declaration of Principles and Statement Policies -State Policies. 29 [t]he State values the dignity of every human person and guarantees full respect for human rights?1 The State shall afford full protection to labor, local and overseas, organized and unorganized, andpromote full employment and equality of employment opportunities for all.3* ( E m p h a s i s supplied) T h e p r o v i s i o n s s h o w that the P h i l i p p i n e government has recognized the importance o f setting up protective mechanisms for its migrant workers . It also shows the l e v e l o f p o l i t i c a l attention that the issue o n labor export attracts. These constitutional provisions were also meant to respond to the entrenched O C W phenomenon. H o w e v e r , the rat i f icat ion o f the 1987 C o n s t i t u t i o n presented an ambitious task for the P h i l i p p i n e legislature. The 1987 Const i tut ion was drafted b y a Const i tut iona l C o m m i s s i o n c o m p o s e d o f members appointed by then President A q u i n o ' s " f reedom government" , the revolut ionary government that replaced the dictatoria l regime o f deposed and e x i l e d President M a r c o s . T h e A q u i n o government was revolut ionary i n the sense that it came into existence i n defiance o f exist ing legal processes and i n o p p o s i t i o n to the authori tar ian values and practices o f the overthrown M a r c o s government. M u c h o f the 1987 Constitution's ambitious tone can be traced back to the posit ive d ispos i t ion that p r e v a i l e d i n the P h i l i p p i n e s i n 1986 and 1987, just after the histor ic "People P o w e r " revo lut ion . Its verbosi ty arose f r o m the Const i tut ional C o m m i s s i o n ' s anxiety that o m i s s i o n o f some p r o v i s i o n s m a y enable a president to re-impose mart ia l l a w and repeat what M a r c o s h a d done i n September o f 1972. There was also a concern to ensure that ratification o f subsequent constitutions w o u l d truly reside w i t h the P h i l i p p i n e people, i n reaction to the unceremonious and unilateral "rat i f icat ion" 3 7 Ibid, Article II, section 11: Declaration of Principles and Statement Policies - State Policies. Ibid, Article XIII, section 3: Social Justice and Human Rights - Labor. 30 o f the 1973 P h i l i p p i n e Const i tut ion b y then President M a r c o s 3 9 . T h u s , the 1987 C o n s t i t u t i o n is a w a s h w i t h ambit ious declarations that amount to very l itt le u n t i l i m p l e m e n t a t i o n has been fleshed out, or unt i l enabling l a w has been put i n place. O n the other hand, the 1987 Const i tut ion is a reflection o f p u b l i c determination back i n 1986 to start anew and put b e h i n d the m e m o r i e s o f the M a r c o s dictatorship that plunged the country into its darkest history. Thus, the lengthiness a n d aspirat ional character o f the 1987 Const i tut ion is a necessary derivat ive o f the p o l i t i c a l m i l i e u the P h i l i p p i n e s reflected after the "People P o w e r " revolut ion. ii. Labor Laws \ I n the 1970s, d u r i n g the fourth wave o f m i g r a t i o n , the P h i l i p p i n e government was fac ing a deteriorat ing e c o n o m y w h i l e rea l i z ing the opportunities o f better e m p l o y m e n t abroad. Government saw the urgent need to protect the F i l i p i n o workers w h o were q u i c k l y s e i z i n g the chance and leaving the country. A m i d d l e ground between endorsing labor exportat ion and the protection and welfare o f its workers was envisioned w h e n the L a b o r C o d e was writ ten i n 1974. A r t i c l e 3 o f the L a b o r C o d e declares the state's basic labor p o l i c y : The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of the workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. President Marcos initially submitted the 1973 Philippine Constitution to the Filipino people for ratification or rejection. Marcos later suspended the plebiscite. Meanwhile, he convened the Citizens Assemblies which was asked, among others, the question, "do you approve of the New Constitution?". Marcos then announced that the Citizens Assemblies ratified the 1973 Constitution and the Supreme Court declared the ratification legally valid. 31 The L a b o r C o d e is an innovative yet h igh ly convoluted source for the country's labor laws. F r o m it f l o w m y r i a d s o f i m p l e m e n t i n g rules and regulations, c irculars and m e m o r a n d a w h i c h are p e r i o d i c a l l y amended to reflect the p r e v a i l i n g labor condit ions. a. The Philippine Overseas Employment Administration (the POEA) Part o f the L a b o r C o d e deals w i t h pre-employment. In i t ia l ly , three government bodies were created to exc lus ive ly administer the migrant labor force: The B u r e a u o f E m p l o y m e n t Services, the Overseas E m p l o y m e n t D e v e l o p m e n t B o a r d and the N a t i o n a l Seamen B o a r d . T h e creat ion o f the three bodies v i r t u a l l y e l iminated part ic ipat ion o f the private-sector i n overseas w o r k recruitment. H o w e v e r , their existence proved to be o f short duration. A s the demand for F i l i p i n o labor steadily increased the regulatory capacities o f these bodies were soon exhausted. F i r s t , the participation o f the private sector was renewed i n 1978. T h i s trend o f pr ivat izat ion o f recruitment act iv i t ies persisted, and the 1989 P O E A A n n u a l Report noted that the private sector was responsible for the placement o f 96 per cent o f migrant workers . Second, i n 1982 the three boards were replaced b y the P O E A . 4 0 T h e P O E A became an adjunct office o f the Department o f L a b o r and E m p l o y m e n t ( D O L E ) and n o w oversees the entire system o f P h i l i p p i n e labor export. T h e P O E A is mandated to instal l a systematic program for promoting and m o n i t o r i n g the overseas e m p l o y m e n t o f F i l i p i n o workers , tak ing into considerat ion domest ic labor force requirements , and to protect the rights o f workers to fair and equitable e m p l o y m e n t practices. I n short, the P O E A became the government agency responsible for the regulat ion and 4 0 Created by Philippine Presidential Decree No. 797 in 1982 and reorganized through Philippine Executive Order No. 247 in 1987. 32 supervis ion o f a l l recruitment activities and the h i r i n g and deployment o f workers sent abroad. T h i s m e c h a n i s m w o r k e d o n the assumption that any recruitment o f F i l i p i n o laborers w o u l d have to pass through the P O E A process. H o w e v e r , welfare and protect ion o f the F i l i p i n o overseas workers was in i t ia l ly not o n the P O E A ' s agenda because the government d i d not see the need for it. A t the t i m e o f its creation the P O E A d i d not anticipate the magnitude o f F i l i p i n o migrant workers w h o were to travel abroad i n search for (better) e m p l o y m e n t and higher remunerat ion. S l o w l y , cases o f abuse, fraudulent h i r i n g practices by both F i l i p i n o recruiters and the fore ign employers and other recruitment and labor v io lat ions began to surface. I n 1987, President A q u i n o restructured the P O E A , c i t i n g two m a i n reasons: It has become necessary to institute changes in the functional structure of the [ P O E A ] in order to enhance its effectiveness in responding to changing market and economic conditions and to all of the national development plan for the strengthening of the worker protection and regulation components of the overseas employment program; and the [ P O E A ] has to systematize its operations by rationalizing its functions, structure and organization to make it more efficient in undertaking its principal functions of protecting [the workers'] rights to fair and equitable employment practices, and in order that it may respond more effectively to the new demands for... more efficient adjudication of cases and more efficient manpower delivery system}1 T h u s , President A q u i n o real ized the urgent need to inc lude protective mechanisms for the P h i l i p p i n e s ' migrant workers . U n d e r the n e w l a w , the P O E A n o w manages the w h o l e labor 4 1 Philippine Executive Order No. 247 [1987], second and third whereas clause, respectively. 33 exportation process - from recruitment and pre-departure o f the workers u n t i l their repatriation from the host countries and product ive reintegration into P h i l i p p i n e society. Consequent ly , the P O E A is n o w also responsible for overseeing the welfare o f the migrant w o r k e r s . 4 2 A s i d e from def ining the power and functions o f the P O E A and the D O L E , the L a b o r C o d e also spells out p r o v i s i o n s o n overseas e m p l o y m e n t 4 3 , speci f ica l ly o n the matters o f recruitment and overseas p lacement 4 4 . F o r example, o n l y private agencies and private recruitment entities d u l y l icensed by the P O E A are a l lowed to engage i n recruitment and overseas p lacement . 4 5 Stringent rules are set up w i t h regard to recruitment and placement o f workers: Direct h i r i n g is p r o h i b i t e d 4 6 (with exceptions to employers such as d i p l o m a t i c corps and international organizat ions) , w h i l e name h i r e s 4 7 are a l lowed. T h e reason for the prohibi t ion o n direct h i r i n g is that a F i l i p i n o worker hired direct ly by a foreign employer, without government intervention, is not assured o f the best terms and condit ions o f employment . In theory, the P h i l i p p i n e government, through its embassies and consulates abroad, has up-to-date and accurate i n f o r m a t i o n o n condi t ions prevai l ing i n foreign countries. W i t h o u t government intervention, the fore ign e m p l o y e r m a y be enter ing into a contract w i t h a F i l i p i n o w o r k e r w h o does not rea l ly possess the s k i l l s or Ibid, sec. 3(c): "Protect the rights of Filipino workers for overseas employment to fair and equitable recruitment and employment practices and ensure their welfare;..." 4 3 Article 13, cl.(h) of the Philippine Labor Code does not give a satisfactory definition of'overseas employment': "Overseas employment means employment of a worker outside the Philippines." 4 4 Supra, note 20, art. 12. 4 5 Ibid, Arts. 13(c), (d), (e), (f). 4 6 Ibid, Art. 18: 'Wo employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor." 4 7 Rules and Regulations Governing Overseas Employment, 1991, Book I, Rule 2, z. "Name hire - a worker who is able to secure employment overseas on his own without the assistance or participation of any agency." 34 qualif ications he or she c laims to have. Thus, as far as the P h i l i p p i n e government is concerned, migrant workers w h o are directly h ired acquire undocumented status because they d i d not pass through the P O E A i n the f o r m o f name hires, consequently lack ing the proper records concerning their overseas employment . W o r k e r s whose w o r k and travel documentat ion are processed through the legal government channels - be it through accredited private recruitment agencies or through the P O E A direct ly - acquire documented status. Indeed, the P O E A ' s present duties and functions are extensive and powerful . H o w e v e r , based o n the w o r d i n g o f the l a w the P O E A considers the promot ion o f overseas employment its pr imary mandate, w h i l e the protect ion and welfare o f F i l i p i n o workers is perceived as a subordinate mandate . 4 8 b. Welfare Funds and Remittance Schemes T h e remittance scheme is a system where the F i l i p i n o O C W s remit their salary or a p o r t i o n thereof to their beneficiaries i n the P h i l i p p i n e s and converted to P h i l i p p i n e pesos b y the P h i l i p p i n e banking system. D u r i n g President M a r c o s ' term, the W e l f a r e and T r a i n i n g F u n d for Overseas W o r k e r s o f 1977 was f o r m a l i z e d into the Wel fare F u n d for Overseas W o r k e r s 4 9 (the W e l f a r e F u n d ) o f 1980. T h e Wel fare F u n d was created, The Statement of Policy of the POEA Rules and Regulations provides that the primary POEA policy is to "[p]romote and develop overseas employment opportunities" and secondarily to "[ a]ffbrdprotection to Filipino workers and their families, promote their interest and safeguard their welfare..." 4 9 Philippine Presidential Decree No. 1694 [1980], later amended by Philippine Presidential Decree No. 1809, on January 16, 1981. 35 ...for the purpose of providing social and welfare services to Filipino overseas workers, including insurance coverage, legal assistance, placement assistance, and remittance services.50 [Emphasis added] A t that t ime government realized h o w extensive the labor migrat ion movement had become and h o w m u c h invaluable foreign exchange sent home by the migrant workers c o u l d be tapped b y the government f inancial institutions. The Welfare F u n d attempted to persuade migrant workers to use of f ic ia l government f inancial channels to send home their earnings i n exchange for welfare a n d protect ion coverage. T h e government c o u l d then col lect foreign currencies to bolster its fore ign exchange reserves. It seems that the Welfare F u n d program was unsuccessful because i n 1982, P h i l i p p i n e E x e c u t i v e O r d e r N o . 857 ( E O 857), or the F o r e x Remittance o f Overseas Contract W o r k e r s , was promulgated, establishing a mandatory remittance scheme and u s i n g more forceful p r o v i s i o n s : SEC. 1. It shall be mandatory for every Filipino contract worker abroad to remit regularly a portion of his foreign exchange earnings to his beneficiary in the Philippines through the Philippine banking system. Licensed agencies and other entities authorized by the Minister of Labor and Employment to recruit Filipino workers for overseas employment are similarly required to remit their workers' earnings... T h e L a b o r Secretary was empowered to disapprove renewal o f an e m p l o y m e n t contract and agency or service agreement unt i l p r o o f o f remittance was submit ted . 5 1 Contract workers f o u n d v io la t ing the mandatory remittance scheme were suspended or excluded f r o m the l ist o f e l ig ib le ™ Ibid, sec. 1. 5 1 Philippine Executive Order No. 857 [1982], sec. 4. 36 w o r k e r s for overseas e m p l o y m e n t , 5 2 w h i l e P h i l i p p i n e or foreign employers i g n o r i n g the remittance scheme, for example, b y not establ ishing a p a y r o l l deductions s c h e m e 5 3 , were e x c l u d e d f r o m the overseas employment p r o g r a m . 5 4 T h e i m p l e m e n t i n g rules even p r o v i d e d p u n i t i v e measures such as non-issuance or non-renewal o f passports o f the workers , and n o n -issuance o f accreditation to employers . 5 5 In short, E O 857 attempted to rectify the ineffectiveness o f earlier laws to ensure the remittance o f overseas earnings through o f f i c i a l f inanc ia l inst i tut ions. A g a i n , the puni t ive approach seemed ineffective. I n 1985, President M a r c o s promulgated P h i l i p p i n e Execut ive Order N o . 1021 5 6 , this t ime offering a system o f i n c e n t i v e s 5 7 and expressly repeal ing the puni t ive prov is ions o f earlier laws. c. The Overseas Workers' Welfare Administration (the OWWA) D u r i n g President A q u i n o ' s term i n 1986 to 1992, the Wel fare F u n d was once m o r e reorganized i n 1987 through P h i l i p p i n e E x e c u t i v e Order N o . 126 ( E O 126), establ ishing the Overseas Workers ' Wel fare A d m i n i s t r a t i o n ( O W W A ) . E O 126 reiterated the objectives o f past legislation: to establ ish a remittance scheme to ensure the welfare o f the workers ' beneficiaries i n the P h i l i p p i n e s and to reduce the foreign debt burden. A fund board was created to encourage migrant workers to participate i n off ic ial remittance schemes. I n 1991, the Overseas Investment 5 2 Ibid, sec. 9. 5 3 Ibid, sec.6. 5AIbid. 5 5 Rules and Regulations Implementing Executive Order No. 857, sec. 1. 5 6 The Order was aptly titled "On encouraging remittances of contract workers earnings through official channels". 5 7 The second whereas clause of Philippine Executive Order No. 1021 reads: "WHEREAS, government recognizes this contribution of overseas contract workers and should therefore reward them though a package of incentives;..." 37 F u n d A c t was enacted, the only legislation o n migrant workers passed i n Congress between 1987 to 1991. It a i m e d to weave the l i n k s between workers ' remittances and the reduct ion o f the country's fore ign debt. Sect ion 4 created the Overseas W o r k e r s ' Investment F u n d B o a r d : There is hereby created the Overseas Workers' Investment Fund Board, which is hereby vested with corporate powers ...to encourage greater remittance of earnings of Filipino workers overseas and to safeguard and oversee the participation of said workers' remittances and savings in the Government's debt-reduction efforts and other productive undertakings. A c c o r d i n g l y , the pr imary focus o f the Overseas Investment F u n d A c t was o n the government's o b l i g a t i o n s o n debt serv ic ing . T h e workers ' welfare was mere ly a subsidiary concern. Government 's real interest was to f i n d access to the remittances that pass through the i n f o r m a l channels and to accredit m o n e y couriers and i n f o r m a l del ivery services as o f f i c i a l fore ign exchange remittance venues. Once more, incentives were offered to attract c o m p l i a n c e w i t h the scheme. U l t i m a t e l y , the Overseas Investment F u n d A c t and E O 126 further strengthened the l e g a l basis for the government to establish a remittance scheme for the migrant w o r k e r s , thus e n a b l i n g it to operate both o n incentives for the workers and o n the reduct ion o f the country's fore ign debt burden. In sum, w h i l e the P O E A is the umbrel la arm for government administrat ion o f the labor export, it is the O W W A that provides a l i n k between government mechanisms o n welfare and protection a n d the w o r k e r s i n the host countries. W o r k e r s must m a k e a contr ibut ion to the O W W A f u n d before they leave the P h i l i p p i n e s . T h e y become members o f O W W A and are afforded its .38 protective mechanisms. T h e contributions are then used b y O W W A to finance its var ious programs and to enable O W W A Welfare Officers to perform their tasks and duties i n the country they are assigned to. T h e above i l lustrations are but a part o f the spectrum o f labor laws and regulations passed for the protection o f F i l i p i n o migrant workers. B u t they convey the P h i l i p p i n e overseas employment program as it proceeds f r o m the government's basic assumption that it has the inherent duty o f protecting its c i t izens, wherever they m a y be. N o matter the locat ion o f F i l i p i n o w o r k e r s , they enjoy the protective mantle o f P h i l i p p i n e labor and social legislation, any contract s t ipulat ion to the contrary notwithstanding. Several P h i l i p p i n e Supreme C o u r t ru l ings have c lear ly indicated that protection o f migrant workers extends to a l l , documented and non-documented. 5 8 M o r e o v e r , the P O E A is n o w c lear ly mandated to lend its assistance to F i l i p i n o migrant workers not o n l y at the i n i t i a l stages o f recruitment and placement but at the later stage o f deployment as w e l l . E v i d e n t l y , this extraterritorial duty is a m o n u m e n t a l task for the P h i l i p p i n e government and it was expected that compl icat ions w o u l d arise. F o r one, the government's v a c i l l a t i o n between a p u n i t i v e and an incent ive remittance scheme, w i t h the latter p r e v a i l i n g i n the end, shows h o w transitory any laws, rules and regulations are w h e n confronted w i t h the resolute P h i l i p p i n e O C W 5 8 For example, the Philippine Supreme Court case of Roval Crown Internationale v. National Labor Relations Commission. 178 SCRA 569 (1989) states this position. Another case, Capricorn International Travel and Tours. Inc. v. Court of Appeals et al. G.R. No. 91096, April 3,1990, expounds on the joint and solidary liability of a private employment agency and its principal. The peculiar nature of overseas employment makes it very difficult for the Filipino overseas worker to effectively go after the foreign employer for employment-related claims. Thus, public policy dictates that, to afford overseas workers protection from unscrupulous employers, the recruitment or placement agency in the Philippines be made to share in the employer's responsibility. 39 phenomenon. On the level of international labor standards it can even be argued that the mandatory remittance scheme demands unjustified extraterritorial application of Philippine municipal laws and violates the freedom of workers to dispose of their wages. The International Labor Convention N o . 95 on the Protection of Wages contains such protective provisions. Numerous amendments and legislative changes in over 20 years of labor legislation on migrant workers have each pledged a more effective administrative mechanism and a more rigorous legal framework. One consistent result of the legislative changes was to create legal uncertainty among the entities affected by the laws. Potential employers, recruitment bodies and the migrant workers constantly needed to keep abreast with the latest changes in the laws. A t the same time, legal loopholes began to surface, tempting and leading employers, workers and recruiters to circumvent government bureaucracy. What this legislative evolvement cannot mask is the reality that the Philippine government did not anticipate the enormous dimensions Fi l ipino labor migration has now assumed. The government's initial outlook was myopic and the early legislation reflected such attitude. Its naive and failed attempts at exercising total control over the labor export shows its insufficiency in preparation and foresight. These inadequate preparations merely produced a lack of trust on the part of the workers in the government machinery. With brittle building blocks as its base, the administrative structure of the Philippine labor export program was thus always at a risk of collapsing. Ironically, the casualties are the Fi l ip ino migrant workers who are the primary movers in the profit-making system of labor migration. 40 iii. The Migrant Workers and Overseas Filipinos Act of 1995 F r o m 1974 to 1995 o n l y the Overseas Investment F u n d A c t , was enacted that deals e x c l u s i v e l y w i t h the issue o f F i l i p i n o labor migrat ion . H o w e v e r the Overseas Investment F u n d A c t c a n be c r i t i c i z e d for mere ly be ing a legis lat ive mouthpiece o f government's relentless dr ive to secure as m u c h fore ign exchange earnings f r o m the wages o f migrant workers . It t o o k several unsuccessful attempts at banning overseas deployment o f F i l i p i n o workers, the m u c h p u b l i c i z e d cases o f three female migrant w o r k e r s 5 9 , and a near col lapse o f d i p l o m a t i c ties w i t h Singapore for the P h i l i p p i n e Congress to enact leg is lat ion o n F i l i p i n o migrant workers . O n June 7, 1995, the Congress approved the M i g r a n t Workers A c t . It provides for the m i n i m u m condit ions under w h i c h the deployment o f F i l i p i n o workers overseas is permitted. There are t w o pioneer p r o v i s i o n s i n the M i g r a n t W o r k e r s A c t . F i rs t , it extends the appl icat ion o f the p r o v i s i o n s to documented as w e l l as undocumented workers, thus f o l l o w i n g legal precedents handed d o w n by the P h i l i p p i n e Supreme Court . Second, the M i g r a n t W o r k e r s A c t makes i l l e g a l recruitment a cr ime punishable w i t h l i fe imprisonment. T w o basic conditions must concur to a l l o w deployment o f workers - the s k i l l and fitness o f the workers and hospitable country destinations. Further, the The three cases are the conviction of Sarah Balabagan in 1995, then a sixteen-year old domestic worker in the United Arab Emirates, the execution of Flor Contemplacion, a domestic worker in Singapore in 1995, and the death in Japan of a twenty-year old entertainer, Maricris Sioson, whose body was flown back to the Philippines in 1991. Japanese authorities announced that her death was due to hepatitis, but the Philippine National Bureau of Investigation, after conducting its own autopsy, concluded that she had been tortured. This was the first case that elicited wide publicity and prodded some government action: DOLE Circular 01, November 20, 1991, recommended, among others, that only legitimate performers be allowed to leave the country and that they should be at least 23 years old. 41 term "undocumented w o r k e r " 6 0 , previously defined only i n international l a w 6 1 , is n o w mentioned i n the O m n i b u s R u l e s a n d Regulat ions o f the M i g r a n t W o r k e r s A c t 6 2 . T h e M i g r a n t W o r k e r s A c t ' s declaration o f pol ic ies are unclear: Sect ion 2(c) states that the P h i l i p p i n e s does not promote overseas employment as a means to sustain e c o n o m i c g r o w t h and n a t i o n a l development, and recognizes the particular vulnerabi l i ty o f w o m e n migrant workers . H o w e v e r , section 2(1) states that government encourages the deployment o f F i l i p i n o workers b y local service contractors and m a n n i n g agencies and appropriate incentives m a y be extended to them. T h u s , the P h i l i p p i n e government accepts the reality that labor m i g r a t i o n w i l l continue, despite an express contrary declaration o f po l icy . T h e M i g r a n t Workers A c t further declares that o n l y s k i l l e d F i l i p i n o workers are to be deployed and o n l y to countries where the ex is t ing labor l a w s g ive protect ion to the rights o f migrant workers , where the countries are signatories to multi lateral conventions o n the protection o f migrant workers, and where they have entered into b i la tera l arrangements w i t h the P h i l i p p i n e s o n such matters. 6 3 Part II defines and sets out the penalties for i l legal recruitment o f F i l i p i n o workers. Part III outlines the government services to assist migrant workers . Non-documentation is further discussed as one of the peculiar migrant labor problems, at page 53. 6 1 See the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, [1990], Art.5. 6 2 See Part II, section 2, Philippine Republic Act No. 8042 [1995]. 6 3 Ibid, sections 2(c) and 4. 42 It is s t i l l too early to judge the efficiency o f the M i g r a n t Workers A c t T h e P h i l i p p i n e Legislature c a n be c o m m e n d e d for enacting such legis lat ion. O n the other hand, past and present labor condi t ions o f F i l i p i n o migrant workers have l o n g ca l led for such protective mechanisms. It is argued that the M i g r a n t Workers A c t must be f o l l o w e d by p o l i t i c a l determinat ion to i m p l e m e n t some o f the favorable provisions. V i e w e d i n its entirety the M i g r a n t W o r k e r s A c t is a g o o d piece o f l eg is la t ion but as w i t h any legis lat ion, its effectiveness w i l l be j u d g e d , a c c o r d i n g to its implement ing success i n the years ahead, particularly o n the provis ions o f welfare and protection o f the migrant workers . 2. Protective Mechanisms T h e protective mechanisms provided by the P h i l i p p i n e government are m a i n l y administered b y the D O L E through the agencies o f the P O E A and the O W W A , and m o r e recently, b y labor and d i p l o m a t i c of f ic ia ls through the P h i l i p p i n e Department o f F o r e i g n A f f a i r s (the D F A ) . T h e P h i l i p p i n e government real ized too late that checks and balances were needed once it a l l o w e d the private sector to participate i n the recruitment mechanisms o f migrant workers. T h i s became the real reason b e h i n d the creation o f the P O E A . T h e P O E A has since created an elaborate l i c e n s i n g system for recruitment agencies to be qual i f ied to process w o r k e r s for overseas e m p l o y m e n t . It has also established a number o f institutions geared towards the protect ion and welfare o f F i l i p i n o migrant workers . T w o o f the more s ignif icant programs are the M e d i c a r e and Insurance P o l i c y programs where m e d i c a l assistance, hospi ta l i za t ion benefits 43 and l i fe insurance coverage are offered to the workers as w e l l as their immediate f a m i l y and dependents. L i k e w i s e , O W W A welfare programs seek to provide services over and above those benefits st ipulated i n e m p l o y m e n t contracts o f F i l i p i n o migrant workers . T h e programs c a n be d i v i d e d i n f ive major categories: economic welfare, security and protection, socio-cultural development, sk i l l s and career development, and general assistance. These programs are i m p l e m e n t e d i n t w o ways: either i n terms o f on-site assistance for distressed migrant workers w h o are i n need o f legal and welfare protection, or i n terms o f re-integration programs for returning migrant w o r k e r s so that their s k i l l s m a y be appl ied to e c o n o m i c a l l y benef ic ia l use. T w o o f the m o r e important O W W A programs are the repatriation b o n d program, w h i c h offers assistance to F i l i p i n o workers i n w a r - t o r n areas and other emergency situations, and the entrepreneurship development program, w h i c h provides opportunities for returning migrant workers to put up s m a l l to m e d i u m -size business enterprises. T h e O W W A funds w h i c h are maintained through contr ibutions f r o m the e m p l o y e r s and the workers are often used for the repatriation o f distressed workers . T h i s became part icular ly relevant dur ing the G u l f C r i s i s that led to the Desert S t o r m operations i n 1990. M a n y F i l i p i n o migrant workers were trapped i n areas directly affected b y the G u l f C r i s i s : K u w a i t , Iran, Iraq and Saudi A r a b i a . The P h i l i p p i n e government learned its lesson f r o m the G u l f C r i s i s and rea l ized h o w important it is to provide its migrant workers w i t h safe houses. T h e O W W A has since then established regional offices i n the Phi l ippines to become more accessible i n the rural areas and opened welfare centers i n countries w i t h a h i g h concentrat ion o f F i l i p i n o 44 w o r k e r s . 6 4 T h e welfare centers are administered by O W W A welfare officers w h o offer var ious k inds o f assistance to the workers ; a m o n g others, cr is is management, counse l ing , c o n c i l i a t i o n , temporary shelter and repatriation. T h e O W W A has recently created speci f ic projects i n the P h i l i p p i n e s that are sensitive to the w o m e n migrant workers . T h e y inc lude a peer counse l ing project, a non-governmental organization ( N G O ) women's desk and the strengthening o f the p o o l o f female overseas labor of f icers . 6 5 I n 1986, T h e Secretary o f F o r e i g n A f f a i r s issued a number o f F o r e i g n Service C i r c u l a r s w h i c h directed foreign service personnel to take measures concerning F i l i p i n o workers overseas w h o encounter var ious problems i n the host country. T h e circulars also i n c l u d e d duties to v i s i t the w o r k e r s i n their w o r k sites and to ensure that the female migrant workers are protected f r o m e x p l o i t a t i o n . T h e D F A , together w i t h the P h i l i p p i n e Centra l B a n k , is p r i m a r i l y charged w i t h m o n i t o r i n g and regulating the f l o w o f remittances and taxes f r o m F i l i p i n o migrant workers . O r i g i n a l l y , the D F A ' s functions were purely p o l i t i c a l and catered to tradit ional d i p l o m a t i c and consular programs. T h e n e w agenda that focuses o n national e c o n o m i c objectives created a number o f problems i n the D F A that unt i l n o w , remain apparent. F o r example, w h i l e the P O E A has o r i g i n a l and exc lus ive j u r i s d i c t i o n over cases i n v o l v i n g F i l i p i n o migrant workers , it is the D F A that is tasked w i t h the administration o f the cases i n the host countries. H o w e v e r , the D F A As of 1991, there were welfare centers in the following cities: Singapore, Tokyo, Hong Kong, Riyadh, Jeddah, Kuwait, Oman, Bahrain, Tripoli, Dubai, Abu Dhabi, Madrid, Rome, Milan and Athens. 6 5 Vivian F. Tornea, "The Government Welfare Program For Women Overseas Contract Workers", OCWs in Crisis: Protecting Filipino Migrant Workers, Ateneo Human Rights Center, Makati, Philippines, 1995, at 27. 45 personnel overseas can rarely afford to employ a legal staff or hire a local lawyer to handle legal matters. In l ine w i t h the L a b o r Code , the D O L E has created the L a b o r Attache program. P h i l i p p i n e labor attaches have been deployed since 1977, apart f r o m the O W W A W e l f a r e Off icers w h o are usual ly d e p l o y e d o n l y i n host countries where vulnerabi l i ty o f the F i l i p i n o migrant workers is a particular concern. T h e functions o f the L a b o r attaches i n the assigned j u r i s d i c t i o n is to assist w i t h deployment, market development, moni tor ing o f workers and the remittances, enforcement o f the government mechanisms and pol ic ies , legal and welfare assistance, and the c o l l e c t i o n o f taxes. 6 6 I n 1977, the P h i l i p p i n e government assigned 14 labor attaches around the w o r l d ; i n 1995 there were a total o f 150 P h i l i p p i n e labor attaches. 6 7 Y e t despite the increased numbers , F i l i p i n o m i g r a n t workers often choose not to seek redress w i t h the P h i l i p p i n e consulates or embassies because they believe that the pol i t ica l and diplomatic stature o f the P h i l i p p i n e government i n the host countries is m i n i m a l . T h e workers ' fear is that assistance f r o m the P h i l i p p i n e government w i l l o n l y lead to terminat ion o f e m p l o y m e n t or even deportation. F i n a l l y , Part III o f the M i g r a n t W o r k e r s A c t also provides for welfare and protective m e c h a n i s m s . It establishes government services to assist migrant workers , i n c l u d i n g an E m e r g e n c y Repatr ia t ion F u n d ; a Re-placement and M o n i t o r i n g Center w i t h the funct ion o f 'Supra, note 24, at 42. ' Supra, note 21, at 16. 46 reintegrating returning F i l i p i n o s into the economy; a M i g r a n t W o r k e r s and Other Overseas F i l i p i n o s Resource Center, and a Shared Government Informat ion S y s t e m for M i g r a t i o n . Part V creates a pos i t ion w i t h i n the Department o f Fore ign A f f a i r s for a L e g a l Ass is tant for M i g r a n t W o r k e r s and establishes a L e g a l Ass is tance F u n d , both w i t h the purpose o f rendering a i d to F i l i p i n o s i n distress abroad. D. Regulations and Problems of Labor Exportation 1. Regulations T o appreciate the various problems that arise i n the process f r o m F i l i p i n o labor m i g r a t i o n is to understand the regulations i n place. T h e problems became more conspicuous w i t h the r a p i d e x p a n s i o n o f the labor export p r o g r a m that is n o w largely i n the hands o f private recruitment mechanisms. I n theory, the P O E A ensures that o n l y legit imate and credible private recruitment agencies can process F i l i p i n o workers . A p p l i c a t i o n s for and renewal o f l icenses to operate as a recruitment agency are strictly moni tored . 6 8 The recruitment agencies are also subject to regular ocular inspect ion by the P O E A . 6 9 M o r e importantly, the P O E A ensures that o n l y the proper fees are deducted by the agencies f r o m the employer and the w o r k e r , 7 0 and that the p r i n c i p a l s (the foreign employers or agencies) o f the P h i l i p p i n e recruitment agencies are proper ly accredi ted . 7 1 Rules and Regulations Governing Overseas Employment, 1991, Book II, Rule II: Issuance of License. Ibid, Book II, Rule IV: Inspection of Agencies. Ibid, Book II, Rule V: Placement Fees and Documentation Costs. Ibid, Book III, Rule I: Accreditation of Principals and Projects. 47 T h e agencies must also submit documentary p r o o f consist ing o f a detai led l ist o f i n f o r m a t i o n about the migrat ing workers before the agencies are a l l o w e d to deploy the workers out o f the P h i l i p p i n e s . 7 2 T h e P h i l i p p i n e government's most important f o r m o f regulat ion o f its migrant w o r k e r s is the remittance scheme. T h e present scheme not o n l y provides the O W W A w i t h f u n d i n g for its various welfare programs, it is also an important source for h e l p i n g the P h i l i p p i n e government i n its balance o f payments deficit . T h e total remittance brought h o m e b y the migrant workers f r o m 1977 to 1995 is pegged at U S $ 2 8 . 2 b i l l i o n . 7 3 I n 1996 alone, remittances f r o m migrant w o r k e r s amounted to U S $7.5 b i l l i o n , 7 4 and it is said that the 1996 remittances o f fore ign exchange amounted to three times more than the $2.5 b i l l i o n expected f r o m international donors i n 1997. 7 5 The many changes government has introduced i n the laws o n mandatory remittances s h o w h o w v i t a l this scheme is. Y e t , it is an unrel iable p r o g r a m because o f di f f icul t ies i n enforcement. The expanding administrative bureaucracy is one o f m a n y factors contr ibut ing to the c o m p l i c a t i o n . A d d i t i o n a l l y , the migrant workers have devised m a n y ingenious w a y s o f remitt ing their incomes to the P h i l i p p i n e s without us ing the o f f i c i a l government channels. Part o f the reluctance o f the migrant workers to use formal b a n k i n g channels for their remittances is their ineff iciency. A n o t h e r deterrent is the h i g h percentage o f the salary the workers are o b l i g e d Ibid, Book III, Rule II: Documentary Processing. 7 3 IMF Balance of Payments Statistic Yearbook Annual, website: http://migration.ucdavis.edu/Data/remit.on.www/philippines.html. 7 4 "OCW Remittances Hit Record 7.5 B", Philippine Star, January 9, 1997. 48 to remit . F o r example , seamen or mariners were required to remit 80 per cent o f their salary; workers o f F i l i p i n o contractors and construction companies 70 per cent, and domest ic and other service workers 50 per cent . 7 6 Thus , the actual amount o f remittances that f l o w into the P h i l i p p i n e s are speculative estimates because o f the v i e w that of f ic ia l f inancial mechanisms o n l y capture a fragment o f them. Studies suggest that the P h i l i p p i n e government continues to hope that remittance f lows w o u l d translate into increased investment. B u t this has been curtai led b y the very l o w propensity o f remittance recipients and returning F i l i p i n o migrant workers to undertake productive investment a n d b y the d i v e r s i o n o f remittances f r o m f o r m a l b a n k i n g channels into i n f o r m a l channels. Remit tance r e c e i v i n g households i n the P h i l i p p i n e s t y p i c a l l y spend the m o n e y o n basic necessities, repayment o f debts, house b u i l d i n g or improvement and educational expenditure. T h u s , p r i o r i t y is accorded to c o n s u m p t i o n needs, w h i l e the number o f investment ini t iat ives remains relatively l o w . Nevertheless, the social benefits o f the remittance payments to r e c e i v i n g famil ies are evident. "The impacts are visibly seen in real assets accumulated, small businesses acquired and social status achieved'?1 W h i l e the debate o n the real e c o n o m i c impact for the m i g r a n t workers and the remittance rece iv ing households continues, it is indisputably acknowledged that remittances have helped the P h i l i p p i n e government i n sustaining its fore ign d o l l a r reserves and i n its debt servic ing. Rules and Regulations Governing Overseas Employment, 1991, Book VIII, Rule VIII, section 3. Supra, note 33, at 270. 49 2. Problems T h e P h i l i p p i n e government has been unable to curb the negative effects o f the labor export phenomenon. Countless measures have been init iated - selective deployment to host countries according to protect ion g i v e n to foreign workers ; market or s k i l l s restrictions and deployment bans, depending o n the labor market and the peace and order situation o f the host country; and w a t c h l i s t i n g and b l a c k l i s t i n g o f foreign pr inc ipa ls or employers w h o have defaulted o n their obligations and/or have v io lated rules and regulat ions . 7 8 Consequent ly , the government tries to l i m i t , a n d at t imes ban, the exodus o f its workers w h e n stories o f explo i tat ion, abuse and deception such as contract switching reach the Phi l ippines . W h e n cases o f arbitrary employment dismissals are reported, pre-deployment seminars and courses are set up to facilitate the outgoing workers i n their adjustment to and s u r v i v a l i n a cul tural ly different country. B u t most o f these curative measures have little impact o n the adverse effects o f labor exportation. T h e bureaucracy is too l i m i t e d to deal w i t h the multifarious issues that surround the workers ' s i tuation once they are abroad. I n the 1990s, w h e n more female workers left the Phi l ippines i n search o f better w o r k opportunit ies , nat ional attention began to focus o n the experiences o f these w o m e n whose extremely vulnerable occupations i n the service and entertainment sector prov ided fertile ground for abuse a n d exploi tat ion. T h e types and degrees o f problems i n labor m i g r a t i o n f r o m the P h i l i p p i n e s vary depending o n the host country. T h e f o l l o w i n g enumerat ion represents some o f the m o r e current problems surrounding the P h i l i p p i n e labor m i g r a t i o n . Jose Brillantes, "The Philippine Overseas Employment Program and Its Effects on Immigration to Canada", in The Silent Debate: Asian Immigration and Racism in Canada, eds. Eleanor Laquian, et al., Institute of Asian Research, The University of British Columbia, Vancouver, B.C., 1997, at 140. 50 1. Illegal Recruitment G i v e n the uncontrollable pattern o f Phi l ippine overseas employment and the part ic ipation o f the profit-oriented private sector, i l legal recruitment was bound to take place. W h i l e recruitment for overseas employment is not i n i tself unlawful , it is the lack o f the necessary license or permit b y the recruiter that renders the recruitment i l l e g a l . T h e L a b o r C o d e defines it as f o l l o w s : Any recruitment activities . . . to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punished. . . The Department of Labor and Employment or any law enforcement agency may initiate complaints under this Article.19 Ideal ly , the P O E A exercises f u l l control over the administrat ion o f the deployment o f migrant workers. E v e r y potential migrant w o r k e r is recruited by an entity w h i c h must be d u l y l i censed or authorized b y the P O E A . H o w e v e r , i l l e g a l recruitment persists despite the existence o f the above p r o v i s i o n and the threat o f l i fe imprisonment as a penalty i n the M i g r a n t W o r k e r s A c t 8 0 because o f the large number o f w i l l i n g migrants, the poor budget o f the P O E A , its s l o w a n d increas ing ly corrupt bureaucratic procedures i n processing deployment o f workers , and the f i n a n c i a l leverage o f private recruiters. T h e deceptions e m p l o y e d b y unscrupulous i l l e g a l recruiters are diverse. T h e y range f rom fake passports, coercion o f workers to accept pre judic ia l arrangements i n exchange o f certain benefits, non-existent employers abroad, and to outright fraudulent practices against the unsuspecting workers. F o r F i l i p i n a s , i l l e g a l recruitment u s u a l l y 7 9 Supra, note 43, art 38(a). 8 0 Art. 7(b), Philippine Republic Act No. 8042 [1995]. The Migrant Workers Act punishes illegal recruitment with the penalty of life imprisonment if committed by a group of three or more persons conspiring together or confederating with one another. Illegal recruitment committed by not more than two persons is punishable by six to twelve years of imprisonment (Arts. 6[m], 7[a]). 51 takes the f o r m o f travel o n tourist or student visas. T h e F i l i p i n a s often end up as entertainers or prostitutes, forced into the trade i n order to pay o f f their travel expenses. S o m e w o m e n are p r o m i s e d good employment contracts w i t h kind-hearted employers o n l y to f i n d out that they are at the complete mercy o f an abusive employer w h o disregards the employment contract. A n o t h e r widespread i l legal recruitment activity is the exaction o f exorbitant placement fees f r o m w o u l d -be migrant workers . T h e L a b o r C o d e lists the act o f co l lect ing placement fees b e y o n d what is legal ly a l l o w e d as a f o r m o f i l l e g a l recruitment. S t i l l , l i m i t s o n placement fees are c o n t i n u a l l y v io lated. T h e P O E A has set the c e i l i n g o f placement fees at P H P 5 , 0 0 0 . B u t w o u l d - b e migrant workers rout inely have to give between P H P 1 8 , 0 0 0 to P H P 4 5 , 0 0 0 and even up to P H P 7 5 , 0 0 0 i n the case o f T a i w a n , a l l for the promise b y the recruiter to "speed up the process o f deployment" . I n 1992, the P O E A created the pre-employment orientation seminar to supplement its pre-departure orientation seminars. T h e n e w seminars are conducted i n the rural areas and lectures are g iven o n the dangers o f i l legal recruitment and other possible pre-employment irregularities. T h e L a b o r C o d e is very specif ic about the def in i t ion o f i l l ega l recrui tment 8 1 and the M i g r a n t W o r k e r s A c t is expl ic i t as to its penalty o f l ife imprisonment. B u t the P h i l i p p i n e government has yet to c o m p l e t e l y control and eradicate this anomaly. It is the root o f other problems, such as non-documentat ion and non-protect ion o f the workers . Ibid, Art. 34. 52 2. Non-Documentation It has been established that migration from the Philippines occurs in three different streams: 1) permanent migrants, 2) documented migrant workers (or recorded, or official or legal migrant workers), and 3) undocumented migrant workers (or unrecorded, unofficial or illegal migrant workers). 8 2 Essentially, non-documented migrant workers are those without P O E A approved status and who leave the Philippines without having a record in the P O E A registers. There are many ways in which non-documentation occurs. The most common method among Fil ipino workers, particularly women, is to travel to neighboring Asian countries as tourists to look for employment without, of course, informing the Embassy or the Consulate of the Philippines. This scheme is particularly easy to do in member-countries of the Association of South East Asian Nations ( A S E A N ) where travel without a visa for 14 days as a tourist is allowed. Other common methods of non-documentation are visa overstay and illegal recruitment that amounts to contract substitution. It is a matter of state sovereignty and protection that a country is legally and morally obliged to assist its citizens i f in distress in a foreign country. This state obligation becomes a heavy burden in the case of the Philippines which must try to help many of its citizens abroad. Philippine consulates and embassies are routinely equipped with a shoestring budget and with understaffed or underqualified diplomatic personnel. The P O E A has set up mechanisms to document every outward bound Filipino worker so that it has the capacity to assist and protect the worker abroad: One is the required surrender of the overseas employment certificate before leaving the Philippines; the second is the information sheet of migrant workers; and the third is 8 2 Dr. Rashid Amjad, "Philippines and Indonesia: On the Way to a Migration Transition", Asian and Pacific Migration Journal, vol.5, nos. 2-3, 1996, at 348. 53 the embarkation and disembarkation form filled out at the airport. N e w airport forms have been p r i n t e d that requires F i l i p i n o travelers to identify themselves as migrant or non-migrant w o r k e r s . 8 3 A n o t h e r requirement is the putt ing up o f a pre-departure b o n d and the remittances. T h e amounts should give the P O E A funds to operate the protective mechanisms. B u t since m a n y w o r k e r s choose the undocumented route the P h i l i p p i n e embassies are often c o m p e l l e d to g ive preferent ia l treatment to a documented w o r k e r w h o has p a i d her or his b o n d and remittances. M o s t o f the t ime, the undocumented workers seeking help f r o m embassy of f ic ia ls are then left wi thout recourse. It is a traumatic experience for the countless numbers o f undocumented F i l i p i n o w o r k e r s to be stranded and helpless i n a foreign country. I n reality, the non-documented status is frequently not a free choice . F a c e d w i t h either a l o n g w a i t i n g p e r i o d for a P O E A approval or a q u i c k p r o m i s e o f e m p l o y m e n t f r o m a dubious recruiter, the workers often take the latter chance, not l o o k i n g b e y o n d the mere words o f guarantee b y the recruiter. O n c e a F i l i p i n o migrant w o r k e r is i n the host country w i t h an undocumented status, he or she is left to fend for h i m s e l f or herself. T h e P h i l i p p i n e government has tr ied to respond by issuing a D O L E Department O r d e r 8 4 that is geared towards protection o f the F i l i p i n a migrant workers w i t h a comprehensive pre-departure program o n household w o r k . T h e provis ions o f the order were later supplemented w i t h P O E A guidel ines to proper ly implement them. Graziano Batistella, "Data on International Migration from the Philippines", Asian and Pacific Migration Journal, vol. 4, no. 4, 1995, at 592. 8 4 Department Order No. 13, February 5, 1994. 54 T h e M i g r a n t W o r k e r s A c t also attempts to address this p r o b l e m and gives the f o l l o w i n g d e f i n i t i o n o f non-documentat ion: (e) Documented Migrant Workers -those who possess valid passports and visas or permits to stay in the host country and whose contracts of employment have been processed by the POEA if required by law or regulation; or those registered by the Migrant-Workers and Other Overseas Filipinos Resource Center or by the Embassy. Those who do not fall under the preceding paragraph are considered undocumented migrant workers. (f) Undocumented Filipinos -Those who acquired their passports through fraud or misrepresentation; Those who possess expired visas or permits to stay; Those who have no travel document whatsoever; and Those who have valid but inappropriate visas;..}5 O n the other hand, the C o n v e n t i o n o n M i g r a n t W o r k e r s provides for the f o l l o w i n g def in i t ion . ...[MJigrant workers and members of their families: Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which the State is a party; Part II, section 2, Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipinos Act of1995. 55 Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.86 T h u s , the international p r o v i s i o n focuses o n the legal status o f migrant workers i n the host countries. T h e P h i l i p p i n e prov is ion , however, requires the concurrence o f regular legal status i n the P h i l i p p i n e s as w e l l as i n the host country i n order to be c lass i f ied by the P h i l i p p i n e government as a documented migrant worker . T h e second subparagraph o f sect ion 2(e) contemplates a s i tuation where a non-documented w o r k e r registers h i m s e l f or herse l f i n the M i g r a n t W o r k e r s or P h i l i p p i n e Resource Center located i n the host country to acquire documented status. In other words, this section a l lows for non-documented migrant w o r k e r s to rect i fy their non-documented status after departure f r o m the P h i l i p p i n e s . M o r e important ly , it enables the P h i l i p p i n e government to update the records o f outgoing F i l i p i n o c i t izens w h o left the P h i l i p p i n e s other than as documented migrant workers. A l t h o u g h cri t ics are q u i c k to point out that this post-departure registration a l lows the P h i l i p p i n e government to expand its l ist o f m i g r a n t workers for the exc lus ive purpose o f requir ing t h e m to remit through government f i n a n c i a l inst i tutions, the scheme m a y ul t imate ly be for the benefit o f the n e w l y documented workers . T h e y become members o f the O W W A and enjoy its welfare and protective mechanisms, however d i s m a l and l i m i t e d i n results they m a y be. E v e n more intr iguing is the def init ion o f non-documentation i n the P h i l i p p i n e p r o v i s i o n . It lists four instances o f non-documented status, the fourth o f w h i c h is the most notable one: "those who Sl'Supra, note 61, art. 5. 56 have valid but inappropriate visas". T h i s means, for example, that a F i l i p i n a w h o travels as a tourist to Singapore o n a 14-day v i s a and subsequently f inds e m p l o y m e n t there is one w h o has a v a l i d but inappropriate visa. H e r tourist v i s a is inappropriate because she is n o w for a l l intents and purposes a foreign w o r k e r i n Singapore, no longer a tourist. W h i l e the first three instances o f non-documentat ion are straightforward, this last instance m a y be the most conspicuous evidence that P h i l i p p i n e legislation o n migrant workers is not o n l y protection-oriented but also post-facto or curative i n appl icat ion. Legis lators are supposed to enact laws that reflect the ongoing changes o f a state. B u t they are also expected to have the insight to enact legal measures that prevent or stop negative results. T h e fourth enumeration o f non-documentat ion i n the M i g r a n t W o r k e r s A c t is one such negative situation that e luded the lawmakers . T h u s , the enumeration o f non-documentation is the P h i l i p p i n e government's attempt at p r o v i d i n g a remedy to the uncontrol lable i l l s o f non-documented migrant workers . W h a t further compl icates the p r o b l e m o f non-documentat ion is the interaction o f the sovereignty o f two countries - the Phi l ippines as the sending country and the host or rece iv ing country. I n the absence o f bi lateral or d i p l o m a t i c agreements between the P h i l i p p i n e s and a host country it m a y happen that even w h e n the P h i l i p p i n e s considers a migrant w o r k e r as non-documented the same w o r k e r c a n acquire documented status f r o m the point o f v i e w o f the host country. C o n t i n u i n g the prev ious scenario o f the F i l i p i n a i n Singapore, as soon as she landed her j o b i n Singapore she automatical ly became a documented foreign w o r k e r i n Singapore. T h e P h i l i p p i n e government cannot n o w i n f o r m Singapore officials that she is not documented for P h i l i p p i n e purposes. T h i s legal l o o p h o l e arises f r o m confl icts o f law; P h i l i p p i n e l o c a l laws versus Singapore labor laws, 57 i f at a l l appl icable to foreign workers , and the F i l i p i n a as the subject caught i n the d i l e m m a o f h a v i n g to f o l l o w more than one country's laws. 3. Exploitation and De-Feminization A burst o f o p t i m i s m accompanied the first wave o f F i l i p i n a migrant workers . T h e pioneer F i l i p i n a migrants were v i e w e d as representing a leap from the tradit ional role o f F i l i p i n a s as homemakers. T h i s migrat ion undergoing a ' feminization' represents an instance o f the disruption o f cultural norms i n the Phi l ippines , brought about by economic woes and the open gates to labor migrat ion. I n m a n y instances a reversal o f roles occurred where the w o m a n became the dominant or sole breadwinner i n the f a m i l y . B u t the j u b i l a t i o n was q u i c k l y overshadowed b y the tales o f h o r r o r f r o m returning F i l i p i n a migrant workers . A l s o , the trend o f ' feminizat ion ' o f m i g r a t i o n f r o m the P h i l i p p i n e s occurs not o n l y i n the area o f temporary migrant workers , but also i n the case o f F i l i p i n a s m i g r a t i n g as spouses o f foreign m e n , more often through intermediary ' m a i l -order' br ide agencies. I n most o f the host countries, F i l i p i n a migrant workers are faced w i t h different cul tural norms that either shun the condit ions o f foreign workers or s i m p l y have developed little or no gender-sensitive standards. Their w o r k i n g condit ions as domestic workers and entertainers are i n isolated and marginal ized settings where c o m p l i a n c e w i t h their rights by the employer is diff icult to monitor . T h i s makes F i l i p i n a migrant workers more vulnerable and m o r e prone to abuse b y their employer . B u t the exploi tat ion and de- feminizat ion o f F i l i p i n a m i g r a n t w o r k e r s are not so m u c h the v i s i b l e aspects such as labor exploi tat ion, p h y s i c a l and sexual abuse or even forced prosti tution, a l though these situations certainly i n exist i n m a n y 58 countries , part icular ly i n the M i d d l e East, where the p r i m a c y o f h u m a n rights is not g i v e n emphasis . T h e m o r e anomalous k inds take the f o r m o f inst i tut ional ized d i s c r i m i n a t i o n and exploi tat ion. There are also m a n y imperceptible instances o f explo i tat ion w h i c h p l a y w i t h variations o f objectifying female migrant workers. F o r example, it is c o m m o n place i n Singapore for placement agencies to advertise foreign migrant workers a k i n to c o m m o d i t i e s . 8 7 Further , the employment standards o f Singapore require pregnancy tests o f the female migrant workers every s ix months, w h i l e marriages between Singaporeans and foreign domestic workers are prohibited. I n H o n g K o n g , one can f ind signs posted i n apartment bui ld ings saying "Filipinas must not use the swimming pool" and "dogs and Filipinas must use the service elevator", thus g i v i n g domestic workers outsider social status w h i l e g i v i n g them insider status only as to household and childcare duties. B u t despite such mistreatments the migrat ion to host countries l i k e Singapore and H o n g K o n g continues. F irs t - t ime F i l i p i n a migrant workers cross their fingers and hope to become a success story l i k e the ones spun by their recruiter. Indeed, success stories exist i n every host country , most l i k e l y outnumbering the tales o f abuse and exploi tat ion. A l s o , the lure o f the higher wages is often too strong to resist, especially i f the host country is o n l y a f e w hours away by plane. F i n a l l y , the lack o f concrete e m p l o y m e n t opportunities, e c o n o m i c and soc ia l choices i n the P h i l i p p i n e s makes overseas migrant w o r k seem capable o f setting o f f any temporary hardship overseas. Some Singapore placement agencies that specialize in Filipina domestic workers offer a full refund if the new employer is dissatisfied with the services of the worker, thus ascribing to the women the same "return policy" commonly only found in appliances. 59 In c o n c l u s i o n , it can be said that a majority o f the problems o f labor m i g r a t i o n f r o m the P h i l i p p i n e s can be traced back to a shortsighted attitude o f the P h i l i p p i n e government i n the 1970s w h e n labor export and the O C W p h e n o m e n o n first f lourished. T h e government refused to realize early o n that the m i g r a t i o n movement is real ly about the exodus o f workers f r o m the P h i l i p p i n e s , about h u m a n beings i n search for a better l ife. The P h i l i p p i n e government's m y o p i c out look merely enabled i t to encourage a system that facilitated the deployment o f workers . B u t even l a w f u l deployment o f F i l i p i n o workers became increasingly di f f icul t . Pr ivate recruitment mechanisms mushroomed and took advantage o f the demand for overseas w o r k as government y i e l d e d to the strong demand for overseas deployment. T h e private sector rescued the government under the weight o f labor recruitment, particularly the early demand for w o r k i n the M i d d l e East. T h e P h i l i p p i n e government c o u l d have planned ahead and should have real ized that this prosper ing export scheme was unique because the c o m m o d i t y were h u m a n beings. B u t at a l l t imes the h u m a n factor was not taken into consideration. E v e n w h e n cracks i n the labor export administration began to appear the government's priori ty was the establishment and enforcement o f the remittance scheme. T h i s is one area where the legislators were p r o l i f i c i n enacting up-to-date leg is lat ion. T h e legislative developments o n the F i l i p i n o migrant worker situation is the other disheartening performance o f the P h i l i p p i n e government. F irs t , w h i l e the pioneer laws o n migrant w o r k e r s seemed acceptable legis lat ion, subsequent and r a p i d developments i n the labor m i g r a t i o n movement left the legislators out o f touch w i t h current labor and socia l condit ions . T h o u g h the 60 m i g r a n t workers became important assets i n terms o f the remittance o f fore ign exchange, the l a w m a k e r s usua l ly were unsympathetic to their predicament, except d u r i n g e lect ion periods w h e n sloganeering and rhetoric about the "concerns for the heroic OCWs" a lways reached their peak. T h e y were m o s t l y empty promises as pol i t ic ians k n o w that the migrant workers cannot exercise their r ight to suffrage. There is no m e c h a n i s m i n place that a l l o w s migrant workers to vote f r o m their host countries. Thus , leg is lat ion o n migrant workers mere ly became delayed legislative reactions to the latest controversies. Despite government efforts to appear responsive to the workers ' needs their actions betrayed their reactive results. H o w e v e r , some o f the efforts o f government should be appreciated, part icular ly the welfare mechanisms it has set i n place. E v e n i f the more drastic measures that have been i m p l e m e n t e d usual ly took place "after the fact", the altruistic intentions o f the government are apparent. F o r example, some periods o f total or partial overseas deployment ban have taken place even i f the situation q u i c k l y reverted back to the status quo. It is not di f f icul t to understand w h y : . . . it is quite clear that since the roots of the problem lies in the host countries, women workers continue to face considerable hardship and physical, sexual and other forms of exploitation. It is rightly feared, however, that an outright ban on their emigration may in fact worsen rather than improve the situation, by driving such emigration underground and exposing such women migrants whose status would now be of illegal migrants to even greater exploitation, especially by well organized underground syndicates.u In terms of the labor market impact, it would increase pressure on the domestic labor market and make it extremely difficult to even achieve the modest targets of a decline in unemployment . . . eventually, remittances would decline and this would put 8 8 Supra, note 82, at 359. 61 pressure on the balance of payments situation and could slow down the process of economic recovery... Perhaps the most unfavorable impact such a policy may have is in the fight against poverty, as remittances have the potential of playing an important pat in boosting incomes and generating jobs in the domestic economy}9 T h e P h i l i p p i n e s has consistently h a d problems i n enforcing and i m p l e m e n t i n g its labor export pol ic ies b o t h l o c a l l y and overseas. It does not help that the stringent safeguards o f the p o l i c i e s t e n d to frustrate the e m p l o y m e n t agencies, recruiters as w e l l as the migrant w o r k e r s and lure t h e m to process the workers through underground means. H o w e v e r , it must be noted that the exist ing welfare and protection mechanisms i n the P h i l i p p i n e s ' labor export p o l i c i e s stem f r o m a p u b l i c demand and the clamors o f advocates for migrant workers ' rights for more government invo lvement . A s discussed, this turns into a v i c i o u s cyc le because m a n y migrant workers d isregard government p o l i c i e s and choose the faster but i l l e g a l route, thereby d e p r i v i n g the P h i l i p p i n e government o f substantial f inancia l resources to fund welfare and protect ion programs. A t the same t ime, m a n y migrant workers overseas often have no recourse other than to seek help f r o m the P h i l i p p i n e embassy/consulate. T h e corresponding development o f d o c u m e n t e d and undocumented workers has also bred internal prejudice i n embassies against u n d o c u m e n t e d workers - w h y help t h e m i f they do not contribute to the welfare funds? T h i s double standard is n o w o f f i c i a l l y e l iminated w i t h the M i g r a n t W o r k e r s A c t w h i c h mandates to h e l p m i g r a n t workers overseas i n distress - whether or not documented. Whether or not the mandate c a n be actual ized is another matter. Ibid, at 360. 62 Cri t ics contend that what the Phi l ippines needs is not protection-oriented and curative legis lat ion but preventive laws c o u p l e d w i t h a strong p o l i t i c a l w i l l to d e m a n d bi lateral arrangements or at least better w o r k i n g condit ions for F i l i p i n o migrant workers f r o m the host countries. B u t the P h i l i p p i n e s ' cont inued rel iance o n its migrant workers ' remittances effectively inhibi ts the g o v e r n m e n t f r o m m a k i n g f o r m a l protests about mistreatment o f their workers . Further , the P h i l i p p i n e government s t i l l lacks the international stature that the n e w A s i a n t iger economies have earned. W i t h o u t this respect, the Phi l ippines cannot expect concessions from a host country. The f o l l o w i n g chapters describe h o w Canada fares as a host country to F i l i p i n a migrant workers i n v i e w o f Canada's i m m i g r a t i o n and labor pol ic ies . Chapter III outl ines the C a n a d i a n L C P i n the context o f migrant F i l i p i n a s and provides a cr i t i ca l analysis o f the L C P . Chapter I V conc ludes the d i s c u s s i o n w i t h an integration o f Canada's fore ign w o r k e r p o l i c i e s and the P h i l i p p i n e s ' labor export program. 63 III. FILIPINA LIVE-CAREGIVERS IN BRITISH COLUMBIA AND THE CANADIAN FOREIGN WORKER AND MIGRATION POLICIES C a n a d a has l o n g been v i e w e d b y F i l i p i n a domestic workers as a dream destination. Indeed, F i l i p i n a s w h o want to w o r k abroad or are currently w o r k i n g , as domest ic workers outside the P h i l i p p i n e s perceive C a n a d a favorably as opposed to the tradit ional domest ic workers ' destination such as the K i n g d o m o f Saudi A r a b i a , Singapore and H o n g K o n g . These countries are s w a m p e d w i t h F i l i p i n a domestic workers and are w e l l - k n o w n for their harsh w o r k i n g c o n d i t i o n s . Canada , o n the other hand, provides the promise o f a free and democrat ic society. It is an affluent, high-tech industrial society, w i t h a market-oriented e c o n o m i c system. It enjoys a h i g h l y advanced leg is lat ion o n and protect ion o f c i v i l l iberties, i n c l u d i n g issues o n gender equal i ty . It is also a g o o d example o f an i m m i g r a n t country t o w a r d w h i c h migrants l i k e the F i l i p i n o s are d r a w n to. H o w e v e r , the d i s c u s s i o n i n this chapter shows that w h i l e C a n a d a offers the best w o r k i n g c o n d i t i o n s to fore ign domest ic workers , it continues the d iscr iminatory treatment o f fore ign domest ic workers that other host countries are being accused of. 64 A. A Profile of Filipina Live-In Caregivers in British Columbia In 1967 Canada introduced the point s y s t e m 9 0 i n its i m m i g r a t i o n p r o g r a m w h i c h faci l i tated the entry o f F i l i p i n o s into Canada. C o m p a r e d to other ethnic groups, F i l i p i n o m i g r a t i o n to C a n a d a is a fa i r ly recent development. H o w e v e r , since the 1970s the P h i l i p p i n e s has been c i ted as one o f the top ten source countries o f i m m i g r a n t s . 9 1 I n 1996, C a n a d a counted 2 4 2 , 8 8 0 F i l i p i n o i m m i g r a n t s i n its p o p u l a t i o n count . 9 2 Statistics also show that a majority o f e l i g i b l e F i l i p i n o immigrants elect Canadian ci t izenship. A s o f 1991, 87 per cent o f F i l i p i n o i m m i g r a n t s became C a n a d i a n c i t i z e n s . 9 3 A n o t h e r characteristic o f F i l i p i n o migrants i n C a n a d a is the gender ratio where w o m e n constantly outnumber the m e n i n entries, thus apparently cha l lenging the n o t i o n o f the "pioneer ing m a l e " . 9 4 In fact, the i m m i g r a t i o n trend o f F i l i p i n a s is considered unique, ...as their high proportion in service occupation is related almost entirely to entry in the domestic helper class. On average, out of a total number of6,000females, there were 2,700 who worked in Canada as domestic workers on a temporary visa.95 Statistics f r o m Immigrat ion and Cit izenship Canada point out the large gap i n 1991 employment rates a m o n g F i l i p i n a immigrants (80 per cent) and a l l i m m i g r a n t w o m e n (62 per cent) and C a n a d i a n - b o r n w o m e n (63 per cent) , 9 6 suggesting that the h i g h rate o f F i l i p i n a s e m p l o y e d as Essentially, the point system provides applicants points based on their social and demographic profile, including factors such as education, experience and vocational preparation. 9 1 Anita Chen. Studies on Filipinos in Canada: State of the Art., Vol. 22, Canadian Ethnic Studies, January 1, 1990, at 83. 9 2 Top 25 Ethnic Origins in Canada, Showing Single and Multiple Responses, 1996 Census (20 per cent sample data), Statistics Canada. 9 3 A Profile of Immigrants from the Philippines in Canada. Publications. Citizenship and Immigration Canada. 9 4 Supra, note 91. 9 5 Margaret Michalowski. A Contribution of the Asian Female Immigrants into the Canadian Population, Asian and Pacific Migration Journal, vol. 5, No. 1, 1996, at 78. 9 6 Supra, note 93. 65 L I C s helped increase the total number o f employed F i l ip inas . F i n a l l y , w h i l e F i l i p i n o immigrants have l o w unemployment rates and are more l i k e l y to have a university degree, their incomes fa l l b e l o w the average i n c o m e o f other immigrant groups . 9 7 Just l i k e m i g r a t i o n f r o m the P h i l i p p i n e s , the m i g r a t i o n o f F i l i p i n o s to C a n a d a is characterized by specific waves. T h e first wave o f F i l i p i n o migrat ion to Canada i n 1967 can be considered the profess iona l group because o f the specif ic j o b s k i l l s i n demand at that t ime. T h e second w a v e became the non-professional group i n the m i d 1970s, consisting o f family-sponsored parents and c h i l d r e n o f F i l i p i n o pioneers i n Canada. T h e last w a v e is the group o f domestic workers and other non-professional groups. T h i s t h i r d m i g r a t i o n w a v e o f F i l i p i n o s to C a n a d a w o u l d hardly occur i f there was no d e m a n d for their labor. I n 1991, 58 per cent o f C a n a d i a n females were part o f the labor force w h i c h he lped increase inst i tut ional ized daycare faci l i t ies for c h i l d r e n o f two-earner fami l ies . T h i s changing Canadian workplace where more w o m e n started to participate and the l i m i t e d c h i l d care system fue l led a d e m a n d for foreign l i v e - i n domestic workers as l ive-out nannies. D a y care centers became expensive alternatives. It is i n this backdrop that the F i l i p i n a domest ic w o r k e r tries to f i n d her place i n the C a n a d i a n workforce and i n C a n a d i a n society. 9 1 Ibid. 66 It is d i f f i cu l t to create an accurate picture o f F i l i p i n a s c o m i n g to C a n a d a as L I C s . B a s e d o n Canada Immigrat ion statistics, some 1,820 domestic workers came to w o r k i n B r i t i s h C o l u m b i a between 1995 and 1996. 9 8 B e t w e e n 1994 to 1996, an estimated 12,980 people entered C a n a d a under the L C P . 9 9 In the same per iod, about 2,285 o f the estimated 12,980 L I C s w o r k e d i n V a n c o u v e r . 1 0 0 Further, the P h i l i p p i n e s ranked i n the top f ive for the same p e r i o d as a source country for Vancouver 's immigrant c o m m u n i t y . 1 0 1 H o w e v e r , no data exists o n the total number o f domest ic workers currently e m p l o y e d i n B r i t i s h C o l u m b i a or i n C a n a d a . 1 0 2 Nonetheless , studies have indicated that F i l i p i n a migrant workers w o r k i n g as a L I C s are m o r e l i k e l y to have left a f a m i l y or relatives i n the P h i l i p p i n e s since i m p r o v i n g the e c o n o m i c base o f the f a m i l y is the most c o m m o n reason for F i l i p i n a s to choose the route o f m i g r a t i o n f r o m the P h i l i p p i n e s . S u c h is the case even i f that means w o r k i n g as domestic workers after h a v i n g obtained a univers i ty degree. T h e socia l impact o f f a m i l y fragmentation result ing f r o m the w o m a n ' s or mother's labor m i g r a t i o n has not yet been systematical ly studied i n the P h i l i p p i n e s but it promises to be a s ignif icant aspect o f the m i g r a t i o n phenomenon. T h e topic is also b e y o n d the scope o f this thesis, but literature indicates that the separation o f f a m i l y members has caused problems to F i l i p i n a L I C s i n C a n a d a . 1 0 3 Jeanne Mikita, B.C. Domestic Workers Survey. Summary Report. Economic Equality for Domestic Workers Project. December 1997, at 8. 9 9 Immigration by Levels Component. Facts and Figures 1996. Citizenship and Immigration Canada. 1 0 0 Vancouver Profile. Facts and Figures 1996. Citizenship and Immigration Canada. 1 0 1 Vancouver Top Ten Source Countries. Facts and Figures 1996. Citizenship and Immigration Canada. 1 0 2 Statistics from Citizenship and Immigration classify live-in-caregivers under "other category" together with retirees and the deferred removal order class. 1 0 3 "Canada Beckons Cream of Nannies", The [Canada] Globe and Mail, January 20, 1996. The newspaper article exposes the havoc caused by family fragmentation as a result of migration. 67 B. Instruments of Regulation and Protection I n 1971, federal government p o l i c y enunciated "the A c t for the Preservat ion and E n h a n c e m e n t o f M u l t i c u l t u r a l i s m i n Canada", n o w k n o w n as the Canadian M u l t i c u l t u r a l i s m A c t . It was meant to accommodate a g r o w i n g mult i -ethnic c o m p o s i t i o n o f C a n a d i a n society w h i c h was the result o f the i m m i g r a t i o n point system that introduced more universal ist ic cr i ter ia and created a shift f r o m p r e d o m i n a n t l y white and Western E u r o p e a n immigrants to a m u l t i c u l t u r a l b l e n d . H i s t o r i c a l l y , the i m m i g r a t i o n pol ic ies o f C a n a d a h a d been shaped i n response to its speci f ic needs for p o p u l a t i o n g r o w t h and e c o n o m i c development. That meant, p r i o r to 1962, a n u m b e r o f rac ia l ly -or iented pol ic ies that prevai led u n t i l the point system i n 1967 introduced n o n -discr iminatory i m m i g r a t i o n mechanisms. I n 1973, Canada's F o r e i g n W o r k e r P r o g r a m , adhered to the "Canadians first" approach. U n d e r the F o r e i g n W o r k e r P r o g r a m a fore ign w o r k e r c o u l d not be e m p l o y e d i n C a n a d a without an e m p l o y m e n t authorization, and the v i s a off icer h a d to ensure that i n the o p i n i o n o f the l o c a l e m p l o y m e n t center the employer o f the fore ign w o r k e r m a d e efforts to hire or train a C a n a d i a n c i t i z e n or permanent resident. I n 1973 too, the E m p l o y m e n t A u t h o r i z a t i o n P r o g r a m was introduced i n Canada. T h e p r o g r a m granted permits for temporary entry to foreign workers whose s k i l l s were i n demand. T h e permits g i v e n to workers were j o b and employer specific and extension or renewal depended o n the i m m i g r a t i o n officer. I n 1976, these regulations were replaced w i t h the I m m i g r a t i o n A c t w h i c h t o o k effect i n 1978. T h e I m m i g r a t i o n A c t spel led out i n detai l its objectives and set out the authorities for establ ishing i m m i g r a t i o n levels and for m a n a g i n g i m m i g r a t i o n f lows. T o a large extent, the Immigrat ion A c t established principles o f n o n - d i s c r i m i n a t i o n and universa l i ty for a d m i s s i o n to 68 C a n a d a o f n o n - C a n a d i a n cit izens. H o w e v e r , the I m m i g r a t i o n A c t and its R e g u l a t i o n s also c o n t i n u e d the past unjust and biased pol ic ies concerning the a d m i s s i o n o f fore ign domest ic workers into Canada. Part icularly, the Fore ign Domest ic M o v e m e n t P r o g r a m o f 1981 (the F D M Program) and its successor L C P became instruments that responded to Canada's economic needs without thoroughly considering their immediate and long-term impact o n the fore ign domest ic workers w h o gained entry to C a n a d a through the said programs. 1. Canada's Foreign Worker Policies: Caribbean Domestic Scheme to the Live-In Caregiver Program T h e L C P is not the first l a w o n foreign domestic workers . C a n a d a has a l o n g his tory o f leg is la t ion a i m e d at fac i l i tat ing the entry o f the foreign domestic workers to Canada. I n i t i a l l y , domest ic workers i n the early years o f the twentieth century came f r o m E u r o p e . T h e presence o f fore ign domest ic workers i n C a n a d a began w i t h B l a c k C a r i b b e a n w o m e n i n the post-war p e r i o d . T h e p r o g r a m was ca l led the Car ibbean D o m e s t i c Scheme. T h e S e c o n d C a r i b b e a n D o m e s t i c Scheme i n 1955 l i m i t e d the number o f b lack w o m e n but admitted them as immigrants . T h i s was i n effect a bi lateral agreement between C a n a d a and the governments o f J a m a i c a and Barbados to i m p o r t Car ibbean domestics into Canada. O n l y s ingle and healthy w o m e n w i t h i n a certain age group were el igible for recruitment. 1 0 4 T h e y were even tested for venereal disease. 1 0 5 T h i s scheme continued unt i l Canada changed its i m m i g r a t i o n rules w i t h the introduct ion o f the Nona Grandea, Uneven Gains. Filipina Domestic Workers in Canada. The North-South Institute, the Philippines-Canada Human Resource Development Program, 1996, at 19. 69 point system i n 1 9 6 7 . 1 0 6 E v e n t u a l l y , the C a n a d i a n i m m i g r a t i o n authorities devised a system o f t e m p o r a r y w o r k visas for domestic w o r k e r s . 1 0 7 U n d e r that scheme, domest ic workers c o u l d r e m a i n i n C a n a d a for as l o n g as they continue w o r k i n g as such. It was i n the 1970s that the predicament o f the predominant ly female domestic workers attracted p u b l i c attention. T h e w i d e l y p u b l i c i z e d case o f the "Seven Jamaican w o m e n " 1 0 8 i n 1977 served as a major catalyst i n pushing for reforms o n i m m i g r a t i o n procedures affecting foreign domestic workers. Further, the T a s k F o r c e C o m m i t t e e o n E m p l o y m e n t A u t h o r i z a t i o n conducted a study o f domest ic w o r k e r s under temporary visas. The study isolated t w o areas o f concern: the d i s m a l w o r k i n g condi t ions and the i n a b i l i t y to apply for permanent residence. Thus , i n 1981 the F D M P r o g r a m was b o r n and transformed Canada's migrant w o r k e r p r o g r a m o f 1973 to 1981 into an i m m i g r a n t program. W h i l e it was w i t h i n the discret ion o f C a n a d i a n i m m i g r a t i o n authorities to renew a foreign domestic worker's e m p l o y m e n t authorizat ion d u r i n g the F o r e i g n W o r k e r P r o g r a m , under the F D M P r o g r a m foreign domest ic workers were n o w expressly granted the chance to apply for permanent residence. H o w e v e r , w i t h this came a n e w mandatory restriction: A p p l i c a t i o n for permanent residence was possible o n l y after t w o years o f l i v e - i n w o r k w i t h i n the first three years f r o m entry i n Canada. A t about the same t i m e C a n a d a experienced an increase i n entries o f F i l i p i n a domestic workers, w h i l e the arrival o f b l a c k w o m e n 1 0 6 Information on the Caribbean Domestic Scheme gathered from Agnes Castille, "Canada's Immigration Policy and Domestics from the Caribbean: The Second Domestic Scheme", Race, Class, Gender: Bonds and Barriers (Toronto and Montreal: Between the Lines and the Society for Socialist Studies, 1987) at 137, 142 - 146. 1 0 7 The Temporary Employment Authorization Program, SOR/73 - 20. 1 0 8 This is the case of Lodge et al. v. Minister of Employment and Immigration. (1979) 1 F.C. 775, where seven Jamaican women faced deportation proceedings on the ground that they had failed to disclose that they had dependent children under the age of 18. 70 f r o m the Car ibbean and f r o m Jamaica began to decl ine. S ince 1985, F i l i p i n a domest ic workers have consistently outnumbered the inf lux o f other female foreign workers into Canada. A s early as 1990, a total o f 10,946 F i l i p i n a domest ic workers entered under the F D M P r o g r a m , accounting for 60.2 per cent o f the total entry o f foreign domestic workers for that y e a r . 1 0 9 T h e F D M P r o g r a m contained various onerous criteria. A s i d e f rom the requirement o f c o m p l e t i o n o f two years o f l i v e - i n service, there is upgrading o f ski l ls to expedite integration i n the labor force, c o m m i t m e n t to volunteer w o r k to demonstrate social adaptation, competent adminis trat ion o f finances i n c l u d i n g the abi l i ty to support dependents, and language prof ic iency . O n January 30, 1992, the M i n i s t e r o f E m p l o y m e n t and I m m i g r a t i o n i m p o s e d a m o r a t o r i u m o n the arr ival o f foreign domestic workers into Canada. Three months later the F D M P r o g r a m was replaced w i t h the L C P o n A p r i l 27 , 1992. T h e p o l i c y intent o f the L C P was: ...to meet a labour market shortage of live-in caregivers in Canada, while providing an avenue for these individuals to work and eventually apply for permanent residence from within Canada.110 Init ia l ly , an applicant under the L C P had to show complet ion o f an equivalent o f C a n a d i a n grade n i n e i n a d d i t i o n to s i x months o f f u l l t i m e f o r m a l t ra ining related to the duties o f a c a r e g i v i n g p o s i t i o n . T h i s n e w requirement resulted i n a drastic drop i n the number o f F i l i p i n a applicants: 7,835 people came to Canada i n 1991 under the subsisting F D M P r o g r a m , 5,323 o f w h i c h were Canada Employment and Immigration Commission (Policy Branch), Entrants to the FDM program by country of origin —1990 (Ottawa: Canada Employment and Immigration Commission, 9 April 1991) [unpublished], as cited in Audrey Macklin, Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant?, McGill Law Journal, vol. 37, no. 3, 1992, at 693. 1 1 0 Immigration Canada. Chapter OP (Overseas Processing) 13. Processing Live-in Caregivers. 06 - 96. 71 f r o m the P h i l i p p i n e s , 208 f r o m J a m a i c a and 477 f r o m B r i t a i n . P r i o r to the terminat ion o f the F D M P r o g r a m i n 1992, 2,406 F i l i p i n a s entered Canada. W h e n the L C P was i n effect, o n l y 43 F i l i p i n a s came to Canada. O n that account, i m m i g r a t i o n procedures changed once m o r e o n M a r c h 16, 1994. T o d a y , e l i g i b i l i t y under the L C P includes: a) successful completion of a course of study equivalent to Canadian secondary education; and b) six months training or twelve months experience related to the job in question....111 [Emphasis added] T h u s , since M a r c h 1994, the requirements o f job-related tra ining and previous job-related experience are i n the alternative, m a k i n g the L C P appear more re laxed and f lex ib le c o m p a r e d to the preceding F D M P r o g r a m . H o w e v e r , the education requirement was raised f r o m a grade 9 to a grade 12 C a n a d i a n equivalent education. T h i s is the equivalent o f a second-year col lege or univers i ty educat ion i n the P h i l i p p i n e s . M o r e important ly , two signif icant elements o f the F D M P r o g r a m were retained: the temporary status o f the domestic workers for at least t w o years before appl icat ion for permanent residence is permitted, and the l i v e - i n requirement. Nevertheless, the number o f F i l i p i n a s entering Canada under the L C P rose. I n 1993, there were 379 F i l i p i n a L I C s ; i n 1994 there were 941 F i l i p i n a entrants and 1,392 F i l i p i n a L I C s i n 1 9 9 5 . 1 1 2 A p u b l i c a t i o n o f the federal Department o f C i t i z e n s h i p and I m m i g r a t i o n C a n a d a entit led "The L i v e - I n Caregiver P r o g r a m ~ Information for employers and l i v e - i n caregivers f r o m a b r o a d " 1 1 3 111 Ibid, at 4. 1 1 2 Supra, note 104, at 20. 1 1 3 I M - 198-03 -94. 72 (the B o o k l e t ) outlines the specific steps that potential e m p l o y e r s 1 1 4 o f F i l i p i n a L I C s have to carry out. It is meant to assist potential employers and future or n e w l y arr ived L I C s i n their w o r k r e l a t i o n s h i p w i t h one another. T h e requirements for L I C s is categorized i n t w o sections: 1) e l i g i b i l i t y for appl icat ion as a L I C under the L C P and 2) requirements for permanent residence. T h e Immigrat ion M a n u a l for the Processing o f L i v e - I n C a r e g i v e r s 1 1 5 (the M a n u a l ) , o n the other h a n d , is a guide for v i s a officers abroad w h o process applicat ions under the L C P a n d for i m m i g r a t i o n officers r e v i e w i n g the L I C s ' appl icat ion for permanent residence i n Canada . N o t w i t h s t a n d i n g the ex is t ing literature about the L C P . the f o l l o w i n g procedural s u m m a r y and discussion o f Canada's labor and i m m i g r a t i o n pol ic ies w i l l s h o w h o w irregular m a n y aspects o f the L C P requirements remain. T y p i c a l l y , potential employers contact the l o c a l H u m a n Resource Centre (the H R C ) , f o r m e r l y the C a n a d a E m p l o y m e n t Centre, to help t h e m locate a L I C f r o m abroad. A c c o r d i n g to present statistics and employers ' preferences, the future L I C is often a F i l i p i n a f r o m the P h i l i p p i n e s or from a host country o f domestic workers such as Singapore, H o n g K o n g or T a i w a n w h o wants to w o r k i n Canada as a L I C . 1 1 6 Since the premise o f the government for the existence o f the L C P is that there is no shortage o f l ive-out caregivers i n Canada, the B o o k l e t encourages potential employers to consider h i r i n g a l ive-out caregiver before d e c i d i n g to hire a L I C . O n l y w h e n the potent ia l employers seek to hire a L I C w i l l the H R C extend its assistance. T h e potential 1 1 4 Throughout this chapter the thesis uses the example of spouses-employers, although LICs are often also employed by unmarried couples or by a single employer. 115Supra, note 111. 1 1 6 For convenience, the thesis uses the example of a Filipina from the Philippines for purposes of illustrating the steps involved in hiring a Filipina as a live-in caregiver in Canada. 73 e m p l o y e r s must identi fy an i n d i v i d u a l suitable to their needs us ing their o w n methods and resources, i n c l u d i n g advertisements, personal contacts or h i r i n g agencies. T h e potentia l employers must then submit their offer o f employment to the H R C and declare that the wages, benefits and w o r k i n g condit ions required b y the respective p r o v i n c e can be met b y them. T h e H R C where the employers sent the offer o f employment transmits the same to the v i s a off ice i n M a n i l a . I n real i ty though, f e w F i l i p i n a s apply f r o m M a n i l a since the w a i t i n g p e r i o d for v i s a appl icat ions to C a n a d a is shorter i n H o n g K o n g or Singapore. It has become a n established practice for F i l i p i n a domestic workers to use those A s i a n countries as a springboard to migrate to C a n a d a as L I C s . T h i s strategy o f first w o r k i n g as a domestic w o r k e r i n the usual A s i a n host countries for a number o f years also satisfies the requirement that the applicant must have h a d previous job-related experience or training. A s p r e v i o u s l y ment ioned, the L C P contains two alternative requirements, either s ix months training or twelve months experience. The M a n u a l clarif ies that an applicant L I C w h o satisfied the training requirement but has no experience as a domestic w o r k e r whatsoever, c o u l d s t i l l be a g o o d L I C . A s regards the twelve m o n t h experience, the M a n u a l seems to add a "sub-requirement" o f complet ing at least s ix o f the twelve months w i t h one employer , a n d a l l w i t h i n three years pr ior to the L I C s applicat ion under the L C P . B u t the v i s a off icer is also a l l o w e d "to consider highly experienced applicants who have no formal training."1" T h e applicant L I C must c o m p l y w i t h statutory requirements such as medica l examination, pol ice certificate and security Ibid, 3.4, at 5. 74 c h e c k for certain countries, compl iance w i t h n o r m a l v i s i tor requirements, and the process ing fees. T h u s , v i s a officers are g i v e n discret ion as regards the signif icant requirements o f either prev ious experience or completed education o f applicant L I C s . U p o n satisfactory evaluat ion o f e l i g i b i l i t y and compl iance w i t h the statutory requirements, the applicant L I C is issued her employment authorizat ion (also k n o w n as the w o r k permit) , w h i c h is v a l i d for one year and is j o b and employer specif ic . 2. Labor Rights and Standards I n M a r c h 1993, the W e s t Coast D o m e s t i c Workers ' A s s o c i a t i o n (the D W A ) , a n a d v o c a c y group for L I C s based i n V a n c o u v e r , submitted a b r i e f to the E m p l o y m e n t Standards A c t R e v i e w C o m m i t t e e . E s s e n t i a l l y , the B r i e f asked for e c o n o m i c equality for L I C s because u n t i l then domest ic workers i n B r i t i s h C o l u m b i a were p a i d a d a i l y m i n i m u m wage rate rather than an h o u r l y one, and they were excluded f r o m hours o f w o r k protection. T h e D W A also c lamored for a more appropriate def in i t ion o f " w o r k " , to accommodate t ime spent that belongs to and is control led b y the employer. In N o v e m b e r 1995, the n e w E m p l o y m e n t Standards A c t took effect. It granted L I C s the p r o v i n c i a l m i n i m u m h o u r l y wage and overt ime pay, and mandated the e m p l o y e r to enter into and s ign an employment contract w i t h the L I C . T h e B o o k l e t expounds o n these n e w l y acquired labor standards for L I C s and informs employers about the specific needs and requirements o f the L I C . Before the actual s i g n i n g o f the contract standard matters such as the L I C s abi l i ty to dr ive a car, c o o k i n g s k i l l s , special customs and 75 r e l i g i o u s practices are considered. T h e employers are encouraged to discuss every mater ia l aspect for the future employment relat ionship w i t h the L I C . T h e y must meet certain responsibil i t ies i n the employer-employee relat ionship such as acceptable w o r k i n g condit ions , reasonable duties, fair market wages, and a key to the house; respect for the L I C s p r i v a c y i n her o w n r o o m , her cul tural or re l ig ious practices; and the benefits o f days-off, statutory h o l i d a y s , overtime pay, and a salary that meets the appl icable m i n i m u m wage. T h e e m p l o y m e n t contract cannot stipulate h o w l o n g a L I C must w o r k for her employers and the latter must g ive the L I C notice o f terminat ion and contact the appropriate H R C . T h e B o o k l e t lists the specific w o r k i n g conditions and employment standards respecting L I C s and enumerates the government benefits appl icable to L I C s such as hospita l and m e d i c a l care insurance, workers' compensation benefits, where applicable, and employment insurance, Canada P e n s i o n P l a n , O l d A g e Security and welfare. A d v o c a c y groups caution L I C s w h o receive welfare that they m a y have d i f f i cu l ty a p p l y i n g for permanent residence i n the future. F i n a l l y , L I C are i n f o r m e d that employers possess no right to threaten to deport t h e m for arbitrary reasons. I n the f i n a l part o f the B o o k l e t L I C s are advised o f the possible c ircumstance o f changing employers. T h e B o o k l e t advises L I C s to remain as m u c h as possible w i t h the or ig ina l employers for the obligatory two-year duration before applicat ion for permanent residence m a y commence. T h e B o o k l e t encourages internal settlement between employers and L I C s but advices the latter "to leave a physically abusive situation right away." I n case o f a change o f e m p l o y e r s , the former employers are mandated to issue a record o f earnings ( R O E ) s h o w i n g h o w l o n g the L I C 76 w o r k e d and h o w m u c h she earned. I f the employers refuse to issue a R O E to the L I C the latter can f i le a c o m p l a i n t w i t h the H R C . In sum, L I C s have to c o m p l y w i t h the f o l l o w i n g w o r k i n g conditions during the two years o f l ive-i n period: First , they can only be l i v e - i n caregivers, w h i c h means that d u r i n g the l i v e - i n p e r i o d , L I C s are not a l l o w e d to go to school or take other forms o f vocat ional courses unless the academic or professional pursuit is incidental and secondary to the L I C s function as a caregiver. Second, L I C s must w o r k f u l l t ime and must l ive i n the employers' home at least f ive days w i t h i n one week. T h i r d , they can only w o r k for the employers whose names appear o n the w o r k permit, w h i c h means that i f a L I C wants to change her employers she must apply for a n e w w o r k permit. 3. Immigration Criteria for Live-In Caregivers E s s e n t i a l l y , L I C s ' appl icat ion for permanent residence i n C a n a d a depends o n three types o f criteria: 1. her e l i g i b i l i t y to have an appl icat ion processed i n Canada; 2. her c o m p l e t i o n o f l a n d i n g requirements; and 3. her examinat ion and those o f her dependants i n Canada and abroad concerning a d m i s s i b i l i t y . A s noted earlier, the L C P requires that an applicant successfully complete a course o f study that is equivalent to successful complet ion o f Canadian secondary school . T h e B o o k l e t just i f ies this as a safety measure for L I C s w h o apply for permanent residence so that they are able to succeed i n the general labor market. Government studies have s h o w n that 65 per cent o f n e w j o b s i n Canada w i l l require at least a h i g h school education. T h e two-year l i v e - i n requirement must be 77 c o m p l e t e d w i t h i n the first three years f r o m landing i n C a n a d a before the L I C s c a n a p p l y for permanent residence. T h e y are then g i v e n a summary o f requirements i n the M a n u a l a n d must furnish the i m m i g r a t i o n officer sufficient information so that the officer c a n ver i fy i f L I C s meet the f o l l o w i n g requirements for their e l i g i b i l i t y to apply for permanent residence: 1. prev ious s u b m i s s i o n o f an appl icat ion for an e m p l o y m e n t authorizat ion as a L I C i n a v i s a off ice; 2. possession o f v a l i d and subsisting employment authorization to w o r k as a L I C ; 3. residence i n the employer 's home; 4. complet ion o f a total o f two years o f ful l-t ime employment i n Canada as a L I C w i t h i n three years after be ing admitted to Canada; 5. p r o o f o f two-year w o r k record, completed w i t h i n three years after entry to Canada; 6. There is no i n q u i r y or appeal or appl icat ion for j u d i c i a l r e v i e w f o l l o w i n g a n i n q u i r y under the I m m i g r a t i o n A c t o n the applicant or her/his dependants . 1 1 8 T h e determination o f whether L I C s meet landing requirements inc lude factors such as absence o f misrepresentation, f u l l descr ipt ion o f their dependants and payment o f correct fees. I n the M a n u a l processing officers are reminded that "[a]pplicants who provide false transcripts will be refused [ e n t r y ] . " 1 1 9 T h e examinat ion o f the L I C and those o f her dependants i n Canada and abroad for a d m i s s i b i l i t y for permanent residence is the last stage i n the L I C s application. T h e B o o k l e t reminds L I C s that f inancial situation, sk i l l s upgrading i n Canada, volunteer w o r k , mar i ta l status or the number o f dependents are not relevant factors for a successful grant o f permanent residence. There are also Ibid, 3.2.2, at 5. Ibid, 3.22, at 5. 78 certain statutory requirements that need to be c o m p l i e d w i t h , such as m e d i c a l examinat ion o f a l l dependents whether or not they apply for landing and payment o f appropriate l a n d i n g fees. T h e e x a m i n a t i o n o f a l l dependants is also k n o w n as b l o c k assessment. L I C s w h o have a p p l i e d for permanent residence and are await ing the result are then e l ig ib le to apply for an open employment authorization, or "open v isa" . T h i s means that the L I C m a y seek employment other than careg iv ing . 4. Support Groups and Mechanisms T h e D W A 1 2 0 was established i n 1986 by a group o f l a w students f r o m the U n i v e r s i t y o f B r i t i s h C o l u m b i a . T h e students were concerned about the problems domestic workers were then fac ing i n B . C . T h e l a w students ta lked about h o w the l i v e - i n domestic workers were affected b y different laws and pol ic ies and h o w they needed to be changed to stop the problems affecting the domestic workers. I n February o f 1987 the D W A publ ished its first newsletter. S o o n , the D W A r e c e i v e d a grant from the L e g a l Services Society w h i c h enabled it to wri te the " D o m e s t i c W o r k e r s H a n d b o o k " . I n A u g u s t 1987 the D W A started the legal c l i n i c . O v e r the next few years the D W A refined its administrative set-up to include former and present l i v e - i n domest ic workers i n its Steering C o m m i t t e e . I n 1990 the D W A received f u n d i n g f r o m the B r i t i s h C o l u m b i a L a w Foundat ion to pay for operations and staff. T h e D W A w o r k e d o n two 1 2 0 The history of the DWA was gathered from the DWA publication "10th Year Anniversary" and from personal communication in 1997 with Tarel Quandt, spokesperson and project coordinator of the DWA. 79 projects: c o l l e c t i n g data for a Charter case chal lenging the E m p l o y m e n t Standards A c t and responding to an i m m i g r a t i o n rev iew o f the F D M Program. T h e D W A was n o w able to e m p l o y a lawyer . I n 1992, the D W A l o b b i e d the federal government to change its i m m i g r a t i o n p o l i c y w h i c h r e q u i r e d a l l people a p p l y i n g to w o r k i n C a n a d a to have had tra ining. T h e federal government y i e l d e d to the l o b b y i n g efforts and accepted w o r k experience, not just t ra in ing , as adequate q u a l i f i c a t i o n to w o r k as a domestic w o r k e r i n Canada. T h e D W A was also instrumental i n l o b b y i n g the B . C . government to make changes to the E m p l o y m e n t Standards A c t i n 1995. T h e P h i l i p p i n e W o m e n Centre (the P W C ) is another organizat ion devoted to the domest ic w o r k e r s ' cause. U n l i k e the D W A , whose programs a i m to address the concerns o f a l l fore ign domestic workers, the P W C ' s efforts are geared towards the F i l i p i n o c o m m u n i t y i n general and F i l i p i n a domestic workers i n particular. T h e P W C was formed i n 1989 through the efforts o f a group o f s ix F i l i p i n o w o m e n , i n c l u d i n g domestic workers . T h e P W C has since then achieved considerable success i n educating the F i l i p i n o c o m m u n i t y o n the predicament o f F i l i p i n a L I C s and has recruited and empowered volunteers, many o f w h o m are present or former F i l i p i n a L I C s and F i l i p i n o youths based i n Canada. T h e P W C has also been active and v i s i b l e i n numerous p o l i t i c a l causes, most recently against the recommendations o f the I m m i g r a t i o n L e g i s l a t i v e R e v i e w , i n 1997 at the People's Conference A g a i n s t Imperial ist G l o b a l i z a t i o n w h e n the A P E C Leaders S u m m i t was h e l d i n V a n c o u v e r and attendance at the G l o b a l A l l i a n c e A g a i n s t 80 T r a f f i c k i n g o f W o m e n Consultat ive F o r u m , a feminist-oriented conference. T h e P W C also connects w i t h G A B R I E L A Phi l ippines , the national all iance o f women's organizations and other F i l i p i n o women's groups across Canada, the U n i t e d States and i n other parts o f the w o r l d . T h e P W C advocates the e l iminat ion o f the L C P and argues that many o f the L C P ' s aspects, especial ly the two-year l i v e - i n requirement and the temporary w o r k v i s a , ensure the domest ic workers continue to w o r k i n s i m i l a r l o w - p a y i n g jobs . The D W A and the P W C represent the organized groups i n V a n c o u v e r for the fore ign domest ic workers ' cause. M a n y other organizations have sprouted across Canada , a m o n g others, the A s s o c i a t i o n for the Defense o f the R i g h t s o f D o m e s t i c W o r k e r s o f M o n t r e a l , the C a l g a r y I m m i g r a n t W o m e n ' s Center D o m e s t i c W o r k e r s G r o u p and the Toronto O r g a n i z a t i o n for D o m e s t i c W o r k e r s ' R i g h t s ( I N T E R C E D E ) . T h e latter organizat ion is credited for putt ing pressure o n the federal government to make changes to the T e m p o r a r y E m p l o y m e n t A u t h o r i z a t i o n P r o g r a m and enact the F D M P r o g r a m , and w i t h it the chance to apply for permanent res idence . 1 2 1 There appears to be no f o r m a l n e t w o r k i n g system i n place a m o n g the domestic workers ' organizat ion al though it is apparent that L I C s a l l over C a n a d a see a need to group together w i t h i n the provinces to address their distinct concerns. Abigail B. Bakan and Daiva Stasiulis. Foreign Domestic Worker Policy in Canada. Not One of the Family. Foreign Domestic Workers in Canada, University of Toronto Press, 1997, at 39. 81 C a n a d i a n government support is extended to the L I C s through the E m p l o y m e n t Standards B r a n c h (the E S B ) and the H R C . A s previously discussed these are the government agencies that deal direct ly w i t h the L I C s , f r o m the m o m e n t they arrive i n C a n a d a u n t i l they are q u a l i f i e d to a p p l y for permanent residence. I m m i g r a t i o n C a n a d a deals w i t h the L I C s ' appl icat ions for permanent residence. The support mechanism through the extraterritorial role o f the P h i l i p p i n e government concerning the welfare o f its migrant workers has been discussed i n chapter II. H o w e v e r , the P h i l i p p i n e Consulate i n V a n c o u v e r does not have a labor attache nor does it r u n a wel fare center for F i l i p i n o migrant workers . A s mentioned, the P h i l i p p i n e government does not perceive Canada as a trouble spot for its migrant workers . G o v e r n m e n t support through the labor attache and welfare centers are therefore concentrated i n the M i d d l e East and i n Southeast A s i a . A l s o as previously discussed, the P h i l i p p i n e government lacks the necessary resources to carry out its mandate o f h e l p i n g a l l o f its migrant workers . C. Analysis of the Live-In Caregiver Program and the Immigration and Labor Policies A close l o o k at the m e c h a n i s m o f the L C P shows the two-t iered and c o n v o l u t e d set o f i m m i g r a t i o n and labor processes. W h i l e i m m i g r a t i o n is w i t h i n the d o m a i n o f the federal government, labor is an amorphous matter that is p r i m a r i l y w i t h i n the p r o v i n c i a l d o m a i n . S ince L I C s are affected b y both federal and p r o v i n c i a l legis lat ion, they f i n d it even m o r e d i f f i cu l t to ensure they are c o m p l y i n g w i t h the labor laws w h i c h vary f r o m p r o v i n c e to prov ince . T h u s , the L C P is a p r o g r a m f a l l i n g under the federal I m m i g r a t i o n A c t . H o w e v e r , L I C s have to educate themselves about the p r o v i n c i a l labor standards they f a l l under. S ince 1995 L I C s are covered 82 under the B r i t i s h C o l u m b i a E m p l o y m e n t Standards A c t w h i c h stipulates a m i n i m u m standard agreement o n wages, hours o f w o r k , duties and r o o m and board. B u t m a n y o f these rights are merely procedural rights. T h e y are not self-executory and L I C s bear the burden o f ensuring that their employers are i n c o m p l i a n c e w i t h the law. F o r example, the contract i t se l f is negotiated exc lus ive ly between L I C s and their employers. The B o o k l e t stresses the government's neutrality b y not being a party to the contract and having no authority to intervene, i n consonance w i t h the pr inc ip le o f freedom o f contract. The burden o f ensuring that the appl icable labor standards are f o l l o w e d l ies w i t h the L I C s . W h i l e any labor standards v io lat ions can be reported to the E S B , f e w L I C s actual ly f i le a compla int because o f fear o f reprisals, and even threats o f deportat ion f r o m their e m p l o y e r s . 1 2 2 T h e B o o k l e t lists the specif ic w o r k i n g condit ions and e m p l o y m e n t standards respecting the L I C , but it imposes o n the L I C the task o f obta in ing the legal i n f o r m a t i o n f r o m the appropriate government agencies. Thus , labor standards are not enforceable because o f lack o f a u n i f o r m enforcement m e c h a n i s m among employers and L I C s . T h e E S B w i l l act o n l y i f a compla int is brought f o r w a r d b y L I C s . A standard e m p l o y m e n t contract is just one o f the m a n y ways that the w o r k i n g condi t ions o f L I C s can be improved. The R O E requirement, w h i l e b e n i g n i n purpose, is a potential source o f control for the employers since every L I C w h o applies for permanent residence must furnish the i m m i g r a t i o n off icer w i t h a R O E to prove c o m p l e t i o n o f two years o f l i v e - i n w o r k . It has been d o c u m e n t e d that not a l l employers w i l l i n g l y c o m p l y w i t h this requirement, m a k i n g it more 1 2 2 Supra, note 104, at 19. 83 diff icult for L I C s to complete a l l requirements for the application for permanent residence. W h i l e it is the right o f every L I C to receive a R O E and it is the employers' duty to issue one, f e w L I C s w i l l c o m p l a i n to the E S B about a delayed issuance or non-issuance o f a R O E because L I C s k n o w they need it for their appl icat ion for permanent residence. T h u s , the R O E is not m u c h different f r o m its predecessor, the requirement o f a release letter w h i c h was based so le ly o n the prerogative o f the employer . W h i l e L I C s are not required to stay w i t h their or ig inal employers, the process o f c h a n g i n g t h e m requires an appl icat ion for a n e w w o r k permit bearing the name o f the n e w employers . T h i s is required because a w o r k permit is j o b and employer specif ic . T h u s , the L I C w h o wishes to change employers must first ask for a R O E f r o m the first employers , apply for a n e w w o r k permit and wait for its issuance before she can start w o r k i n g for the n e w employers. D e l a y s m a y occur at any stage; either i n f i n d i n g n e w employers , obtaining the R O E or r e c e i v i n g the n e w w o r k permit. T h e process again underscores the elaborate bureaucracy L I C s have to face for an otherwise uncomplicated procedure o f changing jobs . F i n a l l y , L I C s are required to renew their w o r k permit every year. T h i s means that at the end o f the va l id i ty o f the w o r k permit , L I C s face an uncertainty o f the renewal o f their w o r k permit. T h e y must ask their employers to consent to a renewal and then submit the employers' consent letter together w i t h their request for a renewal and the appl icable fees. 84 T h u s , it is important that the E S B be pro-active o n the situation o f L I C s and o n employers ' compl iance w i t h the E m p l o y m e n t Standards A c t . M a n y o f the D W A ' s recommendations c l a m o r for closer moni tor ing o f the employment relations i n v o l v i n g L I C s . 1 2 3 T h e recommendat ions are basic responsibi l i t ies expected o f the B . C . M i n i s t r y o f L a b o u r and the E S B . A m o n g the m o r e important recommendations are registration o f employers w i t h the E S B w i t h the cooperat ion o f employment agencies, more pro-active enforcement o f the E m p l o y m e n t Standards A c t through m o n i t o r i n g o f employers and employment agencies and i m p o s i t i o n o f penalties o n employers for failure to register w i t h the E S B , and provis ions for legal a i d by both the B . C . and the federal government . Further, since most sending countries require their migrant workers to undergo seminars and orientat ion session about the cultural norms and habits o f the host country , it is suggested that the M i n i s t r y o f L a b o u r and Immigrat ion Canada coordinate to require employers to attend orientat ion sessions to understand the responsibi l i t ies o f e m p l o y i n g a L I C . L I C s can be d i s q u a l i f i e d for m a k i n g a misrepresentation i n their appl icat ion for permanent residence. Misrepresentation refers to the education, training and/or experience requirements for issuance o f a n e m p l o y m e n t authorization, "whether the misrepresentation was made by the member or by another person."™ T h i s puni t ive measure stems f r o m the 1977 "Case o f the S e v e n J a m a i c a n W o m e n " where the w o m e n w h o had misrepresented their m a r i t a l and f a m i l y status were deported but subsequently restored to their landed status under M i n i s t e r ' s Permits , i n large part due to strong publ ic support f r o m various cause-oriented organizations. T h e D W A 1 2 3 Ibid. 1 2 4 Manual, Chapter PO13, 10.1, at 21. See also, section 27( 1 )(e), Immigration Act. 85 advises L I C s i n B . C . that presently, misrepresentation as to age, t ra ining or educat ion c a n s t i l l cause serious obstacles to the L I C s ' appl icat ion for permanent residence. H o w e v e r , the misrepresentat ion c a n n o w be rect i f ied as l o n g as the L I C admits to its c o m m i s s i o n and has it corrected p r i o r to her appl icat ion for permanent residence. W h a t compl icates this requirement is the fact that the consequence o f misrepresentation by another person is also borne b y the L I C . I n the past, some F i l i p i n a domestic workers w h o apply for the L C P f r o m Singapore or H o n g K o n g are asked b y unscrupulous employment agencies there to misrepresent their mari ta l and/or f a m i l y status. The F i l i p i n a s are to ld that the concealment o f their marriage and/or their c h i l d r e n w i l l i m p r o v e their chances at w o r k i n g i n C a n a d a under the L C P . T h e e m p l o y m e n t agencies e x p l o i t the F i l i p i n a domestic workers k n o w i n g the latter often face f inanc ia l constraints and support f a m i l y members i n the P h i l i p p i n e s . G i v e n this unequal re lat ionship between agent and applicant domest ic worker , it is argued that w h i l e the general purpose for d i s a l l o w i n g misrepresentation is commendable , it becomes a r i g i d rule i n the above s i tuation to p u n i s h the L I C s for their misrepresentat ion. 1 2 5 T h e real culpri t i n m a n y instances are the prof i t -hungry e m p l o y m e n t agencies eager to deploy the domestic w o r k e r s . 1 2 6 There are a number of federal court cases dealing with the issue of misrepresentation. See Mitra v. Canada. [1996] F.C.J. No. 1495, Borre v. Canada. [1998] I.A.D.D. No. 110, and in Eugenio v. Canada. 38 Imm. LR. (2d) 165. 1 2 6 The case of Eugenio v. Canada. 38 Imm. LR. (2d) 165, presents misrepresentation without undue influence. A domestic worker on her way to Canada was provided by her Singaporean agent with a passport that stated a different person's name. The agent explained that he had arranged for her to take the place of another nanny who had been approved by Canadian immigration authorities but could not then travel. The domestic worker needed the work to support her spouse and her four children. Upon landing in Canada she continued her false identity and eventually obtained Canadian citizenship. Immigration Canada ordered her deported and the domestic worker appealed. The case was dismissed. The court held that the domestic worker, never having applied for entry to Canada, did not have the right to appeal the deportation. The court found that the domestic worker perpetrated the fraud by obtaining various documents, and Canadian citizenship. The court also found that she committed an act of personation punishable under the Criminal Code. 86 T h e onerous condit ions do not end there. I n the appl icat ion for permanent residence, the L I C s are assessed w i t h a l l their f a m i l y members whether or not they also apply for permanent residence: "When they apply for landing in Canada, applicants are required to have all dependants examined."121 T h i s b lock assessment mere ly aggravates the e m o t i o n a l a n d personal hardships L I C s already suffer due to lengthy separation f r o m the f a m i l y . It also further fortif ies the st igma that L I C s are considered less worthy immigrants. The Canadian i m m i g r a t i o n program has been accused o f formulating racial ly tainted rules that condone the separation o f fami l ies o f foreign domestics w h i l e at the same t ime m o u t h i n g o f f i c ia l state discourses o n "the sanctity of the family" : m The family' that is to be protectedfrom unnecessary state intervention is the middle-class white family. The same state shows no hesitation in disrupting family lives of usually poor, rural women from developing countries."129 In fact, the M a n u a l makes clear the intent o f Canada's i m m i g r a t i o n pol ic ies w h e n it advises v i s a officers o n situations w h e n a L I C wishes to be accompanied by dependants u p o n her i n i t i a l entry into C a n a d a : It is expected that live-in caregivers will not be accompanied by dependants. Although, there may be evidence that the employer is aware of the applicant's circumstances and that the employer agrees to a dependant member of the applicant's family residing in the employer's home, there are no guarantees that any subsequent employer would agree to the same terms. Live-in caregivers who wish to bring their children should be given the reasons why this is not possible. Visitor visas should not be issued to these children, but the live-in caregiver applicant may be approved. 127 Supra, note 124, at 3. 128 Supra, note 121, at 17. ]29Ibid 87 Clear ly , the m a i n interest o f Canada is i n the L I C s ' labor and ski l l s as caregivers. W h a t happens to their spouses and chi ldren is less important because the presumption is that L I C s w i l l sponsor them to Canada after two years. Thus , the requirement o f b l o c k assessment must be e l i m i n a t e d f r o m the L C P and instead assess f a m i l y members o f L I C s o n an i n d i v i d u a l basis. A l t h o u g h the B o o k l e t states that sk i l l s upgrading i n Canada, volunteer w o r k and f inanc ia l situations are not relevant factors for a successful grant o f permanent residence they become very relevant for L I C s once they obtain an open employment authorizat ion p e n d i n g the outcome o f their a p p l i c a t i o n for permanent residence. S ince a L I C was more l i k e l y unable to go to s c h o o l w h i l e w o r k i n g as a L I C for two years, she n o w has m i n i m a l chances o f apply ing for j o b s outside the caregiver m i l i e u , despite the n e w l y acquired "open v i s a " . T h u s , a L I C loses t w o years o f general p r i v a c y and socia l space because o f the l i v e - i n w o r k i n g c o n d i t i o n . She also loses t w o years o f opportunity o f upgrading her sk i l l s , l eav ing her w i t h the same degree o f e m p l o y a b i l i t y as she had w h e n she first entered Canada two or three years ago. W h i l e this loss m a y be v i e w e d as just another condi t ion o f employment and application for permanent residence, F i l i p i n a s w h o enter C a n a d a as L I C s lose out o n the m a n y chances o f se l f - improvement that other i m m i g r a n t s freely a v a i l of. T h e l i v e - i n requirement is therefore the al l-encompassing requirement o f the w o r k i n g condit ions o f L I C s . It is the essence o f the L C P and has surv ived decades o f i n f l u x o f fore ign domest ic workers into Canada. Because o f the l i v e - i n requirement w o r k p l a c e and l i v i n g space are i n 88 essence one and the same. T h i s ambiguous nature o f L I C s ' w o r k p l a c e makes enforcement and m o n i t o r i n g o f labor standards more diff icult . Thus, L I C s f ind it doubly dif f icult to be candid w i t h their employers. T h e y are less eager to assert their labor rights o n employers whose house they l i v e i n . T h e y are also more prone to abuse, threats, cul tural insensi t iv i ty and even sexual harassment . 1 3 0 I n fact, the B o o k l e t recognizes the inherently vulnerable w o r k i n g condi t ions o f L I C s w h e n it advises t h e m o n the proper steps to take i n case o f abuse i n the w o r k p l a c e . L I C s are w a r n e d about the possible abusive situations that m a y arise out o f the w o r k relat ionship. T h e y are i n f o r m e d o f the nature o f abuse and their rights and protections afforded them. T h e B o o k l e t also contains an expl ic i t note that a L I C w h o takes up w o r k as a l ive-out caregiver d u r i n g the required two-year l i v e - i n p e r i o d can be d isqual i f ied f r o m the program. L I C s are aware that their rights as domestic workers , i n c l u d i n g the n e w l y acquired labor rights i n B . C . , are subordinate to the employers' prerogative to dictate the rules i n the w o r k and l i v i n g place, to m a k e a favorable recommendat ion about their w o r k performance to friends a n d other potential L I C employers, and to p r o m p t l y issue a R O E for the L I C s ' appl icat ion for permanent residence. F i n a l l y , the concept o f post-entry applicat ion for permanent residence has r ight ly been c r i t i c i z e d as gatekeeping and p o l i c i n g measures by C a n a d a o f desirable fore ign labor but undesirable cit izens. In January 1997, the Vancouver parents of a teenage boy were found liable for the son's extreme sexual harassment against their live-in nanny. The B.C. Human Rights Council awarded the live-in caregiver damages and lost wages. 89 The two-year l i v e - i n requirement is also t ied w i t h the requirement that the L I C must apply for permanent residence after the two years o f l i v e - i n w o r k but w i t h i n three years from entering Canada. Thus , a L I C must finish the two years o f l i v e - i n careg iv ing w i t h i n three years or loses the chance to apply for permanent residence. In addition to the l i v e - i n requirement, the L I C s two-year temporary status further exacerbates their precarious situation. Inevitably, a L I C m a y secure or be denied permanent residence status, thus p l a c i n g her first two years w i t h her w o r k permit i n the " technica l ly non-existent category o f v i s i t i n g i m m i g r a n t " . 1 3 1 T h u s , C a n a d a f o l l o w s other host countries i n offering an unstable w o r k i n g environment for foreign domestic workers because o f inordinate amounts o f power g iven to employers. In effect, the imbalanced relationship between employers and L I C s becomes a m i c r o l e v e l representation o f the dupl ic i ty between the Phi l ippines , a labor sending country, and Canada, a migrant w o r k e r host country. I n " A n A f f a i r B e t w e e n N a t i o n s " , P a t r i c i a Daenzer posits that: "...the powers of the First World states are increasingly being used to police and limit access of third World migrants to rights associated with First World Citizenship. Such policing is evident in Canadian policies regulating foreign domestic workers, particularly as they have been applied to Third World women of colour."m 1 3 1 Audrey Macklin. Foreign Domestic Workers. McGill Law Journal, vol. 37, no. 3, 1992, at 697. Macklin further states: [R]er application to enter Canada as a foreign domestic worker is assessed as if she had the intention of remaining in Canada permanently, but once admitted she is officially labelled a visitor unless and until she successfully applies for landed status two years hence . . . In practice a domestic worker bears the burden of both immigrants and visitors, yet receives the benefits of neither. 1 3 2 Patricia M . Daenzer. An Affair Between Nations. Not One of the Family. Foreign Domestic Workers in Canada, University of Toronto Press, 1997, at 85. 90 Indeed, Canada's regulations restricting the rights o f foreign domestic workers and m a r g i n a l i z i n g their social m o b i l i t y and status reflect the unequal relations between " F i r s t W o r l d C a n a d a " and " T h i r d W o r l d P h i l i p p i n e s " . T h e development o f this relat ionship is unfortunate, g i v e n the reciprocal reliance; o f Canada's need for cheap labor and o f the P h i l i p p i n e s ' v i e w o f C a n a d a as a safe h a v e n for its migrant workers . I n the c o n c l u d i n g chapter it is argued that C a n a d a is i n a unique p o s i t i o n to blaze the t ra i l for international r e c o g n i t i o n o n the importance o f international labor, especia l ly female labor, m i g r a t i o n . B e f o r e proceeding to the d iscuss ion, it is he lpfu l to summarize what has been discussed i n the preceding chapters. Chapter I explained the background, objective and l i m i t a t i o n o f the thesis. I n chapter II it is learned that the Phi l ippines , w i t h the world's most extensive labor export program, openly espouses the migrant w o r k e r phenomenon because o f the l i d it puts o n its u n e m p l o y m e n t rate and the valuable foreign exchange it earns f r o m the migrant workers ' remittances. It is also learned that the Phi l ippines recognizes, through years o f fa i led legis lat ive c o n t r o l , the resolute trend o f labor m i g r a t i o n is presently the P h i l i p p i n e s ' o n l y rel iable export p o l i c y that keeps its e c o n o m y buoyant u n t i l f u l l e c o n o m i c stabil i ty and prosperity is achieved. Chapter III expounds o n the experiences o f F i l i p i n a L I C s i n B r i t i s h C o l u m b i a . T h e third chapter also elaborates o n Canada's foreign worker and m i g r a t i o n pol ic ies set out i n the L C P a n d gives a c r i t i c a l analysis o f the perceived inequities i n the L C P . 91 IV. MIGRANTS' RIGHTS AND LABOR ISSUES IN THE CONTEXT OF THE LIVE-IN CAREGIVERS IN CANADA A. A Policy Analysis Canada's foreign w o r k e r situation is less oppressive than i n the M i d d l e East or the n e w l y i n d u s t r i a l i z e d A s i a n economies. T h e L C P i n general displays a more l ibera l approach to domest ic w o r k than what can be found i n the tradit ional host countries where h is tor ica l and cultural practices o f the ancient master-servant relat ionship are appl ied to fore ign domest ic w o r k e r s . F o r example , Singapore's two dominant rac ia l groups, the Chinese and East Indian, have preserved the not ion o f a feudal paternalism o n the part o f the e m p l o y e r (the Chinese) and a stringent soc ia l hierarchy based o n the caste system (the East Indian). A d d i t i o n a l l y , i n both cultures, w o m e n traditionally possess a lower status. 1 3 3 In Saudi A r a b i a and i n Singapore, foreign d o m e s t i c workers are not covered b y the l o c a l labor laws. Singapore i n part icular has devised stringent rules not o n l y for the domestic worker but for the employer as w e l l . T h e latter must pay a st i f f mandatory b o n d and ensure that the domestic worker "behaves w e l l " and does not, among others, become pregnant or marry a Singaporean. T h i s environment creates drastic pressure o n the e m p l o y e r to ensure that the domestic w o r k e r compl ies w i t h the rules so that the e m p l o y e r does not to forfeit the cost ly b o n d . A l s o , i n a l l tradit ional host countries for fore ign domest ic workers , the scope o f w o r k is not well-defined. Thus, it is c o m m o n practice for foreign domestic Thomas T. W. Tan and Theresa W. Dwanyahan, "Opposition and Interdependence: The Dialectics of Maid Employer Relationships in Singapore", Philippine Sociological Review, 35 (3/4), 1987 July/Dec, at 37. 92 w o r k e r s to l o o k after the c h i l d r e n and pets, c lean the home, w a s h the cars and attend to their employers ' needs dur ing soc ia l gatherings. O v e r t i m e w o r k hours become routine w h i l e their commensurate pay is left to the discret ion and g o o d w i l l o f the employer . I n Canada, the L C P m e c h a n i s m ensures that potential employers show p r o o f that they are i n real need o f a n L I C , w h i c h means that there is either a c h i l d or an elderly person i n need o f caregiving. A s previous ly discussed, the scope o f w o r k o f L I C s is, at least i n theory, also wel l-def ined. Pertinent p r o v i n c i a l labor laws i n provinces where L I C s are concentrated are n o w applicable to them. It is thus fitting to observe the change o f term f r o m "domestic worker" used i n earlier Canadian foreign domestic programs to " l i v e - i n caregiver", emphasiz ing the different treatment o f foreign migrant workers between the traditional host countries and Canada, and stressing the important 'caregiving' s k i l l s o f a " l i v e - i n caregiver", as opposed to h i g h l i g h t i n g the bonded labor situation i n "domest ic w o r k " . H o w e v e r , b e i n g the most benevolent host country does not erase the oppressive character o f Canada 's fore ign w o r k e r pol ic ies . C a n a d a has been accused o f i m p l e m e n t i n g i m m i g r a t i o n p o l i c i e s , u p o n w h i c h the L C P is founded, w h i c h "have been shaped by the demand for cheap labour, as well as racial, ethnic, gender and class biases [discr iminatory of] women of colour."m It is important to analyze h o w effective the L C P is as a p o l i c y instrument for Canada. It is argued that the L C P presents a unique scenario where the p r o g r a m , a l though o r i g i n a l l y 1 3 4 Agnes Castille, "Canada's Immigration Policy and Domestics from the Caribbean: The Second Scheme", Race, Class, Gender: Bonds and Barriers. Toronto and Montreal: Between the Lines and the Society for Socialist Studies, 1987. 93 dr iven b y Canada's economic demands, attracts female migrant workers w h o treat the p r o g r a m as an i m m i g r a t i o n mechanism. Studies have s h o w n that migrant workers and their f a m i l i e s feel that the f i n a n c i a l rewards that m i g r a t i o n is expected to produce offset the f a m i l y problems result ing f r o m the m i g r a t i o n experience. Thus , the contradict ion entrenched i n the fore ign domestic worker movement o f painful separation from their f a m i l y i n order to care for another's is e m p h a s i z e d b y the fact that most domestic workers migrate to b u i l d f inanc ia l security and secure a brighter future for their c h i l d r e n . 1 3 5 It is c o m m o n l y recognized that most F i l i p i n a s entering Canada under the L C P migrate to sponsor their f a m i l y and p r o v i d e t h e m w i t h a better l i fe : "If it wasn't children, it was parents, or siblings or cousins... Why else would a 32 year old woman be moving half-way around the world to take care of someone else's household?"'36 A s p r e v i o u s l y discussed, C a n a d a is different from other host countries for F i l i p i n a migrant w o r k e r s because it offers the chance o f a p p l y i n g for permanent residence after h a v i n g c o n t i n u o u s l y w o r k e d for t w o years as L I C s . T h i s chance for soc ia l integration also shows Canada's t radi t ion as an i m m i g r a t i o n country rather than a host o f temporary fore ign workers . I n contrast, Southeast A s i a n , M i d d l e Eastern and even E u r o p e a n host c o u n t r i e s 1 3 7 o f F i l i p i n a domest ic workers a l l o w entry o f the w o m e n strictly o n a temporary w o r k basis. These are countr ies w i t h stringent or non-existent i m m i g r a t i o n pol ic ies - situations where the terms "overseas contract w o r k e r " and "temporary" or "guest w o r k e r " are appropriate. T h u s , C a n a d a 1 3 5 Supra, note 121, at 17. 136 Supra, note 131, at 706. 1 3 7 These would include Hong Kong, Singapore, Taiwan, Saudi Arabia, Kuwait, Bahrain, Oman, United Arab Emirates and Italy. 9 4 p r o v i d e s a m i d d l e ground for F i l i p i n a migrant workers w h o are l o o k i n g for better j o b s and a better place to l i v e : It asks t h e m to w o r k for two years as a c o n d i t i o n to apply for permanent residence i n the future. T h e n o t i o n o f a m i d d l e ground can be further used to il lustrate h o w C a n a d a enjoys b o t h w o r l d s w i t h o u t suffering f r o m the s t igma o f either. B y offering the chance o f permanent residence to f o r e i g n domest ic workers , C a n a d a a ims to differentiate i t se l f f r o m the i l l - p e r c e i v e d host countries o f foreign domestic workers. Canada also tries to portray i tself as a fr iendly destination v i a the L C P route for w o m e n f r o m developing countries w h o otherwise lack the resources or quali f ications to migrate to Canada. T h e federal government has a lways put f o r w a r d the c l a i m that the L C P is a compassionate program because it gives migrants a chance at m i g r a t i o n to Canada . It thus a ims to appear benevolent w h i l e d isguis ing its need for the labor o f fore ign domestic workers. In the face o f such government rhetoric, it has r ightful ly been questioned w h y d o m e s t i c w o r k e r s whose labor is i n h i g h demand cannot s i m p l y enter C a n a d a as permanent i m m i g r a n t s . 1 3 8 It is obvious that the Canadian government upholds the d u p l i c i t y o f the L C P and renders unclear whether the L C P is p r i m a r i l y an i m m i g r a t i o n or labor p r o g r a m . T h e L C P incorporates elements o f labor po l ic ies i n an i m m i g r a t i o n p r o g r a m that a l l o w s fore ign workers to enter but requires them to w o r k before they can permanently stay i n Canada. In short, the labor o f the fore ign domest ic workers is needed but their right to stay i n C a n a d a is subject to future determination. E v e n the point system undervalues domestic w o r k w h i c h is i n such a demand that 1 3 8 Supra, note 131, at 697. 95 the federal government was c o m p e l l e d to create separate programs under the i m m i g r a t i o n regulations. C l e a r l y , the irregular nature o f the L C P is i n stark contrast to the other concurrent C a n a d i a n i m m i g r a t i o n programs. T h u s , Canada's domest ic w o r k e r p o l i c y differs o n l y i n degree rather than i n k i n d f r o m those e x i s t i n g i n other host c o u n t r i e s . 1 3 9 A s i n countries such as the M i d d l e East a n d the n e w l y industrial ized Southeast A s i a n economies, Canada takes advantage o f the international migrat ion structures that are p r i m a r i l y dictated b y g lobal e c o n o m i c imbalances between d e v e l o p i n g -sending countries and developed-host countries. I n its supposed humanitar ian role , C a n a d a accepts p o o r w o m e n f r o m the P h i l i p p i n e s whose government eschews the m o n u m e n t a l responsibi l i ty o f protecting its migrant workers a l l over the w o r l d . A l t h o u g h the P h i l i p p i n e s has established the world 's most sophisticated overseas e m p l o y m e n t p r o g r a m , it cannot a p p l y it to the L I C si tuation i n C a n a d a as the L C P set-up is v i e w e d by the P h i l i p p i n e s as a n i m m i g r a t i o n p r o g r a m , not a temporary foreign w o r k e r program. T h u s , the P h i l i p p i n e s rel ies o n the "benevolence" o f Canada's "hospital i ty" , o f p r o v i d i n g F i l i p i n o migrant workers w i t h "the best w o r k i n g and l i v i n g condit ions i n the w o r l d " . T h e C a n a d i a n L C P appears favorable o n l y i n comparison to the conditions domestic workers must endure i n more oppressive host countries. T h i s fact escapes most F i l i p i n a migrant workers whose prior migrat ion experiences m a k e Canada seem l i k e paradise. T h e y are therefore more prone to embrace the government mantra o f Daiva K Stasiulis and Abigail B. Bakan. Regulation and Resistance: Strategies of Migrant Domestic Workers in Canada and Internationally. Asian and Pacific Migration Journal, vol. 6, no. 1, 1997, at 53. 96 "benevolence" and "compass ion" . H a n a H a v l i c e k , founder o f Toronto's Select ive Personnel e m p l o y m e n t agency sums up the F i l i p i n a s ' sentiment i n this w a y : We get thousands of letters from Filipinas who want us to find them jobs in Canada because the working conditions are among the best in the world and they know that they can apply for citizenship here.140 T h e d i s c u s s i o n i n this chapter shows that w h i l e C a n a d a offers the best w o r k i n g condi t ions to foreign domest ic workers , it has yet to f u l l y acknowledge that there is an e c o n o m i c need to be met and that F i l i p i n a domestic workers w h o enjoy the least labor and migrant rights a m o n g w o r k e r s a n d immigrants come to C a n a d a to f i l l that need. C a n a d a prides i t se l f for b e i n g internationally k n o w n as a compassionate and humanitarian country. Y e t the continued existence o f the two-year l i v e - i n requirement and the two-year temporary status o f fore ign domest ic w o r k e r s i n the L C P . attest otherwise. T h u s , this thesis argues that since Canada's role as a forerunner o n contemporary international issues and the l iberal izat ion o f its loca l laws o n gender and sexual equality is renowned, it becomes anachronistic that a cluster o f Canada's i m m i g r a t i o n pol ic ies , col lated into the present L C P . continues to advocate indentured f o r m o f labor and offers a w o r k i n g a n d soc ia l environment l a c k i n g i n h u m a n and migrant rights and d e v o i d o f an equitable employer-employee relationship. M o r e important ly , the L C P is p r o o f o f h o w the P h i l i p p i n e s as a sending country o f migrant workers and Canada as their host country initiate the unbalanced relationship o n a state level , thereby paving the w a y for a s imi lar and unequal setting between F i l i p i n a domest ic workers and their C a n a d i a n employers . C a n a d a fai ls to measure up to its internat ional commitments as the pol ic ies o f the L C P do not c o m p l e m e n t Canada's 1 4 0 Supra, note 103. 97 international character as a peacekeeping, immigrant-fr iendly country. The L C P continues to act as a gatekeeper for Canada's i m m i g r a t i o n pol ic ies . T h u s , w i t h i n Canada's increasing recognit ion and eradicat ion o f race and gender-based inequalities, particularly i n the enactment o f the C a n a d i a n Charter o f R i g h t s and F r e e d o m s , the L C P appears atypica l o f Canada's c i v i l l ibertarian advances. It is i r o n i c that a country whose federal government and a l l p r o v i n c i a l governments have a M i n i s t e r or Secretary o f State responsible for the status o f w o m e n should disregard the female migrant workers ' s ituation. C a n a d a is i n a unique posi t ion, both as a traditional immigrants ' country and as a n international player, to blaze the trai l for international recogni t ion o n the importance o f international female labor migrat ion. T o do this, Canada must eliminate the double standards i n the L C P vis-a-vis the general i m m i g r a t i o n pol ic ies o f Canada. Therefore, it is argued that i n order to mainta in the h i g h marks it has been rece iv ing at the international l eve l , C a n a d a must e l iminate t w o requirements o f the L C P : F i r s t , the two-year l i v e - i n requirement and second, the temporary migrant status o f L I C s u p o n i n i t i a l entry to Canada. L i v e - i n w o r k must be opt ional and not subject to the granting o f permanent residence status. In fact, foreign domestic workers s h o u l d be recruited as independent immigrants under open permits since their w o r k s k i l l s are i n constant demand. Simultaneously , the Canadian i m m i g r a t i o n mechanism must accept the fact that the labor s k i l l s L I C s offer w i l l continue to be i n demand. O n l y then are a l l forms and structures p r o m o t i n g indentured labor and r a c i a l l y tainted i m m i g r a t i o n pol ic ies erased. T o preserve its international reputation, C a n a d a must also make reforms o n the international l e v e l . Studies suggest that forg ing an international consensus o n the migrant p h e n o m e n o n proves futile and that instead, the root causes o f migrat ion should be addressed. H o w e v e r , other studies report o n the need for increased bi lateral and mult i lateral a i d between host and sending countries and for observance o f international labor standards. 1 4 1 C a n a d a c a n address the issues by rati fying and implement ing international conventions. S p e c i f i c a l l y , T h e U N C o n v e n t i o n o n the Rights o f A l l M i g r a n t Workers and M e m b e r s o f T h e i r F a m i l i e s has been s igned thus far b y eight member-countries, i n c l u d i n g the Phi l ippines . T h e convention needs 2 0 signatures i n order to be rat i f ied. C a n a d a w o u l d be the first host country to s ign the C o n v e n t i o n w h i c h has been adopted and opened for signature since 1990. T h e s ignif icance o f the U N C o n v e n t i o n o n the P r o t e c t i o n o f the R i g h t s o f A l l M i g r a n t W o r k e r s and M e m b e r s o f T h e i r F a m i l i e s l ies i n its comprehensive approach to migrant workers and their rights. It v iews migrant workers as h u m a n beings and not mere e c o n o m i c inputs. It addresses f a m i l y reuni f icat ion issues a n d the r ight o f members o f migrant w o r k e r fami l ies , as w e l l as those o f undocumented workers . D u r i n g the drafting o f this Convent ion , the tension between labor-sending and labor-receiving countries was apparent. T h e former pushed for m a x i m u m protect ion for migrant workers , the latter w i s h e d to reduce p o l i t i c a l and e c o n o m i c costs. B i l a t e r a l treaties between C a n a d a and the P h i l i p p i n e s w o u l d assist the latter country i n its attempts to extend welfare and protective mechanisms w i t h i n host countries o f F i l i p i n o migrant 1 4 1 Female Asian Migrants: A Growing But Increasingly Vulnerable Workforce. International Labour Organization 1996 Press releases. Monday, 5 February, 1996 (ILO/96/1). 99 workers. T h i s extraterritorial reach o f P h i l i p p i n e welfare and protection mechanisms are lega l ly j u s t i f i e d through the P h i l i p p i n e s ' inherent right to the exercise o f p o l i c e power . T h i s is not regarded as an infringement o f i n d i v i d u a l social and economic h u m a n rights. Rather, it is v i e w e d as a necessity i n the P h i l i p p i n e labor export movement i n the face o f the Phi l ippines ' developing economy and non-welfare state. A recent study posits that extraterritorial laws l i k e those o f the P h i l i p p i n e s are d o o m e d to f a i l : There is an absence of international legitimacy, authority and resources for labor-exporting countries to extend extraterritorial protection to their overseas workers. It is therefore the laws, policies, and customary practices of the labor-importing society that will prevail in determining the conditions and protections available for migrant domestic workers... [T]here is clearly an overall pattern in which domestic workers are subjected to greater and more exceptional levels of restriction relative to most other categories of workers and immigrants . U 1 It is argued that w h i l e the above observation is v a l i d , it unnecessari ly assumes that extraterritorial protect ion is meant to supersede the laws o f the host country. Rather, the protect ion a ims to complement that o f the host country. Thus , the P h i l i p p i n e is one o f the f e w countries that has a labor desk and welfare center attached to its embassies or consulates. Nevertheless, the recent cases o f the hanging o f F l o r C o n t e m p l a c i o n i n Singapore a n d the near execution o f Sarah Balabagan i n the U n i t e d A r a b Emirates prove h o w enforcement o f P h i l i p p i n e laws becomes almost impossible i n host countries that w i l l understandably apply their o w n laws. Thus , the answer to the Phi l ippines ' inabi l i ty to enforce its laws i n another country m a y l ie i n the pursui t o f international treaties and bilateral agreement, or state-to-state agreements w i t h host countries. 142Supra, note 139, at 43. 100 B. Conclusion A s i a n w o m e n m a k e up the fastest g r o w i n g category o f the world 's p o p u l a t i o n o f migrant workers . T h e fact that one out o f every two international migrants i n the w o r l d is a w o m a n just i f ies the plethora o f studies made regarding the employment and m i g r a t i o n experiences o f w o m e n . T h e thesis seeks to contribute to that literature w i t h particular focus o n F i l i p i n a domestic workers i n B r i t i s h C o l u m b i a , Canada. T h e P h i l i p p i n e migrant labor phenomenon is about the exodus o f workers from the P h i l i p p i n e s i n search for a better l i fe and a brighter future. T h e P h i l i p p i n e government fa i led to real ize the real impetus or refused to address the root causes o f migration. Instead, its focus was o n turning the export o f migrant labor into a profitable scheme. W h e r e more s ignif icant laws were needed the government merely produced delayed legislative reactions to the latest controversies. E v e n the latest legislative effort, the M i g r a n t Workers A c t , was only i n reaction to the C o n t e m p l a c i o n incident i n Singapore. I n the total picture o f P h i l i p p i n e labor m i g r a t i o n C a n a d a occupies the favorite dest ination for F i l i p i n a domestic workers. The Phi l ippines welcomes Canada's benevolence and e c o n o m i c need i n accept ing its female migrant workers . B u t as discussed, the L C P w h i c h is Canada's i m m i g r a t i o n p r o g r a m for foreign domestic workers is not o n l y d i s s i m i l a r to fore ign w o r k e r pol ic ies o f other host countries, it is also discordant w i t h the overal l c i v i l l ibertarian development 101 o f Canadian legislat ion and constitutional guarantees. W i t h advanced legal concepts o n gender a n d sexual equal i ty entrenched i n an egalitarian society the L C P is an unfortunate legacy o f Canada's not-so-distant racist past. T h e latest I m m i g r a t i o n L e g i s l a t i v e R e v i e w calls for the e l i m i n a t i o n o f the L C P a n d the rec lass i f icat ion o f foreign domestic workers as independent immigrants , thereby freeing t h e m o f the l i v e - i n requirement and o f the two-year temporary status. W h i l e the r e c o m m e n d a t i o n seems c o m m e n d a b l e and i n l ine w i t h the arguments presented i n this thesis, it must be v i e w e d together w i t h the other 154 recommendations o n the I m m i g r a t i o n A c t and w i t h the general r e c o m m e n d a t i o n o f d i v i d i n g the I m m i g r a t i o n A c t into two separate leg is lat ion. W h a t is important, i n the f inal analysis, is that foreign domest ic workers enter C a n a d a w i t h equal labor rights and ful l - f ledged migrant status as other members o f society. 102 Bibliography 1987 P h i l i p p i n e Const i tut ion. 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