Rethinking the Global Governance of Migrant Domestic Workers: The Heterodox Case of Informal Filipina Workers in China

Abstract

This Article uses an ethnographic case study to challenge the conventional wisdom in international labor law that formality – including formal contracts and special migration programs – always produces better jobs for transnational migrant workers than informality. Interviews with informal Filipina domestic workers in China – often visa overstayers working outside any legally recognized labor migration program – revealed that, despite working without formal status, they earned higher wages and enjoyed more favorable working conditions relative to other Asian labor markets for migrant domestic workers. National regimes of immigration law, which shape the negotiation, formation, and enforcement of the labor contract between the foreign worker and the domestic employer, explain this paradox. Typical labor migration programs (e.g. Singapore’s) tie the worker's immigration status to a specific labor contract, the breach of which results in prompt deportation. In contrast, such connections between workplace strategies and immigration law measures are more uncertain and leave more room for parties to negotiate in the informal Chinese market. These contingencies between immigration law enforcement and job status ironically enable workers to renegotiate both the employer and the structure of their jobs after arrival, which significantly enhances their bargaining power inside and outside the workplace household. This Article conducts a cross-jurisdiction comparison between a formal program in Singapore and the informal market in China and makes a compelling argument for using a comparative-bargaining-power framework to evaluate how contracts and background rules distribute power and risk among parties in the global care chain. This approach joins the emerging scholarly critiques of the International Labor Organization's almost exclusive focus on formalization to advance migrant workers' conditions.