The Cost Of Admission: Consent, Non-Waivability, And The Governance Of Migrant Labour

This article examines how the principle of non-waivability in labour law is systematically eroded for migrant workers. It argues that a fundamental tension exists between labour law – which seeks to protect and empower workers – and migration law, which prioritizes the welfare of citizens, instrumentalizes migrant labour, and seeks to limit redistribution to non-citizens. The article demonstrates how consent-based arguments, rooted in migration law, are used to justify the exclusion of non-citizens from otherwise non-waivable labour protections. By analysing legislative, judicial, and policy decisions, it reveals how these arguments contribute to a stratified labour market and the erosion of migrant workers’ rights. Using Israel as a case study, the article first outlines the traditional understanding of the legal mechanisms that temper non-waivability – legislated derogations, court settlements, and good faith – before turning to its core argument: that consent-based reasoning, imported from migration law and governance, adds a further layer of erosion of non-waivable rights. The article illustrates how migration law’s logic infiltrates labour law, transforming non-waivable protections into conditional entitlements and reshaping the normative foundations of labour rights.