Assessing Mode 4: Insights from US and Australia on Temporary Labour Mobility in Trade Agreements

1. Mode 4: current regimes Julia Nielson / Olivier Cattaneo Trade Directorate OECD

2. Current regimes • Country case studies • US and Australia • best data, well-developed schemes • transparency of information • focus on general lessons/insights • Treatment of labour mobility in RTAs • different models • detail distributed, focus on general patterns

3. Country case studies • GATS schedules set out commitments BUT • may not reflect current regime • don’t mention visa categories • Need to look at actual temporary entry systems operated by migration authorities • sense of scale of entry • terms, conditions and means of entry • But this requires some “mapping” of mode 4 coverage….

4. Country case studies • Different systems, different policy communities -migration and trade (mode 4) • categories not the same • information required not always the same • Some interpretations involved • level of detail not always sufficient to judge extent of mode 4 coverage

5. Country studies - issues • Migration categories do separate between temporary and permanent • and often between short-term visit and longer term (but still temporary) presence • Within temporary entrants, also distinguish • type of occupation (skill level or perhaps sector or specific profession - e.g., medical) • country of origin

6. Country studies - issues • Migration categories do NOT generally distinguish between service and non-service activities • e.g., business visitors or “company managers” etc could involve service and non-service sector activities • Not always clear what might be a service • e.g., temporary agricultural workers OR suppliers of fruit-picking services • Even where service sector indicated, may not correspond to W/120 categories

7. Country studies - issues • Also not always clear the extent to which an activity is commercial • e.g., amateur and professional athletes • Some activities are also “mixed modes” • e.g., industrial/occupational trainees (mode 2 consumption or mode 4?) • exchange programs - students (mode 2) and lecturers (mode 4)? • Working Holiday Makers - mode 2 tourists or mode 4 service suppliers?

8. Country studies - issues • Definition question • foreign workers working on contract for domestic companies vs as employees of domestic companies • language of GATS vs members’ commitments • But are issues • can be difficult to know type of contract • not a migration distinction • have included them without prejudice to determination on this point

9. Country study - findings • Temporary entry increasing • General requirement for a certain level of skills or education • Sponsored workers required to be paid the same rates as nationals and same working conditions • All subject to general visa conditions regarding e.g, good health and character • families often included

10. Country study - findings • Periods of stay vary according to type of entrant • extensions generally (but not always) possible and subject to a maximum limit • Detailed breakdown by category provide good data on numbers and country of origin of key entrants • e.g., temporary visitors for business, intra-corporate transferees and specialty occupation workers in the US; business visitors, medical and educational in Australia

11. Country study - findings • Specific regimes in areas of particular interest • e.g., sport, entertainment, medical • linked to mode 3 - investors or intra-corporate transferees/regional headquarters agreements • GATS - “service sellers” visa in Australia • Attempts to minimise any negative impacts on nationals (e.g., labour market testing) • Special facilitation schemes for certain nationals, including on the basis of RTAs.

12. RTAs • Wide variety - from total freedom of labour to facilitation of existing access only • reflects, e.g., geographical proximity; levels of development, cultural and historical ties. • while GATS is limited to temporary movement of service suppliers, some RTAs go beyond this • free movement of labour • or limited movement, but beyond service suppliers

13. RTAs • RTAs not providing full labour or service supplier mobility tend to use GATS-type carve outs • exclude permanent migration and access to labour market • don’t impinge on right to regulate entry and stay of individuals • Most RTAs are subject to general immigration legislation • parties retain discretion to grant, refuse and administer residence permits

14. RTAs • Symbiotic relationship between RTAs and the GATS • NAFTA provided model for GATS • other RTAs use GATS model (e.g., EU-Mexico, US-Jordan) • RTAs also feed off each other • Latin American agreements; proposals in FTAA resemble NAFTA and EU-Mexico

15. RTAs • Some cover movement only under mode 4 in services chapter • e.g., MERCOSUR, US-Jordan • Some group all mobility separately • e.g, Group of Three, Japan-Singapore • others include reference to mobility of key personnel in investment provisions • e.g., ASEAN, proposals in draft FTAA • or sectoral chapters • e.g., EU-Mexico in financial services

16. RTAs • Facilitated movement of people does not always equal right to provide specific services • need to read in conjunction with liberalisation commitments on particular service sectors for all types of agreement • agreements can exclude certain service sectors from coverage; apply special rules to certain sectors • professions remain governed by national regulations on licensing and qualifications

17. RTAs • Need to be careful comparing RTAs (apples and oranges) • some restrictions are unnecessary when the RTA doesn’t offer a certain kind of access • e.g., EU specification that certain jobs reserved for nationals only required in context broad mobility • some RTAs offer broad mobility, but exclude some sectors; others cover all sectors but limit mobility to certain defined groups.

18. RTAs • Paper creates number of broad groupings based on text, not implementation • full mobility of labour • EU, EEA, EFTA, COMESA, Trans-Tasman Travel Arrangement • market access for certain groups, including beyond service suppliers and/or agreements grouping all mobility in a separate chapter • CARICOM, NAFTA, Canada-Chile, Europe Agreements, Japan-Singapore, Group of Three

19. RTAs • Agreements using GATS model with some additional elements • US-Jordan, EU-Mexico, AFTA, Euro-Med (Morocco, Tunisia), New Zealand-Singapore • Agreements using the GATS model • MERCOSUR • Agreements providing no market access but facilitated entry • APEC, SAARC • No provisions or works in progress • CEFTA and FTAA, SADC respectively

20. RTAs • Additionally, some RTAs create special visa schemes or other types of managed entry • Trade NAFTA visas • APEC Business Travel Card • Experience might be interesting for GATS • indicates that the more diverse the membership, more scope allowed for existing regimes • administrative capacity a major issue

21. Conclusion • Both RTAs and country case studies underline • range of options for access, calibrated to national needs • need for close policy coordination and dialogue between migration and trade authorities • need to consider how to implement commitments and administrative capacity required

22. Thank you