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 being 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 prioritises the welfare of citizens, instrumentalises migrant labour, and seeks to limit redistribution of a nation’s resources, benefits, and opportunities 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: 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.