5

Employee relations

5.1 Introduction

This chapter is concerned with the area of employee relations. Here, unlike some other commentators, we do not make a hard distinction between the terms industrial relations (IR) and employee relations, which we take to include all aspects of work and the work environment. The area of IR and then employee relations were key areas feeding into the development of personnel management, and then into HRM. The field has critical impacts on HRM, through the political process as well as employer and employee organisations (such as trade unions), and includes labour market changes and legislation. In parts of Asia politics and employee relations are often strongly linked. This discussion forms the first half of this chapter, dealing with its early development, definitions, a system, strategy, perspectives, partnership and the future.

In the West (especially in the European Union), a key aspect of the employee relations area – not least because it is seen to be both a ‘cause’ and a ‘cure’ for ‘poor’ employee relations – is employee involvement. A spectrum of practices is often lumped under the rubric of this elastic concept, ranging from industrial democracy through to financial participation. A more contemporary guise is the idea of workplace partnerships. However, the use of employee involvement as a solution to help in business and management problems often comes too late in the HRM strategy and processes, with it being ad hoc, used merely as a ‘bolt on’ and some sort of organisational ‘life belt’. This area forms the second major part of this chapter, where employee involvement is examined in terms of forms and practices with the related issues that these raise.

5.2 Overview

Employee relations as a subject frequently arouses very mixed reactions. Why is this? For some commentators attitudes are influenced by a range of factors, which include ‘frames of reference’ and ‘perspectives’ in employee relations. Trying to interpret employee relations issues and events, especially disputes, in terms of the ‘facts’ of the situation to arrive at an explanation of the causes is not easy. Yet, surely ‘the facts speak for themselves’? With sufficiently close attention given to collecting detailed information can we not come across some objective explanations? We will look at these issues in the first part of this overview.

The origin of employee relations is in IR, with its antecedents arising in the late nineteenth century ‘labour problem’, with its ‘Two Faces’. On the one hand, there was labour militancy, conflict and economic disruption; on the other hand, there were issues of poor pay and poor working conditions. The best ‘solution’ to this problem was seen by many as collective bargaining, to which IR became closely linked. The IR area remained marked by pragmatism and its scope largely reflected the practical concerns of management, public policy and governments. From the 1950s to the 1980s the area became almost synonymous with trade unions and strife. Managing this strife was a major and time-consuming concern of personnel specialists and line managers, as well as governments as, for example, in South Korea and Japan.

Drawing on a wide variety of theories and data from economics, history, sociology, law, politics and organisational behaviour, employee relations is concerned with all aspects of the employment relationship. It was argued that in every country there was an employee relations ‘system’ involving three groups or parties: workers and their organisations; employers, managers and their organisations; government and agencies concerned with work (see Dunlop, 1959 and Figure 5.1). Every system creates a complex set of rules to govern the workplace; these rules, and the context in which they operate, will be considered in more detail later in this chapter (see 5.4.1 and 5.4.2).

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Figure 5.1 The ER system Source: Dunlop (1958)

The idea of ‘good’ and ‘harmonious’ employee relations is often proposed as ‘normal’ and the key to success. This can be seen in some of the ‘Asian Tiger’ economies. Why does this harmony seem so elusive and the subject of debate? If we look at employee relations in Asia there is great diversity in structures and practices. The role of employee organisations as one group in the employee relations system has been hotly debated, especially in the US. Nevertheless, even in American HRM models (see Chapter 1), trade unions are considered by many to be both ‘stakeholders’ and ‘situational factors’. In the same framework, employee influence is given as a ‘HRM policy choice’ while ‘laws’ are another situational factor. Indeed, the idea of employee involvement, and more recently ideas of ‘partnership’ with labour/trade unions, is not new. The ideas of HRM processes and procedures to reduce or resolve conflict are also of long standing.

We can see some of the issues regarding employee relations and disputes in the Asian example in Text Box 5.1.

Text Box 5.1

Employee relations in China

‘Labour dispute’ is generally regarded as any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the relationship of employer and employee. Whether individual or collective in nature, labour disputes take place between two parties in employer-employee relations, in which employees exercise their labour rights and fulfil their labour duties. Labour disputes in China refer particularly to disputes arising or relating to employment or labour contracts between employers, which can be either SOEs or POEs, and individual employees of any nationality within mainland China (Mo, 2000).

Workers in today’s China have become more vulnerable and marginalised than at any time since 1949. China’s economic reform has drastically changed employment relations and, in fact, has permanently ended the harmonious employment relations that used to exist. While enterprises have ignored most of their responsibilities in looking after their workers’ social and economic needs, they have virtually been given a carte blanche regarding employment. Profit-oriented enterprise management strategies often result in abusing such power. Consequently, there are widespread violations of workers’ rights, labour disputes and a high level of discontent among ordinary workers.

With the help of legal aid and information centres, the Chinese workforce, which used to be docile under the ‘iron rice-bowl’ system (Walder, 1986), has begun to understand and now agitate for their own legal rights in different ways. In spite of facing retaliation from employers, such as losing jobs or work unit housing, or even criminal charges, desperate workers have no other choice but to fight for justice. Their struggles are reflected in many forms, from appealing to unions and local government, work stoppages and strikes. Other more violent collective actions are emerging, such as street demonstrations and protests, blocking main roads and government buildings, beating up enterprise managers and smashing or sabotaging enterprise properties. At the beginning of the economic reform, workers were reluctant to act in this way. Gradually, discontented workers have become more prepared to do so. Workers have also proved adept at using the proletarian rhetoric of the Maoist period to press for social justice in the new economic environment and phrasing their demands in class terms, which the authorities find uncomfortable to deal with (Chen, 1995; Sheehan, 1998). The widespread labour disputes are a major source of social instability, which is perceived by the CCP as the major threat to its nearly six-decade-long rule in China. With employment relations becoming more complex, labour disputes become more equally complex in terms of their forms and causes, making it increasingly difficult for the CCP to solve.

There has been widespread violation of workers’ rights and labour disputes in China during the past two decades. Labour disputes increased an astonishing 1.544% from 1994 to 2005. As the reliability of official statistics is always in question, the number of labour disputes reported in government data including the aforementioned labour and social security statistical yearbooks might be less than the actual number. However, it is almost impossible to ascertain the full scale of labour disputes in China. There are considerable regional variations in the occurrence of labour disputes and it has become evident that regional differences are closely associated with the scale of the regional economy, the restructuring of SOEs and development of non-SOEs. Guangdong, Jiangsu, Zhejiang, Shandong, Shanghai, Beijing, Sichuan and Liaoning are the most heavily affected regions. In 2005, 65.8% of labour disputes reaching a number of 206,700 occurred in these regions.

Labourers make grievances felt in many ways, ranging from passive resistance such as declining labour enthusiasm, committing suicide by individuals, hunger strikes, appealing to enterprise management and to local authorities and bringing cases to arbitration committees and people’s courts, and to active mass protests, work stoppage strikes, street demonstrations, surrounding government buildings and blocking roads. During the past decade, employees tended to appeal directly to local authorities or bring their cases to arbitration committees without dealing with enterprise management. When going to local authorities does not persuade local governments to take matters seriously, appealing to local authorities sometimes easily turns into mass protests and demonstrations. Although most labourers tend to work through official channels including tripartite consultation, arbitration and litigation to resolve their labour disputes, collective violent actions have happened frequently during the past decade because the dialogue channel between workers and managers is largely blocked; today’s society does not provide Chinese people with individual rights and legal ways to protect themselves. Collective actions, in the form of demonstrations, strikes and petitions, help increase the social influence and accelerate the hearing of cases. Many labour disputes occur during the same period of time. Frequent protests have also helped to focus central government attention on labour relations problems.

Collective labour disputes are unorganised, largely localised, isolated and sporadic in nature due to a lack of collective power (Chen, 2000; Choi, 2003; Mok et al., 2002; Morris et al., 2001; Taylor, 2000). Most incidents have remained isolated and short-lived, lacking strong leadership. The past few years, however, have seen increasingly better organised collective actions. Most of the organisers are serving Party members and/or mid-level cadres whose interests were also affected; they therefore become involved in order to find a solution to disputes. Workers have also tried to contact other enterprises so that the dispute action spreads. Instigators are always arrested by Chinese authorities.

The occurrence of labour disputes is attributed to the lack of clear regulations on and unlimited power granted to management over employment relations. According to Western labour standards, violations of workers’ rights in China occur in almost every aspect of HRM, such as employment rights and justice, recruitment and selection, training, wages and benefits, working hours, working conditions, and the social security protection system. While labour disputes involve almost all aspects of employment relations, non-payment or delayed payment, job loss and industry accidents are the three major causes. Many financially impoverished or bankrupt firms are unable to pay unemployment allowances (redundancy benefits) for ‘selling-off employment’ or unable to pay social insurance or provide medical benefits. Migrant workers employed in POEs are paid very poorly and are more likely to suffer from wage defaults.

Given the undeveloped labour market and inadequate social security system, massive job losses resulting from restructured or bankrupted SOEs has made a considerable number of workers have no other choice but take action in the form of protests and demonstrations. Moreover, industry accidents resulting from poor working conditions and working overtime, inadequate compensation for work injury and being paid a pittance for working long hours are the major causes of labour disputes. A lack of training is also, though not serious, a cause of labour disputes. Management corruption and mismanagement sometimes fuel the anger of already disgruntled workers. To a certain extent, local governments are responsible for the worsening working conditions in FIEs and POEs as they usually give tacit consent to these unlawful practices in order to attract investment. A small number of labour disputes have been lodged at arbitration committees by employers. Such cases involve mainly violations of labour contracts and damage to enterprise equipment.

While labour disputes have increased considerably in all types of enterprises, the economic ownership impacts on how labour conflicts occur, actual working conditions of people, and the characteristics of the labour force. Although pay-related labour disputes, including non-payment or delayed payment of salaries or wages, social insurance and other compensation, happen very often in all kinds of enterprises regardless of SOEs, COEs, FIEs, POEs or others, situations in POEs are relatively worse and in non-profit state organisations are usually better. Workforce reduction-related labour disputes resulting from SOEs’ restructuring and bankruptcy occur most often in SOEs. Dismissal-related labour disputes occurred the least often in POEs. This can be explained by the fact that there is an expectation of lower employment in the long term. Training appeared be a less significant cause of labour disputes. Fewer labour disputes were caused by a lack of training in POEs but more occurred in FIEs because employees in FIEs usually have higher expectations than in POEs for receiving training and personal development. Labour disputes caused by industrial accidents happened most frequently in POEs and FIEs, and particularly in East Asian-invested FIEs.

Source: Shen (2007: 45; 60–61)

Among other issues, there may be disagreements in employee relations. If there are disagreements, how can we attempt to prevent and resolve them?

Some of the issues and processes in this area are illustrated by the examples in Text Box 5.2.

Text Box 5.2

Dispute resolution processes

In the post-2006 global ‘credit crunch’ and economic downturn situation with its commensurate impacts on business and employment, it may seem to many that managers can more easily blithely assert their prerogative and take hard line ‘take it or leave it’ positions in negotiations and dealing with staff. Hence, there is no need for ways to resolve disagreements and disputes as they will not occur. In any case, it may be argued by some people that, with enough time and goodwill, all disagreements and disputes can be settled and resolved.

However, the above situation and scenario may not always be the case. If neither side can walk away, as is obviously often the case with the high costs to both sides that would be incurred, the disagreement or dispute needs to be resolved. Therefore, dispute settlement and its processes can be seen as assisted continuation of negotiation and related to conflict – they are an intervention process and adjunct to collective bargaining (Rowley, 2002a; 2002b). From a unitary perspective, dispute settlement may be viewed as irrelevant (Rowley, 2001a; 2001b). However, one inherent outcome of managing people from a pluralist (or radical) perspective is conflict (Rowley, 2002c). Of course, there can be a range of conflict types, but here we are more concerned with the more formal and visible forms. Once this type of conflict, leading to a dispute, occurs, then some sort of settlement and resolution will be needed.

If informal and internal ways to settle disputes fail, there is stalemate or an impasse is reached, then resort to varied forms of more formal processes may be usefully considered. Again, such processes can be internal, or externally facilitated, and also range from ad hoc to more permanent systems and from voluntary to prescribed and compulsory, even as parts of procedural agreements. However, while some disputes can be handled by law or labour courts, others require assistance from intervention by a neutral, third party in processes such as conciliation, mediation and arbitration.

Indeed, there can be publicly supported and funded systems of dispute settlement. These supports vary between, and have a long history across, countries, sectors/industries and times, with varied preference for certain types and levels of voluntary vis-à-vis compulsory elements over time and juncture (i.e. wartime) of each type.

In the UK, for example, there was an early 19th century system of compulsory and binding arbitration. The 1896 Conciliation Act then allowed government appointed arbitration (voluntary, except during wartime) to settle disputes. From 1919 the Industrial Relations Court was used by government to refer disputes to if both sides agreed. Renamed the Industrial Advisory Board in 1971, this body was replaced by the Central Arbitration Committee (CAC) in 1976. The independent, albeit government funded, Advisory, Conciliation and Arbitration Service (ACAS) can appoint arbitrators or refer matters to the CAC. ACAS remains the UK’s main provider of dispute settlement assistance of the types in its name. Similar ideas of state-encouraged dispute resolution systems can be found in other parts of the world, for example, from the US, to Australia and Switzerland and Ireland.

Varied intervention types

The main types of dispute settlement process can be seen on a spectrum, ranging from at one end conciliation, with mediation in the middle and arbitration at the other end. These can be seen diagrammatically in Figure TB5.2.1. While each of these types of intervention involves neutral, mutually accepted third parties, but who these are, what they do and the type and ‘strength’ of intervention, discretion, and so on, all vary, as it shown in Figure TB5.2.1.

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Figure TB5.2.1 A spectrum of processes and features in dispute resolution

Conciliation

Conciliation is a process that involves independent, neutral third parties acting as messengers and interpreters in identifying causes of differences and the relative significance and importance (from ‘easily traded’ to ‘deal breakers’) of issues and positions of both parties in order to help develop ideas and mutually acceptable solutions. Agreement to any possible solutions remains the parties’ own; joint decision as conciliators do not, per se, impose or recommend solutions. Provision of conciliation may be from private or public facilities. In the UK the best-known supplier is ACAS. Conciliation is undertaken by its full-time staff, almost all civil servants. This UK system is voluntary and arises via the parties’ requests, procedural agreements or ACAS volunteering its services, in disputes.

Mediation

Mediation is a process that involves an independent, neutral third party assisting parties to resolve differences and come to some agreement and end the dispute. Mediation is more proactive than conciliation as mediators may now suggest their own ideas and proposals for a resolution. However, such solutions are non-binding on the parties. The parties may accept, reject or alter the ideas and proposals in solutions. In the UK, such mediators are drawn from an ACAS list, whose members are often academics.

Arbitration

Arbitration is the method and process of resolving disputes by referring them to an independent, neutral third party but now with both parties having agreed beforehand to abide by the arbitrator’s decision for settlement. Basically, the arbitrator(s) hears the arguments of both sides and decides on them.

Arbitration is often criticized because of tendencies it may engender and encourage. One of these is the ‘flip-flop’ effect, with decisions being awarded alternately to one side and then the other side each time a dispute is referred to arbitration. This switching is irrespective of the merits of the particular case on a particular occasion and is an attempt to maintain the image of arbitrator neutrality and impartiality by being not seen as favouring only one side with decisions.

Another detrimental tendency is to ‘split the difference’ in decisions, which encourages more intransigence and extreme positions in offers and demands from both sides and a seemingly even wider gap between the parties’ positions. Therefore, only the lowest offers and highest demands from each side are given and tabled as both parties know that while these ‘extremes’ will not be agreed, it may maximize the median and ‘real’ result if the demands and offers are split in arbitration. Thus, the parties ‘real’ positions are not clearly set out by either side.

Some possible solutions to these issues of ‘splitting’ decisions have been developed, such as the idea of so-called ‘pendulum arbitration’. This process only allows arbitrators to choose between each side’s final offers and demands in their entirety with the ‘splitting’. An additional benefit of such pendulum arbitration is that this method encourages less extreme positions in the parties’ final offers and demands before they go to arbitration as neither side can afford to risk being seen as ‘unreasonable’ as this will not attract the arbitrator’s decision (i.e. the ‘pendulum’) their way. A further by-product of this moderating influence is that, in turn, this psychology can encourage voluntary dispute settlement as parties will be closer together in offers and demands before actually going to arbitration.

Yet, there are issues and problems with pendulum arbitration, not least that the decision implies that one side is totally ‘right’ and the other side is totally ‘wrong’ in a dispute in all the offers and demands. Critically, the system does not allow for classic negotiating, with its trade-offs and compromises over issues between parties. Indeed, often there is rarely a simple choice between offers and demands, but rather complex packages and also with conflicting views and evaluations of any data used and presented (Kennerly, 1994), as ‘the facts’ often ‘do not speak for themselves’. In sum, ‘The ‘winner takes all’ concept underlying pendulum arbitration is incompatible with the principles of compromise and flexibility underlying the negotiation process …’ (Salamon, 2000: 485).

We have distinguished and outlined the three main types of dispute resolution process. However, in practice, the dividing line between dispute resolution processes is less robust; rather it is thin and easily blurs. For instance, the process of mediation may be similar to conciliation, or it may be more formal and similar to arbitration, except with no final binding award.

Issues for management

There are several key, often conflicting, issues and considerations around dispute settlement and its processes for management and business. These include the following Table.

Table TB5.2.1

Key issues for management in dispute resolution

Some processes (conciliation and mediation) avoid giving third parties power to resolve disputes on what might be uncongenial terms. versus Third parties do not have to live with the consequences of their actions or decisions.
Processes force both sides to re-examine cases which can make some movement, and hence settlement, possible. versus Can become addictive, ‘chilling’ important processes such as negotiation, making earlier settlement less likely as parties imply wait to go to dispute resolution.
Third parties approach issues with fresh minds and can bring their own suggestions and proposals for resolutions. versus Third parties may not have expert enough knowledge of the area and issues.
‘Permanent’ third parties can be appointed to boost knowledge of the area and issues. versus Independence can decline as third parties can go ‘native’ with long exposure to the area and issues.
Processes have powerful ‘public relations’ dimensions, being used to shift blame and responsibility for settlements onto others and outsiders, rather than as a ‘failure’ by the parties themselves. versus Actual calling for dispute resolution can be seen as a sign of weakness and undermining the authority of the parties themselves.

Nevertheless, despite these issues, the benefits of such processes in dispute settlement are obvious. After all, disagreements and disputes will need to be settled and resolved as amicably and agreeably as possible in some fashion. Also, some amicable and ‘see as fair’ settlement is needed to avoid festering resentments and future disputes erupting. Given this, dispute resolution will remain important for management.

Source: Rowley (2009)

There are examples of dispute resolution processes around the world. These include the US, Australia and Switzerland (see Salamon, 2000) as well as Asia. Some interesting examples are provided in Text Boxes 5.3 and 5.4 covering the resolution of disputes in China and Vietnam.

Text Box 5.3

Labour dispute arbitration in China

Alternative dispute resolution is attracting increasing attention in market economies, such as the United States, as a means of allowing both unionised and non-unionised employees to discuss their grievances in the presence of outside third parties (Hagglund and Provis, 2005). Labour arbitration is one major alternative dispute resolution mechanism for settling conflicts outside litigation in court and has been advocated by practitioners and scholars in the areas of industrial relations and human resource management. Due to the declining influence of the political and administrative mechanisms and the complexity of litigation for resolving labour disputes, more reliance is placed on labour arbitration, an issue which has received almost no attention in the Chinese industrial relations literature. Research in this area therefore is scarce and has not yet recognised the reality of labour arbitration in China during the past three decades. This chapter analyses the characteristics of Chinese labour arbitration by looking at key issues, including: (a) how the labour arbitration system has developed and been implemented in China, (b) labour arbitration procedures, recruitment of arbitrators, (c) the role of arbitration in settling labour disputes, and (d) limitations of the labour arbitration system.

Arbitration in the market economy

Arbitration is the process by which two adversarial parties submit their claims to a third party, who is supposed to be independent, disinterested and unbiased. The arbitrator then decides in favour of one of the claimants or issues a decision that is a compromise between the two competing positions. When the parties have agreed to abide by the arbitrator’s ruling, his decision is final and binding.

Although the result of a labour arbitration hearing may not please the parties, the outcome is usually preferable to continuing a strike or other action that in the long term benefits nobody. If the employer and employee cannot reach a mediated agreement, they can agree, by giving written permission, for the mediator to make a final and binding decision. The mediator will explain to the parties that once he or she makes a decision, that decision is enforceable and cannot be challenged. Normally, there are penalties for breaching such decisions. In the United States, a party cannot later seek another determination in an employment relations agency or federal or state court. If either or both parties do not want the mediator to make a decision, the problem may be taken to the court. Unlike mediation, where mediators sometimes provide ideas, suggestions, or even formal proposals for settlement, arbitrators listen to the arguments of both sides, review whatever evidence has been presented, and make a decision.

In market economies, arbitration is not a process regulated by the legal system but a form of ‘handshake diplomacy’. However, if both parties submit their positions to a mutually agreed upon arbitrator in good faith, they are expected to abide by the resulting ruling. A good arbitration system should be impartial, independent, immune and neutral. According to Bishop and Reed (1998), an impartial arbitrator is one who is not biased in favour of, or prejudiced against, a particular party or its case. An independent arbitrator has no close financial or professional relationship with a particular party or its counsel, and should be neutral in dealing with disputes.

According to Song, Zhao and Li (2003: 180), arbitrators ‘are at the core of the arbitration system because they guarantee the quality of arbitration’. The ideal arbitrator should be independent, unbiased and have adequate expertise and knowledge in order to deal with cases effectively and fairly. Therefore, ‘the selection of the members of the arbitral tribunal is probably the single most important step in the arbitration process, yet is one that can be fraught with unknown consequences’ (McLaren, 2003: 233).

Arbitrators may be selected either by the parties, by independent appointing authorities (trade association, arbitral institution, etc) or by a ‘list system’ (McLaren, 2003: 234) as in market economies such as the United States. When a ‘list system’ is used, each party from a list is recommended or published by the arbitration committee. The arbitration committee then appoints an arbitrator(s) in accordance with the two parties’ preference. The benefits associated with the list- appointed method are that, firstly, it offers the parties some control over the selection process, and secondly, possibly a less partisan panel because the opposing party’s agreement is required for all the arbitrators (McLaren, 2003: 236). Where the party-appointed method is used, each party offers the names of arbitrators and reaches agreement on their appointment through negotiation, or each party nominates an arbitrator and they jointly select the third arbitrator. This method enables the parties to exercise maximum control and leads to parties having increased confidence in the arbitral process (McLaren, 2003). The disadvantage of this method is that it may compromise the neutrality of the arbitrators. Relying on an institution to appoint arbitrators effectively reduces control of the process by the parties (McLaren, 2003).

The development of the labour arbitration system in China

The first legislation on arbitration matters in China appeared in 1912, and in 1921 the Commercial Arbitration Department was established by the Beiyang Government (1912–28) (Song, Zhao and Li, 2003). Commercial arbitration was covered by existing arbitration regulations. In 1950, one year after taking power on mainland China, the triumphant CCP established a labour arbitration system. The Ministry of Labour issued rules for labour arbitration commissions in municipalities and regulations on procedures for resolving labour disputes. During the 1950s, China transformed most privately-owned enterprises (POEs) into state-owned enterprises (SOEs) and collectively-owned enterprises (COEs) and the latter became the dominant form of production in the Chinese economy. According to socialist ideology, workers are the owners of SOEs and COEs, and labour disputes would not occur as they owned the enterprises. ‘Even if there was any dispute, it ought to be resolved through various administrative and political means for settling internal differences, rather than any formal or informal proceedings’ (Mo, 2000: 21). Subsequently, the labour arbitration commission was abolished in 1957. From then on there was no labour arbitration in China until the economic reforms of the late 1970s were underway.

With the expansion of the economic reform and resulting widespread labour disputes, there was a growing need for a system whereby disputes could be resolved. The arbitration of labour disputes, as an institutional channel, was regarded by the Chinese government as a helpful mechanism to minimise social unrest (Lee, 2000). In 1987, the government re-created the arbitration mechanism for the settlement of labor disputes within the SOEs and then, in 1993, extended the labour arbitration mechanism to other enterprises. However, China officially adopted the labour arbitration system in 1995 when the 1994 Chinese Labour Law was promulgated and implemented. Shanghai established the first street-level labour dispute arbitration committee in Beizhang Street in 1996. By the end of 2001, the Beizhang Street Labour Dispute Arbitration Committee (LDAC) had established 33 arbitration advisory points in residential areas. In 2001 alone, it dealt with 52 labour dispute cases. Since then, the LDAC system has been adopted by most industries in Shanghai. Workers usually seek resolution of disputes through labour arbitration and labour litigation rather than trade unions; 58.5% of disputes had been dealt with through arbitration in Shanghai from 1996 to 2001, with an annual growth rate of 67% (SHMTUC, 2002). Between January and June 2001 dispute resolution organisations in Shanghai received a total of more than 30,000 arbitration requests, and the majority of them involved non-SOEs and non-COEs (SHMTUC, 2002). Table 8.1 [omitted] shows labour dispute arbitration cases in enterprises of different economic ownership in Shanghai in 2001.

The situation in Shanghai reflects China’s situation nationally. By the end of 2001, the government had established about 3,300 labour dispute arbitration committees above the county level, with about 20,000 fulltime and part-time arbitrators acting as the backbone of the system (Fox, Donohue and Wu, 2005). By September 2005, 232,000 labour arbitration committees (LACs) had been established nationally in the unionised organisations, covering 59,407,000 employees. By the end of 2005, 8,891 regional and industrial TACs and 115 labour arbitration institutes had been established (the ACFTU, 2005). However, the Labour Law does not cover government servants, workers at non-profit and social organisations, labourers engaged in farming activities, or housemaids. Nonetheless, the reality is that labour arbitration committees still deal with disputes involving these groups.

The number of dispute cases dealt with by labour arbitration nationally increased from 47,591 in 1996 involving 189,120 employees to 260,471 in 2004 involving 764,981 employees. In 2005, the LACs at the organisation level dealt with 193,000 and settled 42,000 labour disputes. The regional and industrial LACs dealt with 65,000 and settled with 51,000 labour disputes (ACFTU, 2005). From 1996 to 2004, labour disputes settled by arbitration exceeded those settled by mediation channels in 27 provinces, autonomous regions or municipalities throughout the country (China Labour Statistical Yearbooks 1997–2005; China National Statistics Yearbooks, 1997–2005). In the same period workers involved in collective labour disputes that went to arbitration increased by 418% from 92,203 to 477,992. Collective disputes involving more than 30 employees accounted for 60.61% of the total workers involved in labour disputes.

There are many reasons why a large number of labour disputes have been submitted to arbitration. As mentioned in the last chapter, from the perspective of employees, the major issues concern pay, dismissal resulting from revocation or termination of labour contracts, insurance and welfare, changed labour contracts, and injury in the workplace. From the employers’ perspective, the foci of labour disputes are two-fold: firstly, an employee’s resignation (normally skilled workers or managers) without the permission of the employer; and secondly, damage to factory equipment by workers.

According to Thireau and Hua (2003), less educated workers tend to take their grievances to the government’s Visits and Letters Offices that are run by the cities’ labour bureaux, People’s Congresses or Party organs, while the more educated and skilled employees more often take their cases to legal arbitration. Cases brought by employers to arbitration are relatively fewer than those requested by workers. The arbitration cases applied by employers accounted for an average rate of 6.51%. Table 8.2 [omitted] summarises labour disputes that were dealt with through labour arbitration, and provides statistics of arbitration applicants for the period 1997–2004.

Source: Shen (2007: 107–110)

Text Box 5.4

Resolving labour disputes in Vietnam

Before applying any disciplinary measures to employees, the management is required to inform, discuss and agree upon the matter with the executive committee of the trade union. However, the nature of the so-called discussion or negotiation between union and management on labour issues is dubious. Most of the time, the management simply informs the trade unions about what decision has been made. It is not unusual for the unions to be on the same side as the management when solving labour conflicts. Union and management both show intolerance to social delinquency, such as prostitution, drug use, possession and others. In these cases, unions play the role of a ‘middleman’ to convey the management’s message, as MNC Auto1 union president insists: ‘The union officials contribute to convince the employees of a harmonious management–employee relationship.’

According to an incomplete statistic of VCGL (2002), during the period from early 1995 (since the Labour Law was enforced) to mid- 2002, 472 collective strikes took place, of which 262 happened in foreign-invested companies, accounting for 55.5 per cent of strikes occurring in Vietnam. Labour strikes are highly concentrated in firms invested by Taiwan, Korea and Hong Kong, which normally operate in labour-intensive industries. Up to 2002, they were responsible for 71.43 per cent of the total strikes. Taiwanese firms have been the most notorious with 109 strikes, accounting for 41.6 per cent of the incidents in the foreign-invested sector and 23.1 per cent of the total strikes in all sectors. Most of the strikes occurred in the industrialised provinces or cities such as Ho Chi Minh City, Dong Nai, Binh Duong, Ba Ria Vung Tau, Ha Noi and Hai Duong.

Interestingly, 100 per cent of these strikes are illegal. This is because regulations governing the use of strike as a weapon severely reduce the possibility and legality of labour militancy. First of all, in most cases, these strikes were organised by the workers themselves, with all the unions standing by, which make these strikes illegal, regardless of the fact that they followed the right procedures and processes (The Labourer, 1 January 2002). The fact that only 60 per cent of foreign-invested companies have a union established in their organisations means that for 40 per cent of foreign-invested companies – the most turbulent labour environment, especially in firms invested by Hong Kong, Taiwan and Korea and operating in labour-intensive industries – the right to strike does not apply. Secondly, strikes are prohibited in certain enterprises of public service and enterprises that are essential to the national economy or national security and defence, as indicated in a list issued by the government (The Labour Law, 1994, Article 174). Thirdly, workers must give two weeks’ notice prior to any industrial action to allow time for mediation. Strikes can only be used as legal weapons after the failure of conciliation attempts of the company’s Labour Conciliation Council and Labour Arbitration Council at the provincial level (The Labour Law, 1994, Article 171). Fourthly, when it is apprehended that a strike may constitute a serious threat to the national economy or public safety, the prime minister has the power to issue a decision to suspend or to stop the strike (The Labour Law, 1994, Article 175). The government has so far shown a considerable degree of determination in disposing of any so-called illegal representatives of employees.

Many are of the opinion that the reasons why the recent labour strikes have been organised by the workers themselves, bypassing the trade unions, are the general lack of understanding of the labour laws and the belief that strike is the quickest way to solve labour disputes. In fact, this is only one side of the coin. The reality of these strikes showed clearly that the unions’ involvement was too weak. Almost all the unions were unable to perform their full range of functions, with some union leaders unwilling to voice the concerns of workers, fearing that it may affect their jobs.

Source: Vo (2009: 143–145)

5.3 Employee relations

We can trace the antecedence and development of employee relations, which could be said to have existed ever since people interacted in the labour process.

Think About/Question 5.1

To what extent is labour-management harmony the key to organisational success?

5.3.1 Definitions

Some definitions of IR are narrow – as, for example, those of the influential early pioneers of the topic, such as Flanders (1970) and others. For these writers, IR was about the institutions of job regulation and the rules governing employment. Thus, IR was seen as being about job regulation and collective bargaining, and often narrow sectors and workers – industrial, male, manual workers and their organisations, trade unions. Yet, this reduced IR to the study of formal bargaining structures and procedures, which is somewhat limiting.

In contrast, for other commentators, the starting point for IR was the ‘exchange relationship’ – the buying and selling of ‘labour’. In particular, the basic disparity of bargaining strength between the ‘buyer’ and ‘seller’ of labour actually makes conflict inevitable. These commentators, for example, considered that IR was the process of control over work relations (Hyman, 1975). Yet, while this is interesting and it broadens out the field, employee relations covers more than just this: it involves the study of both structures and actions.

However, there are broader views of employee relations, which view it as being concerned with all aspects of the employment relationship. It includes the study of individuals, groups and their unions and associations, employers and their organisations, and the environment in which these parties interact. It is this idea of organisations and environments which we turn to next.

5.4 Concept of a ‘system’

In every country an employee relations system, a subsystem of the economic and political system, exists. This involves the following three groups or parties (see Figure 5.1 in section 5.2).

image Workers and their organisations

image Employers, managers and their organisations

image Government and agencies concerned with the workplace and work community

Furthermore, the concept of an employee relations system can be applied at different levels, as follows.

image National (different countries)

image Industry (different sectors of production or services)

image Group, firm and plant (particularly given the importance of international corporations)

Think About/Question 5.2

What might be the purpose and ‘output’ of an employee relations system?

5.4.1 Rules

Every employee relations system creates a complex system of rules to govern the workplace and work community. These rules may take a variety of forms – for example, agreements, statutes, custom and practice – but their essential character is to define the status of the parties and to govern their conduct. These rules are fundamentally of two kinds:

1. Procedural – the methods and procedures to be used, such as those involved in settling disputes.

2. Substantive – dealing with, for example, rates of wages, hours of work, and so on.

The system’s rules may be created in a variety of ways – through laws, collective bargaining, or imposed unilaterally by one of the parties.

Think About/Question 5.3

What might impact on the operation of an employee relations system?

5.4.2 Context

The parties and the system do not operate in a vacuum but within an environmental context comprising the following aspects.

image Political and legal factors – i.e. the power relationships and status of the parties

image Economic factors – in particular, labour markets and product markets

image Social factors – including culture and values

image Technological factors – i.e. methods and resources applied to production

If rules are the output of the system, the input to the system is the value and objectives of the three parties. The subject matter of employee relations, therefore, involves the three parties of the system and their organisation, objectives, relationships and interactions within the environment in which they operate.

While a classic piece of work, Dunlop’s (1959) writing attracted much criticism, some of which stems from his own time and place of 1950s American pluralism. Dunlop argued, for example, that in each employee relations system there was an underlying, shared ideology (of consensus) which was expected to lead to stability in the system. However, the emphasis on stability and consensus makes it difficult for the model to explain dynamic change. Thus, Dunlop’s work was criticised for being too static, overly conservative, ignorant of behavioural factors, and more concerned with solving, rather than seeking, the sources of conflict.

5.5 Strategic choice

Criticisms of Dunlop led some writers to build on his approach. They introduced into the area the important concept of ‘strategic choice’ and the idea of applying it at three levels (see Figure 5.2).

image

Figure 5.2 Strategic choice in industrial relations Source: Kochan et al. (1984)

These levels are as follows.

Strategic

This level comprises the strategies, values, structures, and so on of the parties. Here we may ask questions such as how business strategy affects employee relations. For example, we might compare a business strategy that emphasises product differentiation and innovation against one seeking to minimise labour costs (see the earlier points in Chapter 1). In much of Asia, especially in South Asia, politics and employee relations are closely linked. Political groups use employee relations as a means of putting pressure on governments or opposition. In Asia we can compare the focus on labour reducing costs in countries such as Vietnam with the deliberate policy of driving up the cost of labour to encourage higher added-value jobs, such as in Singapore.

Functional

This level represents the actual process and results of contract negotiation. The discussion of strikes, bargaining power and wage determination feature prominently here. An Asian example of the functional level is the Japanese ‘shunto’ annual pay negotiations which take the form of ritual posturing between employers’ and employees’ representatives.

Workplace

This level illustrates the activities in which employees, their supervisors and their union representatives engage in administering the labour contract and adjust to changing circumstances and new problems on a daily basis. Here there are issues such as managing conflict, motivation, participation and supervision of individual workers, as well as the structuring of work into jobs, groups or teams. The use of ex-military HR managers in countries such as China and Pakistan, with their supposed experience of managing people, shows the importance of managing the day-to-day workplace issues.

5.5.1 Goals and expectations

Importantly, this model is driven by the goals and expectations that people have of work. How people go about achieving their goals is through the organisational structures and processes. It is through these structures and processes that parties interact and make choices that, together with forces in their environment, determine the extent to which their goals are met.

Without a safety net of wealth or government support, some Asians work to gain the means of survival, including basic goods and services, for themselves and the family. For example, the provision of organisation-supplied accommodation by employers – such as the Indian railways, Chinese SOEs, Malaysian utility companies, South Korean manufacturers in Malaysia and contractors in the GCC – gives a needed source of shelter but comes at the risk that the of loss of a job (or involvement in an industrial dispute) will lead to loss of that shelter as well as loss of income.

5.5.2 Options and choice

This model emphasises the range of options that management, labour and government have in responding to environmental changes (such as increased competition or changes in technology). Although the environment is vitally important there is also, it is suggested, a degree of choice at all three levels.

Another useful addition is the idea of strategic choice and employee relations decisions being of a ‘third order’ (Purcell, 1987). This presents employee relations as ‘downstream’ of other strategies for organisations. This can be seen in Figure 5.3.

image

Figure 5.3 Three levels of strategic decision making Source: Purcell (1987)

5.6 Frames of reference

An important development for employee relations concerned the work and ideas on the fundamental perspectives taken by people on the basic structures and roles of organisations.

Think About/Question 5.4

How are workers in (a) the West and (b) Asia likely to view the authority structures of the enterprise and management?

Within an organisation, are we ‘all in it together’, part of a team harmoniously pulling in the same direction with similar ambitions, desires, and so on? If so, how do we explain some of the conflicts and disagreements in relation to work? The seminal work of Fox (1966) explained that two views may be taken of the enterprise and managerial conceptions of its authority structure, i.e. on the nature, function and legitimacy of trade unions. These are as follows.

5.6.1 Unitarist perspective

In the unitarist perspective the organisation has a unified authority structure with common objectives and values – that is, there is one source of authority and focus of loyalty: ‘a team’. Thus, it can be argued here that people:

strive jointly towards a common objective, each pulling his weight to the best of his ability. Each accepts his place and his function gladly, following the leadership of the one so appointed. There are no oppositionary groups or factions, and therefore no rival leaders within the team? Nor are there any outside it; the team stands alone, its members owing allegiance to their own leaders but to no others.

(Fox, 1966: 3)

This unitarist perspective is a common view of some Asian managers and government authorities. However, the role of trade unions and employee conflict in parts of Asia suggests this is less the perspective of all actors in the system.

5.6.2 Pluralist perspective

In the pluralist perspective the organisation is seen to consist of a coalition of individuals with diverse objectives and values. Here it can be argued that:

In place of a corporate unity reflected in a single focus of authority and loyalty, we have to accept the existence of rival sources of leadership and authority.

(Fox, 1966: 4)

So, organisations are made up of sectional groups with divergent interests, and this limits the degree of common purpose. For example, management has to balance various interests, which include shareholders, directors, customers and employees.

This pluralist perspective is less common in some parts of Asia among managers and government where rival thought is considered by some to be much more threatening than it is in the West (Harry and Nakajima, 2007). However, the existence and role of trade unions and conflict in parts of Asia, such as South Korea and Malaysia, suggests that pluralism is a perspective held by others.

In addition to these views, it is worth noting here another perspective – a radical view, which is a modification of Marxist analysis. This perspective denies that there can be any common interest in the employment relationship. Maoists in parts of India and Nepal and the Communist Party of North Korea maintain this perspective while the Communist Party in China has tended to ignore the issue during its pragmatic dealings with the factors impacting on economic growth. This radical view maintains that only the leadership of the Communist Party can determine the ‘correct’ path in employee relations and there is no need for intervention by other participants.

With the pluralistic view, it follows that some conflict is inherent in the very nature of employee relations. It is, therefore, as important for management to accept that some conflict of interest is inevitable as it is for unions and employees to accept that there are some common interests – in particular, contribution to the survival and success of the organisation. With the growing acceptance in the West, after the 1950s, of this sort of proposition, collective bargaining became increasingly considered by many as the best method to resolve these differences of interest.

The core thread running through employee relations is that labour is more than a commodity to be exchanged in the open competitive market and more than a set of ‘human resources’ to be allocated to serve the goals of the firm (Blyton and Turnbull, 1998). Rather, because workers bring their own goals, expectations and aspirations to the workplace, employee relations must also be concerned with how the policies governing employee relations, and the work itself, affects workers and their interests, as well as the interests of the firm and the larger society (Blyton and Turnbull, 1998). Nevertheless, conflicts should be limited in scope and frequency since the parties’ goals are interdependent and common and at least some are shared. The essence of effective employee relations is, therefore, one in which the parties successfully resolve issues arising from their conflicting interests and successfully pursue joint gains in cases where they share common interests.

5.7 Individualism versus collectivism

There are other useful perspectives to consider in employee relations. One such approach is to view employee relations in terms of individualism versus collectivism and its variants. By individualism we mean the degree to which management asserts the individual nature of the relationship with employees within employee relations. By collectivism we mean the amount of collective focus in the relationships within employee relations. This view also allows the production of a set of employee relations regimes at societal level.

Furthermore, not only are there these different perspectives in employee relations, but their prevalence over time, and across different countries, has varied. This can be usefully seen if we make a broad brush coverage of history over the last two hundred years of industrialisation in order to locate developments and ground the more contemporary situation. We present such views next.

5.7.1 Liberal individualism/laissez faire

Along with industrialisation in the West during the nineteenth century was the idea of liberal individualism or laissez faire. With this it was believed that everything should be determined by the free play of markets. Thus, employment contracts were freely entered into by relatively equal people capable of pursuing their own best interests. Any combination of workers or employers would adversely affect this free market mechanism, which, if left to itself, would ensure the greatest possible good for all. The anti-combination feelings were strongest in the US where the government acted to prevent or reduce combinations of workers or employers aimed at protecting ‘customers’ from monopolies of labour or production. While this is an historical model, it has contemporary relevance, particularly in terms of World Trade Organisation values concerning free markets.

5.7.2 Liberal collectivism

From the late nineteenth century liberal collectivism developed. This was ‘liberal’ in the sense that the role of the state was limited. Simultaneously, this was ‘collective’ in the sense that parties were free to organise and engage in collective bargaining.

5.7.3 Corporatism

After the Second World War, and particularly following the1960s, there developed a greater degree of government involvement and co-operation between the employee relations parties. This was seen in various examples – which included incomes policies and the establishment of tripartite mechanisms involving government, employer and employee representatives – in a number of countries. From the late 1970s such approaches declined. On the one side opposition grew to the view that unrepresentative trade union ‘barons’, not elected politicians, were now running countries in ‘shady deals’ with politicians. On the other side some wanted a return to ‘free’ collective bargaining and the end of trade union use in macro-economic policy, as in keeping inflation under control via incomes policies. Some countries have maintained elements of corporatism – for instance, the Scandinavian system, versions in South Korea from the 1990s and the succession of social partnership agreements in Ireland and Australia since the 1980s (see Salamon, 2000).

5.7.4 Individualism/neo-laissez faire

From the 1980s such corporatism was weakened with a revival, not so much of liberal collectivism, but essentially of individualism or neo-laissez faire. This was seen in the UK, but less so in some other countries, especially in Europe. Pro-trade union support and legislation was repealed and replaced by anti-trade union laws in a ‘step-by-step’ approach which whittled away union strengths in the UK. By 1997 the UK employee relations legal terrain was dramatically different from that of the earlier period.

5.7.5 Social democratic individualism

In the UK, after 1997 and the return of the Labour Party to government, there was a re-evaluation in terms of employee relations. On the one hand there has been much criticism that Labour was all ‘style over substance’ and that little has changed. This is seemingly supported by Labour’s pronouncements that the previous Labour legislation would not be fundamentally overturned and that the UK benefited from a flexible labour market, which it needed to maintain. Yet, on the other hand, there is increasing vocal criticism by business interests of the so-called over-regulation of the economy, part of which concerns the regulation of employment matters. The post-2010 election situation in the UK is still in its early stages.

5.7.6 Government approaches

There are several models that use dimensions of varying trade union power and political ideology. The models, historically developed in the West, have relevance in contemporary situations – for example, liberal individualism in the past and in the 1980s in the UK, corporatism from 1945 to the 1980s in the UK, in Scandinavia since the 1930s, in post-war Japan, and now developing some aspects in South Korea and other Asian countries. We give an example of one such model in Figure 5.4.

image

Figure 5.4 Governmental approaches to employee relations Source: Salamon (2000)

5.8 Partnership

Following Labour’s 1997 election victory, as mentioned above, there was renewed interest in ideas of so-called workplace ‘partnership’ and deals. These were trumpeted as the way forward for employee relations, especially in the context of ‘New Labour’ in the UK. A range of employers and trade unions signed such agreements, and they received endorsement and encouragement from senior politicians. There had been some developments during the previous 18 years whereby some businesses and management had tried to change and recast ‘traditional’ employee relations. This was labelled by some commentators as ‘The New IR’.

The ‘New IR’ changes involved reconfiguring trade union recognition and bargaining arrangements in order to try to obtain ‘simplification’. For instance, in companies where multiple unions had been recognised, there were attempts to move to either ‘single table bargaining’ (with all the different unions bargaining together) or ‘single union recognition’ (with commensurate de-recognition of the other unions). If the organisation or particular operation was new, a single union-only recognition was offered from the start. This recognised union would then represent everyone in the company, in a similar way to some Asian enterprise unions, such as those in Japan.

We present some Asian examples (Japan, South Korea and Malaysia) of trade unions, types and structures in Text Boxes 5.5, 5.6 and 5.7.

Text Box 5.5

Trade unions in Japan

This section surveys the reorganization of Japan’s labour union movement in the 1980s. Two major national centres, Sohyo (General Council of Trade Unions of Japan) and Domei (Japanese Confederation of Labour), dominated Japan’s postwar union movement. Sohyo, affiliated with the World Federation of Trade Unions, was a ‘left-leaning’ national centre for organized labour, whose membership mainly comprised government and other public sector workers’ unions including the National Railway Union. Domei was a conservative national centre affiliated with the International Confederation of Free Trade Unions. It drew its membership mainly from private sector unions. After the dissolution of Domei and two other minor national centres in 1987, a new national labour federation, Rengo (Japan Private Sector Trade Union Federation) was formed. Rengo comprised 55 industrial federations and 5,390,000 workers. Two years later, after years of public sector privatisation in Sohyo, it dissolved and many of its affiliates followed suit and joined a new unified national centre Rengo (Japanese Trade Union Confederation). The new Rengo comprised 74 industrial federations and 7,980,000 workers representing the interests of both public and private sector workers. A small number of Sohyo’s unions formed Zenroren (Zenkoku Rodo Kumiai Sorengokai, National Confederation of Trade Unions) or Zenrokyo, as competing national centres.

With the birth of the unified national centre Rengo, expectations were that unions would gain greater political power but the Rengo was, in reality, a conservative organisation dominated by the major private sector industrial federations rather than a nationally representative organisation for all workers. The deregulation of labour rules was further accelerated in the 1980s as legislation was passed which continued to deregulate labour practices. The Law for Dispatch (Labour Hire) Workers was passed in 1985 with the law at first only applying to 26 professional jobs. This increased the scope for employers to offer and utilise short-term employment contracts. Changes to the Labour Standard Law (LSL) in 1987 allowed employers to use flexible working time practices, but this could apply to a limited range of jobs. Successive changes to the LSL and Law for Dispatch Workers widened the range of jobs where the laws could apply. Next, this chapter will discuss the changes that have occurred since the 1980s and the impact this has had on the employment structure in the following sections.

While unions are expected to prevent any further degradation in employment conditions, their potential effectiveness is limited. Japan’s unions are largely enterprise-based where only regular employees are eligible for membership. Almost all enterprise unions in large companies have reached union-shop agreements. However, while there is significant disparity in the pay and conditions between regular and non-regular workers, their job content is virtually indistinguishable. In this way, members of enterprise unions are becoming a type of privileged worker. The privileges enjoyed by one group of workers at the expense of another has led to worker disenchantment with unions. Currently, the Japanese enterprise unions stand at a crossroads; they have become a kind of pressure group for regular employees in common with the old craft guilds. That said, they could try to encourage contingent employees to unionise and aim for improving overall working conditions which include them.

Source: Hisano (2007: 279–280; 290–291)

Text Box 5.6

Trade unions in Korea

Union types and structure

The single union national centre of the FKTU was challenged after 1987. Enterprise unions in industrial complexes started providing physical and financial support to one another to mutually increase their bargaining power, giving rise to collective labour associations that encompassed an entire region. Such regional trade union associations, or Councils, started out in Seoul and gradually spread to other major industrial complexes in the region. The new unions launched ten regional and seven occupational trade union councils in 1988 for worker solidarity, transcending the borders of enterprise unions. Councils focused on information exchange and mutual support among enterprise unions in a region or sector and were organized one after another. The Councils launched the Korea Trade Union Congress (KTUC, chunnohyup). The KTUC was suppressed by the government and its leaders were arrested as multiple unions were still illegal.

The FKTU’s cooperative attitude toward government and management resulted in a significant number of unions breaking away and joining the Korean Council of Trade Union Representatives (KCTUR, chonnodae) in protest. The KCTUR was an emerging nucleus of the labour movement, while the KTUC was weakening under government suppression. The KCTUR comprised numerous occupational trade union councils and large- scale enterprise unions, becoming the foundation for the KCTU, with 862 unions and 420,000 members (26 per cent of total union membership). The combined councils founded a national centre step by step: the Korean Council of National Trade Unions in 1989, the Korean Council of Trade Union Representatives in 1993 and the KCTU in 1995.

As multiple unions, even at the national level, were still illegal, the government tried to prevent this new national centre forming. The KCTU was not registered as an authorized union; but, while the KCTU was not de jure legally authorized, it was de facto recognized, as demonstrated by the fact that its leaders took part in the Presidential Commission on industrial relations reform in 1996 and in the Tripartite Commission in 1998. With the labour law revisions in 1998 authorizing multiple unions at the national (or industrial) level, the KCTU gained legal authorization from 2000. The KTUC remained highly critical of the cooperative and non-democratic style of the FKTU and advocated a hard-line stance and democratic operation totally independent from management. The confrontational stance of the KCTU made it attractive to workers and it expanded. In 2004, out of 1,537,000 total union members, the FKTU had 780,000 (56.5 per cent) and the KCTU 668,000 (43.5 per cent).

The TUA (1953) did not regulate the structure of unions. However, between 1964 and 1987 the structure was affected by the government in a succession of legal revisions. The TUA revised in 1963 intended to create an industrial union system, seeing it as easier to control, and so restricted enterprise unions. However, policy changed and a revised TUA in 1973 deleted the clauses supporting industrial unions. The TUA revised in 1980 enforced enterprise unions more expressly as these alone were permitted, and industry-based unions were prohibited. The major reason for this was to weaken union power. Enterprise unions could affiliate with an industrial federation, but it was not an industry-based union movement. The TUA was revised again in 1987, deleting provisions permitting the establishment of unions only at the enterprise level, and allowing industry-based unions in order to guarantee workers rights of association and collective bargaining. Nevertheless, an enterprise union system prevailed until recently.

The establishment of industry-based, or at least occupational, unions had been an objective of the labour movement, not least as enterprise unions were limited in organizational power and economy of scale in operations and budgets, with weak financial standing inadequate to support activities. By 1996, however, only four trade unions were industry-based at the national level, with just 91,000 members (5.7 per cent of total union membership). The conversion of enterprise to industry unions was initiated by the KCTU and started with the Korean Federation of Hospital Unions becoming the Korean Health and Medical Union in February 1998. Prior to this the Korean Teachers and Educational Workers Union was launched in 1989 as a single-industry union, but was not legal until 2000. The National Medical Insurance Union (currently the Korea Social Insurance Union), the Journalists’ Union, the Banking and Financial Union, and the Railroad Workers Union, followed in transition to industry unions.

In terms of occupational unions, in 1994 the National Science and Technology Union and the Regional Health Insurance Union were the first, followed by the Mutual Credit Fund Union in 1996 and the National Universities Employees’ Union, the Democratic Union for Bus Services, and the Research and Professional Union in 1997.

With the Asian Crisis and consequent layoffs and unemployment, both union centres strengthened efforts to build an industrial or occupational union system. Hundreds of enterprise-level metal workers unions joined in the Korea Metal Workers’ Federation of the KCTU, forming a metal workers’ industrial union in 2000. However, transformation to industrial or occupational unions faces opposition. For example, leaders of the powerful enterprise unions with large memberships in the manufacturing sector have been reluctant to concede their strong power and bargaining rights, while management are also opposed.

The strategy of the KCTU is to convert enterprise unions to industrial unions as soon as possible, however. In December 2005 industrial unionists accounted for about 30 per cent of total union membership, rising by May 2006 to 54.2 per cent, a majority for the first time. In June 2006 three powerful automobile enterprise unions (Hyundai, Kia and GM-Daewoo), which had been strongly opposed, declared they would transform themselves into a metal industry union in 2006.

This organizational transition has been one of the strategies adopted by unions to achieve economies of scale through mergers and consolidation to keep pace with the changing external environment. Globalization, rapid technological development and enhanced labour market flexibility are driving the evolution of the labour movement. This organizational conversion is also a shift from the existing decentralized collective bargaining structure toward a more centralized one. The effect of such change on the internal politics of unions, management and industrial relations remains to be seen.

The Korean government retained the long tradition of single unionism by prescribing only a single union at all (national, industrial, occupational, enterprise) levels. The main rationale was that multiple unions would compete and fight for the initiative of the labour movement and that resultant splits and conflicts would cause confusion and disorder in industrial relations.

However, many union leaders have strongly supported multiple unions. To reinforce the autonomy and accountability of labour and management and to achieve more democratic industrial relations, labour-related law revisions in 1996 permitted multiple unions for higher (national, industrial, occupational) level organizations in 2000 and unit business establishment level in 2002. The methods and procedures for collective bargaining, such as unifying the bargaining channel between labour and management, were to be developed. Thus, a multiple union system at enterprise level was postponed by five years in 2001 and by a further three years in 2006.

Development, structure and strategies of trade unions

Prior to 1987 the FKTU and its member unions were tightly repressed by the government. Policies and activities were generally subordinate to government, from which the FKTU received financial support. Thus, unions had little autonomy and were criticized for being ‘yellow’ unions. However, from the late 1970s a stronger, independent labour movement began to emerge. This movement resulted in wildcat strikes and the connection with the political democratization movement. Democracy provided opportunities for forming new unions and resulted in the KCTU.

Unions have acquired a full degree of liberalization and autonomy since 1987, with independence from government and management. The FKTU particularly has tried to reform itself to compete with the KCTU. Even though the FKTU is more cooperative than the KCTU with government and management, it still enjoys full autonomy.

There are three trends in the activities and strategies of Korean unions. First, union leaders have begun to realize that in order to survive in the competitive international market the antagonistic relationship between the labour and management should be converted to a more collaborative one. Confrontation and distrust between the two parties can help discourage business investment and destroy jobs. In 2006 the FKTU President joined the Minister of Industry and Resources and many business people in ‘road shows’ trying to attract foreign investment into Korea. It was the first time union leaders had tried to attract foreign investment with government and business leaders.

Second, there are some trends of convergence in the activities and strategies of unions. The two national level unions are trying to promote industrial unionism to improve the organizational power of the labour movement. Thus, long-rooted enterprise unionism is being gradually transformed. Uncoordinated decentralization based on enterprise unionism is being changed towards more centralized industrial unionism. However, because of the long tradition of enterprise unionism, it may be a difficult, slow change. The trend toward industrial unionism is an attempt to harmonize the decentralization and centralization of union organization. Also, behind the scenes there has been dialogue between the two national level unions to unify them, but it will take a long time for a unified national union to result because each national centre wants to subsume the other.

Third, Korea has tried to encourage social dialogue among labour, management and government since 1998 with the conviction that a consensus-building mechanism is necessary to create ‘win–win’ IR. After the social pact in 1998, the Korea Tripartite Commission failed to meet the expectations of labour, management and government. Nevertheless, each party is trying to develop social partnerships in various ways.

Until the 1970s Korea had adopted the strategy of protecting infant industries. As such industries began to gain international competitiveness, Korea opened its markets to the world. Especially from the 1980s, such an open-door policy was a key policy direction. In the process of joining the OECD and restructuring the economy after the Crisis, the speed of openness accelerated. Korea opened its financial markets and now several financial institutions are owned by foreign investors. The share of exports and imports as a part of GDP – 70.3 per cent in 2004 – indicates a high degree of openness in the Korean economy, implying substantial levels of competition in global markets.

Since the Korean market is exposed to a high degree of competition, it is not easy for employers to pass on wage increases in prices. This is a commonly made and historical argument. Instead, employers in large companies tend to pass on rises to subcontractors, which reduces the contractors’, often SMEs, profits and wages. This is one of the reasons for the wide wage gap between large firms and the SMEs.

It has often been argued that Korean economic development was underpinned by a Confucian work ethic and its values, which produced characteristics such as emphasis on education, leadership in government and consensus formation, which later mixed with Western Christian ethics to produce ‘… an amalgam of family or collective-orientated values of the East and the pragmatic, economic-goal orientated values of the West’ (Lee 1993: 246). Additionally, there was the ‘… close, sometimes collusive ties between government and private capital …’ (McNamara 2002: 2).

Until the early 1990s most Korean employers who were the first generation of company founders were authoritative and labour exclusive, preferring top-down decision-making processes. These attitudes resulted in massive labour disputes and confrontations with angry and defiant unions post-1987. Employers were not accustomed to having dialogue and negotiations with unions. They were antagonistic to unions and felt their control threatened by calls for participation in business management, wage increases and payments during disputes.

Confronted with union collective activities, employers recognized that they had to jointly respond and formed the Korean Association of Industrial Organisations in 1989, representing employers in responding to unions. It failed in responding successfully and ceased its activities in 1992, and the Korea Employers Federation (KEF) became the counterpart to the unions at the national level. For example, annually the KEF suggests for employers basic guidelines and strategies for collective bargaining and positions on enactment and revision of labour-related laws, tries to persuade the government, politicians and the public and negotiates with unions.

In response to wage increases and strong unions, most employers followed labour market numerical flexibility strategies. They adopted labour cost-saving approaches, such as speeding up automation, improving wage flexibility by introducing performance-based pay systems instead of seniority-based systems, global outsourcing, downsizing by layoffs, freezing new regular employment and using temporary employment, outsourcing non-core jobs by establishing small independent companies within firms, moving-out production to low-wage countries, and reducing domestic investment and increasing foreign investment. The results are a decrease in stable jobs and an increase in unstable employment, early retirement, high (especially youth) unemployment and a deterioration of earnings distribution. On the other hand, some employers have adopted a labour-management partnership strategy by sharing information and engaging in dialogue with employees. In these companies some trade unions had ‘no labour disputes’ declarations and even accepted wage setting without collective bargaining.

Source: Rowley and Yoo (2008: 49–51; 58–60)

Text Box 5.7

Trade unions in Malaysia

Union types and structure

Martin’s (1989: 113) typology of union movements is based on three distinctive positions that trade unions may occupy in relation to a state or to a political party. Trade unions may be dominated by the state (ancillary position); they may dominate it (surrogate position); or they may neither dominate nor be dominated (autonomous position). A union may be said to be in an ancillary position when major union bodies are characteristically subordinate or subservient to either a political party or the state, or both. In the case of the surrogate position, unions dominate the party or the state. This domination may ultimately take the form of union bodies acting in place of party or state by displaying qualities, espousing purposes and discharging functions normally associated with parties or states.

The autonomous position does not necessarily imply complete independence of parties and state; rather, it is better seen as being intermediate between the ancillary and surrogate positions. In this position, unions are neither clearly subservient to, nor clearly dominant over, either party or state. These three positions, given that there are three nominally distinct organizations involved, yield five categories, that is, party-ancillary, state-ancillary, party-surrogate, state-surrogate and autonomous. It would appear that in Malaysia, where a state employer dominated IR system exists (Kuruvilla and Venkataratnam 1996), the state-ancillary position is the most appropriate classification.

As stated by Todd and Peetz (2001), overall Malaysia’s IR remains firmly within a ‘control’ rather than a ‘commitment’ framework. Malaysian unions are generally small, fragmented and regional. This is due largely to the strict requirements of the Trade Union Act 1959 (TUA), and in particular the manner in which a union is defined as:

Any association or combination of workmen or employers … whose place of work is in West Malaysia, Sabah or Sarawak … within any particular establishment, trade, occupation or industry or within similar trades, occupations or industries …

The implication is that membership is limited to any one of the three geographical regions, that is, workers in Peninsular Malaysia may only join a trade union all of whose members work in Peninsular Malaysia, and the same applies to workers in Sabah and in Sarawak.

Further, the law has ensured that unions remain fragmented in their respective establishments, trades, occupations or industries. Therefore, unions of a general nature cannot be formed except in a particular establishment. The Director General of Trade Unions (DGTU), therefore, has very wide powers in respect of the registration of unions via ascertaining similarity of trades, occupations or industries. This has far- reaching consequences. One of the most important examples is that employees in the electronics industry may not be represented by the union of electrical workers as in the opinion of the DGTU the electronics industry is not similar to the electrical industry (Rowley and Bhopal 2006).

The rights of workers and employers under the IRA include the right to form, assist in the formation of or join a union and participate in its lawful activities. The union can represent its members in disputes as long as they are employees. However, certain categories of public officers are not eligible to join or be a member of a union. These include members of the police, prison service, armed forces and public officers engaged in a confidential or security capacity. Public officers holding any post in the managerial and professional group may unionize if they are so allowed in writing by the Chief Secretary to the government. This further emphasizes the extent of executive control over unionization in the public sector. The DGTU has the discretion not only to register a union or not, but also to cancel or withdraw the certificate of registration issued to a union under several circumstances, and may order suspension of union branches.

Unions can be classified under the following categories: private sector employees’ unions, public sector employees’ unions, unions in statutory bodies and local authorities, and employers’ unions. Unions in the private sector can be further classified as either national or in-house (enterprise) unions. While national unions attempt to cover all workers in the same trade, occupation or industry, the same employer employs all members in in-house unions (enterprise unions).

Membership of the Malaysian Trades Union Congress (MTUC) consists of unions of employees in various trades, occupations and industries. Accordingly, it does not qualify for registration as a union under the Act. It is registered as a society under the Societies Act 1966, although it seems to have received de facto acceptance as the national representative of employees in IR matters (Wu 2006; Maimunah 2003). The MTUC, whose membership comprises both private and public sector unions, represents workers on tripartite bodies such as the National Labour Advisory Council (NLAC) and the Employees Provident Fund Board. It is affiliated to the International Confederation of Free Trade Unions. Individual unions can also be affiliated to international federations, for example, the Public Services Union is affiliated to the Public Sector International Federation.

Collective bargaining can take place between a single employer and a trade union or between a group of employers and a union. Multi-employer bargaining is found where employer’s associations exist, for example, the Malayan Commercial Banks Association, which represents many of the larger banks, bargains with the National Union of Bank Employees (NUBE), which represents non-executive bank employees. According to Maimunah (2003: 175), in terms of numbers of workers covered, multi-employer bargaining is more significant, although the majority of agreements are made between unions and a single employer.

When different groups of employees in the company belong to separate unions, then employers carry out bargaining with these different unions. For example, many banks bargain not only with NUBE, but also with the Association of Bank Officers Malaysia. Malaysian Airlines negotiates with four unions, namely the Malaysian Airlines Employees Union, Peninsular Malaysia for non-executive graded staff, the Malaysian Airlines Executive Officers Union, Sabah, the Airlines Workers Union, Sarawak, and the Malaysian Airlines Executive Staff Association (Maimunah 2003: 175).

What do unions do?

The main services that unions provide for members are bargaining and representation. Collective bargaining provides a means for unions to defend and improve members’ welfare through better, safer and healthier working conditions. Maimunah (2003: 163) explains that in Malaysia collective bargaining mostly focuses on economic issues. It could be expanded to include a host of other areas relating to the welfare of workers, especially in the areas of safety and productivity schemes. The outcomes of collective bargaining provide a measure of job security, status, self-respect, better working conditions and greater control of their working lives (Wu 2006: 145).

Unions offer legal representation if their members have problems at work. They may also consider and decide upon strikes, lockouts and similar industrial action affecting members. Unions also offer advice on labour disputes, protect against unfair labour practices such as unlawful dismissals, provide advice and training for laid-off workers and promote social and educational welfare. The NUBE (2006) organizes family days and activities such as various tournaments for members. Further, it provides for personal accident insurance cover and a retirement fund. In addition to this, it plays an active role in creating awareness in regard to broader issues such as social protection, the outsourcing of jobs and the privatization of water. However, very few unions have the resources and capability that the NUBE has, such as using the internet to reach out to its members. Its e-bulletins are informative and serve to inform members of current activities, issues and injustices, and generally promote the interests of the union and its members.

All collective agreements, which must specify the duration of the agreement, which cannot be less than three years, have to be taken cognizance of by the Industrial Court, that is, recognized as a binding, valid document enforceable by it. Such agreements are deemed to be an award and become binding on the parties and on workers who are employed or subsequently employed in the undertaking to which the agreement relates, regardless of whether they are members of the union or not (Section 17, IRA). The Industrial Court could refuse to recognize agreements that were unfavourable to national economic development interests. In 1991, some 379 collective agreements were taken cognizance of. Only in 1995 and 1997 did the number go slightly beyond 400. Since 2004, there has been a noticeable decline in the number of collective agreements taken cognizance of, from 369 in 2003 to 263 in 2005 (figures provided by the Industrial Court Department, 20 July 2006).

Administrative controls limit the right to strike. Once conciliation or mediation proceedings commence strikes should stop. Furthermore, bargaining on matters deemed managerial prerogatives are not allowed by legislation, thus ensuring that disputes regarding these subjects do not result in conflict. There were only four reported strikes in 2002 (involving 506 workers and 1,638 workdays lost) and three in 2004 (involving 279 workers and 3,262 workdays lost) (MHR 2006).

Ayadurai (in Leong 1991: 96) attributes the weakness of the labour movement to ‘the incompetence of the labour leaders … the fear or hostility … of employers to unions, … and the attitude or policies of the government’ which since 1980 has become more unsympathetic, if not hostile, towards workers’ organizations. This might have been due to the policy to industrialize the country and the need for a more docile labour force. Jomo (1994: 141) is critical of both the MTUC and Congress of Unions of Employees in the Public and Civil Services (CUEPACS) for having failed to launch effective action against government measures that seriously weakened labour’s position. Many attempts were made to reunite the MTUC and CUEPACS into a single national centre, but these attempts, argues Jomo (1994), were undermined, largely by personal interests and ambitions.

Leadership crisis between factions in unions and in the national labour centre have led to observations that such divisiveness could lead to them being ignored by the government (Fernandez 1993: 18). Some of the MTUC’s major weaknesses are the absence of a sound research centre run by professionals, the inability to settle differences (within and outside the organization) and even smug optimism, notes Fernandez (1997). Allegations of misappropriation of funds by union leaders do not put the union movement in a positive light among members and the regulatory authorities (see, for example, The Sun 2003; Selvarani and Abas 2004).

Source: Ramasamy and Rowley (2008: 126–129)

Japan has built much of the success of its manufacturing sector on the partnership between management and unions. In Japan one union represents all in the company as an enterprise union. This recognition of a specific trade union could well be preceded by what was called a ‘beauty contest’ for management to pick its favoured union. One of the most well known examples of the latter, in the UK, was Nissan’s recognition of the then AEEU at its new Sunderland factory on a ‘greenfield’ (newly industrial) site.

A key aspect of such single union deals was often the idea of what came to be labelled ‘no strike agreements’, along with compulsory and maybe ‘pendulum’ arbitration (see the points on dispute resolution earlier in this chapter). However, not only are such agreements impossible to enforce, they are better seen as ‘strike last agreements’. For instance, how would an employer actually prevent employees from walking away from the workplace or all claiming to be ‘sick’ at the same time? Ideas of pendulum arbitration have come from the US. Pendulum arbitration was taken as a possible method to prevent the ‘chilling’ of negotiations that occurred as sides simply waited to go to arbitration, which would then force parties to make realistic demands and offers and reduce extreme cases. These tactics were often used to try to maximise or minimise awards in the all-too- common eventuality that the result was to split competing demands down the middle. In contrast, with pendulum arbitration the most reasonable cases (to attract the pendulum) would be presented by both sides because ‘split’ awards were not allowed. It was either the whole of one offer or the whole of the other that had to be decided on by arbitration. So, employer and employee positions would now aim to be the most reasonable in order to attract the arbitrator’s decision (the pendulum).

However, there are classic problems with these processes. As with other forms of third party intervention, both sides could use this process to opt out of any responsibility for the outcomes. Both sides can lose control over the situation. It means the sides are presented as ‘right’ or ‘wrong’. Yet, negotiations are rarely about a single issue, but are a mixed and tradable set of issues. These issues create tensions and problems for arbitration and single trade unions.

Thus, there are difficult issues. The diversity in this area can also be seen in countries such as Japan, China and India. Japan stresses long-term stability and shared prosperity with low (by Western standards) differences in pay between the top and the bottom of organisations. Theoretical partnerships in Chinese SOEs should mean that all are ‘working for the common good’ with apparently low differentials in pay (but certainly high differentials in terms of benefits and status) in the expectation of long-term prosperity. Indian politics and economics were, for many years, dominated by socialist ideology so that employers found it difficult to encourage change or greater productivity and tended to hide profits, along with the real level of executive pay and benefits, mainly in the ‘black’ economy. Trade union officials were often encouraged, discreetly, to take the employer’s side, while some officials would pursue their own political ends without seeking to protect their own union members.

We present some Asian examples of employee relations systems in Text Boxes 5.8 to 5.11. These cover China, Vietnam, India and the Philippines.

Text Box 5.8

Employee relations in China

Employee relations involve a variety of activities, particularly industrial relations, employee involvement and participation in decision-making, communication, disciplinary procedures, and legal regulations (CIPD, 2005). Employee relations are important as they are concerned with people’s commitment to achieving their organisation’s business goals and objectives and ensuring that organisational change is accepted. Employee relations affect the efficiency of deploying labour. According to Cooke and Noble (1998: 581) any ‘constraints imposed on management by government regulations and collective bargaining that directly or indirectly reduce the efficient deployment of workforce increase unit labour costs’.

Between 1949 and 1978, workers were claimed to be the ‘masters’ (zhu ren) of SOEs and COEs. Constitutionally, this meant that China’s mass of ordinary workers were the ‘masters’ (i.e. owners) of SOEs and COEs, which accounted for about 95 per cent of the economy. Therefore, employment relations in China were literally between employees and the State, represented by government under the control of the Chinese Communist Party (CCP). The interests of workers and enterprises were effectively reconciled through political and administrative mechanisms. There was hardly conflict over employment relations among workers, enterprise management and the State due to the unity of interests of the three sides and the system of ‘iron rice bowl’ (tie fan wan), ‘iron wage’ (tie gong zi) and cradle-to-grave welfarism. When labour disputes did occur, they were resolved effectively by the CCP organs within the enterprise or the industry. Trade unions did not need to deal with labour disputes and their main roles were organisation of production campaigns and distribution of enterprise welfare benefits (Ng and Warner, 1998; Shen, 2006; for more about trade unions see Chapter 5). Employee participation in political campaigns and production campaigns was high and conducted via ‘mass meetings’ (qing zhong da hui). To implement the socialist democratic system, workers were involved in making suggestions on how to improve production, business innovation and quality management.

Constitutionally, Chinese workers have the same degree of freedom and rights as those in industrialised economies. The Constitution of the PRC guarantees all people have the right to organise without getting permission beforehand. Citizens of the PRC have freedom of speech, publishing, assembly, and the right to organise themselves, travel and demonstrate (Chapter 2, Article 35). The PRC is a signatory to international agreements, such as the International Convention on Economic, Social and Cultural Rights and the International Convention on Civil Rights and Political Rights, which require the protection of workers against unfair labour practices. These conventions are important reference points for future Chinese legislation aimed at further protecting the right to organise.

The reality is that the right to freedom of expression and association are routinely denied to many groups and individuals in China when the authorities perceive this as a ‘threat’. Requests for strikes have never been approved and have normally resulted in numerous negotiations and the intervention (sometimes of a strong-arm nature) of the government. Clarke and Lee (2002: 63) have written, ‘There is little doubt that Chinese workers do not enjoy the right of freedom of association and the right to strike’. Chinese experts on labour law have reached a preliminary consensus that the right of Chinese workers to strike should be guaranteed in legislation at an appropriate time (Chang, 2000). The Trade Union Law stipulates that ‘workers have the right to participate in and organise labour unions’. In effect, ‘labour unions’ in the Trade Union Law means affiliates of the All China Federation of Trade Unions (ACFTU) (for more about the movement of organising workers’ organisations see Chapter 5). Workers’ constitutional rights have not changed nor actually been improved during the transition of the Chinese economy.

The economic reform, however, has resulted in many considerable changes in employee relations in China and these changes are interlocked. The first change is the termination of the obsolete ‘iron rice bowl’ system through the introduction of a labour contract system and employment relations reforms, which have marketised the labour force. The labour force in China is now employed in a way that has strategic and economic implications for many enterprises and for the workers themselves. Management strategies emphasising profits and competition have ended old harmonious labour relations and created tensions surrounding issues of employment security, wages and other employment relations-related problems that exist between employers and employees.

The second change is that it is clear that workers and employers in China have diverging interests. The economic reform has shifted responsibility for profits and losses to enterprises. On one hand, workers have become employees and are concerned mainly with their incomes and personal development; on the other, enterprise management or enterprise owners have become employers and are concerned mainly with profits and organisational development. As a result, the old ‘workers as masters’ status has been replaced by increasingly one-sided employer–employee relations. In the words of Taylor (2000: 341), there ‘is no doubt that workers have a clear sense of their own distinctive interests, which are often opposed to those of employers and the state’.

The separable interests of workers and employers are the basis from which widespread labour disputes have stemmed. The Chinese people now have more channels for political participation, including lawsuits and complaints that are institutionalised and sanctioned by the government (Cai, 2002; Yu, 2005). However, from the outset, the radical changes in employment relations have not resulted in improved employee involvement in decision-making. In theory, Chinese workers have the right to participate in management and decision-making in enterprises (The 1994 Labour Law, Article 37). In most SOEs, COEs and large-scale POEs, employee assemblies are recognised as the most important participatory scheme in the workplace. However, because the employee assembly still has to comply with the orders of the local Party committee and management within the firm, it does not play an active role in airing workers’ views concerning strategic issues and employment relations that affect the interests of their own. Its major role is to pass collective labour contracts that are normally drafted by enterprise management and workers’ councils. It is hard for workers’ grievances to be heard. Collective leadership is widely used but the participation of workers and lower-level managers in major decisions is superficial and symbolic (Huo and Von Glinow, 1995). Therefore, a real workers’ participation mechanism in management decision-making processes is lacking. Business innovation and quality management tend to be more managerial functions and disassociated from ordinary workers.

The third change is the unbalanced state of power in the employment relations between employer and employee. The first stage of employment relations is focused on increasing enterprise efficiency and productivity for the purpose of developing the economy. China has issued a series of labour regulations, such as the 1992 Trade Union Law and the 1994 Labour Law, providing a legal framework for the development of industrial relations at a time of economic restructuring and the transition of many state enterprises to private ownership (Cheng, 2004). The directions of the reform allow enterprises increasingly to recruit, allocate and reward people according to their competence (Benson et al., 2000). These labour regulations have provided employers with almost unlimited power in employment relations. Enterprises normally set wages, working hours, working conditions, as well as other terms of employment relations unilaterally, as long as they conform to statutory minimum labour standards. As a result, employees are disadvantaged and exposed to violation of rights in the workplace. Consequently, tensions between employees and employers have grown and led to spontaneous workers’ rights violation and labour disputes. The old harmonious labour relations are history and gone forever.

The fourth change is the emerging roles trade unions play in employment relations. In the course of the economy transition, as organs of the Party-state, unions can no longer claim relevance as ‘transmission belts’ between the management and workers. Although under no direct pressure to adapt to the changed employment relations situation, China’s 1950s trade union model has been challenged. Trade unions have been required by the Party-state to play an active role in maintaining social stability. While the ACFTU and its affiliated unions are still supposed to promote the interests of both employees and employers, their functions start diverging from those of management as indicated in the 2004 Provisions on Collective Contracts. However, how far trade unions can go to in the future in terms of opposing employers is still uncertain.

The fifth change is the enforcement of legal regulations on employment relations. Since the late 1970s, the State has issued more than 20 pieces of legislation, with the 1994 Labour Law and 1992 Trade Union Law as the main decrees responsible for regulating labour relations. At the Eighth Session of the National People’s Congress Standing Committee on 5 July 1994, the Labour Law was promulgated and it took effect on 1 January 1995. Standardising the labour standards and practices, this benchmark piece of law integrates a legal framework for all types of enterprise regardless of their ownership and locations in China. The 1994 Labour Law and the supplementary regulations provide legal regulations on employment relations and also increased workers’ awareness of their legal rights. The Labour Law and the Regulations for the Handling of Labour Disputes create a three-tier system for handling labour disputes (Chen and Chan, 2004; Clarke, Lee and Li, 2004; Shen, 2006; Zhu and Warner, 2005). While the political and administrative mechanisms are still expected to function, China is relying more on legal channels including labour arbitration and labour litigation.

The sixth and final change, which is the most important in Chinese industrial relations, is the emerging collective bargaining. There is currently no provision for collective bargaining in China. However, there have been collective bargaining-like collective discussions on labour terms in certain areas, particularly in Shanghai (Shen, 2006). These discussions happened mainly between regional unions, which are set up by union councils and cover all enterprises in the region. These regional unions are not part of enterprise management or not funded by enterprises, therefore they are more likely to defend workers’ interests. Such collective bargaining-like discussions are enhanced in the 2004 Provisions by authorising workers to initiate discussions on labour terms above statutory minimums, but so far are not yet the norm in China.

Source: Shen (2007: 39–42)

Text Box 5.9

Employee relations in Vietnam

Vietnamese workers are represented by the Vietnamese General Confederation of Labour (VGCL). The role and nature of trade unions do not conform to the Western liberal-democratic model of unionism in which unions are independent representatives of collective employee interests. As in any other communist country, the state is the main employer in Vietnam. The union does not play the role of protecting or furthering the interests of employees, as workers are assumed to have interests similar to those of the government. There is no recognition of the possibility that the interests of the three actors might differ. The main differences between Vietnamese unions in particular, and communist unions in general, and capitalist unions are summarised by Littler and Palmer (1986: 265) as in Table TB5.9.1.

Table TB5.9.1

The nature of communist unions versus capitalist unions

Communist unions (classic dualism) Capitalist unions (classic adversarial model)
1 Unitary view of economic interests: it is axiomatic that no ‘industrial conflicts’ exist. Pluralist view of economic interests.
2 The production function is paramount. Representative function is paramount.
3 Protection of members’ rights is secondary. Production function is either (a) not acknowledged, or (b) secondary.
4 Subordination to the party. Autonomous organisation.
5 No collective bargaining. Union practices exclude the use of adversarial means. Adversarial collective bargaining is the typical process of industrial relations.

Prior to Doi Moi, at the workplace level, employees were managed by four pillars of power: the Communist Party representative, the management, the trade union representative and the representative of the Youth Union. The party enjoyed the most power. The unions’ role was to act as a ‘transmission belt’ between the party and the ‘masses’ (Fahey, 1995). Although they claimed to represent and protect the rights of workers, from a perspective of capitalist unionists, they did not execute this fundamental function. Vietnamese trade unions’ key aim and objective was to work hand in hand with the management to mobilise workers to fulfil and over-fulfil production quotas set by the command economy. This usually involved launching socialist labour emulation campaigns to encourage workers to increase productivity and to participate in technical innovation activities. They also provided the human touch to bureaucratic institutions by organising social activities and serving as counsellors for employees’ work-related and personal problems. The tight integration of trade unions into the management of SOEs was most evident in their roles in distributing material goods to employees on behalf of the enterprises, such as salary, benefits and bonus, and allocating employees’ subsidised housing. Finally, the trade unions were also required to raise an employee’s political consciousness, by encouraging them to follow the Party’s guidelines and ultimately become a member of the Party.

The economic reform in Vietnam has had an enormous impact on the structure of the Vietnamese economy and consequently on the working condition of employees. With these rapid changes – expansion and diversification of the system – the traditional labour legislation proved increasingly inadequate. Recognising the necessity to adjust to the changing labour situation, the Vietnamese government passed the new Trade Union Law in 1990, the Trade Union Constitution in 1993 and the Labour Law in 1994. These legislations mark the beginning of the transformation of the IR system in Vietnam.

The Vietnamese 1990 Trade Union Law opens by re-stating that the union is an organisation under the leadership of the Communist Party (Article 1.1). However, the substantial details of the law show that the party has taken serious attempts at transforming trade unions by granting them considerably more autonomy and, for the first time, placing them on the opposite side of management. First, a clear-cut division exists between management and labour. The role of the Vietnamese trade unions is no longer limited to assisting management or carrying out managerial functions. Unions are empowered to ‘check on’ the management (Article 2.2). Secondly, they have the right to get support from foreign organisations. In particular, they can join international trade union organisations (Article 1.3), accept donations from international sources (Article 16.2.a) and keep these as union assets (Article 17). Thirdly, a Vietnamese union official’s salary is paid from union funds (Article 15.3). This means that in the workplace, union cadres are expected not to be on the management payroll and to be independent of management.

The Trade Union Constitution of 1993 intended to establish and reinforce occupational trade unions (Article 14). This attempts to reinforce occupational trade unions aiming to voice interests that may be different from those of the state and the local governments. Company- based trade unions are therefore under the control of two hierarchies. The traditional vertical one represents geographical or locally based union structure, while the horizontal one is concerned with the occupational structure. All locally based and occupation-based trade unions, however, are under the same umbrella of the VGCL.

The new Labour Law of 1994 clearly showed that the government accepted a tripartite structure for industrial relations, consisting of labour, employers and the state. The trade unions’ role of protecting workers’ labour rights is affirmed. Despite persistent objections from other bureaucracies during the heated debate over the drafts, trade unions are to be set up in enterprises of all ownership types, including foreign- invested firms (Article 153.1). Finally, Vietnamese workers were given the right to strike for the first time (Article 173.2), although the exercise of this right was severely limited by law and legislation that govern it.

These laws and constitutions suggest that the Vietnamese Communist Party is willing to relax its hold on the labour unions and that a strong legislative base exists for trade unions to step out of the Party and the state’s shadow and reform their organisation to perform the function of workers’ representatives in protecting their rights and interests. However, there is an enormous gap between what is written on paper and what is implemented in reality due to the ideological legacies of socialism, organisational inertia and the government’s eagerness to maintain labour peace and to attract foreign capital (Nørlund and Chan, 1998).

Prior to Doi Moi, at the workplace level, employees were managed by representatives from the four pillars of power: the Communist Party, management, the trade union and the youth union. The party was officially bestowed with most power. The unions’ role was to act as a ‘transmission belt’ between the party and the ‘masses’ (Fahey, 1995). Although they grandly claimed to protect the rights of workers, they were prevented from having a chance to act out this fundamental function. Their major roles were limited at supporting the management and performing social functions.

The economic reform in Vietnam has had an enormous impact on the working conditions of employees. Recognising the necessity of adjusting to the changing labour situation, the Vietnamese government passed the new Trade Union Law in 1990, the Trade Union Constitution in 1993 and the Labour Law in 1994. These legislations, however, have not led to any fundamental changes in the IR system in Vietnam. Due to organisational inertia, the ideological legacies of socialism, the government’s intention to maintain labour peace and limited financial resources, there is an enormous gap between what is written on paper and what is actually implemented (Nørlund & Chan, 1998). It is merely an ‘old wine in a new bottle’ situation.

After many decades under the shadow of the party, trade union cadres are not equipped with the necessary knowledge to fulfil their roles properly, and their organisation lacks the necessary resources to make use of their newly found autonomy and create their own power. As far as financial resources are concerned, officially the main financial source of unions has been their modest union fees. This amount is clearly insufficient to pay for the union’s activities and to finance the salaries of the union cadres. The trade unions’ roles and activities in the workplace are limited to organising social activities and providing education to employees regarding labour law and work discipline, and as such have not exceeded the traditional roles and activities defined under the former centrally planned system. While union density is currently high, it is on a decline. Higher union densities are recorded in companies located in the northern area, around Ha Noi, reflecting the concentration of political power (and its indirect influence) and the higher political awareness and interest in the capital and its satellite cities. Meanwhile, a more relaxed and easy-going attitude is evident in the ideology of southerners.

Operating in the peaceful Vietnamese IR environment, in which trade unions are highly co-operative and bear little relation to unions as understood in the West, the studied MNCs are supportive of union activities. They do not see the union as a constraint for their operations and recognise the unions’ role in supporting the management to manage employees. The non-adversarial nature of management-labour relations is stressed at length in companies’ Collective Labour Agreements. The level of co-operation between the company and the trade union, however, varies significantly, ranging from adopting a minimal approach to the union through to considering the union as an integrated part of the organisation.

Some MNCs have kept contributing 1 per cent of their salary budget to the union after 1997. Unions can use these funds at their will and allocate this money to employee services, such as sports activities, visiting the sick and giving birthday gifts to employees under the joint name of ‘the company and union’. The trade union, in this way, becomes an integrated part of the organisation, with the full support of the management to function as an employee services provider for the company. Other MNCs opt for a limited co-operation strategy, which means they do not interfere with trade union activities; however, they do not provide unions with time and/or financial resources. In effect, this significantly decreases the trade unions’ roles and activities. Companies use a wide range of HRM techniques to encourage employee direct communication and involvement, such as employee surveys, direct communication channels (speak-out meetings, ‘boundary-less’ work organisation) and so on. If employees have any complaint, they are encouraged to use either the formal grievance procedure or the direct management-sponsored communication channels by referring their problems directly to the board of directors. In these companies, there is a dual system of employee services: one is the traditional system provided by trade unions and the other is developed by the company. The company makes sure that the HR department, rather than unions, is the main or the only source of welfare and paternalistic generosity.

Source: Vo(2009: 132–134; 157–158; 162–163)

Text Box 5.10

Employee relations in India

This section examines the relevance of the Indian industrial relations system, specifically the existing political/legal framework to the IT/ITES/BPO industries. Unsurprisingly, we come to the conclusion that the national regulatory regime and the global BPO industry mainly exist in different ‘worlds’. IT/ITES/BPO is largely regulated by the interaction of global capital flows and local labour market dynamics while existing forms of regulation have been marginalised. We begin by describing what those forms of regulation are. Next, we describe the current HR- employment relations scene in the ITES/BPO sector. These dynamics have important implications for both workers and other organisations in the IR system, such as trade unions. The implications of this are also analysed.

Employment relations in India are regulated by a number of legal instruments, commencing with the Trade Union Act of 1926. This Act, initially provided for the registration of trade unions and, in the process, provided specific immunities from conspiracies in restraint of trade and civil actions for breach of contract (Krishnamurthi, 2002). The legislation still specifies a minimum membership of only seven workers for registration. This, in turn, has given rise to a huge number of registered unions (64,817 in 1999), with a very small average base (786 members) (India Labour Bureau, 2004).

The Trade Union legislation was silent on the question of union recognition by employers and this remained the case until 1958, when the Standing Labour Committee of the Federal Government devised protocols for representation and collective bargaining rights that were agreed to by representatives of industry and labour. These were appended to the Voluntary Code of Discipline, wherein management agreed to recognise the union which had the largest membership constituency for any given establishment or industry. This could be determined by either an examination conducted by the Ministry of Labour of the financial records/membership of the contending unions or, where all parties, including the employer agree, by way of a secret ballot conducted by the Ministry. To trigger recognition, the actual union membership threshold is quite low – minimally 2 per cent of the workforce in question. In exchange for this, unions agreed to subscribe to a code of discipline of their own. This includes such provisions as no strikes without notification, a renunciation of coercion, work to rule tactics and sit-down strikes and a willingness to discipline officials and members who act in disregard of the code (Krishnamurthi, 2002: Ch.6).

With respect to all of these undertakings it is important to keep two essential points in the foreground. First, these protocols represented a voluntary undertaking on the part of business and labour leaders. They may or may not be respected in any specific case. Union recognition is not a statutory requirement of Indian employment relations law. As one commentator reminds us, such ‘codes are virtually buried for all practical purposes and have become part of industrial relations history’ (Ratnam, 2001: 42). In part, inter-union rivalry (see below) has militated against finding agreement on principles for union recognition. Secondly, under the 1926 Act, union membership also remains voluntary. There are no legal provisions for closed or union shop rules, or for the automatic check-off of membership dues. Union recognition is also referred to in the 1947 Industrial Disputes Act. This omnibus bill was designed to foster orderly industrial relations on the sub-continent (Sodhi and Plowman, 2001). Appended to the bill (Schedule Five) is a lengthy list of unfair labour practices, which includes proscriptions against interference in union organising, including discrimination against union members, the use of threats or coercion, including threats to shut down operations, the creation of company or company dominated unions, or the refusal to bargain in good faith with the recognised union. Employers are also forbidden from recruiting replacement workers during legal strikes or employing casual or temporary workers on a long-term basis, although penalties for transgressions of such rules seem to be minimal.

The 1947 Act also establishes rules for the settlement of disputes involving wages, working hours, occupational classifications, layoffs, retrenchments and technological change. Depending upon the issue, a Labour Court may be established to deal with cases of dismissals, the legality of strikes/lockouts, or the withdrawal of existing conditions while an Industrial Tribunal may be created to process disputes over compensation, hours of work, job classification, technological change or reductions in employment. Awards are made by the Labour Courts, Industrial Tribunals or National Tribunals that have been established for that purpose and are binding upon the parties unless vetoed or modified by the relevant state or Federal government. From the available, if dated evidence, it appears as though settlements through adjudication rather than collective bargaining have been the most pervasive form of interest based settlement (Sodhi and Plowman, 2001: 59). Recognised unions are given statutory rights to represent workers in any disputes which come before a conciliation officer, board, labour court or tribunal that is established under the Act.

In addition to specifying a host of unfair labour practices, the Industrial Disputes Act is immediately relevant to two other areas of employment relations. First, it provides detailed rules with respect to employer initiated changes (such as layoffs and retrenchments), which first must receive approval from the appropriate court or tribunal and, second, it criminalises certain categories of industrial action. With respect to the former, in establishments of 100 or more employees who have at least one year of service, workers are entitled to half their normal pay for a period of 45 days in the event of a layoff being approved. One month’s notice must be provided for any retrenchments and workers are again entitled to 15 days of their normal pay for each year of service. The same provision also applies to permanent closures, except here the employer is required to provide 60 days’ advance notification. Any other changes in the terms or conditions of employment must be preceded by a 21-day notification.

On the union’s side, notice of strike action must be provided to employers two weeks before such action is taken, while strikes and lockouts are outlawed during, and seven days after, any conciliation hearings or for the two months following any Labour Court or Tribunal hearings. Additionally, strikes are not permitted during the term of any conciliation award, which may be for a period of up to three years. Existing strikes can also be prohibited once reference has been made to the Act, with fines and jail terms imposed upon transgressors. All provisions in the Act cover establishments and industries that have been declared a public service, but the definition of such, contained in Schedule One of the Act, is very elastic. Governments can rule that just about any activity is temporarily a public service, including manufacturing and financial pursuits in the private sector. Thus, governments may choose to include or to exclude various activities from the provisions of the Disputes Act as they see fit.

The laws regulating strike and lockout activity seem to be ‘honoured in the breach’. By no stretch of the imagination has such activity ceased to occur in Indian employment relations. The numbers of recorded strikes has declined dramatically since the early 1980s, falling by more than 80 per cent, although strikes and lockouts have become larger in the sense of involving many more workers. Overall, the number of person days lost on account of disputes has declined somewhat since 1981, but nowhere near as dramatically as the actual number of disputes (India Labour Bureau, 2004). It would be incorrect to attribute any of these trends to statutes that have been on the books for over 50 years. Rather, the foreign exchange crisis of 1990–91, the turn towards the IMF and the subsequent adoption of neo-liberal remedies, as elsewhere, had a chilling effect on employment security, which made its effects known in the number of recorded industrial disputes.

Overall, and given the ambit of the Industrial Disputes Act, it can be seen that it is weighted in terms of the status quo (Chibber, 2003). Proposed changes for shutdowns, labour force reductions, or other significant alterations can quickly be removed from the realm of managerial prerogative and become the subject of an award. The whole tenor of the Indian system is control through protection, a logic that is largely at odds with the market rationality of globalisation. And although this is frequently an object of complaint, in truth requirements such as those contained in the Industrial Disputes Act have had little impact on the IT/ITES/BPO sector. There are several reasons for this.

First, existing legislation was mainly intended to apply to and protect low-wage manual workers. Those earning more than 1,600R per month ($US 35) and/or exercising supervisory, administrative or managerial tasks are exempt from the Industrial Disputes legislation. This would include most of the IT/ITES/BPO sector where, for example, average starting salaries in call centres are many times that amount. In other words, salaries in ITES are at a level which exempts workers in the sector from essential features of the system, but still renders them hugely inexpensive by western standards. Second, to date, the main issue for Indian IT/ITES/BPO providers has been recruiting and retaining labour, not shedding it (see next section).

Given this mix of conditions, or what might be best described as a highly unstable ‘equilibrium’, it is still the case that, despite reports of spontaneous job actions at individual call centres, the IT/ITES/BPO sector remains completely union free. To understand why this is the case, and to appreciate the challenges that union organising in the IT/ITES/BPO sector face, it is necessary to revert back to the IR context once again.

As part of this legacy, trade unions have been described as a ‘frail but enduring part of India’s labour relations’ (Ratnam, 2001). As we have seen, statutes governing unions have been permissive of the creation of very small entities. As a result, only 2 per cent of registered unions have a membership exceeding 5000, while 40 per cent have less than 100 members (Sodhi and Plowman, 2001: 140-156). Historically, this has gone along with excessive fragmentation. Thus, there are no less than a dozen central labour organizations operating in India, each with its own political affiliations, to which only 20 per cent of registered unions are affiliated (Ratnam, 2001). As a result, specific enterprise unions also proliferate. Multiple plant/office unionism has added immensely to the complexity and divisiveness of the situation. It has resulted in a situation described by one analyst where ‘the arduous task of organizing a trade union from scratch has suddenly lost is relevance: the easier path to ascendance as a leader is to take over existing organizations.’ (Ramaswamy, 1988). This has gone along with an intense politicization that has left unions beholden to specific political parties, as well as dependent upon state patronage and reliant upon professional outside leaders (Chibber, 2005). None of these traits are favourable to an organising model (Bronfenbrenner, Friedman, Hurd, Oswald and Seeber, 1998) of union growth into information and knowledge based industries. As a result, overall union densities in India are estimated to be about one-third of the organized sector of the economy or about 1 per cent of the total societal labour force (Ratnam, 2001: 32).

On top of the historical legacy and peculiarities of trade unionism in India, more recently, various state governments have announced several special promotional schemes that encompass a comprehensive package of incentives and policies for the IT/ITES/BPO industries and further add to the uniqueness that is encountered in this sector. Most of the states in India have Software Technology Parks (STPs) and Export Processing Zones (EPZs) that offer first world infrastructure within the STP gates. With respect to changes in existing labour codes, a majority of the states have either promulgated a government order or notification permitting all establishments in the respective jurisdictions engaged in IT-enabled services (including call centres) to: work on national holidays; allow women to work through night shifts; and permit offices to function 24 hours a day, all through the year (Nasscom-g, 2005), although such practices have traditionally been banned through urban Shops and Establishment Acts (Confederation of Indian Industry, 2004).

For example, the 2003 IT and ITES Policy (Nasscom-h, 2005) of the state of Maharashtra (of which Mumbai, the commercial hub of the country, is the capital) and which accounts for 20 per cent of the country’s exports, aims to ‘create hassle-free and industry friendly, 24×7×365 working environment’ for the sector by amongst other things:

image Relaxing working hours, work shifts and employment of women under Shops and Establishments Act,

image Applying all relaxations under the Industrial Disputes Act and Contract Labour Act to all IT and ITES units in the state on par with Special Economic Zones,

image Notifying IT & ITES units as continuous process units,

image Issuing special passes to vehicles transporting women workers of IT & ITES units during night times,

image Declaring IT & ITES units as public utility services and essential services (Nasscom-h, 2005).

Similarly, the state of Andhra Pradesh’s ‘AP Policy on Information Technology Enabled Services’ dated 29 January 2002 also commits to providing a supportive environment by amending the AP Shops and Establishments Act to allow ITES companies to:

image Employ women and young persons (between the age group 18–21) during night shifts, subject to provision of adequate security and transport,

image Have ‘flex-timing’ by asking an employee to work for more than eight hours a day, without exerting an additional financial burden on the companies, in terms of overtime payments, as long as the statutory requirement on the maximum weekly working hours of 48 hours is respected,

image Operate 24 hours a day and 365 days in the year, and

image Reduce the procedure involved in retrenching employees, if certain conditions are satisfied (Nasscom-i, 2005).

Currently, the IT/ITeS sector is devoid of the presence of trade unions. Existing unions appear to be unprepared to enter the new economy, but there is also a growing sense, as one manager put it ‘it’s not a question of if, but of when’ a trade union presence will develop. Considering the massive increase in employment in the ITeS industry and work environments characterised by round the clock work shifts, monotony, burnout and performance based employment, the question of whether trade unions will enter this new age industry raises heated discussion amongst politicians, trade unionists, industry analysts and employers. The employers’ view is that there is no need for an external entity to represent employee voice because the IT/ITeS sector needs more people than it can get due to its phenomenal growth rate. This fact is said to promote best practices in people management and according to Bhargava, the former CEO of Progeon, ‘there is more that is good here than it has ever been in any single economic sector of India’. Attrition rates in the industry, however, testify to alternative realities. More than likely, should the manager’s prognosis cited above come to pass it will be at individual worksites, generated by specific grievances, and will assume the form of enterprise unionism. In the meantime, internal employment relations are largely regulated through HR practices, which are described in the next section.

Source: Thite and Russell (2007: 75–82)

Text Box 5.11

Employee relations in the Philippines

Under the Constitution, the State shall promote full employment and equality of employment, ensure security of tenure and just and humane conditions of work, promote and protect the right to self-organization and collective bargaining, promote workers’ participation in decision-making processes directly affecting them, and promote shared responsibility and gain-sharing between employers and workers (Art. XIII, Section 3). The Civil Code recognizes that labor contracts are not just ordinary contracts but are vested with public interest that must yield to the common good. Therefore, these may be regulated through special laws. The Labor Code, first codified in 1974, is the primary enabling law that implements Constitutional objectives. The Code incorporates a number of international standards found in ILO conventions, including the ILO’s eight core conventions.

The Code covers a comprehensive range of rights from pre-employment to post-employment. The human resource development policy is a combination of State provision of vocational training, regulation and accreditation of training institutions, and standard setting and skill certification. The employment policy concerns State provision of job facilitation services for local and overseas employment and regulation of recruitment activities. The Code provides minimum standards relating, among other things, to employable age, work hours, wage fixing, leave, occupational health and safety, workmen’s compensation and social security. The Code also protects security of tenure, classifies employees, prescribes grounds for termination of employment as well as separation pay where termination is due to economic causes, and provides remedies in case of illegal termination. Throughout the 1990s, legislations were also introduced on emerging policy areas, such as increased penalties against wage violations and gender discrimination, and affirmative measures for the employment of workers with disabilities.

The present regime of labor regulation follows the rights-based approach to regulating employment relations. Statutory rights are formulated as minimum labor standards that cannot be contracted away by the parties. Theoretically, this protects workers from the dangers of market failure, and therefore leads to more predictable and stable employment relations. Nevertheless, there are difficulties in enforcement. There are also perceptions that the statutory standards are too high and too rigid, and consequently limit the flexibility of firms to innovate and expand, especially in a market-driven and rapidly changing business environment. The general debate, heightened by the pressures of globalization, can therefore be framed as a ‘State or market’ dilemma, or the compatibility of regulation with employment, productivity and income growth.

Minimum wages

By law, the authority to fix minimum wages is exercised by the regional wage boards, under the supervision of the National Wage and Productivity Commission (NWPC), an agency attached to the Department of Labor and Employment. The boards are tripartite in composition. The regional and decentralized structure was conceived to allow differentiated responses to regional differences in terms of levels of development.

The NWPC estimates that there are about 2.6 million workers who are minimum wage earners. These workers are the primary beneficiaries in every wage round. But the wage boards have flexibility to mandate that minimum wage increases be made applicable not only to those actually receiving the minimum wage but also to those receiving beyond the minimum up to a prescribed ceiling. Thus, about 1.5 million more who receive more than the minimum wage but who are within the ceiling also directly benefit from wage increases. Beyond these groups, a wage round may also have upward spillover effects in the wage scale arising from adjustments to correct wage distortions.

As it has evolved, minimum wage setting obviously seeks to satisfy multiple and broader policy objectives other than simply protecting the low-skilled or setting a floor wage. The complex implications of minimum wage setting leaves many unanswered questions, including 1) the effectiveness of minimum wage as an antipoverty measure, 2) the employment and unemployment effects, if any, 3) whether or not minimum wage protects the currently employed but who are on the lower end of the wage scale, or actually undermines their job security, and 4) whether or not it effectively blocks workers, especially the young or new entrants and the low-skilled, from entering the labor market altogether.

Security of tenure and rules of employment termination

The Constitution and the Labor Code guarantee security of tenure to all workers. Employment is classified in the Labor Code as regular employment for a fixed period (also referred to as term or contractual employment), or casual. Notwithstanding any written agreement to the contrary, and regardless of the oral agreement of the parties, employment is deemed regular when the employee has been engaged to perform activities which are necessary or desirable in the business or trade of the employer, except when the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or when the work or services to be performed is seasonal in nature and the employment is for the duration of the season. Employment is deemed casual if it is not classified as either regular or for a fixed period. However, an employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

In the context of the Labor Code, employment is presumed regular. A regular employee may not be dismissed from employment except upon just or authorized cause. Just causes refer to causes attributable to the fault of the employee, while authorized causes refer to those brought about by economic exigencies affecting the employer. Every case of termination from employment may be contested, and the law places the burden of justifying that the termination is for just or authorized cause on the employer.

Termination of employment without just or authorized cause makes the employer liable for back wages, reinstatement of the employee and, in appropriate cases, damages. Termination for just cause exempts the employer from any liability to the employee. Termination for an authorized cause entitles the employee to separation or severance pay, unless the termination is brought about by closure due to proven serious business losses in which case the employer is exempt from liability.

Except when the dismissal is for just cause, termination of employment has costs. With respect to termination for authorized causes, one view is that the legal regime is inflexible and rigid, makes business adjustments difficult and costly, stymies firm-level responses to market forces, encourages litigation, and generally results in a less competitive labor market. The view has also been expressed that these rules protect insiders (the currently employed) at the expense of the outsiders (those who could otherwise compete for available jobs (e.g., Sicat, 2005). The net effect, it has been argued but not empirically proven, is to inhibit hiring, make existing firms choose more technology and less labor, and encourage potential investors to choose other destinations with more flexible industrial relations regimes, thereby depressing demand for jobs.

There is an increasing use, in spite of or arguably because of the provisions of the Labor Code, of non-regular or temporary work particularly in such arrangements as fixed-term or contractual employment, casual employment and subcontracting through agencies. The BITS estimates that the incidence of non-regular or temporary work in establishments employing 20 or more workers is 25 per cent of the total workforce. It is clear from the Labor Code that regular, fixed period or contractual and casual employment are mutually exclusive. However, it appears from the survey that there is no distinction between the work being performed by regular workers and non-regular workers. Firms are motivated to employ non-regular workers to cut costs and to have a buffer to market fluctuations, thus giving them numerical flexibility. At the same time, it enables them to take advantage of labor surpluses in lower-skill categories by allowing them to recycle entry level pay and avoid the carrying costs of employing regular workers, such as seniority pay. It also enables them to avoid paying separation pay which is obligatory in the case of regular employment (Bitonio, 2004). So far, the statistics suggest neither a positive nor negative correlation between increasing an incidence of non-regular work and growth in employment levels.

Industrial relations and unionization

The union and collective bargaining system in the Philippines is divided into public and private sector unionism. Public sector unionism is just starting to develop. Public sector unions are faced with the general limitation that they cannot bargain for terms and conditions of employment that are fixed by law.

Critical issues confront private sector unionism. Though Article 243 of the Labor Code defines the scope of the right to self-organization broadly to include all workers, whether covered by a formal employee- employer relationship or self-employed, this right is effectively available only to wage and salary workers covered by a formal employee-employer relationship. Union organizing and collective bargaining are decentralized and enterprise-based. In 2004, there were over 15 thousand registered unions with about 1.3 million members. Not every union, however, is able to conclude a collective bargaining agreement (CBA). In 2004, there were only 2,798 registered CBAs covering 555 thousand workers, representing roughly 43 per cent of total union membership and 3.3 per cent of wage and salary earners. Union and collective bargaining goals remain focused on traditional issues like wages, additional benefits, work security and job security.

In the past decade, the number of unions, union members and workers covered by CBAs has been declining. Unions typically blame economic liberalization as well as an overly strict implementation of the laws on self-organization for the decline. In reality, government has adopted, through tripartite consultations, major policy and procedural reforms that accommodate atypical work as well as changes in work practices at the firm level, such as simplified requirements for union organizing, recognition of associations for mutual aid and protection, and industry or multi-employer bargaining. In response, many unions have been making adjustments in their organizing and bargaining strategies. Nevertheless, the decline in membership continues. A relatively recent development is the emergence of cooperatives as major players in the economy. The possibility that cooperatives may have a replacement or substitution effect on unions is an emerging issue.

The State advocates free unionism and collective bargaining – and corollarily minimum government intervention in regulating employment relations – on the economic logic that decentralized negotiations will allow workers and employers to agree on the most efficient terms of employment. This logic favors the market mechanism more than the State in adjusting labor-management problems. While this logic remains sound and should be pursued, the statistics clearly indicate that it has not brought about desired outcomes. With profit margins of firms being competed away, unions have a weakened capacity to satisfy members’ expectations in the traditional areas of bargaining like wages, additional benefits, work security and job security. As a result, the union strategy is to simultaneously pursue their interests in two fronts, one at the plant level and the other through advocacy for State intervention by way of policy and legislative reforms.

Source: Bitonio (2007: 139–144)

5.9 The future of employee relations

The area of employee relations has evolved, as it has always done, partly driven by business and management, as well as government, concerns. As long as there is a labour process, there will be employee relations and the need to understand its history and traditions and what drives those involved. Long-term predictions of the radical change of employee relations, with the demise of conflict and trade unions, have been unfounded. For example, trade unions and political parties, as in India, have formed close relationships that work well when the particular parties are in power. Political parties, when in government, support their trade union partners but when they are in opposition the favoured trade unions are used against the government – irrespective of the harm this might do to the interests of the trade union members, their employers and the country. As Asia creates more knowledge, and as employees are seen more as human capital rather than just factory ‘hands’, employee relations will evolve, but with an Asian character.

One of the persistent interests of employee relations, both in terms of a ‘cause’ and ‘cure’, is employee involvement – a flexible and heterogeneous term and concept that can cover a wide range of practices, each with radically different implications. This has become an even more ‘hot topic’, not least driven by practices, ideas and regulations from the US and Europe in Asian suppliers, as was well demonstrated by Litvin (2003) in describing consumer group pressure on Asian work practices.

5.10 Employee involvement

The importance of employee involvement to employee relations, and to HRM more generally, is often made. It is seen as trying to create a sense of belonging and commitment through information about the organisation and its environment. A key management task is to decide if, and how, to share information because important information may be used by employees, such as in negotiations to share with competitors, customers or regulators, among others. Yet, a lack of action by management itself actually amounts to a decision not to share information, demonstrating a lack of trust in their employees. It is primarily a management responsibility to create the conditions and establish the policies and practices to promote effective employee involvement and trust.

Think About/Question 5.5

Why is employee involvement often seen as a cure for problems but is sometimes less favoured in Asia?

In parts of Asia there is a reluctance to share information as this is seen as reducing the power of the source of the information – the owners and managers. Subordinates are expected to provide information, usually positive information, to supervisors, but this is not a mutual exchange, so little reliable information will be passed back. Supervisors are unwilling to share power and authority and expect obedience and loyalty from staff. Staff on their part expect to be told what to do and do not wish to take responsibility for their bosses’ tasks, fearing that they would be forced to take the blame when things go wrong. Some Asians often refer to this as upward delegation of decisions.

There has been a whole range of reasons offered for the interest in employee involvement, some of which are shown in Table 5.1.

Table 5.1

Reasons for interest in employee involvement

Factor Aspects
Efficiency Improve organisationally
Change Make more acceptable
Commitment Enhance
Learning From employee knowledge and skills
Social Increased aspirations, reduce alienation
Control Redefine managerial authority

It is this great diversity of reasons for the interest in employee involvement that partly gives rise to a heterogeneous concept, exacerbated by terms such as ‘involvement’ and ‘participation’ used interchangeably, despite the gaps in their implications, including differing levels, power sharing, and so on. Therefore, we need to make some broad distinctions from the start. With this in mind, we can usefully consider the concept of employee involvement within a framework, as demonstrated in Figures 5.5 and 5.6.

image

Figure 5.5 Employee involvement framework Source: Salamon (2000)

image

Figure 5.6 Dimensions of employee involvement Source: Bratton and Gold (1999)

These types of framework usefully and clearly indicate that there are variations in the area of employee involvement. This is in terms of several dimensions, which include the following.

image Method or extent

image Objective or scope

image Level

These frameworks also usefully display the differences in form and type. As Salaman (2000: 374) put it:

It is the nature and quality of the process of interaction which determines the extent or depth to which employees (individually, in groups or through their representatives) are allowed and able to contribute to and influence organisational decisions (whether operational or strategic).

He continues:

This may range from only informing by management through consultation to negotiation and finally co-determination (equal influence in both setting the agenda as well as deciding the outcome or organisational decision making).

Interestingly, he concludes:

Participation is primarily a philosophy, not a particular institutional form … Therefore, it can take place at any time and in any organisational framework so long as management is genuinely and unreservedly prepared to share responsibility for the decision- making process with employees and/or their representatives.

Nevertheless, to help understanding, some further details will be illustrative.

5.11 Forms of employee involvement

There is vast range of examples of employee involvement, which have some specific and common advantages and disadvantages.

Think About/Question 5.6

What forms of employee involvement are you aware of?

5.11.1 Communication

Communication is at the basic level of employee involvement. It can be both one-way and two-way.

5.11.1.1 One-way communication

With one-way communication, information is given by one party to another. The HRM objective of one-way communication is to try to ensure that all HR know and understand what they and others in the organisation are doing and why. This is the most common means of communication throughout much of Asia. There is a huge variety of practices here; they are widespread and include notice boards, letters, staff newspapers and magazines, employee reports, in-company videos, performance appraisals and oral presentations. One of the more recently reported systems is ‘team briefing’.

Team briefing

This is a system of communication that is often operated by line management. It is based on leaders and their teams getting together in groups on a regular basis. Information is ‘cascaded’ down through organisational levels and management tiers through supervisors to the lowest levels of the organisation. Part of the team briefing normally contains ‘core’ information relating to corporate issues. This is supplemented by local news at each stage. Some Asian organisations – for example, in the Kuwait oil sector – use team briefings as a means of communication so that messages can be reported quickly, in a standard format and, hopefully, accurately.

Think About/Question 5.7

What are the likely advantages and disadvantages of team briefings?

Team briefing has its share of both benefits and problems. They include those shown in Table 5.2.

Table 5.2

Benefits of and problems with team briefing

image

5.11.1.2 Two-way communication

Unlike simple information giving, two-way communication in HRM attempts to give subordinates some ‘voice’ and provide feedback to both parties. Again, there is a very wide variety of methods and practices here, which include the following.

‘Speak-Out/Up’ or feedback programmes

Here people can telephone or write (by email or letter), in confidence, to a company representative to raise concerns. The initiators are usually guaranteed a response within a specified period.

Open-door programmes

This type of programme enables employees to see management who are not their immediate supervisors. Examples are rare in Asia, except for those with influence or connections (‘guanxi in China, ‘wasta’ in the Arab lands, ‘giri’ or ‘con’ in Japan, ‘inmaek’ in South Korea, ‘orang delam’ in Malaysia, ‘quan he’ in Vietnam) which can be used to short-cut organisational hierarchies. In theory, bosses in Asia may operate an opendoor policy, but those who enter the open door know that they risk drawing attention to themselves and that they probably will upset their immediate supervisor. Mis-steps through the open door can be seriously career limiting, unless the employee has good connections.

‘Walking the floor’

Senior executives physically and visibly walk though the shopfloor and offices. This behaviour is to be seen and also to listen. In parts of Asia, the being seen is far more important than the listening, although this method is regularly used by Asian managers who wish to be seen as part of the organisation’s community and who value the opportunity to demonstrate a ‘common touch’. It is also used as a means of keeping middle management under pressure in case senior management discover that there are problems that have not been disclosed to them.

Sensing groups

In this system management meet periodically with small random samples of staff. This allows management not only to communicate company policies and goals to the groups, but also to hear employee concerns and suggestions. Trade unions and political or social networks are the more usual form of sensing groups in parts of Asia, but these groups often have agendas other than organisational success and may not necessarily represent the interests of employees.

Task forces

These groups, often of junior managers and employees, can be commissioned on various areas and concerns – for example, to review specific policies or processes or be asked to suggest improvements. Such practices are used with success in Japan, in particular.

Employee attitude surveys

These represent a more systematic means of feedback. This type of survey has spread in use and can be undertaken by specialists or in-house staff. At first sight this method seems more concerned with measuring commitment than involvement. In-house surveys especially are viewed with suspicion in some of Asia as it is doubted whether confidentiality and anonymity will be respected. However, the benefits of surveys are numerous so some Asian organisations favour this method of obtaining information from the workforce – especially as the expectation is that employees will not give negative opinions. The benefits of surveys include the following

image Increased employee involvement

image Ability to check that management’s perception of the organisation corresponds with that of employees

image Ability to assess the extent to which HRM policies are having the desired effects

image Simply asking employees for their views may increase morale

Suggestion schemes

Suggestion schemes are often seen as being applicable only to large manufacturing firms and manual workers, but they are also to be found in the service sector and among white collar staff – for example, in banks, airlines and retailing. HR are invited to submit ideas to improve aspects of organisational performance for which they are often rewarded. The reward is usually an award (cash or benefit) of which there can be several types. These can include the following.

image Encouragement – for effort in making suggestions even if they are not implemented

image Valued – for leading to clearly quantified savings (fixed amount or percentage of savings)

image Special – for savings not easily identified (for example, health and safety matters)

Think About/Question 5.8

What are the likely advantages and disadvantages of suggestion schemes?

Suggestion schemes have their own benefits and problems, which can be seen in Table 5.3.

Table 5.3

Benefits of and problems with suggestion schemes

image

5.11.2 Task and work groups

Employee involvement can also occur at a different level and in a different form in the task and work group. These employee involvement occurrences have a long history, deriving from the well known ‘Human Relations’ experiments in the US in the 1920s. Ideas of job enlargement and enrichment developed from the 1960s, introducing elements of responsibility into tasks. The development in such matters was led by some Scandinavian organisations. Examples of such forms include the following.

Autonomous work groups

In 1972 Saab Scania’s factory abolished the classic, Fordist mass production, single assembly line moving at fixed rates past workers. In its place were six separate assembly areas and workers divided work amongst themselves without management direction. Similar experiments occurred at Volvo in its Kalmar and Uddevalla factories.

In Asia, subcontractors are used as autonomous work groups so that firms such as Toyota send specialist work to small firms with whom they have a long-term and close relationship, treating the firms as closely linked to the larger enterprise. Japanese firms are also keen on project-based teams working together with few formal distinctions between the team members, of different seniority levels, or their roles outside the team. However, the levels of employee autonomy, and hence involvement via this route, is debatable. Indeed, autonomous work groups are rare in parts of Asia.

Quality circles (QCs)

Typically these groups are small, with six to twelve members led by a supervisor or team leader in the area; they are ‘voluntary’, meeting regularly within paid work time (although meetings can be held during ‘leisure’ time). The QCs identify, select and analyse work-related problems, collect data, present findings and propose solutions intended for approval by management, which are then implemented. After 1945 came the development, in Japan, of this American idea - set out earlier by people such as Deming and Juran. By the late 1980s, Japan had over 10 million workers in QCs. The common requirements for such QCs include the following.

image Management are convinced of the benefits, giving long-term commitment and resources

image Involvement of middle managers

image Facilitator for administration and development of ideas

image Training for leaders and members

image Recognising and publicising activities to maintain interest

Think About/Question 5.9

What are the advantages and disadvantages of QCs?

There are several benefits and problems with QCs, as noted in Table 5.4. Total Quality Management (TQM) then emerged, partly as an alternative means of addressing quality issues. TQM is a more integrated approach to quality matters, with ‘harder’ objectives, which are work-related and performance-led, rather than concerned with employee involvement.

Table 5.4

Benefits of and problems with quality circles

Benefits Problems
image Improve quality/reliability ✕ Sustaining, have short life/high failure
image Save costs ✕ Time/expenses in running, training, disruption, etc.
image Increase interest/ commitment in job ✕ Challenge notions of authority, criticisms of management
image Enhance supervisory authority/leadership skills ✕ Disinterest - middle management allocated responsibility, but denied authority (own agenda; not obliged to follow priorities)
Team working

Team working, in its present guise, has its origins in the UK in practices at organisations such as Japanese companies like Komatsu, Hitachi, Nissan, and especially Toyota. Since the 1990s this form of organising work has become more prevalent in other sectors.

Empowerment

Empowerment became fashionable from the 1980s, although it was linked to earlier movements such as the Quality of Working Life approach in the 1970s. In essence, empowerment is about providing the opportunities and structures (and, of course, the work culture) so that employees can contribute to the organisation. The onus is on management to ‘empower’ staff. This empowerment is individual and direct involvement in work. A range of benefits flow from this method of organising, including the need for less direct management and supervisory control, with greater employee autonomy, albeit within bounds set by management.

5.11.3 Financial

For some commentators, employees also obtain involvement through particular financial arrangements. This is not, in fact, a new idea (see Chapter 3 on employee rewards). Indeed, there are examples of such financial arrangements from the early nineteenth century in the West and in a few Asian companies, such as Tata in India. Nevertheless, the rise in popularity in the West has occurred since the early 1980s, encouraged by governments through favourable tax legislation, and has been followed by a modest application of the systems in Asian organisations undergoing privatisation, especially in South and South West Asia, and by ‘buying out’ the jobs of workers in SOEs in China. The types of financial participation include the following.

image Share ownership – employees gain a direct share in the company they work for

image Profit sharing – cash bonus from surplus revenue

5.11.4 Success of employee involvement

Several important elements in the success of employee involvement have been identified, and can be seen in Table 5.5.

Table 5.5

Important elements in the success and failure of employee involvement

Elements Reasons/Characteristics
image Management commitment – more than just initiate
image Support – throughout the management system
image Advance consideration and exposition of objectives
image Training of all involved
image Regular monitoring
image Problems and shortcomings typical
image Many schemes costly in time to be properly run
image Middle/lower-level managers pivotal to implementation
image Avoid confusion and conflict between schemes
image Commitment, ensure competence and regularly reviewed
image Measures set against specified objectives
image Should not be unexpected

5.11.5 International variations in employee involvement

There are widespread variations globally in the meaning and practice of employee involvement (see earlier frameworks). This includes the ideas of industrial democracy, workers on the board, co-determination and works councils.

This is also the case across Asia. We provide an example of one form in South Korea in Text Box 5.12.

Text Box 5.12

Labour-Management Councils in South Korea

The Labour-Management Council (LMC) system is one institutionalized channel available to promote communication and cooperation between employees and management, facilitate participation in business administration and improve labour rights and the status of employees. This system was introduced by the Labour-Management Council Act (1980). The act was replaced by the Act on Promotion of Worker Participation and Cooperation (1997). LMCs at workplaces or businesses employing 30 persons or more hold regular (on a quarterly basis) meetings composed of equal numbers (usually three to ten) of representatives from labour and management. When unions represent the majority of employees, union leaders become employee representatives.

Three types of matters are dealt with in LMCs: consultation, resolution and reporting. Employers consult on improvements in productivity, employee welfare and working conditions. Employers and employees together develop the basic plan for training and skills development, establishment and management of welfare facilities and company welfare funds for employees. Employers report on personnel policy and business plans, performance and prospects. However, the LMC system and collective bargaining have different goals in that the former is aimed at pursuing the common benefit of the employer and employee, whereas the latter is fundamentally based on the contradictory positions of the employer and employee.

Source: Rowley and Yoo (2008: 57–58)

5.12 Conclusion

The area of employee relations remains as important, but as changeable, as ever. While the foci of the area have shifted – partly reflective of the practical concerns of business, management and governments – the ideas of a model of a system of actors who have different perspectives remains a useful aid and framework in the understanding of employee relations. The different participants may vary in their relative influence and power, but their interactions and perspectives remain crucial, not only to the functioning of an economy, but also to its competitiveness and the types of production which prosper.

The area of employee involvement is a diverse and elastic concept, seemingly allowing everyone to support it. Involvement also has a range of benefits for organisations and employees. Some of the key ideas and practices are not particularly new, although employee relations fashions do come and go, as witnessed by ideas of ‘industrial democracy’ in the 1970s versus ‘empowerment’ more recently. These ideas and practices vary throughout Asia, yet their various forms have radical differences in implications for management and businesses.

End of chapter tasks/questions

Based on the bank and airlines case studies in Appendix 3, using and applying information within this chapter

1. How are employee relations systems likely to vary in each location in which the bank operates to take account of the difference in importance of the individual employee versus collective workers?

2. In Asia it may be considered that harmonious working is the key to economic success. How is harmonious working likely to differ between each airline over the next five years?

3. To what extent might different systems of dispute resolution be applicable in the different locations of the bank and the airlines?

4. What similarities and variations will exist in the system of employee relations in the airlines within each country? Why will these similarities and differences exist?

5. What will be the consequences of trade union activism or lack of activism in each location in which the bank operates?

6. How will the different airlines deal with employee relations in China, India and the GCC? How will the existence or lack of trade unions shape employee relations?

7. In what ways will the illegality of trade union activity in the GCC give long-term competitive advantage or disadvantage to the airline from the GCC when challenging the Indian airline when they operate the same routes?

8. How will the informal network (including the use of guanxi and wasta) impact on the formal hierarchy and operational effectiveness of each airline?

9. What will cause differences in the acceptability of employee involvement between airlines and banking?

10. Is it acceptable business practice for companies to avoid meeting employment and other legislation by basing staff in a different geographical jurisdiction?

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