Good Honest Dollar $$

This is the ninth discussion in my (albeit interrupted) series on worker rights.

Today, I would like to discuss the extent to which expatriates of western countries or other foreign employees should be expected to tolerate employment practices in their host country which would not be acceptable in their home countries.

Broadly speaking, I feel that acceptable employment practices should be defined according to the laws and customs of the host country, and that it is the responsibility of expatriate staff to adapt and fit in with their host culture.

But there are limitations to this, and expatriates should not be expected to tolerate work practices or conditions which are either represent a breach of contractual or human rights or are otherwise unreasonable.

 
Working overseas – a rewarding experience
Working in a foreign country can be a wonderful experience, both for expatriate employees and their host employers.

Such arrangements offer the opportunity for expatriate employees to experience full immersion into a culture and way of life which is different from that of their home country, whilst at the same time providing the host employer with fresh perspectives, exposure to global best practice, professional expertise (which may potentially be lacking at a domestic level) and a better understanding of target markets within the developed world.

Personally, my experience in Korea, where I have taught English in a public school for the past three and a half years, has been easily the most rewarding experience in my (albeit short) career to-date, and one which I will no doubt cherish for the rest of my life.

 
Cultural clashes
Problems can arise, however, where cultural values clash, and expectations of what is acceptable differ between expatriate employees and their host employer.

In such circumstances, I feel that both parties have a responsibility to exercise a considerable degree of flexibility, and to adopt a position of mutual respect toward the cultural values of each other.

Nevertheless, as stated above, I feel that the laws and cultural values of the host country should take precedence over those of the home country of the expatriate in terms of defining acceptable employment practices, and that it is primarily the responsibility of the expatriate employee to adapt to the ways and customs of his or her host employer, not the other way around.

 
Some practices not acceptable
But there are limitations to this, and there are certain practice which in my view should never be considered to be acceptable, regardless of cultural considerations.

Such practices include.

• any practices which constitute an abuse of human rights;
• failure on behalf of the employer to honor contractual obligations; or
• any practices which are otherwise plainly unreasonable or unfair.

The second point above is an area where I have seen conflict arise over and over again during my time in Korea, where attempts by host employers to short change expatriate employees on contractual provisions with respect to wages, housing or working hours are all too common. (The former employer of one friend of mine once literally doubled her work hours without providing any increase in pay)

Granted, these problems are usually the result of cash flow issues or simple bastardry, but cultural issues may also be a contributing factor, since contracts do not carry as much weight as they do in western countries.

This should not be tolerated. Any lack of respect for contractual rights of expatriate staff represents a form of manipulative behavior which should not be tolerated, regardless of cultural considerations, and employees who are subject to this form of treatment should not feel obligated to continue in service to their host employer unless an amicable solution can be reached.

(Fortunately for me, I work in the public school system, and have personally experienced any problems in this regard, or else I would have been on the first plane home.

But I have heard plenty of stories from others who have not been so fortunate, particularly those who teach in privately owned academies.)

There are some issues in relation to which the rights of employees which may be open for genuine debate.

One right which is beyond debate however is that of freedom from slavery, a right which is (correctly) recognized under the Universal Declaration of Human Rights (article 4).

Under no circumstances should any person be forced to work against their will, and the fact that an estimated twenty-seven million people were held in slavery as of 2007 (refer Wikipedia) is a crying shame.

 
Clarifying what I mean by ‘slaves’
For the purpose of this discussion, I feel that it is important to clarify exactly who I am talking about when I refer to a slave.

I am not talking about economic slavery – those who are bound to their employer by virtue of economic forces only.

Instead, I am talking about forced labor – those who are forced into servitude against their will, either by legal means or by the threat of repercussions in the event that the servitude in question is withheld.

 
Differentiating slaves from employees
In addition, I also feel that it is important to make some clear distinctions between a slave and an employee. These distinctions apply even an employee who feels bound to their employer by virtue of economic forces:

• Slaves, unlike employees, do not supply labor of their own free will.

• Slaves, unlike employees, are bound to a single master are not free to withdraw their labor. Nor are they free, unlike employees, to choose an alternative master.

• Slaves, unlike employees, are (in some cases) legally owned by another person.

• In most cases, slaves, unlike employees, do not receive financial compensation for their labor.

• Slaves, unlike employees, are tradable and can be bought and sold like commodities.

 
Low paid labor is not wrong – slavery is
There is a big difference, in my view, between the employment of cheap workers in low wage countries, and the use of slaves.

Slavery, by its nature, is inherently unethical. The use of low paid workers is not.

Don’t get me wrong, any abuses of the rights of low paid workers are unacceptable and should not be tolerated.  But the mere practice of choosing to employ low paid workers, whose services can be secured upon more advantageous terms for employers, is not necessarily unethical in itself.

The use of slaves, in contrast, is wrong under any circumstance in my view.

 
Why slavery is so wrong?
Why is slavery so wrong?

What is it, about the use of slaves, in particular, that sets it apart and makes it immoral?

Simply this – human dignity and respect.

Every person on planet earth has a fundamental right to be granted at least a minimum degree of dignity, value and respect. Surely, this means that no human being should ever be considered as merely the property of another.

Objects can be purchased, sold, owned like commodities, or otherwise treated as the property of another. So too can animals (although I believe that animals should have some rights)

But people are not objects or animals, and should not be owned or traded as such, and the right to supply labor on the basis of free will should be a fundamental right of every person.

 
Is slavery alright if slaves are well treated?
Some may feel that the way in which workers are treated is more important than the whether or not their labor is provided of their own free will.

There is a degree of validity in this point. Indeed, the bible, which I believe in and respect as the word of god, places considerably greater emphasis upon the treatment of slaves than the question of whether or not slavery should be allowed.

Without a doubt, fair treatment of workers in itself can never be a bad thing, regardless of their status as employees or slaves. Likewise, mistreatment is not acceptable under any circumstances.

Nevertheless, I cannot agree with any proposition which says that the ownership of slaves is acceptable under any circumstances, regardless of the treatment which they receive.

Ownership of another human being is wrong. Full stop – no matter what.

So too is mistreatment of workers – slaves or employees.

There is one way and one way only with respect to labor procurement in this context – fair treatment of workers whose labor is provided of their own free will.

Today, I would like to pick up on my series of discussions with regard to employee rights, and examine the role which the law should adopt with respect to the issue of equal opportunity in hiring practices.

Broadly speaking, I feel that the law should require employers to take reasonable steps to ensure fairness during the hiring process, but should not, in any way, restrict the right of employers to freely hire the candidate of their choice. 

 
Two conflicting rights
Equality of opportunity is a fundamental right to which all workers should be entitled.

One factor only should determine the successful candidate for a position – suitability for the position in question. Other factors, such as race, gender, age etc. should never have any impact upon the outcome whatsoever except for where they are relevant in determining candidate suitability for the position in question.

But employers, too, have a fundamental right to hire the candidate of their choice, and it is essential that laws which aim to prevent discrimination in hiring practices do not unduly impede upon this right.  

 
A poor approach
One approach which I feel should be avoided is for the law to adopt an overly prescriptive approach with respect to influencing the final hiring decision of the employer.

Such an approach could include, for example, laws which require employers to hire candidates from specified ‘disadvantaged’ groups in cases where candidates from such specified groups possess similar qualifications to those of other candidates.

This type of approach has several drawbacks:

• It infringes upon the right of employers to hire the candidate of their choice;
• It can be unfair toward candidates who are not from the prescribed disadvantaged groups;
• The process of determining which groups are included can become corrupted by political factors; and
• Such an overly prescriptive approach can cause the employer to place excessive weight on tangible factors, at the expense of less tangible factors.

With respect to the last point, tangible factors, such as professional status, qualifications or academic grades, are a good indicator technical capability, but are not a good indicator of other attributes such as cultural fit or suitability for the workplace environment.

Less tangible factors, such as the way in which candidates present themselves, often provide a better indication of such attributes, and it is imperative that these factors are given their due weight in the course of the hiring process. 

 
Instead, laws should focus on the hiring process
A more effective approach is for the law to focus predominately on the hiring process, as opposed to the hiring decision or outcome.

By focusing around the process, well designed laws can have far greater effect in terms of guaranteeing fair outcomes for candidates, without placing undue restriction upon the right of employers to hire the candidate of their choice.

This can be achieved via a two pronged approach.

 
• Prohibit certain types of questions during the interview process.

Employers should not be permitted to ask about issues such as political / religious beliefs or marital / parental status during the interview process.

This approach prevents discrimination with respect to attributes which are not visually apparent, since such restrictions make it difficult for the employer to ascertain information regarding candidate status in such areas.

 
• Require employers to demonstrate a fair hiring process.

Discrimination based upon visually apparent factors, such as skin color or physical disability, is not so easy to eliminate.

Nevertheless, the best approach is to subject employers to a broader requirement to demonstrate that reasonable steps have been taken toward ensuring that the hiring process provides a fair opportunity to all candidates.

(Naturally, exactly what constitutes ‘reasonable steps’ as referred to above will vary according to the circumstances of each individual employer, with large firms being subject to more extensive expectations than smaller ones)

This encourages a more deliberate approach toward the hiring process on the part of employers, resulting in a sharper focus with respect to the requirements of the position, in turn helping to reduce the impact of factors which are not relevant in determining suitability for the position concerned.

In addition, this broad based approach also helps to raise employer awareness about issues relating to equal opportunity, further helping to reduce the probability of discriminatory practices occurring.

 
In short
In summary, I believe that the law should require employers to demonstrate fairness in the hiring process, but should not restrict the right of employers to hire the candidate of their choice.

Today, I would like to look at the question of whether or not workers should have the right to unfair dismissal claims in cases where their employment is terminated for reasons other than unsatisfactory work performance, misconduct or redundancy.

Although dismissal for reasons other than the above can be harsh, I do not agree with the notion that employees have an inherent right to unfair dismissal in such cases as a basic principle of fairness.

Nevertheless, I do believe that the law should place some limitations upon the ability of employers to sack workers due to the potential for employers to use dismissal as a form of retribution in absence of such limitations (see below).

 
Some reasons, or any reason?
Few would dispute the notion that employers should be able to dismiss staff in the event of unsatisfactory work performance, professional misconduct or redundancy.

Legal regimes which do not allow for this are unjust and place an unfair burden upon employers.

Moreover, sensible employers would never dismiss staff whose performance was satisfactory unless their function was no longer required.

Nevertheless we must recognize the unfortunate reality that there are cases where dismissal does occur for reasons other than the above, such as individual personality clashes or a form of retribution for an action which was not popular with certain managers (see below).

The question is – should employers be able to dismiss staff for any reason, or should the law limit dismissal to the reasons stated above?

 
Why shouldn’t employers be able to sack workers as they please?
Although termination of employment for reasons other than unsatisfactory performance, misconduct or redundancy is harsh, I do not agree with the idea that workers should have a right to unfair dismissal claims in such cases simply as a principle of fairness.

Indeed, subject to the fulfillment of relevant contractual provisions, the majority of business relationships work in the basis that either party may terminate the relationship at will, for any reason they please.

Consider the following examples:

• A consumer who wishes to cease doing business with their hairdresser simply stops going – just like that;
• A firm who is unhappy with a particular supplier simply ceases doing business with them – just like that; and
• Employees who no longer wish to serve their current employers simply quit – just like that.

From the viewpoint of fairness, I do not see why the same should not apply to an employer wishing to terminate the services of an employee.

If the employee, as one party to a business relationship, is allowed to terminate the relationship at will, then I would have thought that basic fairness would dictate that the same right should apply to the employer – the counterparty to the relationship.

 
Why unfair dismissal laws are justified
In spite of the above, unfair dismissal laws do provide at least one important purpose – the elimination of unfair dismissal as a form of retribution.

In absence of laws preventing dismissal on unreasonable grounds, it would be possible for employers and or managers to sack workers as a form of retribution.

The prospect of this occurring may result in a reluctance on behalf of staff members to:

• report matters such as fraud, theft or other forms of corporate misconduct;
• report unsatisfactory work conditions, such as physical or sexual abuse, or an unsafe work environment; or
• invoke other legal rights, such as the right to join a union or the right to compensation in the event of injury.

An effectively functioning unfair dismissal regime allows workers to come forward and report such matters, or invoke such rights, with the assurance that dismissal is not a likely consequence.

To be sure, in the circumstances above, there may be other forms of retribution to which the employees concerned may be subjected. Nevertheless, removal of the fear of dismissal reduces the chances of workplace malpractices going unreported to a considerable degree.

This, in my view provides more than sufficient justification for placing some limitations upon the ability of employers to terminate the employment of their staff.

(Picture provided by Dave Walsh)

The previous two discussions in this series focused upon the question of whether or not workers should be allowed to form unions.

Today, I would like to look at what I feel should constitute the fundamental role of unions in modern society.

 
The core functions of unions
Whilst the specific role which unions will play will vary from country to country, broadly speaking, I feel that the role of unions in the majority of countries in which they operate can be summarized in terms of three broad functions:

 
• Collective bargaining.

In my view, the central and most important function of a union is to represent its members during the workplace bargaining process, and to do everything within their power to ensure that workplace agreements deliver fair and equitable outcomes for workers.

 
• Advocacy of worker rights.

This should occur both at a state/national level and at an international level.

At a state/national level, unions should seek to take an active role in terms of representing the interests of employees during the process of policy formation with respect to any legislation which has the potential to have a material impact upon their working lives.

In addition, at all levels, unions should work to promote public awareness in relation to a broad range of work related issues, including, but not limited to equality of opportunity, freedom from discrimination and workplace safety.

 
• Represent workers in disputes.

In the event of workplace disputes, unions should provide a representative to work on the employee’s behalf to resolve the dispute with the employer.

Where necessary, they should also provide members with legal advice and/or representation.

 
How unions should conduct themselves
In addition to defining the role of unions, I feel that it is important to determine some guiding principles as to how unions should conduct themselves in the course of fulfilling their obligations to members.

 
• A constructive approach.

It takes one to start a fight – two to have a constructive relationship.

Unions should always seek a constructive approach in their dealings with governments and employers, and no form of militant action, such as legal action or stop work action, should be employed unless they are dealing with parties which are hostile toward the rights of workers.

Over the longer term, constructive and responsible behavior from unions is the most effective approach toward the achievement of beneficial outcomes for workers.

 
• Accountability to members.

Unions exist to serve their members, and their conduct must at all times reflect full accountability to those whom they serve and represent.

Union leaders must be elected on a fully democratic basis, and should seek feedback on a consistent basis to ensure that their policies and actions reflect the desires of members.

 
• Compliance with the law.

When operating in non-democratic countries, particularly those in which governments adopt a hostile attitude toward the rights of workers, I do not believe that either unions or the workers they represent are obligated from an ethical viewpoint to comply with legal requirements which are grossly restrictive or unreasonable.

However, when operating within countries which have a democratic system of government, unions must observe all relevant legal requirements and act within the confines of the law at all times in the course of carrying out their functions.

To do this demonstrates a basic show of respect for both duly elected lawmakers and the general public who elect them.

 
• Stick to their mandate.

In terms of social or political activity, unions are given a mandate to represent their members with respect to issues which have a direct and immediate impact upon their working lives. These include, for example, workplace safety, equality of opportunity, and job security.

Beyond this, they are not given any mandate to represent members in terms of broader social or political movements, and should refrain from involvement in any such movements.

 
A broader social impact by default
Picking up on the last point, this is not to say that the social and/or political impact of unions should be confined strictly to the workplace.

Indeed, in the course of fulfilling their core functions, the impact of unions will naturally spread well beyond the workplace into a broad range of areas within the social and/or political arena. For an example, we only have to look at the impact which union efforts to achieve reasonable working hours has had upon areas such as family relationships and values, public health and participation rates in community or sporting clubs.

Another example is smoking, whereby union efforts to rid workplaces of smoking in some countries have no doubt added fuel to broader trends toward smoke-free venues in public places.

Finally, any union efforts to rid workplaces of ugly traits such as sexism or racism no doubt have a spillover effect in helping to raise broader societal awareness of such issues.

Provided they fulfill their core functions in an effective manner, unions will have a significant impact from a broader social perspective, and there is no need for them to involve themselves in social/political movements beyond the scope of their core functions.