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.)

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.

In last week’s post, I outlined two common objections toward the concept of allowing workers the right to form unions and bargain on a collective basis.

Today, I would like to outline the reasons why I feel that workers should have the right to form unions.

 
The employer-employee relationship is a special case
In last week’s discussion, I asked why employees should be granted special rights, such as the right to bargain on a collective basis, which are not granted to other economic participants.

My answer - the employer/employee relationship is a special case.

As a result of the degree to which the majority of workers are financially dependent upon a singular employer, employees are considerably more susceptible than other economic participants toward abuses of their rights. In light of this, it is reasonable to expect there should be some respects where employees are given different treatment under the law to that of other economic participants.

(Whilst sensible employers will always honor the rights of their staff, we must nevertheless accept the unfortunate reality that some attempts to exploit workers do occur from unscrupulous employers.)

 
The case for unions
There is, in my view, a strong case for allowing workers to form a representative body and bargain on a collective basis:

 
• A powerful deterrent to abuse of worker rights.

Fear of confrontation with powerful unions can, on one hand, result in employers accepting unreasonable demands.

On the other hand, such a fear provides a powerful deterrent to the abuse of worker rights.

Whilst primary responsibility for worker protection should rest with the government, the unfortunate reality is that government actions are not always sufficient to prevent exploitation of workers in every country.

In any case, even in countries where governments do adopt proactive measures toward the protection of worker rights, the fear of confrontation with unions (in addition to the prospect of legal penalties) still acts as a powerful deterrent toward the abuse of such rights.

 
• Affordable legal advice and representation.

Legal action never should be considered in terms of the resolution of workplace disputes until all other possible approaches have been exhausted.

Nevertheless, in cases of genuine rights abuses from unscrupulous and unrepentant employers, it is imperative that aggrieved workers not be disadvantaged in the legal system from either: (a) a lack of financial capacity to pursue legal remedies; or (b) any lack of understanding of their legal rights.

This is one area where a union can play a pivotal role – by providing its members legal advice and representation.

Furthermore, in many cases, a visit from union representatives (along with the associated message that the employee concerned has a powerful organization standing right behind him or her) is sufficient to pull unscrupulous employers into line.

 
An Internationally Recognized Right
The right to join the union is specifically recognized in the Universal Declaration on Human Rights (article 23, sub-section 4), along with the right of refusal to do so (refer article 20, sub-section 2).

Human rights must have a global baseline standard, beyond which any breaches are considered to be human rights abuses.

Whilst the declaration is not perfect, it is the best we have in terms of internationally agreed standards. Any attempt by any government (or any other party) to prevent citizens from acting upon their rights as specified under the declaration, including the right to belong to a union, should be considered a human rights abuse.

 
The strongest argument – common sense
In some cases, collective bargaining through unions would appear to be a matter of simple common sense.

This is particularly the case where firms employ large numbers of workers and/or the tasks performed by a significant portion of an organization’s staff are largely homogeneous in nature.

In such cases, attempting to negotiate wages and conditions on an individual basis, with each and every individual worker, would be pointless, impractical and inefficient. Equally ineffective is the practice whereby employers simply offer employment conditions on a take it or leave it basis without any form of negotiation. Such an approach provides no mechanism for worker input, nor any opportunity for sensible discussion as to how the agreement can be structured to best suit the requirements of both parties.

The most sensible option in these types of cases is for staff to elect representatives to negotiate workplace agreements on their behalf. This approach is not only efficient, but it provides an effective mechanism to enable the agreement to be structured in the best possible way in order to meet the requirements of both parties.

 
The right not to join a union
Whilst the right to belong to a union has international recognition, so to does the right of refusal to do so, and under no circumstances should union membership ever be mandatory, compulsory, or a condition of any form of employment.

In today’s post, I would like to commence a  two-part discussion in relation to the issue of whether or not employees should have a right to form and belong to a trade union.

To many in the western world, such a right is beyond legal and moral dispute, and in my view, the option to join a union (as well as the option to refuse to join) is a right to which workers should be entitled.

Nevertheless I feel that challenging the notion of union membership as a fundamental right is a worthwhile exercise, particularly as unions are disallowed in some countries.

Accordingly, today I would like to outline and discuss two common objections toward the concept of unions. Next week, I will highlight and discuss the case in favor of unions, and why I believe workers should be permitted to bargain on a collective basis via membership of a union.

 
The case against unions
Trade unions are subject to an extremely wide range of criticisms, springing from a variety of sources.

Today, I would like to focus on two areas of criticism in particular - that unions have a harmful impact upon the economy and that they are anti-competitive in nature.

 
How collective bargaining is anti-competitive
Anti-competitive behavior is generally frowned upon in much of the western world – in particular the practice of firms engaging in collusive behavior with other (competing) firms in order to maximize the prices they receive for their output.

Such practices are generally considered to be unfair and a hindrance to the effective functioning of a competitive marketplace.

But aren’t workers doing the same during the collective bargaining process? They are. Where staff employed in a particular industry join together (in a union) to bargain on a collective basis, this too represents a form of collusion – individual workers colluding with each other in an organized effort to maximize the price which they receive for their labor.

Moreover, in cases where the majority or entirety of the workforce within a given industry is represented by a singular union, such a union effectively operates from the position of a monopolist during the bargaining process, and is able to exploit its position to make unfair or unreasonable demands upon employers.

In a fair system, all classes of economic participants should be given equal rights, and the rules as to what is considered to be acceptable conduct or otherwise should apply equally to all. Why then should employees, as one class of economic participants, be allowed to engage in collusive behavior when other classes are not? 

 
Unions and the economy
A second objection to the concept of unions, and one which I do not feel is particularly strong, relates to their economic impact.

Critics say that the collective bargaining process results in higher unemployment as well as higher consumer prices than would otherwise be the case if collective bargaining were not allowed.

According to this argument, collective bargaining increases the negotiating strength of workers, and thus leads to higher wage settlements and therefore higher labor costs. This, in turn, leads to two negative economic effects: 

• Higher consumer prices, as firms seek to protect profit margins in light of higher labor costs; and

• Higher levels of unemployment, as higher wage levels result in a reduction in demand for workers.

I do not feel that this argument is particularly strong. Given what I feel is a strong case for unions (see next post), I feel that any adverse economic impact of their formation would not be a sufficient basis upon which to disallow the practice of collective bargaining.