* Discussion Paper presented by Nadesan Satyendra at Third Asian Regional Congress of Labour Law and Social Security, Bangkok, Thailand, January 1985.
Asian approaches to employment relations is a much discussed subject. It is a subject which has found a place on the agenda of the Asian Congresses on Labour Law and Social Security held in Manila in 1980 and in Seoul in 1983. It was also a subject at the Asian Regional Conference on Industrial Relations in Tokyo in 1981.
But, the question mark at the end of the title to this paper seeks to emphasise the tentative nature of the discussion. It was Edward de Bueno, the Cambridge psychologist and writer on the thinking process, who remarked that the English language could usefully add a new word to its vocabulary - 'po' which meant neither yes nor no. A definitive yes or no, very often forecloses an open ended discussion and the mind becomes conditioned, almost unconsciously, to think in well worn grooves. Many from the West have sometimes been irritated by an Asian who, in response to that which appears a straightforward question, shakes his head slowly from left to right and then, back again and seems to be saying yes and no at the same time. Perhaps, the Asian was not being evasive - he may have been seeing things in a larger perspective.
And this it seems to me may well remain a significant feature of any Indian, if not Asian, approach which springs from the culture of the peoples of the Asian region. I am wary of making sweeping generalisations about Asia as a whole, but I tend to agree with the remarks of Max Weber:
"..all philosophies...of Asia finally had a common pre supposition: that knowledge, be it literary knowledge or mystical gnosis is finally the single absolute path to the highest holiness here and in the world beyond...the Asian employer leave their cultural heritage at the door step, when they enter the workplace.”
Perhaps, sufficient has been said to set the frame and provoke some thought.
some questions…
It is useful to begin by raising some questions - questions which have been asked before - but questions which continue to retain their relevance and significance today. It is useful because such questions help us to focus our attention on some of tne issues involved in any discussion on 'Asian Approaches t«o Employment Relations Law.
Is there an Asian approach - as different from a non Asian approach - to employment relations law?
And, what do we mean, when we refer to Asia - does it include India, Pakistan, Sri Lanka, Malaysia, Singapore, Thailand, Burma, China, Philippines, Indonesia, Kampuchea, Vietnam, Taiwan, Fiji, North Korea, South Korea and Japan? Does Asia include the Middle Bast, Israel and Australia? Is there a single Asian approach or is it that there are as many approaches as there are separate states in the Asian region?
Again is there a single 'non Asian approach' to employment relations law? Are the employment relations systems of the United Kingdom, France, Germany, Italy, Spain, the Scandinavian states, and North America similar? and, what of Australia, Soviet Union and Eastern Europe, South America and Africa?
Further, is it that today’s so called 'Asian approach' will, in the years to cane, inevitably converge to that which is regarded today as 'non Asian' ? Or is it that the essential characteristics of the employment relations systems of Asia, reflect certain structural factors which are resistant to unifying influences and which will contribute, not to convergence but to the evolution of a separate and coherent identity?
And, why is the question of an Asian approach to employment relations law one of interest ? Is it an artificial interest created by feelings of an exaggerated nationalism amongst intellectuals and political leaders in countries which have recently emerged from colonialism - a chauvinism which seeks to assert a difference, even in areas, where none exists?
Or does the importance of the question of an Asian approach arise from its relevance to a systematic comparative study of employment relations law, which seeks to answer questions such as:
Is the employment relations system of each state, unique, individual and separate? Or is it that each system exhibits certain features which are particular to that state, certain features which that state shares with other states, which are linked with it, say, by a shared cultural heritage and a shared history of economic development, and again, certain features which are universal and appear to override national and regional differences?
If the features of each employment relations system are capable of being categorised in this way, what are the circumstances which give rise to such categories and to what extent are such circumstances structural and resistant to unifying influences?
what are the approaches to a general theory of employment relations law which will create a frame of reference within which the separate state systems may be meaningfully compared and which will further our understanding of the present working and the future evolution of each state system?
method and mythology...
A story is related in Hindu mythology. Siva and his consort, Sakthi were on their celestial throne in the Himalayas. Siva the active and Sakthi the passive together constituted the whole. From the union of Siva ana Sakthi came the first born - the idea and this was Ganapathy. Later came the second born - action and this was Murugan. And one day the two children, Ganapathy and Murugan were playing around Siva and Sakthi. It is said that Siva with a twinkle in his eye, offered the prize of a fruit to the son who went round the universe first. Murugan immediately set out on his journey and went to many lands ana across distant seas. He travelled swiftly on his heavenly peacock, but when he returned to the Himalayas, having traversed the universe, he was astounded to find his elder brother Ganapathy already there, contentedly eating the fruit that Siva had given him. As the story goes, Ganapathy, had merely walked round the throne on which Siva and Sakthi were seated - the universe was after all, in them and they were the universe.
A comparative study of employment relations law very often necessitates a journey into the many and varied employment relations systems of the world.
It was Hepple who remarked:
"A traveller making an organised tour of the world's systems of labour law ana industrial relations is likely to begin his journey in Great Britain. This is the country in which industrial relations began, as the product of the first industrial revolution in history. It is here that labour law took shape." [B.A.Hepple, International Encyclopaedia for Labour Law and Industrial Relations .ed.Roger Blanpain. 1980].
As the traveller continues his journey and enters Asia, he may find much that is of comparative interest, even if only, for the reason that the employment relations systems of many countries of Asia are not the product of an industrial revolution - at any rate, not of an industrial revolution in Asia. But even so, at the end of the journey, the traveller may well feel the need to come back to the source and reflect on the basic features of the structure of an employment relations system and ask, what is it, in these features, that has led to the differences as well as the similarities that are manifest in the employment relations systems of the world, because, after all, the seeds of these differences and similarities must exist in the structure of the employment relations system itself.
Theory and experiment are two legs in any search for understanding. And, in the end, theory is perhaps the most practical ot all things. It not only illuminates, it also foretells. And those who declare that they have no need for theory are usually acting on a theory that they have forgotten.
a matter of definition...
What is the area of employment relations law? It is said, not without reason, that definitions come at the end of the process of acquiring knowledge and not at the beginning. It is another way of saying that all definitions are partial and temporary because in the end, all knowledge is partial. The mind in its efforts to understand, separates that which is a seamless whole, that which is without a beginning and without an end. It separates that which is interconnected, and directs its attention to parts ot the whole, but the process of separation itself, inevitably, distorts. However, given the mind frame and given the partial nature of any definition, and its distorting effect, it remains necessary and useful, to have some coherent, it only approximate, understanding of the subject that is to be examined - necessary, because, that is the only way that the mind knows: useful, because it is helpful in achieving the limited objective at hand. And it is important that we should remind ourselves of this limited objective from time to time.
and, a question of nomenclature...
At the outset there arises the question of nomenclature.
'"When I use a word,' Humpty Uumpty said in a rather scornful tone, 'It means just what I choose it to mean, neither more or less'. 'The Question is' said Alice, 'whether you can make words mean so many different things'. 'The question is', said Humpty Dumpty, 'which is to be the master - thats all.' (Through The Looking Glass c.vi)" quoted by Lord Atkin in Liversidge v Anderson 1942 A.C. 206 at 245]
And, in the area of employment relations law, an initial question is whether one can make many different words mean the same thing. A rose called by any other name, may smell as sweet, but more than one name also leads to confusion. That which is described as employment relations law or employment law is also known as the law of master and servant, industrial law or industrial relations law, and labour law or labour relations law. The reasons are partly historical and partly conceptual. But the matter is not a mere question of semantics. It was Maitland who observed in a different context that although forms of action were dead they continue to rule us from their graves. In the area of employment relations law, it may well be that, terms and concepts, from earlier times, which have outlived their usefulness, continue to influence, direct and even fetter our thinking today.
master and servant...
The use of the expression 'master and servant' goes back to a pre industrial economy, where land was the most important means of production and the relationship between those who worked on the land and those who owned the land was more total and paternal, in the same way as roan was the master of his household, the owner was the master of the land that belonged to him. And together with ownership of land went control of those who worked on the land as well as the duty to provide for them. Again, at the relatively simple levels of organisation, the servant's work was that which was capable of being directed and controlled by the master. The duty to obey and the right to command were those that were appropriate to a servant and a master - a step removed from the slave and his owner.
industrial relations...
The industrial revolution brought with it the shift from land to other means of production. It was a revolution which was fueled by the discovery of the steam engine and later by electric generators ana the consequent dramatic increase in the physical power which man was able to harness and direct. It was a revolution which added immense power to the hand of man. It was the factories and the mines that witnessed the formation of the new relations between those who were 'freed' from the land and 'freely' sold their labour and the owners of the new means or production - the owners of industry - who bought such labour to produce 'industrial' goods. The use of the expression industrial or industrial relations law served to separate the rules of the new relations which were the product of the technological changes of the industrial revolution from the traditional area of the common law of master and servant which was rooted in pre industrial society. The expression was in origin, a reflection, not so much of the content of the rules of the new relations but of the place where the work was done. But, today, that which is described as industrial law or industrial relations law is not confined to employment relations in industries alone.
In Sri Lanka for instance, the principal enactment concerned with the settlement of disputes in the area of employment relations is named "The Industrial Disputes Act" but the term industry is defined to include, inter alia, "any undertaking or occupation by way of trade, business, (manufacture or agriculture, and any branch or section of trade, business, manufacture or agriculture, every occupation, calling or service of workmen and every undertaking of employers." Industry by definition includes agriculture. The way of statutory definition is one way in which terms which arose in a particular historical context are given a fresh lease of life merely because such terms have acquired a certain historical meaning. One consequence is that in other areas of usage and the law, industry continues to mean industry and does not mean any trade or business or agriculture. The terms industrial law and industrial relations law, confuse rather than define and this is particularly so in the developing economies of Asia where industrialisation is relatively weak and where the vast majority of the employees work in a non industrial environment.
The continued use of the expression 'industrial relations' is not confined to Sri Lanka, or for that matter, to Asia alone. The Trilateral Commission stated in 1981:
"In the modern usage of the term, an industrial relations system includes every type or management-labour relationship in both private and public sectors of employment; it therefore includes both the unioniseo and non unionised manufacturing enterprises ana all kinds ot service activity. In short, it covers the whole spectrum of employment relationships in a modern society." [Benjamin C.Roberts, Hideaki Okamoto and George C.Lodge in a report prepared for the Trilateral Commission: Trilateral Commission Task Force Reports: 15-19 - New York University Press 1981]
It would seem that the present day use of the expression, industrial relations, is often the result of an unstated premise that the employment relations systems of the developed world, are functions of the structure of the so called 'industrial society' and further that the 'industrial society' has come to stay in the developed world and will increasingly become a part of the developing world as well, it is a line of thinking which merits critical examination, particularly in the context of a developed world which is itself in the midst of a new technological revolution where the computer has extended the power of the mind of man in the same way as in the technological revolution of the 17th extended the power of the arm of man - a computer revolution which may have increasing impact on the content of the employment relation.
Again, in the developing world where large numbers of persons continue to work in a rural and agricultural environment, questions have been asked whether it is possible, in the 20th century to bring about an industrial revolution, to produce goods and services, in competition with the economies of the developed world, economies which industrialised, without such competition, ana which relied on raw materials supplied by, and markets provided by, colonial empires of one kind or another. And in the absence of a similar industrialisation, what form would employment relations systems take in such countries?
Questions such as these clearly need to be examined, but it would seem that such examination will be furthered, it, to begin with, the approach is not blinkered by the use of terms such as 'industrial' and 'industrial relations' to describe the employment relations systems of Asia - terms which tend to assume the conclusion which is subject to examination and which may prevent the perception of the issues that are relevant to a critical study.
labour relations...
Again, although the terms labour law and labour relations law, have the advantage that they do not assume that the area of the subject, is something that is inevitably concerned with the so called 'industrial society', they suffer from limitations of a different kind. Firstly, although labour may include both physical and mental activity, a manager, a clerical worker, is not a labourer and to that extent the term confuses rather than defines. More importantly, to the extent that the terms abstract 'labour' from the humans who labour, they tend to emphasise that labour relations law is concerned with the relations which arise upon the sale and purchase of labour as a commodity. This unstated premise which underlies the use of the terms may inhibit an examination of the broader range of relations which may well constitute the real structure of the employment relations systems of the world today.
what constitutes the employment relation?...
The employment relation arises where one person employs another to perform work in return for the payment of remuneration.
It is a power relation in the sense that every relation between persons may be regarded as a power relation. Power is the capacity to influence and direct the conduct or others. Every individual, by reason of his individuality, his assertion of separateness, his pursuit of growth and fulfilment, interacts with and influences and directs the conduct of others with whom he may come in contact, to a lesser or a greater degree. In turn he himself is influenced and directed by others. Some relationships may be transient. Others may be more permanent. But all relations are power relations and therefore the employment relation is a power relation.
The employment relation does not become a power relation because the employer commands and the employee obeys. The employment relation is not a simple command - obey relation, where the employer commands and the employee obeys. It never was. The employer seeks to influence and direct the conduct of the employee in order that the employer may achieve his objectives and at the same time, the employee seeks to influence and direct the conduct of the employer in order that the employee may achieve his own objectives. Both employer and employee seek to exercise power and there is nothing inherent in the structure of the employment relation which renders the balance of power, 'inherently' unequal. The circumstance that one person employs another to perform work in return for the payment of remuneration does not by itself place that person in. a position of greater power in relation to the person whom he employs.
An illustration may help to clarify the matter. Take the case of a skilled heart specialist who is employed and paid a salary by a privately owned hospital. The employer does not and in fact cannot direct and control the manner in which the heart specialist perform his work. Again, if the employer's need for the specialists services are greater than the need of the specialist for employment, it is the specialist who will wield the greater power. Yet, the heart specialist is an employee of the hospital.
employment relations system...
The employment relation does not exist in midair. It is not something that concerns the employer and employee alone. The relations which arise upon employment are not bipolar.
The work performed by an employee for the payment of remuneration is directed to the production of goods and the provision of services for the use of the people of a given society. Again, the employer and the employee nay each be a member of a trade union. Further, except in the case of a small employer, there may be several links in the chain of command from the employer to the employee. Also several incidents of the relation may not be a matter between the employer and the employee alone but may involve the state and its agencies, formally through legislation and informally through income-prices policy and so on.
The balance of power between the employer and the employee to the employment relation will be determined not by factors which are 'inherent' in the nature of the employment relation, but by factors which are inherent in the structure of the organised society of which the employment relation is an integral part. Organisation implies specialisation. Everybody does not perform the same work. Organisation implies the management of natural and human resources.
Everybody does not exercise the same power. Organisation implies an hierarchical distribution of power. The employer and the employee constitute an important ana integral part of the power structure of every organised society. The relative power wielded by each of the parties to the employment relation influences the nature of the power structure of a given society and at the same time the nature of the power structure influences the power that each wields. The material reward that each party to the employment relation receives or secures and the terms and conditions of the employment relation will be related to the power that each party wields. The power wielded by the employer and the employee in the context of the employment relation is determinable only in the larger context of the power that each wields in the distributive matrix which constitutes the power structure of any organised society.
The centres of power then are not only the employer and the employee. The state and the agencies of the state are also power centres which influence the rules which constitute the law of employment relations. The power centres include the manager, the enterprise trade union, the national trade union, employers federation, political parties, and members of parliament. The church may be an important power centre which may be influenced by employees who constitute its parish.
And it is a basic feature of power centres that whilst they seek to serve those whom they represent, they also seek to achieve this by perpetuating their own power. It is rarely, if ever that a power centre acts in a way that erodes its own power. The interests of a power centre may therefore not always coincide with those which it seeks to represent. And this is true of managing directors, in relation to owners and employers as well as shop stewards, in relation to employees. It is also true of the state, and of trade unions.
Again, an employee is also a consumer, a manager is also an employee. Both employers and employees may also be voters, an employer may be a member of ruling party. Or he may be member of a political party which is in the opposition. A trade union may wield greater influence through a political party than directly on an employer. employees who constitute an ethnic minority may wield less power than those who belong to the ruling majority, either because they do not have the right to vote anu participate in the political process or because they may be repatriated at short notice.
A comparative study of the law of employment relations is furthered by recognising that the structure of an employment relations system is multipolar and is integrally linked with the matrix which constitutes the distribution of power in any given society.
Gourevitch, Lange and Martin have focused attention on some of the issues that arise:
"What are the relationships between worker's roles as producers and as citizens? How do the ways in which these roles are institutionalised in the labour market and the political arena affect each other? How much does the distribution of power within each of these institutional contexts influence the distribution of power in the other? How does the character arid intensity of conflict in one impinge on the features of conflict in the other? What impact do the terms of settlement made in one of these contexts have on settlements made in the other? What determines the variations in these relationships among different countries? Under what circumstances do changes in these relationships occur?...
...the Marxists deny the autonomy of political processes from the underlying structure of class relationships to much the same extent as the liberal pluralists affirm the autonomy of industrial relations frau politics. Both consequently beg the fundamental question of why relationships between industrial relations take varying forms with varying consequences for the operation of different political economies...
...Perhaps, it will become axiomatic that to paraphrase Clausewitz, 'for labour, politics is the pursuit of labour market goals by other means'. We will then be able to argue about different models of the interpenetration of industrial relations and politics, not whether the two are connected..." [Industrial Relations in international Perspective: Ed. Peter B.Doeringer, Macmillan Press Ltd. 1981]
A holistic approach...
The employment relations system, perceived as an integral part of the power structure of a given society, serves as a useful frame for a comparative study, at the same time this has the added attraction of a holistic approach which is in accord with the Asian search for 'significance'.
The distribution of power in a given society is a function of its past. It is the past which moulds the present and influences the future. And that past has both a cultural and an economic content and it seems to me that it is from these factors that same of the characteristic features of the employment relations systems of Asia spring.
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* Discussion Paper presented by Nadesan Satyendra at Third Asian Regional Congress of Labour Law and Social Security, Bangkok, Thailand, January 1985.
