Law and Labour Market Regulation in East Asia

Sean Cooney, Tim Lindsey, Richard Mitchell, Zhu Ying

• Publisher: Routledge
• Year: 2003
• Print ISBN: 9780415221689
• eBook ISBN: 9781134597550
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

This edited collection examines the labour laws of seven industrializing East Asian societies - China, Indonesia, Malaysia, South Korea, Taiwan, the Philippines and Vietnam - and discusses the variation in their impact across the whole region. Leading scholars from each country consider both laws pertaining to working conditions and industrial relations, and those that regulate the labour market as a whole. Legislation concerning migrant labour, gender equality, employment creation and skills formation is also examined. Adopting their own distinct theoretical perspectives, the authors trace the historical development of labour regulation and reveal that most countries in the region now have quite extensive frameworks. This book will be particularly useful to people interested in the place of labour law, and law in general, in contemporary East Asian societies.

1 Labour law and labour market regulation in East Asian states

Problems and issues for comparative inquiry

Sean Cooney, Tim Lindsey, Richard Mitchell and Ying Zhu

Introduction

Until recently, comparative labour law was a relatively confined field constituted by a small number of case studies based predominantly on American and British experiences with labour law transplants.¹ Over the last decade or so, however, there has been an upsurge of interest in comparative labour law studies, much of it associated with the economic development and modernisation of the newly industrialising countries of East Asia.² Whilst much of this work is not explicitly ‘comparative’ by design or method, the growth of studies on East Asian labour law regimes³ has attracted attention to many important issues and questions concerning the role of labour law. At the same time it has begun to link together the discourse in comparative law generally with that of comparative labour law in particular.

The published work on labour law regimes in newly industrialising East Asian societies presents a variety of approaches, and many diverse issues and questions for examination. These are so complex that it would be difficult, if not impossible, to reconcile them into an overarching explanatory framework. For the purposes of the present discussion, however, we suggest that there are two broad themes which occupy centre stage in the debate. The first of these has to do with the character of positive labour law in East Asian states. This, in turn, gives rise to several questions about the factors, variables, pressures and so on, which have shaped the form (or structure) and content of labour law and labour market regulation systems in these countries. The second set of issues shifts attention to the impact which labour law regimes have had upon industrial relations practices and labour market behaviour in East Asian states; and the factors which have influenced that impact. These two broad themes are, of course, interconnected. The degree of embeddedness of law in the society, or the extent to which it influences social, economic or legal conduct, cannot be disconnected from its origins and form.

Our purpose in this introduction is to set the groundwork for the exploration of these themes and issues in the ensuing country studies. The approach is selective rather than exhaustive; and is intended as a guide for further research in comparative labour law oriented towards the East Asian region.

Before proceeding to examine the themes of character and impact, we need, however, to deal with two definitional issues: the meaning of ‘regulation’ and the meaning of ‘labour law’. The term ‘regulation’ has a range of uses, from rules promulgated by the state to ‘all mechanisms of social control, by whomsoever exercised’ (Baldwin et al. 1998: 3). While the studies on this book focus predominantly on regulation effected through legal norms and institutions established by the state, they also point to many instances of regulation through non-state based mechanisms. The nature and interaction of these different forms of regulation are discussed in the concluding chapter of this book.

The use of the term ‘ labour law’ also requires elaboration. As a field of scholarly investigation, ‘labour law’ has tended to focus predominantly upon problems emerging from the employment relationship, and the inherent inequality of power between the employer and employee in that relation (Collins 1989; Mitchell 1995: xi; Davies and Freedland 1999: 233). Labour lawyers have thus tended to explore those issues which impact most directly upon the employment relationship and the relative power of the parties; that is, the contractual nature and conditions of employment; statutory conditions of employment; state systems for the settlement of industrial disputes; and the right to collective organisation and industrial action.

In this configuration of topics, ‘labour law’ has been relatively isolated from legal issues which arise in the broader labour market dimensions; for example, the protection of unemployed workers; assisting workers in finding employment; and providing industries and enterprises with an effective labour force (Collins 1989; Mitchell 1995: xiii–xiv). Inherent in these concerns is a broader range of legal matters involving public and private actors and agents. Such matters include state policy in social security; taxation; vocational education and training, and employment agencies and services; and include also state promotion and subsidisation of particular industrial and employment strategies in the private sector.⁴

Over the past two decades, the traditional focus upon the protective function of labour law in relation to the employee has come under question by those who are interested at least to uncover other purposes which labour law might, or does, serve in a particular state or economy (Davies and Freedland 1983: 5–6; Gahan and Mitchell 1995: 66–7; Collins 1997).

It is an interesting characteristic of labour law in many East Asian states that there has been less of an estrangement between the formal ‘traditional’ model of employee protection and the broader labour market dimensions of state policy-making and regulation.⁵ Arguably, the absence of a strong central role for trade unions and collective bargaining in East Asia inevitably draws attention to the broader labour market perspectives of the state's role and policies in those countries. Thus, for example, in the East Asian newly industrialising countries, focus may be more directly drawn to a study of the state's tripartite arrangements for incorporating and controlling labour's demands; to an examination of laws which have shaped and directed the labour force to take advantage of domestic or international capital; and to a study of policies designed to produce human resource and productivity outcomes, including industrial restructuring.

To ignore these aspects of labour market regulation in East Asia is to overlook many of the most important aspects of the state's approach to employment.⁶ Consequently, throughout this project we have adopted the broader ‘labour market’ approach to labour law. This is reflected in the work's title and the content of several of the country studies.

The character of labour law frameworks in East Asia

The labour relations literature on East Asia, like much other relevant literature on this region has, broadly speaking, identified three important, and often closely interrelated, influences on the form and content of labour law. These are borrowings or ‘legal transplants’ from Western states and from international institutions; economic development policies; and strategies of political control. We consider these in turn.

Western ‘transplants’

One point that seems beyond challenge is that most of the developed or developing East Asian states have adopted, in broad outline at least (and some more recently than others), systems of labour law that reflect the form and content of the systems of Western countries. In detail, of course, most East Asian and Western labour law systems vary greatly, but, with two partial exceptions, all the countries studied here have, in constitutional and legislative terms, replicated many of the basic tenets of Western systems. These include the freedom to associate in trade unions; the right to take industrial action; the obligation on employers to recognise and bargain with trade unions; and statutory minimum standards of employment (see Deery and Mitchell 1993; Cooney and Mitchell 2000: 154).⁷ The exceptions are Vietnam and China where ‘freedom of association’ is limited by the principle of democratic centralism. In addition, there is no legal right to strike in China.

In recognising the similarities in form and content between labour law in Western nations and those in East Asia, we do not deny that the legislative regimes in the East Asian states contain boundaries and limitations upon working-class organisation and action that are often stricter than those in the West. Thus, in most cases registration of trade unions is a necessary prerequisite to participation in the industrial relations process and the registration process is usually extensively interventionist, reserving strong powers to the state to influence structure, membership qualification and objectives. Internal administration may be policed quite vigorously In keeping with this approach, the circumstances under which industrial action may be taken are usually strictly controlled also. Further, state controls over the processes of industrial relations are extended through the operation of government departments and autonomous and semi-autonomous labour relations institutions. Such state bodies in many of the East Asian states may work very closely with the state authorities in confining and controlling industrial unrest (see Deery and Mitchell 1993). These obvious limitations aside, the general point remains – East Asian states have labour law regimes which profess and appear to follow the fundamental features of Western labour law systems.

These similarities of basic form and content can be traced to the circumstances in which the labour law regimes were first introduced. With the exception of China and Vietnam, the starting point for the development of contemporary labour law systems studied in this book is colonialism and/or external occupation. Thus the labour law system of Malaysia commenced under British colonial power (Deery and Mitchell 1993); the laws in Indonesia under the Dutch;⁸ and the contemporary Philippine and South Korean systems under American influence (Porges 1991; Deery and Mitchell 1993). Taiwan's system was introduced under martial law conditions from the Chinese mainland where it had been developed from German models.

The originating legislative shape of a labour law regime may, therefore, be a legacy of imposition (partial, or more or less complete) by foreign powers. In the majority of instances, East Asian states have substantially retained the colonial labour regime once they became independent political agents. Further, they have continued to look externally when modifying their labour law frameworks.

Post-colonial states might continue to draw on foreign or international norms for a variety of reasons. The adoption of a particular set of labour laws may, for example, result from a political party's need to secure political legitimacy (Kuruvilla 1995: 119; Mehmet, Mendes and Sinding 1999: 184–5) or may reflect a perceived need for self-identification as a ‘modernising’ state (Adams 1993: 280–1). East Asian nations have also been subject to pressure from other states, particularly the United States and the members of the European Union, in relation to their labour laws (see e.g. Amato 1990). These states in turn are often responding to demands from non-governmental organisations within their borders (Kuruvilla and Arudsothy 1995: 187–9). Finally, a foreign or international ‘model law’ may be attractive to a developing state whose policy making and law drafting processes are under-resourced.

One of the most significant external sources of labour law norms has been the International Labour Organization (ILO). With the exception of Taiwan, which is ineligible to be a member of the ILO, as it is not recognised as a state by most nations, all the countries examined in this book are members of the organisation. All the countries, even Taiwan, have ratified ILO conventions.⁹ It is true that the number of ratifications is low compared to European countries (although higher in all cases than the United States) and compliance with even those conventions may be disputed. However, it is also clear that these conventions, other ILO norms and ILO technical assistance have had a significant influence on the character and implementation of labour laws of the countries covered in this volume.¹⁰

For example, Kent has traced the considerable impact of the ILO on China's labour law, through assistance in both drafting and implementation (Kent 1999: 117–45). The relationship between the ILO and China has undergone periods of considerable tension, particularly in the aftermath of the Tienanmen Square Massacre, which saw the crushing of an independent union movement, and China has declined to adhere to ILO standards on freedom of association. Nevertheless, many of the provisions of the Labour Law of 1994 reflect ILO standards and ILO language, including an acceptance of tripartism and collective bargaining for all sectors of the economy. Kent argues that the inclusion of these elements in the Labour Law indicates that China's dealings with the ILO have led to a degree of ‘cognitive learning’, or the internalisation of certain ILO norms (Kent 1999: 140–1).

While the ILO is perhaps the most significant international source of labour law norms in East Asia, other UN sources have also played an important role. For example, all of the countries covered in this book, except for Taiwan, have ratified or acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and many have enacted laws in purported compliance with the convention.¹¹

The domestic contribution to labour law

Despite these ratifications and accessions, East Asian states have not simply replic...

Table of contents

• Front Cover
• Law and Labour Market Regulation in East Asia
• Title Page
• Copyright
• Contents
• List of illustrations
• List of contributors
• Preface
• 1  Labour law and labour market regulation in East Asian states: problems and issues for comparative inquiry
• 2  Labour law in Indonesia after Soeharto: reformasi or replay?
• 3  Law and labour market regulation in Malaysia: beyond the New Economic Policy
• 4  The development of labour law and labour market policy in the Philippines
• 5  Vietnam's labour market: transition and the role of law
• 6  Economic reform and labour market regulation in China
• 7  Taiwan's labour law: the end of state corporatism?
• 8  Law and labour-management relations in South Korea: advancing industrial democratisation
• 9  What is labour law doing in East Asia?
• Index