Harmonisation of labour laws: an arduous journey for ASEAN

ABSTRACT

Of late, there have been efforts towards regional harmonisation of industrial relations (IR) systems in the Association of Southeast Asian Nations (ASEAN). IR systems are closely linked to labour law systems. This research looks into ASEAN labour law systems as plausibly occupying loci or points along a continuum. At one end might be systems influenced by the legal family of civil law; at the other could be those swayed by the legal family of common law. In between, there is likely a gamut of systems having endogenous origins, hybrids of civil Law and common law, trichotomies that include customary or indigenous law, among others. Is it possible to harmonise or transfer labour laws across ASEAN? What have been the approaches to labour market regulation? Using a comparative case study method, this paper attempts to answer these questions and delves into examples from the Philippines and Malaysia to show that the path to harmonising or transferring labour laws within ASEAN is long and difficult in light of critical stumbling blocks, such as methodological nationalism, legal endemism, diverging epistemological assumptions, and modes of legal reasoning of labour laws.

KEYWORDS:

• ASEAN
• legal harmonisation or transplantation
• labour laws
• labour market regulation
• Malaysia
• the Philippines

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No potential conflict of interest was reported by the author.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1. Kocka and Haupt (2009, 20) point out that while the ‘logic of comparison and the logic of entanglement history’ tend to diverge, i.e., the former ‘separates the units of comparison (in order to bring them again together under the viewpoints of similarity and difference)’ and the latter emphasises ‘the connections, the continuity, the belonging-together, the hybridity of observable spaces or analytical units’, still ‘comparative research can and must take connections between the compared cases into account.’

2. See the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up which was adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998 https://www.ilo.org/declaration/lang–en/index.htm. See also the ILO Declaration on Social Justice for a Fair Globalisation which was adopted by the International Labour Conference at its Ninety-seventh Session, Geneva, 10 June 2008 https://www.ilo.org/global/meetings-and-events/campaigns/voices-on-social-justice/WCMS_099766/lang–en/index.htm.

3. But see The Labour Code, 1912 of the Federated Malay States (Enactment No. 6 of 1912, as amended). The Labour Code, 1912 contained eleven Parts, including Part II on Provisions Relating to Immigration, Part III on General Provisions Relating to Labour, Part IV on Provisions Relating to Special Classes of Labour, Part V on Provisions Relating to Priority of Wages and the Truck System, Part VI on Provisions Relating to Assisted Migration, Part VII on Special Provisions Relating to Labourers Employed in Mines, Part VIII on Provisions Relating to the Health of Assistants and Labourers, Part IX on Provisions Relating to Places Unfit for the Employment of Labour, Part X on Special Offences, and Part XI on Provisions Relating to Procedure, Actions and Rules.

4. Notably, Part I, Chapter I of The Labour Code, 1912 had stated explicitly ‘Saving of Netherlands Indian Labourers’ Protection Enactments, 1909ʹ.

5. Innes points out on page 27 that the ‘local Labour Code’ was a good example ‘of codification … found suitable to local requirements.’

6. See the following which the author cites: Baranger (2017) and Ahmad (2002).

Additional information

Notes on contributors

Jonathan Sale

Dr. Jonathan Sale is a Lecturer in Employment Relations and Human Resource Management at the Newcastle Business School, Faculty of Business and Law, The University of Newcastle. His fields of research include labour and comparative law. This article, which draws from chapters of his PhD Thesis, was presented at the 33^rd Annual AIRAANZ Conference at RMIT University, Melbourne (12–14 February 2019). He was awarded the 2019 AIRAANZ Postgraduate scholarship.