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For the United States, Japan and China, evaluate how approaches to managing people differ and how these differences can be explained by cultural context.
Introduction

In this international age of business where firms operate in many different parts of the globe, it is important to note that approaches to management may differ across cultures. In setting up a new office in, for example, China or Japan, potential managers should seek to adapt to the different cultural practices of the host country in order to better manage their workforce and achieve productivity.

In this essay, we shall, firstly, discuss methods of measuring key dimensions of culture, and then using said dimensions, look at the different management styles between three countries; China, Japan and the US, currently the three largest economies in terms of GDP, and seek to determine how each approach is shaped by the unique cultural contexts of each country.

Measuring Key Dimensions of Culture

In order to measure the potential effects of culture on the behaviour of said culture’s firms and managers, Geert Hofstede (2001), while working for IBM in the late 70s and early 80s, identified six key dimensions of culture that could be measured through use of survey data and indexed values, namely;

Time Orientation (Long Term vs Short Term); a measure of the extent to which each society values history, heritage and tradition – whether it prefers to uphold traditional values and is more resistant to new ideas and technology (Long Term Orientation) or whether it is more fluid, less focussed on the past and more open to change (Short Term Orientation);

Power Distance (High vs Low), which measures how well the society in question handles uneven distributions of power; whether it is generally accepted and understood as a fact of life (high power distance) or whether it is held to be deeply unfair, unnatural, and something to be railed against (low power distance);

Individualism vs Collectivism; a measure of the extent to which a sense of community and collective responsibility exists, and whether it is thought to be more important than individualist beliefs and desires. Individualist societies tend to value independence, privacy and personal fulfilment, while collectivist societies tend to value group interdependence and a repression of personal ambition when it is misaligned with communal values;

Uncertainty Avoidance (Weak vs Strong), which measures the extent to which each society is comfortable dealing with risk, uncertainty and ambiguity –societies with high degrees of uncertainty avoidance tend to be highly regulated and value careful planning and structure, while societies with low degrees of uncertainty avoidance tend to be more pragmatic, and accept change and risk as factors of life;

Masculinity vs Femininity; a measure of societal gender differentiation – in ‘masculine’ cultures, gender roles are highly differentiated and society as a whole places higher values on competition, ambition, and personal achievement whereas in ‘feminine’ societies gender roles are less starkly defined and more equal, and society tends to place higher values on relationship building, modesty and group harmony (Hofstede and Minkov, 2010).

The US

American society traditionally has a tendency to value individualism and personal freedoms – indeed, such ideals can be seen in the idea of ‘The American Dream’, which postulates that anyone can achieve great wealth and success through individual hard work and determination. With regard to the Hofstede (2001) dimensions of cultural influence;

Source: Gallant (2013)

The United States scores low on the measure of Power Distance, suggesting that American culture is generally intolerant of uneven distributions of power and prefers to see all men as equal (as is laid out in the American Declaration of Independence). It also scores low on Time Orientation, suggesting US society prefers to embrace change and adapt to new ideas rather than sticking to more traditional approaches. It scores quite highly on Masculinity vs Femininity, which is perhaps a reflection of the traditional American respect for competition and ambition. Unsurprisingly, it scores very highly in the measure of Individualism vs Collectivism, a reflection of the deeply held belief in individual freedoms and independence which has been a mainstay of American culture since the war of independence.

This strong sense of individualism is reflected in the American approach to management. Generally, American managers are expected to deal with employees as individuals, rather than as a collective – the ‘open door’ approach to management, where employees are free to approach and discuss issues, suggestions and ideas with upper management, is a uniquely American approach to management that has gained traction in other parts of the world (Laurent, 2006) as it allows employees to feel that their ideas and opinions are valued by those higher up the corporate ladder. American managers are often viewed as facilitators, helping employees to develop personal talents and understanding the individual strengths and weaknesses of those they oversee (Lewis, 2000). Indeed, many American employers use psychometric tests in their hiring process, to determine an applicant’s individual skill level and expected role within the team (Jenkins, 2001). Indeed, skill-based human resource management theories and practices have quickly gained traction in many American firms (Lawler, 1992), reflecting the US cultural practice of embracing new ideas and valuing individual contributions.

There is also a strong sense of competition prevalent in the American approach to management, with promotions tending to go to those who have been seen to ‘rise above the rest’, rather than merely to those who have had the longest tenure (Morris and Pinnington, 2012). The study by Morris and Pinnington (2012) shows that many US manufacturing firms (around a third of those studied, including several of the largest) have an “up-or-out” approach to employee promotion, whereby if an employee has not risen to the next level of the career ladder by a specified time, they are asked to leave the firm. A study by Gibbons and Waldman (1999) shows that workers in US firms who receive promotions early in their career tend to then be promoted quickly to the next level again, suggesting that individual achievement and ambition is both recognised and rewarded.

China

Chinese society is highly influenced by the teachings of Confucius, where all relationships are seen as inherently unequal; both elders and superiors are to be automatically given the utmost respect, and where the group is held to be far more important than the individual (Yum, 2009). This emphasis on group cohesion over individual freedoms was further influenced by the advent of Chinese communism in 1949, and the formation of the People’s Republic of China. While China has become decidedly less socialist economically over the past two decades, owing mainly to Deng Xiaoping’s economic reforms of 1978 and 1992, it still remains a communist country, and its socialist ideology is still highly prevalent in everyday life (Yum, 2009)

With regard to the Hofstede (2001) dimensions of cultural influence;

Source: Gallant (2013)

China scores highly on the measure of Power Distance, reflecting the fact that Chinese society inherently accepts uneven power distribution and inequality as a fact of life. Unsurprisingly, China scores very low on the measure of Individualism vs Collectivism, given both the Confucianist and the ruling Communist Party’s emphasis on obedience to the state and group cohesion. It scores relatively highly on the measure of Masculinity vs Femininity, suggesting that gender roles are fairly strictly defined, and that ambition and assertiveness are valued, although mainly when they are used for the benefit of the group/state. China scores very highly on Time Orientation, suggesting that Chinese culture is very traditional and conservative, placing great emphasis on traditional values and methods. They also score very low on Uncertainty Avoidance, suggesting that Chinese society generally does not tolerate uncertainty, and prefers rules and strict structures to be in place.

This can be seen in the fact that Chinese organisations tend to be highly structured and hierarchical, with each individual having a strict distinct role within the organisation (Lewis, 2000). Chinese managers tend to be very autocratic, and most decision-making is made from the top-down with little consultation (Gallant, 2013). Chinese decision making tends to be highly directive, task-oriented and low in cognitive complexity, with little room for interpretation (Martinson and Davison, 2005). Senior managers often have close ties to the Communist Party, and often important business decisions – especially those related to international trade – are scrutinised by party officials before being made (Osland, 1990).

Chinese society emphasises the need for social cohesion, and the avoidance of conflict. Lockett (1988) suggests that the Chinese approach to management is much more people and relationship-oriented, and less performance-driven than in the West. When it comes to promotion, managers tend to promote those who are seen to be trustworthy and reliable rather than those who have sought to ‘rise above the rest’ at the expense of others (which is seen to be harmful to group cohesion), and length of tenure is also a highly important factor in determining promotion prospects (Ding et al, 1997).

Japan

Japanese society in general emphasises politeness and modesty as key virtues to be upheld – in a country with one of the highest urban population densities in the world, such virtues are important in maintaining social cohesion (Clammer, 2011). Japan was essentially closed to the outside world, apart from occasional contact with Dutch traders, until 1854, when the US Navy forced it to open its borders to trade (Totman, 2005). Since then, it has established itself as the third largest economy in the world in terms of GDP, behind the US and China at first and second place, respectively.

With regard to the Hofstede dimensions of cultural influence;

Source: Gallant (2013)

Japan scores low on the measure of Individualism vs Collectivism, suggesting that Japanese society values group cohesion and social relationships over individual desires and accomplishments. Japan scores very highly on the measure of Masculinity vs Femininity, suggesting a high emphasis on fixed gender roles and on competition. It also scores very highly on Uncertainty Avoidance suggesting a high importance placed on the value of structure and rule formation, which can be interpreted as a holdover of its imperial past and its emphasis on a strict social hierarchy (Benedict, 1967). This is unsurprising given the high score for the measure of Time Orientation, which demonstrates Japanese culture is generally rather traditionalist and conservative.

Although Japan scores low on the measure of individualism, Japanese managers tend to invest a great deal in their employees’ skills and development – in many Japanese firms, new employees spend around six to twelve months in training in each division of the company, so they can understand the different aspects of the firm’s organisation (Gallant, 2013). This ties in to the Japanese emphasis on structure and collectivism – each employee knows their role, and understands the role others play in the firm’s activities. Japanese decision making tends to be very collaborative – the Japanese concept of ‘hourenshou’ captures this perfectly. It refers to the necessity of reporting on both your own work and that of others, in ensuring everyone involved in the process is kept informed on how each piece of work is progressing (Clammer, 2011). Often, decisions are made at the middle management level, after consulting with subordinates, and are then passed up the chain to upper-level management to implement. Top management is seen as more of a facilitator than as a strictly authoritarian body. This idea of group responsibility is also upheld in the Japanese concept of ‘genchi genbutsu’ which translates roughly as the need to get one’s hands dirty when one spots a problem, regardless of role or level. Thus, top-level management are often willing to pitch in on a project to help it succeed, even if said project is many levels below (Clammer, 2011).

The Japanese approach to promotion emphasises both seniority, maintenance of group cohesion, and modesty – the higher a manager rises, the more modest and unassuming he needs to appear (Suzuki, 1986). In Japan, it is generally expected for an employee to spend his working life at one company, slowly developing their individual skills and moving up the ranks, reflecting both the Japanese cultural preference for strong structure and organisation and avoidance of ambiguity, and in Japanese society’s preferred long-term approach to Time Orientation.

Conclusion

While links can be drawn between each country’s unique cultural dimensions and its approach to management, care should be taken when applying such knowledge. As with any sweeping generalisations, there are many exceptions to the rule. However, such generalisations can still be useful – as Lewis (2000) notes, “Determining national characteristics is treading a minefield of inaccurate assessment and surprising exception…there is, however, such a thing as a national norm” (Lewis, 2000, p3). So while not every Japanese manager will be modest, self-effacing and open to collaborative decision making; or every Chinese manager autocratic and avoiding of conflict; or every American manager highly competitive and performance-focused; such archetypes are generally successful in each area of cultural context, and the conscientiousness manager would do well to keep these national differences in mind while dealing with one of the aforementioned nations.

References

Benedict, R (1967), The Chrysanthemum and the Sword: Patterns of Japanese Culture, Houghton Mifflin Harcourt, Boston

Clammer, J (2011), Contemporary Urban Japan, John Wiley and Sons, Oxford

Ding, D, Fields, D and Akhtar, S (1997), ‘An empirical study of human resource management policies and practices in foreign-invested enterprises in China: the case of Shenzen Special Economic Zone’, The International Journal of Human Resource Management, Volume 8, Issue 5, pg 595-613

Gallant, M (2013), The Business of Culture: How Culture Affects Management Around the World [Online], Available; http://www.halogensoftware.com/blog/the-business-of-culture-how-culture-affects-management-around-the-world [Accessed 21st May 2014]

Gibbons, R and Waldman, M (1999), ‘A Theory of Wage and Promotion Dynamics Inside Firms’, The Quarterly Journal of Economics, Volume 144, Issue 4, pg 1321-1358

Hofstede, G (2001), Culture’s Consequences: Comparing Values, Behaviours, Institutions and Organisations across Nations, SAGE Publications, New York

Hofstede, G and Minkov, M (2010), Cultures and Organizations: Software of the Mind, McGraw-Hill, New York

Jenkins, A (2001), Companies’ Use of Psychometric Testing and the Changing Demand for Skills: A Review of the Literature, [Online], Available; http://eprints.lse.ac.uk/19541/1/Companies_use_of_psychometric_testing_and_the_changing_demand_for_skills_A_review_of_the_literature.pdf [Accessed 21^st May 2014]

Laurent, A (2006), ‘The Cross-Cultural Puzzle of International Human Resource Management’, Human Resource Management, Volume 25, Issue 1, pg 91-102

Lawler, E (1992), ‘A Skill-Based Approach to Human Resource Management’, European Management Journal, Volume 10, Issue 4, pg 383-391

Lewis, R (2000), When Cultures Collide: Managing Successfully Across Cultures, Nicholas Brealey Publishing, London

Lockett, M (1988), ‘Culture and the Problems of Chinese Management’, Organisation Studies, Volume 914, pg 475 – 496

Martinson, M and Davison, R (2005), ‘Strategic decision making and support systems: Comparing American, Japanese and Chinese management’, Decision Support Systems, Volume 43, pg 284 – 300

Morris, T and Pinnington, A (2012), ‘Promotion to Partner in Professional Service Firms’, Human Relations, Volume 51, January, pg 3-24

Osland, G (1990), ‘Doing Business in China: A Framework for Cross-cultural Understanding’, Marketing Intelligence and Planning, Volume 8, Issue 4, pg 4-14

Suzuki, N (1986), ‘Mid-Career Crisis in Japanese Business Organisations’, Journal of Management Development, Volume 5, issue 5, pg 23-32

Totman, C (2005), A History of Japan, Blackwell Publishing, Oxford

Yum, J (2009), The impact of Confucianism on interpersonal relationships and communication patterns in east Asia, [Online], Available; http://www.tandfonline.com/doi/abs/10.1080/03637758809376178#.U4Aw33JdXHQ [Accessed 21^st May 2014]

This work was produced by one of our professional writers as a learning aid to help you with your studies

Abstract

The social housing industry continues to struggle in the UK to provide the most appropriate amount of quality housing stock necessary to serve the growing number of citizens that seek these affordable housing options. The existing housing stock has often suffered from poor quality because there has not been the reinvestment in these assets to maintain their quality in terms of health, safety, comfort and environmental concern. Now, with the need to create a decent home standard and fulfil stringent sustainability measures to improve the environmental record of the UK, more attention has turned to the concept of building maintenance management. This aims to create a formalised approach and set of standards that can unify the way in which these houses are maintained and improved for use by needy residents. To look for ways that might offer a formal process for doing so through the building maintenance management concept, this research study aims to critically review of building maintenance management within social housing to determine the best approach. To carry out this research aim, the research study methodology uses a literature-based approach to investigate difference theoretical concepts and a case study approach to examine empirical evidence, including maintenance management in the construction industry, the challenges in asset management, the current state of maintenance management in social housing, and the real world application of how social housing stock is managed. The case studies examine specific housing authorities charged with maintaining social housing as seen through the assistance of their professional building maintenance management companies that deliver a standardised, multi-criteria approach for faster, more efficient delivery of high-quality housing stock. Conclusions focused on the finding that there is no standardised, formal whole life asset management approach that integrates strategy with the perspective that a specific building maintenance management programme could provide cost-effective solutions to help an industry burdened by budget cuts and challenging economic conditions. Recommendations and proposed future research endeavours were also developed.

Chapter 1: Introduction
1.1 Background and Research Rationale

As a long-held programme in the UK, social housing is a term which makes reference to housing which is managed and supplied by Local Authorities (LA), housing associations, and various other organisations throughout the United Kingdom (SHARE, 2011). Also known as council housing, the homes are often found within council estates or clustered areas of homes overseen by voluntary organisations that are charged with managing and providing the housing to qualified candidates (SHARE, 2011). The last few years have seen a sharp rise in the demand for these homes as more people fall below the poverty line and cannot afford rent or ownership on a private basis (Hills, 2007).

In recent years, more attention has been made to ensure that these homes are of a decent standard so that even those without funds have the right to enjoy comfortable, safe, and healthy accommodations whether they come from a voluntary organisation or that are now even supplied by a private landlord (SHARE, 2011). Improvements have been made as reports show that social housing is now “more likely to meet the new ‘decent homes’ standard than private rented housing, particularly for disadvantaged households” (Hills, 2007: 9).Yet, there is still a policy discourse in place that relates to the public and even government perception about those in need of social housing that slants toward ‘individual responsibility’ rather than just receiving social housing (Haworth & Manzi, 1999). This attitude borders on animosity that spills over into the management of social housing that acts as though it is an additional burden to maintain these properties on top of providing them rather than see the asset value to maintaining them (Haworth & Manzi, 1999).

There are also significant challenges that remain before the objective has been met to provide all citizens in the UK with decent homes no matter what their income because of the lack of housing stock and the poor quality of what is often available (SHARE, 2011). Just in 2000, it was reported that 1.5 million homes in the UK did not qualify as a decent home (SHARE, 2011). The reports also show that those in social accommodation are actually more likely to feel dissatisfied with the experience due to the fact that houses are not repaired or upgraded in a timely manner (Hills, 2007).

Because the budget and financial means have not been available to undertake new social housing stock, the existing stock becomes more important than ever before and, therefore, the need to maintain these houses to last over the longer term has as well (Hills, 2007). As the problem grows, the government and organisations involved in housing, including the construction industry, are beginning to pay attention to the problem with the lack of decent social housing (Chanter & Swallow, 2008). Despite the understanding that maintenance must be addressed, it is still not looked upon fondly because it is thought to consumer 40 to 50 per cent of an operating budget but, at the same time, is the most controllable of all expenses if addressed appropriately through planning (Mather, 2010). As such, there is a growing understanding that the process of building maintenance management need to be more formalised within the social housing sector in order to achieve the decent homes standard (Changer & Swallow, 2008). With this need, there is a rationale to research the factors involved, including challenges, opportunities, and proposed solutions to assist with the process of creating a model that can effectively achieve a higher standard of social housing in the UK.

In conducting a research study on this topic, there is an opportunity to expand the knowledge base available on a subject that does have considerable literature but not many solutions that have been enacted from the building maintenance management side of the social housing dilemma. By looking into how maintenance is perceived and incorporated in the social housing environment, this may provide some new insights on how it could be more effectively incorporated into the overall asset management framework that is overseeing how social housing is managed and provided to those that need it throughout the UK. And, with the uneven delivery of quality social housing and formalised building maintenance management programmes, there is additional rationale for conducting a specific research study into this area of housing research.

1.2 Research Aim and Objectives

The research aim is to critically review of building maintenance management within social housing to determine the best approach. The research objectives are to:

Evaluate maintenance management in the construction industry.

Critically assess the challenges in asset management.

Determine current state of maintenance management in social housing.

Understand the real world application of how social housing stock is managed.

1.3 Research Methodology

This research study uses a qualitative framework because the focus is on a social issue that does not need to be quantified in any way but must be approached in a way that assesses the intangible concepts involved (Tellis, 1997). The issue of social housing involves social, economic, and political issues that are not necessarily alleviated or addressed by simply quantifying the problem and may involve aspects that are not easily disseminated. To frame the research study, the qualitative tools include a literature review format as well as a case study that addresses local councils and how they are managing or maintaining social housing stock. Both qualitative tools provide a way to explore the concepts on a theoretical and empirical level, creating new levels of insight through identifiable patterns that arise from the evidence collected (Tellis, 1997).

There are advantages and limitations to using a literature review and case study approach, which focuses entirely on secondary research. First, the advantages are that these tools help to generate a picture of the issues, challenges, needs, opportunities and solutions to a social problem by creating a wider picture of the evidence. This is in contrast to using a research tool that is focused on primary data and that could be limited by narrow or biased opinions (Yin, 1993). Second, reliance on secondary sources in the literature review and case study are time and cost-effective research strategies because they do not require as many resources as would be demanded by a primary research focus (Yin, 1993). Third, the use of two different research tools – literature review-based study and case study – offer a way to raise the level of validity by expanding the number of sources and information to deliver a more balanced and diverse approach to the findings that may not be possible from primary research where there are so many things that could be open to interpretation or misrepresentation, thereby impacting the results (Tellis, 1997).

In terms of data collection, the information was gathered by referring to journal articles, online sources, documents, reports, surveys and books that focused on housing management, social housing, facilities, management and building maintenance management. These were also key terms used to locate the appropriate literature that aligned with the research aim and objectives. The information was then segmented into key concepts for further analysis and then linked together in a way that presented the connections and barriers between the various areas of building maintenance management and social housing.

In addressing research limitations that arise from this research framework, the researcher noted limitations with time and available data as potential issues. While the ability to gather more data in a shorter time is one of the advantages to this strategy, there are still time limitations in reading, collecting, and assessing all available research, especially when there appears to be a considerable amount of information available. In addition, the type of available data may not have been created or intended for the specific research aim and objectives of this study, so there may be limitations in terms of the conclusions that can be drawn from what is available. A further assessment as to how these potential research limitations have impacted the findings are found in the final chapter of this research study.

Chapter 2: An Evaluation of Maintenance Management in the Construction Industry

To begin the exploration of social housing and building maintenance management, this chapter explores the current strategies in place around the concept of maintenance management as it applies to the construction industry.

2.1 Maintenance Defined

The general term of maintenance has been defined many ways. In offering one definition that summarises many of those ideas, maintenance involves “re-installing physical condition to a specific standard” and “preventing further deterioration or failure (Dept. of Public Works, 1999: 3). There are many diversions where some definitions of maintenance include the idea of refurbishment and upgrades done to fulfil certain requirements whilst other organisations do not include this as part of the scope of maintenance (Dept. of Public Works, 1999).

2.2 Maintenance Management Defined

Maintenance management is a concept that was conceived from within the manufacturing industry that was then adopted by the construction trade. The objectives associated with maintenance management can also vary just like the definition of maintenance. For instance, a public department in Queensland, Australia set its own very specific set of maintenance management objectives, including the idea of linking it with continual improvement processes for asset planning and management, risk management processes, and strategic objectives (Dept. of Public Works, 1999). This particular example has also emphasised the value of finding key maintenance service providers that could deliver on these objectives and fill in the voids in skills and expertise in maintenance management (Dept. of Public Works, 1999). Other perceptions of maintenance management for buildings focuses on making them fit for use in terms of health and safety, the ability to help the structure retain its value, and the ability to actually increase its quality and value (El-Haram & Horner, 2002).

2.3 Types of Maintenance Management

There are two primary types of maintenance management, namely planned and unplanned. Planned maintenance management is defined as a system where all work is planned – pre-planned or planned during the execution stage (Taylor, 2003; Dept. of Public Works, 1999). The advantage to this type of maintenance management is that “pre-planning insures needed parts, materials and skills are available” (Taylor, 2003: 1). It should have a combination of preventative and predictive measures to minimise unplanned repairs (Taylor, 2003). Unplanned maintenance management is essentially maintenance that must be performed when equipment or a structure unexpectedly breaks down, has created a safety hazard, or led to some other type of low-quality environment that impacts the overall environment (PEMMS, 2012).

There is also reactive and proactive maintenance management. Whilst reactive maintenance involves taking care of repairs in the event of breakdown (Zhang et al., 2009), the concept of maintenance move toward effective management when Japanese engineers looked to the idea of preventative maintenance by making observations and taking actions in advance of a breakdown (TPM Online, 2011). It was intended to decrease downtime, but it also led to an increase in costs that made it unpopular when it was first introduced and that even has its sceptics today (TPM Online, 2011). Part of the issue with preventative maintenance is the idea of replacing parts, equipment, or materials when they could potentially last longer (TPM Online, 2011).

After this concept came that of productive maintenance, which was intended to alleviate the costs and concerns by formalising maintenance as a technical skill and as a continuous improvement process (TPM Online, 2011). Reliability-Centred Maintenance (RCM) is another dimension of maintenance management that is focused on making improvements at the operating and procedural level to ensure proper working order to machines, tools, and materials to maximise the capital costs of those assets and retain their value by evaluating risk for breakdown and creating a standardised minimum maintenance level (Pride, 2010). As an engineering framework, it has been used primarily for machinery applications but can be applied to other maintenance environments (Pride, 2010).

Maintenance management can also be defined by its many stages or steps. According to Mather (2010), six fundamental steps have been identified. These start with establishing a certain set of rules and guides that formalises the inclusion of maintenance into the process of overall operations management (Mather, 2010). This can be done through a paper-based or automated system that then links to the next step of defining all work processes involved in operations so that there is a better understanding of how a control system for maintenance management could be incorporated into a system (Mather, 2010). Another stage in the process is to have a specific strategy for equipment, which is part of both an implementation and operational stage that is dependent upon certain criteria like the current state of equipment, structures, and materials (Mather, 2010). From there, the next stage is to design exception and functional reports that create a hierarchical structure of reporting and tracking of maintenance needs and concerns (Mather, 2010). The last stage involves tying all maintenance management activities to the company’s strategic direction by integrating it with all current and future goals (Mather, 2010).

In relation to a maintenance management programme tied directly to asset performance management, Damm (2005) provided a maintenance approach model where each stage is viewed as an evolutionary process that can be incorporated to enhance the ability of maintenance to serve an organisation in a way that is both productive and cost-effective. Stage one is reactive repair where work is done as things break whilst stage two is demand maintenance, which involves more planning (Damm, 2005). Stage three is then preventative maintenance where equipment is managed by looking directly at those issues or amount of time that could precipitate repairs so that they are addressed prior to occurring (Damm, 2005). From there, stage four is predictive maintenance, which is based on statistical analysis wherein historical data is analysed to predict when breakdowns or maintenance would be needed in the future (Damm, 2005). Stage five is reliability centred maintenance “where engineering based maintenance programmes are complemented with operational performance trends to ‘push’ the maintenance cycles to the max within the context of an overall system risk assessment” (Damm, 2005: 1). Finally, stage six is the most advanced stage in the maintenance management system and is known as life cycle management where the focus becomes more comprehensive around maximising the useful life of what is considered an asset, whether that be a machine or a structure (Damm, 2005).

Damm (2005) also identified three key elements that characterise a ‘fully evolved maintenance management system,’ which include a performance management framework, practices and processes, and data and technology. The performance management framework is identified as “a clear set of asset specific strategies, objectives, initiatives and goals, where meaningful targets can be established and progress measured” (Damm, 2005: 2). The practices and processes are “a set of common work methods and asset specific management practices with a target of implementing defined industry best practices” (Damm, 2005: 2). Finally, the data and technology component are defined as “an integrated set of information, engineering, and communications technologies use to gather, store, interpret and report performance data and information” (Damm, 2005: 2).

2.4 Construction Industry and Maintenance Management

The construction industry has a significant role to play in building maintenance management in terms of how it has evolved and responded to various economic cycles, including maintenance during recessionary periods and boom year construction periods. Despite the influence, there have also been some noticeable conflicts between the construction industry and maintenance management, according to available research. For instance, Chanter & Swallow (2008: 19) noted the lack of value provided to maintenance management by the construction industry: “This manifests itself in a general lack of understanding of both its scope and its significance by all parties to the building procurement, construction, and management processes. In consequence, the backlog of repair and maintenance work required to bring the country’s building stock to a minimum acceptable level continues to grow at an unacceptable rate.”

The construction industry must address and reconcile the fact that it often faces numerous factors when looking at ways to handle the costs involved with housing maintenance. This is especially true as research suggests that the costs associated with building maintenance continue to rise and consumer a larger percentage of the budget (El-Haram & Horner, 2002). These costs are found to be primarily affected and dependent upon certain factors, such as human aspects, building characteristics, the way and frequency of the building maintenance, government policies that guide building maintenance standards and the related costs (El-Haram & Horner, 2002).

The UK government has put pressure on the construction industry to do their share in achieving the goals and objectives for the decent home standard, which has dictated that homes must be in a reasonable state of repair, have modern facilities and services, and provides a reasonable degree of thermal comfort (CLG, 2006). To achieve this, the construction industry must be relied upon to use their expertise and training to quickly upgrade and refurbish a social housing stock that is often considered very old, in disrepair, and lacks modern amenities that make them decent (CLG, 2006). Often, the construction industry is challenged by its scope of what building maintenance means in terms of their responsibilities because they must consider the government standards, tenants’ wishes, the social housing landlords’ expectations and environmental considerations (CLG, 2006). However, beyond a somewhat reactionary building maintenance framework described here, the construction industry is also charged with having the ability to deliver a higher level of sophisticated building maintenance that includes predicting future progress and deterioration, the impact of specific investment and funding cycles to maintain predictive and preventative maintenance strategies (CLG, 2006).

Chapter 3: A Critical Review of the Challenges in Asset Management

Asset management has been defined as “strategic discipline which gives rigour and accountability to the way organisations decide” on a number of areas, including what to invest in and when, what are the most critical assets, what risks need to be managed, how performance should be measured and what improvements must be made to maintain or improve that asset (Lloyd, 2010). The asset management framework holds all these decisions together so that an organisation has a way to look at the whole picture of what may need to be done within an operation or a structure (Lloyd, 2010). This chapter covers the many challenges in asset management in relation to maintenance in terms of both physical challenges and perceptions that hinder effective management of assets.

3.1 Perspective Challenges

One of the biggest problems is how the idea of maintenance is viewed, which is as a problem rather than something that is simply part of taking care of an asset and ensuring that it keeps or increases its value. As one source explained, “Property Maintenance has long been viewed by many as a necessary evil; something that, grudgingly, has to be done; a source of complaints from customers; a headache for the Board or Council and a constant source of gripes for tenants” (NHMF, 2004: 1).

With this perception, the concept of asset management cannot be properly fulfilled. In order to achieve a proper level of asset management and therefore achieve the intended standard of decent property standard, the right perception of asset management is that it “looks beyond the traditional property management approach of bricks and mortar. Successful asset management requires a thorough understanding of all issues that could affect a property; the physical, structural, economic and demographic needs of a property and its surrounding community” (NHMF, 2004: 1).Within the area of perspective challenges is the idea of conflicting goals related to financial targets, different timelines and forecasting conclusions, and contrasting approaches to work toward asset management on a network versus project viewpoint (Vanier, 2001).

3.2 Fundamental Operations Challenges

Beyond the perspective challenges, there are also fundamental operations challenges that exist with asset management (Lloyd, 2010). As one source noted, “For most organisations, the adoption of asset management will mean developing mechanisms to enhance, encourage and facilitate coordination between previously distinct functions” (Lloyd, 2010: xix). Overall understanding of asset management is often weak, which creates challenges in terms of making smart decisions and investments. Technical challenges include determining exactly what they own, the true value or worth of those buildings, their current condition and expected service life, and what types of repairs should be the priority over others (Zhang et al., 2009). Nath (2009) also identified specific challenges with asset management tied to lack of information, integration, technology, balance and risk. The result is miscommunication and incompetence, which further exacerbates these challenges and leads to less support (Nath, 2009).

Like maintenance management, the problem lies in the lack of a formal set of tools to collect, assess, and track data about properties to better understand when and where maintenance might be needed in advance so as to cost effectively uphold the value of these assets (NHMF, 2004). This includes the inability to model different scenarios in relation to repair and maintenance because there lacks the resources to create such a tool box (NHMF, 2004). For instance, if owners and operators of buildings incorporated such tools as Building Information Modelling (BIM) or GIS into their asset management processes, they could “facilitate data collection, processing, and display” as well as “integrate asset mapping with project management and budgeting tools so maintenance, inspections, and expenses can be accounted for in the same place” (Zhang et al., 2009: 13). This challenge is also linked to the fact that maintenance management may not be integrated within the overall asset management system again due to the aforementioned perception, making it less efficient and reinforcing the opinion that it is a ‘necessary evil’ rather than essential tool (NHMF, 2004). This includes both process and operational integration, including existing “computerized maintenance management systems, geographic information systems and corporate legacy systems” (Vanier, 2001: 35).

3.3 Overcoming Barriers

In order to maintain a consistently high value on these assets, there are many barriers that can get in the way, including the characteristics of the tenants and their viewpoint of the care and concern of the building (El-Harman & Horner, 2002). There are also political and regulatory measures that have put greater pressures on the construction industry, including energy costs and sustainability measures (El-Harman & Horner, 2002). Budget constraints due to economic pressures, such as lack of financing and investors, are further challenging the construction industry and leading them to minimise their focus on maintenance as an integral aspect of social housing. Further challenges are the idea that the construction trade is fully aware of the consequences of what could occur if they decide to cut out maintenance, which is greater costs in the future (Horner et al., 1997). However, they are willing to risk those costs in light of saving money in the short term (Horner et al., 1997).

Other research has identified critical success factors that play a role in overcoming building maintenance management challenges, which can help address all perspectives involved – from the customer to the internal to the financial (Zulkarnain et al., 2011). These critical success factors have some patterns that overlap perspectives, including customer satisfaction and complaints, service quality, staff development, technology capability and asset utilisation (Zulkarnain et al., 2011). These factors are embedded into a larger framework known as a whole life asset management approach to maintenance management that addresses the challenges listed in this chapter and provides a way to spend less whilst getting more with each maintenance action, managing risks in order to not waste resources, taking a whole systems approach rather than an equipment or component approach and ensuring all stakeholders share the same perspective (Lloyd, 2010).To adopt this approach and work through the asset management challenges, research has recommended restructuring organisations to work as a whole life asset management model (Lloyd, 2010).

Chapter 4: Maintenance Management in Social Housing

Maintenance management, as linked to an overall asset management system, has become increasingly important in relation to social housing because UK government initiatives are driving the goal for more efficient and economical means of creating high-quality housing stock (Kempton & Chapman, 2003). Yet, the literature suggests ongoing challenges with making this work in a way that leads to the higher social housing stock. Problems identified include an ongoing short-term perspective about the social housing assets by those in charge of them despite being directed to take a more long-term strategic approach to maintaining these assets (Kempton & Chapman, 2003). Additionally, there is a large discrepancy in the standard of quality in regards to maintenance management across the geographical area of the UK, reflecting the fact that there is no formal framework in place to guide the maintenance management process (Kempton & Chapman, 2003).

4.1 Key Challenges

There is considerable maintenance management that goes into taking care of the UK’s sizable social housing stock, including repairs and improvement work to bring it up to a certain standard as the homes age or undergo abuse from tenants (Audit Commission, 2000). The level of care and uptake also varies widely across the UK in terms of performance and quality due to a number of reasons, including uneven resources, ill-conceived maintenance programmes, and lack of control and oversight when it comes to repairs (Audit Commission, 2009). Other problems include a lack of participation by tenants and leaseholders in the process, no use of performance management tools and basic monitoring or feedback mechanisms as well as a lack of value for money when establishing letting contracts (Audit Commission, 2009).

As part of the maintenance requirements issued by the UK government for social housing has been for landlords to provide what are known as Energy Performance Certificates (EPCs), which is intended for the potential tenant to understand what type of energy efficiency upgrades have been completed on the housing and ensure that it is decent (Macphail, 2009). However, the challenge has been for landlords to be able to gather the energy data, understand how to do so and how it needs to be used and presented, and decided on how this should be integrated with other maintenance management responsibilities that should be undertaken (Macphail, 2009). This is one example of the challenges faced with social housing in terms of making it both decent and now fulfilling the UK government’s energy initiatives.

The challenges associated with achieving this by social landlords was documented in a comprehensive set of interviews conducted by researchers at the University of Greenwich (Cooper & Jones, 2009). The conclusions from the interviews with social landlords about the various responsibilities and challenges they face were that the government’s sustainability agenda is beginning to impact the scope of what social housing maintenance managers must do and make decisions on in regards to social, economic, and environmental aspects of this new agenda (Cooper & Jones, 2009).

4.2 Integration Approach to Challenges

Despite the challenges, new models of maintenance for social housing have been proposed that are aimed at integrating sustainability objectives into the decent homes initiative in order to fulfil all levels of responsibility placed on the social housing sector. The University of Greenwich presented a performance-based sustainability housing maintenance model that linked policy/strategy, needs identification, causes, actions, solutions and evaluations/feedback (Cooper & Jones, 2009).

This level of integration has been viewed as the only identifiable means of addressing all the factors and issues that have now become embedded

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General Introduction

Trends are changing universally. In Malaysia, a lot of the entertainment is chosen for people to spend their leisure time. Now a days, the standard of living and the stress from work and school is much higher than in previous years, so people now need time to relax just to release the stress.

People now a days know how to plan and enjoy their leisure time. There are a lot of ways one can spend their leisure time, they can go to the cinema, traveling or may be reading. Gambling is considered a leisure activity. In this generation, the top most preferred leisure activity by young adults is to go clubbing.

In Malaysia, clubbing is one of the famous night entertainments available for those who are between the ages of 18 to 26. This type of entertainment is mushrooming quickly, especially in the capital city, Kuala Lumpur. However, the clubs in Malaysia are not spread over a big area. They have specific spots for clubbing, so along these streets are filled with night clubs, bars and discos. Jalan Doraisamy, Jalan P Ramlee, Jalan Tun Razak, and Jalan Sultan Ismail are the few street names on which clubs are on a stretch. These places are where you find the people who are fascinated by night life, a lot of foreigners are found along these streets as well.

People visit these places not only because they want to club, but also because they want to relax after a long day or week. Some tourists are curious about the night life in Malaysia. Some tourists don’t get to see these places because they come with children, and such places aren’t suitable for children. Rush hour is another reason why people would prefer to come to the bar in the evenings during happy hour, just to avoid the traffic.

As time passed, clubs, pubs and night clubs with different themes, music and set ups starting opening around these areas. As a result the competition of the nightclub market became bigger and bigger and this is why many club owners joined the market for a while and before too long they had to close down because the competition is too tight.

However, Asian Heritage Row is a row of clubs that is located on Jalan Doraisamy. The road is full of clubs facing each other. This dissertation will focus more on the factors that contribute to the success of Asian Heritage Row. The title is “The factors influencing the success of Asian Heritage Row”

The dissertation will be divided into 3 parts, the 1^st part covers about the entertainment industry, nightlife industry as well as the nightlife scene in Malaysia. The 2^nd part covers the Analysis of the clubs in Asian Heritage Row out of which 8 of the managers were interviewed. The 3 ^rd part will be the recommendation of the research.

Objectives:

The Factors that influence the success of Asian Heritage Row?

Define Success in the content of Asian Heritage Row?

Answer the significance of the factors

In order to achieve these objectives, primary and secondary data will be collected for the methodology. For the primary data qualitative data was used by conducting interviews with 8 of the managers of clubs in Asian Heritage Row. The secondary data was collected from the internet and journal articles. The secondary data is used to back up the statements.

Part 1 Theoretical Framework
1.1 Entertainment

According to Wikipedia (2008) the word Entertainment is an activity designed to give pleasure or relaxation to an audience (although in the case of a computer game the “audience” may be only one person). The audience may participate in the entertainment passively as in watching opera or a movie, or actively as in computer games.

Hughes (2000) identified the word ‘entertainment’ is used to include a wide variety of activities such as watching television or playing computer games at home, listening to music, visiting cinema, watching sports, visiting theme parks, and going to discos. Furthermore, Hughes (2000) classified types of entertainment as:

1.2 Night life entertainment

According to Wikipedia (2007), nightlife is the collective term for any entertainment that is available and more popular from the late evening into the early hours of the morning. It includes the pubs, night clubs, bars, live music, cabaret, small theatres, small cinemas, shows, and sometimes restaurants a specific area may have (defined here as pubs, bars, cafes, and night clubs). Nightlife entertainment is essentially edgier than daytime amusements and usually more oriented to young adults.

“Studies have shown that the average person will spend three to four hours per weekend in an entertainment environment and will spend an average of 20 to 50 dollars in that timeframe. This trend also shows no signs of declining.” (http://findarticles.com)

The night club business isn’t a simple business that can be run by anyone; it is not as simple as selling alcohol or just thinking about the latest trend in youths. It is way much more complex than that. Starting up a night club needs a lot of financial investments. The success of this business depends on what are the company’s goals and the things you could do to make the guest happy that ensures they will come back.

“Most people who get into the nightclub industry do it because they want to have a nightclub and enjoy it and it’s at night, said co- owner Dalton Alford. They overlook the most important factor, and the reason nightclubs do live is that the office during the day is up and operational. You seldom see it.” (http://findarticles.com)

1.2.1 Different types of Night life entertainment

When most people hear the word night life they think of only a club, while actually there are a few types of clubs. They have different names; some are called Bars while others have different names. These places differ because of the facilities they provide in their establishments. The target market to these establishments differs as well. These are the different types of night life entertainment.

1.2.1.1 Bar

The Wikipedia (2007) describes bar as a business that serves drinks, especially alcoholic beverages such as beer, liquor, and mixed drinks, for consumption on the premises. Bars provide stools or chairs for the patrons along tables or raised counters. Some bars have entertainment on a stage, such as a live band, comedians, go-go dancers, a floor show or strippers. Bars that are part of hotels are sometimes called long bars or hotel lounges

There are as much bars as there are night clubs in Malaysia, these bars usually only serves drinks and light snacks, there are no dance floors. Some of them have live band performance while others have a DJ (Disc Jockey) playing the music. Most of the people who visit these bars are business men from overseas as well as local ones who need a drink after a long day at work.

1.2.1.2 Discotheques

The word has been shortened to “Disco”. The term refers to a style of music that is influenced by Funk, Soul Music and salsa. The main attraction in a disco is the dance floor. People go there to dance. The songs played are from recorded sources. Live band is also played from time to time. This is played to entertain the customers when the songs are not played from the recorded sources (www.disco-disco.com).

1.2.1.3 Pubs

Originally called public house but now known as “pubs”, this drinking establishment was originally found in the United Kingdom and Ireland but now found globally. Pubs used to be located in small English towns.

Pubs are social places for the sale and consumption of mainly alcoholic beverages. Most pubs offer a wide range of beers, wines, spirits and alcoholic beverages. In the 1930s the Anglo French writer Hillarie Belloc penned the following cautionary warning” when you have lost your inns, drown your empty selves, for you will have lost the last of England”

1.2.1.4 Night Clubs

A Nightclub is a drinking, dancing, and usually similar to bars, pubs or taverns, by the inclusion of a dance floor and a DJ booth, where a DJ plays recorded dance and pop music. The music in nightclubs is either live bands or, more commonly a mix of songs played by a DJ through a powerful PA system. Most clubs or club nights cater to certain music genres, such as house music, garage, Hip-Hop, or salsa.

Most of the clubs, bars, and lounges in Malaysia are categorized as night clubs. This is because the clubs have all the criteria that match a night club. Their main customers are young adults commonly known as youths.

1.3 Night Life in Malaysia

Kuala Lumpur being the capital of Malaysia is a developing city with high rise buildings, shopping malls, restaurants, highways and entertainment spots. Out of their entertainment spots, a big portion of them are Night clubs, karaoke bars, pubs, lounges, jazz bars, discos, wine bars, and different types of restaurants. These are all scattered all around the city.

Being a Muslim country, authorities enforce a 3am closure ruling for nightspots in Kuala Lumpur city areas, while clubs and pubs in urban areas in the vicinity of residential estates have to close at 1am. Occasionally, the police will conduct raids on random places to check for illicit drugs, prostitution and other vices of society. However, alcohol is sold freely in Malaysia and the legal drinking age is 21 (as cited in www.kuala-lumpur.ws).

Night life entertainment can be found in a few places in Kuala Lumpur. The clubs, bars and lounges are normally on a stretch along a road. But some of them are scattered elsewhere. The three famous spots that have clubs on a stretch are the Asian Heritage Row, Jalan Sultan Ismail and Bangsar. For pubs and bars are mostly along Hartamas and Bukit Bintang.

1.3.1 Jalan Bukit Bintang, Kuala Lumpur

Jalan Bukit Bintang where the entertainment clubs are there is the road adjacent to Starhill. The KL Plaza has numerous lively cafes, bars and pubs. Starting with the Foxx discotheque at the basement until Planet Hollywood that is situated next to Starhill.

1.3.2 Jalan Sultan Ismail and Jalan P. Ramlee

The beauty of these two roads is that it is the intersection point of club central in Kuala Lumpur. Located just opposite of the Shangri-La. It is one of the best places to go clubbing. The clubs are tidily huddled together with some of the best DJ’s performing from week to week. Along this road are not only clubs but there are a few hotels as well. The Concord Hotel and the Equatorial hotel are located there.

1.3.3 Sri Hartamas, Kuala Lumpur

Tucked away in the neighbourhood of Sri Hartamas is an area of business that has blossomed into its nightlife. Ranging from pool, darts, foosball or even wine, you can’t miss these places with their terrific decor and relaxing ambience with lovely alfresco areas and comfortable couches. You can even hang out to watch the football premier league at Hartamas Square. SOULed OUT’s new address has shifted to Sri Hartamas as well.

1.4 Asian Heritage Row

Asian Heritage Row (AHR) runs along Jalan Doraisamy, which is situated just off Jalan Sultan Ismail, next to the Sheraton Imperial Hotel. It is located in the heart of the city and is growing in popularity as a preferred destination for the young and trendy. Three years ago this area near Kampung Baru wouldn’t be such a pleasant site to be seen. Along this road were pre-war houses that were abandoned.

The founder had a mission of turning these old abandoned houses into an entertainment area, whilst maintaining the heritage. That is why the clubs and restaurants in Asian Heritage Row have the design of very old houses. The 80 year old houses have been transformed into a row of elegant and charming restaurants, cafes, bars, and clubs and even have a foot reflexology salon.

In following with the traditions of the city, Asian Heritage Row was developed to encapsulate the city’s past, present and future. As with most great cities of the world, which have their unique cultural and leisure districts (e.g. Montmart in Paris, Soho in New York, Lan Kwai Fong in Hong Kong and Clark Quay in Singapore) (www.asianheritagerow.com)

1.4.1 The Night Clubs
1.4.1.1 Wine Room

Wine Room as you can see from its name is a lounge that specializes in wine, the wine room has a capacity of 100 people inside, 50 people outside and standing room for another 50. The atmosphere at the Wine Room is relaxed, and is often crowded with local celebrities. They serve light meals such as cheese platter, pizzas and other finger food that are served with a good selection of wines, champagnes, cigars, liquor and imported beers

1.4.1.2 Heritage Mansion

Heritage Mansion aims to provide a different and refreshing lifestyle space for its customers. Till date, there is no food and beverage entertainment venue which is relaxed and chilled out in atmosphere in the weekdays, while it transform its self into a club by weekends. Heritage Mansion is open to selected group of people, which means not everyone can go there. This place is more for elite members of the society.

1.4.1.3 Kristao

Kristao is one of the outlets along Heritage Row and the first restaurant-bar on the street that specializes in Malaccan Portuguese cuisine. It’s a very homey two-floor establishment with an attractive selection of wines, liquor, beers and cocktails. Kristao also has the record of having the longest happy hours, from 11:00am to 9.00pm daily with the kitchen staying open till 1 am with seating for up to 100 people.

1.4.1.4 The Rupee Room

The Rupee Room is all about great music and a friendly atmosphere that gives you a touch of Bollywood. This is the only club along the Asian Heritage Row that plays Indian music. The Rupee Room has just opened in the past year. They are a branch from the rupee room in Singapore

1.4.1.5 Bar Blonde

Bar Blonde, one of the earlier bars to open on Asian Heritage Row. It is particularly designed for events big or small. Bar Blonde plays the music from their live band that performs rather than using a DJ. Bar Blonde has a very unique promotion, blondes can get a drink on the house.

1.4.1.6 The Loft Kuala Lumpur

The Loft Kuala Lumpur was established in January 2005. The Loft is a combination of a Fine Dining, Lounging and Clubbing. They have separated all the 3 into 4 different places.

Upstairs Club Lounge

The Upstairs Club Lounge is spread over what used to be 4 shop lots. This part of the Loft is more into clubbing than lounging or dining. The loft has a stage and a catwalk area in the middle which makes it ideal to hold events in.

Mezza Notte

Mezza Notte is the dining part of The Loft. It is an Italian fine dining restaurant which is equipped with a sushi bar. However the restaurant serves a wide range of wines of the world and cigars as well.

Ye Chine

Ye Chine Restaurant serves authentic Chinese cuisine, including dim sum. The restaurant also has a garden indoor dining area, an island bar and a skylight roof.

Cynna House Lounge

Cynna has a lounge on the exterior and a clubbing area in the interior. It has a reputation of the venue for fine clubbing and VIP service.

1.4.1.7 Palacio

Palacio means ‘Palace’ in Latin. Palacio is a restaurant that specializes in French and Spanish cuisine. There are 3 ambiances in the restaurant. You can experience a fine dinner on the 1st floor, chill out in Palacio’s cozy tapas bar on the ground floor or enjoy sunshine in the Palacio front garden.

1.4.1.8 Bed

Bed is one of the clubs located on the left hand side of the street; it has 2 areas, the 1^st floor and lower floor. The 1^st floor plays a different music from the lower floor. They serve a wide array of liquors, wines, champagnes.

1.4.1.9 Atrium

Atrium, a club that has a stage for a live band to perform as well. They have different days on which the DJ plays and some days when the live band leads the crowd. They serve food as well as beverages.

1.5 Market Segmentation

The Marketing concept calls for understanding customers and satisfying their needs better than the competition. But different customers have different needs, and it is rarely possible to satisfy all customers by treating them alike (www.netmba.com).

In order to cater to all customer’s needs, we need to segment the market into several segments. There are four ways in which you can segment a market:

Geographical segmentation

Geographic segmentation divides the market into different geographical units; they can be neighbourhoods, cities, counties, countries, or world regions such as Europe or South East Asia etc. Such segmentation will seek to identify factors, which should be taken into account in developing appropriate marketing strategies for each area, including Language, Climate, and Lifestyles.

Demographic segmentation

Demographic segmentation divides the market into groups based on demographic variables including age, gender, family size and life cycle.

Psychographic segmentation

Psychographic segmentation divides the market into groups based on social class, lifestyle and personality characteristics. It is based on the assumption that the types of products and brands an individual purchases will reflect that persons characteristics and patterns of living.

Behavioural segmentation

Behavioural segmentation divides the market into groups based on their knowledge, attitudes, uses and responses to the product. So if a person is a regular visitor to a club they may be segmented into this segment.

1.6 The factors contributing to the success of nightclubs

There are a lot of factors that contribute to the success of a nightclub. Every nightclub has to try and make their own place unique in their own ways. From the articles that are mentioned below, there are some factors that contribute to the success of night clubs.

1.6.1 Promotion and Special Occasions

Promoting the nightlife establishment is something that all club owners do as this lets people know about the club, special occasions are events that is held once in a while in order to attract customers to the club. The article “What savvy club owners do to make their topless clubs successful while others fail miserably” wrote by Jack Corbett said that “…offers the reasonably prices of alcohol to customers starting from 8 pm to 10 pm buckets of beers specials…” this is an example of happy hour. This is a promotion done by majority of clubs all over the world.

“The main idea is to offer a new entertainment experience night after night. This is the key ingredient for success and profitability, as well as longevity, in the nightclub industry” (http://findarticles.com).

Happy Hour is a type of promotion done by a lot of club owners. Happy hour is the hours of the night in which the club offers discounts on a number of drinks. These hours normally vary from country to country and from club to club. In Malaysia happy hour is from 5pm to 9pm. While in Indonesia it is from 5pm to 8pm. In Australia, the happy hour is from 6pm to 8pm. Firstly as those are the hours in which a club has no business, the cheap drink helps the club to attract customers.

1.6.2 Advertising

Entertainment clubs has to advertise, if they don’t advertise there are a very low percentage of them surviving in the business. Clubs should advertise in magazines. This would create awareness in the customers. Jack Corbett mentioned “…Great review to the competitor while mentioning it all in the magazine believing that any kind of news at all is good news”. Magazines normally recommend clubs to their readers; this will make your club one of the clubs that would be recommended to the readers.

1.6.3 Hiring Staff

Staff hiring is essential to any business, a good staff team would create a good working environment and would make the customers happy. Jack Corbett Mentioned “…feature entertainers are the real professionals in the business.”

1.6.4 Environments and menu

Nightclub & Bar Magazine mentioned “…should doing a lot of special effects and theatre things but you never saw before in the clubs.” This means that clubs should have a special features in them in order to get the customers curious about what would it be like inside. This curiosity will get the customers into the club. The clubs should change the look of their club from time to time so as not to bore the customers.

The menu is something that you should change from time to time as well. This is because right now the trend is to fuse everything together. So bartenders are coming with new and unique ways to draw customer’s attention to the drinks. One example is the flaming. Flaming is when a drink, such as Sambuca, is set alight. The customer then blows out the flames and shots the drink. Another example is when the martini glass is kept below a Galliano bottle and then the bar tender pours the flaming mixture from the top of the Galliano bottle and customers drink it from the martini glass with the help of a straw.

1.6.5 Music and Disc Jockey

From the 60’s to the 70’s the most suggested place to listen to music is at a disco. During those times people liked to dance. Now days even everyone dances because of disco music. This statement is from Is Disco Dead “…I love the disco today; dance music is more alive and disco music has more feelings than today’s dance tracks” this means that is because of the music now a days that teenagers go to the clubs. They go to listen to the music and dance to the beat. So the music of a club really matters to attract customers. The DJ’s job is to control the music. So the DJ playing in the club also is another factor.

1.6.6 Cover Charge and Services

Cover Charge is defined as a fee for entry to an establishment, often it is referred to a bar or a night club. The term “no cover” or “no cover charge” relays that such establishment allows entry at no cost.

From the journals I found on the internet. Tonic Brian Arbuckle, Elissa Ferenbach, Doug Devitre and Frank Lee who did a research regarding clubbing, found that. “…the respondents said they would choose another club if the club charged a cover before entering”, and “…more than seventy percent of the respondents were likely to choose the bar with the lower cover.” This shows that majority of the people like to go to clubs where the cover charge is low. So the cover charge of a club also is another factor that will influence the number of people that comes in the club.

A 1,000-person capacity nightclub will typically accommodate approximately 1,500 people in the five-hour span of operation. A $5 door charge, in addition to a conservative figure of $12.25 collected from each patron in alcohol sales, would generate approximately $30,000 in nightly revenue. (http://findarticles.com)

In every club there must be a server to serve the customers. From the survey taken by Tonic Brian Arbuckle, Elissa Ferenbach, Doug Devitre and Frank Lee found out that “…waitresses do play an important role on how people choose which bar to go to” they play an important role because they are the ones that provide the service.

So the better the service is the more people would want to come to the club. Business men for an example, they prefer for the waitress to come to the table and take the order rather than having to go to the bar to get their drinks. Some servers can also influence the people who choose the bar because of their professionalism. So the service staff play an important role as well.

Part 2 Methods and Findings

One of main areas of the research is the methodology. This is the part where the different methods used to obtain the information as well as the results to the research and the analysis are explained.

The information that is used in this research is primary as well as secondary information. The primary data is obtained from interviews that have been conducted and the secondary data has been gathered from books, journals and websites. However the secondary data is more reliable as it has been verified and published.

Secondary data has been obtained from several different sources such as the internet, newspaper, journals, magazines, college notes etc.

2.1 Research methodology

This section will describe the idea of how data was collected to answer the research questions, methods and techniques used for the data collection and how it was implemented to the research objectives.

The objectives of this study are:

The Factors that influence the success of Asian Heritage Row?

Answer the significance of the factors?

2.1.1 Research Questions

In order for the objectives to be answered, a systematic order of questions is formulated to apply with the objectives.

Objective 1: What are the factors that influence the success of Asian Heritage Row?

Objective 2: how important are the factors that contribute to the success of Asian Heritage Row?

In the research questions, the problematic reasons for this research may be stated. These questions should be answered at the end of the research.

2.1.2 Research Design

According to Rees (1996) & Dingwall et al, (1988), Qualitative research involves broadly stated questions about human experience and reality, studied true sustain contact with people in their natural environment, generating rich, descriptive data that helps us to understand their experience and attitudes.

Rees (1997) emphasizes that rather than presenting the results in the form of statistics, qualitative research produces words in the form of comments and statements. Its aim is to find out people’s feelings and experiences from their own point of view rather than from that of the researcher.

General Conclusion

Part 1 explained entertainment, because Night life is a form of entertainment. There are two types of entertainment, at home and away from home. Nightlife entertainment is entertainment away from home.

Youths are more likely to choose entertainment that are away from home. This is because young people really like going for nightlife entertainment. The history of the night life entertainment in Malaysia was also explained, which highlighted when the first night life in Malaysia opened. The different types of reasons for a night club to be successful were also explained.

As the topic is about Asian Heritage Row, Asian Heritage Row was explained briefly about the clubs that are available there.

Part 1 of my research became a guideline to progress further with the dissertation. Part 2 was started off by explaining the licensing system in Malaysia with the 3 different types of license that are available. In order to be able to answer the research questions, interviews were conducted with Managers of clubs in Asian Heritage Row, to identify the factors leading to its success. Being a Muslim country it was thought that it would be rather complicating for promoting, advertising etc. but surprisingly, the theories that were found out more or less matched the factors of why Asian Heritage had been a successful place.

From the findings that were analysed, the factors leading to the success of Asian Heritage Row suggest that the clubs can still be successful with such high competition, as the competition available brings more people into the general area. The more the people the better it is for business. Besides that, the promotion, advertising and music also act as factors to the success of Asian Heritage Row. It is because of these things that the target market is informed that there are changes or have something different to show your customers.

Customers always want something new so that they are always entertained. The Music in Asian Heritage Row varies from club to club, in fact some clubs play different types of music on different days. The cover charge and service also influences people’s choices in choosing clubs. The cover charge shouldn’t be too expensive as people might find it not worth it but at the same time it shouldn’t be too cheap as that would result in an influx of lower class people.

The service of a club influences the choice of a consumer as well. Service includes the staff, environment and music. If you can give top notch service to your clients, they will for surely come back. Club owners should make sure they change the decor periodically just so that they don’t get bored.

Part 3 recommends what can be done to make Asian Heritage Row a better place, by adding more facilities into the area. Though the area is fully developed, they still haven’t been able to execute making it a very safe place.

During the process this dissertation there have been few limitations. The major limitation faced is lack of information. This is due to the lack of time and when the interviews could be conducted. The managers were too busy with their own work and tried to answer briefly, so it was difficult to ascertain how they really felt. Some of them refused to be interviewed as they didn’t have time. To complete this research again, I would collect the primary data using questionnaires. This is because questionnaires are more accurate as you have more respondents and structured answers when compared to interviews.

This work was produced by one of our professional writers as a learning aid to help you with your studies

The hotel industry has long struggled to establish what truly makes hotel employees motivated and satisfied with their jobs. High employee turnover in the hotel industry is believed to be due to the nature of the work, its low pay, and its long working hours. Thus, to effectively address this turnover problem, employee motivation could be an on-going and critical issue for managers in hotel operations. (Chiang and Jang 2008)

Chitiris (1990, 293) strongly emphasized the importance of motivation by stating that “Motivation is the prime determinant of behaviour at work and that high ability and high levels of job training will not result in high performance if the individual is completely de-motivated or under-motivated at work.”

A review of the literature indicates that there are problems in the hotel industry such as inadequate pay, low job security, limited training and development opportunities, and excessive turnover. (Cheng and Brown 1998; Deery and Shaw 1999; Pizam and Thornburg 2000; Karatepe and Uludag 2007). There are also problems pertaining to unsocial work hours and workloads in the hotel industry. (Karatepe and Sokmen 2006; Rowley and Purcell 2001; Karatepe and Uludag 2007)

The biggest challenge of employee motivation is that employees often motivate themselves, based on their perception of what they want to achieve and how they can achieve it. However, managers who are aware of what their employees want from work can design a work environment that is able to accommodate employees’ needs and desires. At the same time, well-informed managers may be able to avoid common pitfalls that tend to reduce employee motivation. (Simons and Enz 1995)

Riley, Ladkin, and Szivas (2002) cited in Taylor and Davies (2004) that according to the World Tourism Organisation, the world’s largest industry sector is the tourism and hospitality industry. Despite the concern about quantifying the definition of tourism as an industry, for the purpose of estimating employment it is considered to be one and a half times larger than the next industry. The accommodation sector has continued to exhibit growth over the last few decades, although at various rates, and is forecasted to continue this growth both in development and employment numbers.

Weaver (1988) argued that hotel managers have experimented with various motivational theories and methods to address the problem of declining productivity among their hourly workers. Most of these experiments have had minimal success, because they are based on reward systems that have little meaning for hourly workers.

“If a company knows why its employees come to work on time, stay with the company for their full working lives, and are productive, then it might be able to ensure that all of its employees behave in that way” (Kovach 1987, 58). Such a company would have a competitive advantage over competitors that may be suffering from high absenteeism and turnover, costly re-training programs, and production slowdowns.

Wiley (1997) emphasized that in the case of a lack of ability, appropriate training can be employed. Altering the environment to promote higher performance is the key in the event of environmental problems. However, if motivation is the problem, the solution is more complicated and testing.

For motivational problems, the best source of information would be the employee. Responses by employees regarding what ignites and sustains their desire to work may lead the employer to redesign jobs, increase pay, change the working environment, or give more credit for work done. The key is that managers avoid the assumption that what motivates them, motivates their employees as well.

If hotel managers are able to satisfy their employees by understanding their underlying motivations better, it will play a part in retaining and motivating hotel employees and thus improve customer satisfaction in the long run. (Wong, Siu, and Tsang 1999)

According to Robbins et al. (2008, 180), motivation can be defined as “The processes that account for an individual’s intensity, direction and persistence of effort towards attaining a goal.” Intensity is concerned with how hard a person tries, and is generally the focus of motivation.

However, high intensity is unlikely to lead to favourable job-performance outcomes unless the effort is channelled in a direction that benefits the organization. Effort should directed towards, and is consistent with, the organization’s goals. Finally, the persistence dimension of motivation is a measure of how long a person can maintain effort. Motivated individuals stay with a task long enough to achieve their goal.

Lee-Ross (2005, 255) elaborates on the significant link between motivation in the workplace and practical organizational-based outcomes such as productivity, commitment, job satisfaction, intent to stay and burnout.

Fundamentally, Hackman and Oldham’s (1976) theory of motivation is concerned with “internal work motivation” whereby a continuous cycle of motivation happens within the employee. In other words, the more effort expended on a job, the more motivated they would become.(Chiang and Jang 2008; Lee-Ross 2005)

While on the job, motivation is important for individuals, and in some theories (e.g. expectancy or equity), researchers predict variations in the evaluations of such outcomes as pay. But the evaluation of pay usually is just one of many outcomes and is frequently measured with little accuracy. (Mitchell and Mickel 1999)

Besides its high labour turnover and labour-intensive nature, the hotel industry is often characterised by low job security, low pay, shift duties and limited opportunities for promotion. The studies of Lee-Ross (1993) added that these characteristics seemed to be more extreme in the seasonal sector. Understanding hotel employees’ attitudes and motivations has therefore become a useful area of research in the industry. (Wong, Siu, and Tsang 1999)

Iverson and Deery (1997, 71) noted that “Turnover culture is best characterised as the acceptance of turnover as part of the workgroup norm.” Alternatively, it is a belief held by employees that turnover behaviour is quite appropriate especially in the hotel industry.

In the hotel industry, employees strongly require intelligence, job knowledge and skills, and time management ability. However, without motivation, an employee will not advance in his or her career. (Wong, Siu, and Tsang 1999)

The amount of effort an employee spends toward accomplishing the hotel’s goals depends on whether the employee believes that this effort will lead to the satisfaction of his or her own needs and desires. When a need or desire is unsatisfied, a person experiences tension that drives him or her to satisfy the need.

People work hard to satisfy their needs and desires, and in this way they reduce their tension. From this straightforward approach to motivating employees, the key to facilitating motivation lies with managers’ accurately understanding what their employees want from their work. Using that knowledge, managers can more effectively channel employee effort toward organizational goals.” (Simons and Enz 1995)

A category of motivational models is based on the assumption that personal growth and achievement is a primary motivating force among employees. These models emphasize on giving one’s best efforts to grow and develop as an individual or to advance within the organization. (Weaver 1988)

This category of motivational theories includes Maslow’s theory of self-actualization and Herzberg’s theory of maintenance factors and motivational factors. Maslow’s theory of self-actualisation has no relevance in the work environment of hourly employees. On the other hand, career-oriented and salaried employees are more likely to be motivated by assurances that the organization will provide opportunities to actualize their full potential. (Weaver 1988)

Herzberg divided working conditions into two sets of factors: maintenance factors and motivational factors. According to Herzberg, company policies, technical supervision, interpersonal relationships, salary and status, job security, working conditions, and personal life are maintenance factors; while advancement, recognition, achievement, possibility for personal growth, responsibility, and the work itself are motivational factors.

Herzberg believes that maintenance factors have no power to motivate workers. Many hotel managers might agree with this argument, since their early years in the industry were probably characterised by unfavourable maintenance factors, yet they continued their career due to the presence of Herzberg’s motivational factors. (Weaver 1988)

Another argument of Herzberg’s two-factor theory, also known as the motivation-hygiene theory, divides need satisfactions into extrinsic and intrinsic factors. The extrinsic factors (e.g. salary, working conditions, and job security) lead to job dissatisfaction if not met, but will not necessarily contribute to job satisfaction when they are met. The intrinsic factors (e.g. work itself, achievement, and recognition) are the actual motivators; they fulfil an individual’s need for psychological growth. The extrinsic factors, on the other hand, merely prevent dissatisfaction. (Kovach 1987)

However, the conditions of employment Herzberg views as motivational factors do not apply to the work of hourly employees. (Weaver 1988)

Weaver (1988, 41) stated that “Other models attempt to motivate employees by using psychological rewards or punishment or try to increase employees’ commitment and productivity by generating a sense of team or family spirit within the organization.”

These models may backfire instead since the overuse of threats or reprimands may serve as a strong force against motivation. “Hostile and distrusting supervisors can dramatically shape employees’ working conditions, and, for many employees, can diminish motivation levels,” argued Simons and Enz (1995, 23).

McGregor’s Theory X and Theory Y and Ouchi’s Theory Z describe motivational approaches managers have employed specifically to motivate hourly employees. (Weaver 1988)

Theory X operates in the assumption that employees are lazy and have a strong dislike for work. Managers who subscribe to this view believe that employees will not be productive unless they are continually prodded and are punished by disciplinary action or the threat of dismissal for low productivity.

Theory Y is based on the assumption that an employee’s presence at the workplace indicates that he or she is willing to work. Proponents of Theory Y believe that guidance and positive feedback are sufficient to motivate hourly workers to work well. In recent years, many hotel chains have made a conscious change from Theory X to Theory Y management. A change from Theory X management to Theory Y management will generally show positive results, since people respond better to encouragement and compliments than to prodding and punishment. However, workers will not always be willing to put out 100 percent effort just because their supervisor is nice to them.

In addition to that, Theory Z is based on the Japanese management model, which focuses on a strong company philosophy and a distinct corporate culture. Companies that develop a motivational model based on Theory Z try to convince employees that they are part of a team or family. Some hotels are instituting such motivational programs.

Interestingly, Weaver (1988) found that hotel employees are often more cynical than employees in most other industries, perhaps because they work in an environment where they see how people really behave when they are away from home. Hourly employees in the hotel industry are fully aware of what their interest are and are not easily motivated by programs that they perceive as being nothing but hot air.

Lee-Ross (2005, 256-7) stated that “As long as an individual’s job contains sufficient “content” variables such as skill variety and challenge, an outcome of high motivation and subsequent job satisfaction will result. He also argued that “the other “process” school contends that these outcomes depend not only on content variables, but also on how workers evaluate the pros and cons of undertaking a job.”

Motivation factors including pay, monetary rewards, opportunity for advancement and promotion have been examined in the hotel industry. Also, other motivation factors such as job responsibility, recognition from people, job challenge, feelings of accomplishment, and development of self-esteem have been identified important for hotel employees.(Chiang and Jang 2008; Wong, Siu, and Tsang 1999)

The importance of intrinsic and extrinsic work motivation for hotel employees also varies due to their intensive labour work, low pay, image of low status and few opportunities for advancement (Chiang and Jang 2008). In moving across cultures, motivational preferences become even more interesting. The preferences of employees are expected to differ across nations and cultures. (Fisher and Yuan 1998)

It is valuable to know exactly what employees value, and whether subgroups of employees have differing preferences, so that reward systems can be appropriately targeted. Often, superiors misperceive the relative importance of various job characteristics for their employees. “To the extent that they do (misperceive), they may adopt less than optimal motivation strategies because they misunderstand employees’ needs and wants.” (Fisher and Yuan 1998, 517)

The lack of attachment or loyalty plays a large part in the high rate of turnover among hourly employees. It also accounts for the lack of success of motivational efforts based on company loyalty or the promise of career advancement and personal growth within a company. (Weaver 1988)

In 1946, industrial employees were asked to rank ten “job reward” factors in terms of personal preference. The results were as follows: (Kovach 1987, 59)

Full appreciation of work done;
Feelings of being in on things;
Sympathetic help with personal problems;
Job security;
Good wages;
Interesting work;
Promotion and growth in the organization;
Personal loyalty to employees;
Good working conditions; and
Tactful discipline.

By 1986, the list looked like this:

Interesting work;
Full appreciation of work done;
Feeling of being in on things;
Job security;
Good wages;
Promotion and growth in the organization;
Good working conditions;
Personal loyalty to employees;
Tactful discipline; and
Sympathetic help with personal problems.

In addition to comparing the employees’ factor rankings, the survey done in 1986 analysed the employees’ responses by subgroups (e.g. age and income). The underlying assumption was that the motivational effectiveness of the factors might vary according to gender, age, income level, job type and/or organizational level. (Kovach 1987)

The 40 years of studies done by Kovach shaped the belief held by many motivational programs that money does not matter. (Simons and Enz 1995)

In addition to that, in 1946 and 1986, supervisors were asked to rank job rewards as they believed employees would rank them. Their rankings remained almost the same for each year: (Kovach 1987, 59)

Good wages;
Job security;
Promotion and growth in the organization;
Good working conditions;
Interesting work;
Personal loyalty to employees;
Tactful discipline;
Full appreciation of work done;
Sympathetic help with personal problems; and
Feeling of being in on things.

The rankings show that supervisors have a very inaccurate perception of what motivates employees.

However, in 1992, the replication done by Wiley (1997, 268) in hotel employees showed a completely different set of rankings:

Good wages;
Full appreciation of work done;
Job security;
Promotion and growth in the organization;
Interesting work;
Personal loyalty to employees;
Good working conditions;
Tactful discipline;
Feeling of being in on things; and
Sympathetic help with personal problems.

This could be due to the fact that hotel workers differed substantially from industrial workers. This difference in rankings indicates the need for different managerial strategies for motivating hotel workers, relative to those used for industrial workers. Hotel employees ranked good wages first, which may be a result of the relatively low wages of service-sector jobs. (Simons and Enz 1995)

A research done by Charles and Marshall (1992) showed that Caribbean hotel workers may not have the same motivational preferences as workers in developed countries. Whereas wages have not been found to be an important motivator in similar research conducted in developed countries, they were ranked highest among this group of Caribbean workers.

Proper motivation of employees is vital as it is directly related with productivity and retention. Employees who are content with their jobs, who feel challenged, and who have the opportunity to fulfil their goals will exhibit less destructive behaviour on the job. They will be absent less frequently, they will be less inclined to change jobs, and, most importantly, they will produce at a higher level. (Kovach 1987)

Considering the evident relationship between employee and customer satisfaction, different approaches were experimented in the attempt to improve employee satisfaction. “Predictably, the list was led by compensation, although most anticipate this will become less important in the future. Employee recognition programs, the opportunity for career advancement and exposure to training followed in order of impact.” (Cline 1997, 24)

The concept that employees may prefer interesting work over good wages is interesting, but the early studies were based on workers in manufacturing industries. It seems very likely that hospitality workers’ preferences would differ from those of manufacturing workers in important ways (Simons and Enz 1995) as it has been shown in the research done by Wiley in 1997.

When trying to motivate workers, managers often forget that the desire to do the job must come from within the employee and not from the supervisor. The manager can set the stage for motivation to happen, but cannot force motivation to occur. The level of effort and the direction of that effort are set by workers, based on their perceptions of the most rational way to satisfy their personal desires.

What managers can do is to take employee desires into account to create an environment where high effort, properly channelled, will give employees some measure of satisfaction. For many hospitality employees, this optimum motivational environment may involve some form of cash incentive and potential for advancement. For others, it will focus on security and good working conditions. In most cases, a positive, respectful work environment has the potential to facilitate employee retention and generally also to set the stage for excellent performance. (Simons and Enz 1995)

An interesting point of view by Siu, Tsang, and Wong (1997) explains that job factors that are considered by employees to have the greatest motivating power are usually those that are least present in the job.

The ever-changing nature of the hospitality industry has created and reinforced a turnover culture. Employees generally enter the industry with the belief that there is limited career development and promotional opportunity. (Iverson and Deery 1997)

Essentially, the human element in the hotel industry constitutes the basic determining factor for effective performance. Because of this reason, hotel management should increase employees’ interest in their work and develop such organizational structure and management policies as to create need-satisfying environment in which a wider range of employee needs than merely the simply hygiene needs could be satisfied. (Chitiris 1988)

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This work was produced by one of our professional writers as a learning aid to help you with your studies

Critically evaluate the process of change management carried out by a leisure and sport organisation with which you are familiar. Use appropriate theory to evaluate the change management process in question.

Sports and fitness has come a long way over time, it is now looked upon as an industry, which operates on a global scale. Sports and Fitness could comprise clubs, health centres, big games like the Olympics, football clubs, golf courses, championships and titles ranging a multitude of sports and games. Each of these activities are part of organisations which are run just like any other organisation with management control, finance, marketing, human resource management and strategy. Each of these areas contribute to the success or failure of the enterprise. Due to immense media coverage and sponsorships, the sector has become very active, glamorised and highly competitive. The competition in this sector is becoming stronger and more players realise the lucrative benefits this sector has to offer. Television and media have greatly publicised the health and sports segment, to an extent where people are beginning to see the advantages of being part of it. Many beauty pageants have also been instrumental in creating the message about beauty, health and fitness. The outcome has been a combination of fitness and leisure centres, these are training grounds for athletes and people who would like to achieve a fitness regime by being part of these centres. More and more people are now keen to be fit and involved in sports of some kind to keep up their fitness levels and be healthy.

Crichter (1984) says, the paradox of sport is that it provides such moments of self-realisation even as it confirms their apparent impossibility elsewhere. It both realises human identity and denies other kinds of especially racial and sexual identity. It is both uncontaminated by the rest of social life and shot through with economic and political influences. It is both timeless and a product of history [Frank Kew (1997), p 12 – 25]. Sports and fitness are about helping create a self-identity, which is high on self-esteem, confidence and good belief. The following is information on sports psychology which helps understand the reasons behind so many fitness and leisure centres springing up across countries including UK.

Another interesting quote about sports comes from Huizinga, 1972, Play is essentially a free activity quite consciously outside ‘ordinary’ life as being ‘not serious’, but at the same time absorbing the player intensely and utterly. Play has no material interest, and no profit can be gained by it. It proceeds within its own proper boundaries of time and space according to fixed rules and in an orderly manner. It promotes the formation of social groupings which tend to surround themselves with secrecy and to stress their differences from the common world by disguise or other means [Cox H. Richard (1998), p 15 – 30].

The feature about sports, which is of great interest, is that the ways these organisations work have wholly different perspectives. The social practices, rule structures are self-contained and independent and so applying management practices would need to take this psychology in context to the final argument. The people who work in this industry are also influenced by the way this industry operates, their psychology is determined by this. The concept of sports and fitness as joint collaborative projects can be analysed further, there are social dynamics involved in this ball game. In this context, the social dynamics pertains to practitioners who interact with each other. As per Guttmann (1978), modern sports and fitness is monitored and handled by multinational companies, who administer and control the operations by local, regional or international levels. The people in this organisation exercise a lot of power, power to ‘oversee and sanction athletes, teams and events make up rules and enforce them, organise events and certify records’ [Cox H. Richard (1998), p 20 – 34]. As the sports industry had gained momentum and is diffused with different social and national groups of personnel, the bureaucracy needed to oversee the governance process of sports have become more complex and powerful. In organisations driven by such force bringing about change would be a tall order, which would need more than good management skills. Although sports and health organisations are a new phenomenon compared to a lot of sectors and industries, which have been around for decades now, change management is a subject which will be difficult and need strategic management inputs when applied to this sector. Yet given the volatile markets and external environment, change would be a factor organisations cannot avoid. Change in any organisation could be triggered due to either internal or external circumstances.

The organisation in question for this paper is a health club, which has three divisions – sports, health and beauty and a leisure centre. For the sake of protecting the identity of the club, the name of the organisation has been changed to ‘Fitness first’. The problems in this organisation first started with the introduction of a new arm to the organisation – Sports Centre, where world famous coaches along with fringe benefits of private training gave professional and prospective athletes the option of being part of a club. Fitness first was initiated and conceptualised in the year 2001, the infrastructure and management were the best in the industry and finance was not a problem since the funding came from heavy weights in the Sports industry. To begin with the senior management that was brought on board by the two directors were given a lot of autonomy in running the business and expansion plans. The first two years in the business witnessed an inflow of members who were ready to pay a hefty annual fee to be part of the club. This was because of the personal care and interest each member was able to enjoy along with the state of the art infrastructure. The members realised the value of such benefits and were promoting the club through the word of mouth. Any business is good to go once the customers are satisfied with the deliverables and they see value for money. By the year 2003, the club had opened up 20 branches across England with additional features like a Beauty centre, which was very popular with both, the male and female members. The problem started in the year 2004 with the initiation of the Sports centre facility, the directors increasing interference, bureaucracy, lack of autonomy for the management and complacency on part of the management towards the operational and customer service aspects of the business.

The first sign was the failure of a club, which had opened up in the posh area of Kensington, London. The management was unable to understand the reasons for the lack of members despite heavy promotional campaigns. It was then observed that almost seven clubs had not enrolled new members over a period of three months. Finally the first Sports centre initiated at the Reading branch was showing blatant signs of failure. From a membership base of six professional athletes and 4 beginners, three beginners had already dropped out in the first month itself and the remaining members were considering giving up membership of the sports centre. All this had a combined effect on the revenue figures as well as dwindling profits in the first quarter of 2004. Fortunately the two directors realised that there were serious problems with the health club and leisure centre and a meeting was called upon with the entire management team across all clubs. A whirlwind strategic conference was organised, which lasted four days, and everyone realised that there was a need for introspection and change. The main problems identified during the conference were –

1.

Lack of Autonomy

2.

Lack of focus on customer service

3.

Lack of flexibility amongst management

4.

Lack of improvisation tools to enhance business prospects

5.

Lack of focus on new customers as well as old

6.

Lack of personalisation, which had been a competitive advantage at one time

The problem now was to understand and plan a strategy to combat all the problems listed above. Change is always a difficult proposition since it needs people to do something new, something they are not aware of and this especially since it takes them into an insecure environment.

The framework involving strategic change might comprise the organisation structure, culture and skill set. When implementing plans for a change proposal, one needs to comprehend if the change runs as deep as the organisation structure and culture since the latter is a deep process which needs a lot of time, patience, acceptability and understanding. Peters and Watermans (1982) defined strategy as the core structure of change, strategy is the deliberate or emergent pattern of decisions which shape an organisation’s future and its fit within its environment. These decisions may involve changing the future scope and shape of activities or major areas of internal change aimed at protecting or enhancing capability. [Grundy Tony (1993), p 28]

The changes at ‘fitness first’ would not only need the management personnel who were part of the conference but also individuals who were contributing at one level or another at every branch. Each personnel needed to understand the extent of the problem and be willing to bring about the required change so that the organisation could once more progress towards growth, profitability and satisfied customers. Carnall (1986) is an important contributor to the process of managing change. As per Carnall, implementing change goes through a series of stages, which involve, denial, defence, discarding, adapting and internalising. Change needs very adept and fragile handling of people, according to Lewin (1935), the cycle of change spans a considerable amount of time, it depends on how fundamental or challenging the change is, also there is always some decline in performance in managers and that’s what the change agents need to account for [Grundy Tony (1993), 40 – 46]. A change agent is the person in charge of bringing about the change process; the agent might be internal or external depending on the circumstances as well as the extent of change. This agent is a manager with special qualities, which will make him/her effective and successful in planning and executing the process. Charles Handy (1999) uses the ten roles defined by Mintzberg as a basis for making one understand the different roles of the manager. As leading personnel the manager needs to be a figurehead, leader and liaison, all these are interpersonal roles. In the capacity of an administrator, he/she needs to monitor, disseminate and be a spokesperson these are informational roles. Lastly as a fixator, he/she need to be an entrepreneur, disturbance handler, resource allocator and negotiator, these are decisional roles. Since the meeting at Fitness First, it was strategically decided that each centre would be assigned a change agent who will be internal given the extent of the problem. The senior management, local teams and the directors based on a compilation of all the above qualities, mutually listed the change agents. Charles Handy brings in some interesting perspective on how organisations are, as much as people would like to view them as well-oiled machinery, they comprise of people. People from different backgrounds, cultures, lives, opinions and behaviour. All these people compete for resources, power, recognition and their own judgements. There will always be a difference of opinions, values and culture, each one would conflicts of priorities and goals, ‘there are pressure groups and lobbies, cliques and cabals, rivalries and contests, clashes of personality and bonds of alliances’. [Charles Handy (1999), p 209 – 210]

Since the problems being faced at Fitness First were grave in appearance, the directors were very forthcoming in following a participative approach, from top to down in the organisation. They realised that the autonomy and right to exercise power in the individual sphere of the managers was a positive attribute, which had to return to the way the organisation functioned. As per Rosabeth Moss Kanter (1983), the participative approach is only taken when the change agents view the problem as internally driven, based on choice and responsiveness, rather than something which is imposed externally facing extreme resistance. The architecture of change needs an awareness of foundations, Rosabeth Moss Kanter (1983) an academic expert on change management states that the change agents need this history of relationships, coordination, mutual trust to learn from a successful story and imbibe the values in the new process. The art and architecture of change, also involves designing reports about the past to elicit the present actions required for the future [Rosabeth Moss Kanter (1983), p 288 – 290].

The building blocks of change can be easily interpreted from Quinn’s definition of managing strategic change, The most effective strategies of major enterprises tends to emerge step-by-step from an iterative process in which the organisation probes the future, experiments, and learns from a series of partial commitments rather than through global formulations of global strategies. Good managers are aware of this process, and they consciously intervene in it. They use it to improve the information available for decisions and to build to improve the information available for decisions and to build the psychological identification essential to successful strategies. Such logical incrementalism is not ‘muddling’ as most people understand that word it honours and utilises the global analyses inherent in formal strategy formulation models and embraces the central tenets of the political or power-behavioural approaches to such decision making [Rosabeth Moss Kanter (1983), p 288 – 295].

The process of change as defined by so many academics needs trust, loyalty and faith in the change agent who will lead the people involved through the process. The managerial style in organisations like Fitness First needs to change as part of the change management process. The hierarchical form needs to become more networked where people have access to information, there is informality, equality and there is lateral bottom up communication. Birchall and Lyons (1995), talk some more about the way businesses need to become more effective and efficient, as this will help in the change process, similar to fitness first businesses need to rethink the way work is being organised and executed. This is due to the changing demands of the customers, the expectations and aspirations of the employees; the transformation comes through with revamping of operations and by taking advantage of emerging possibilities.

Expectations and communication brings us back to the way the change agents would draw personnel at Fitness First into rectifying the problems being faced by the organisation. Change is not always about something new; sometimes it is about going back to the foundation and grass root level of the origination of the business. Since the change was primarily internal, managing the expectations of the people involved about the quantity and quality of change would be very important. The people involved need to know that the change is being brought about within the structure and culture of the organisation to eventually benefit everyone by being part of a successful venture. Since the profits are dwindling, it does call for extreme measures, which people might not be expecting. The biggest fear amongst employees in the face of change is the insecurity of not having a job, these fears had to be allayed by the change agents at the earliest else the performance would dip to a large extent. The second step was to know expectations and then communicating the plan for managing and executing change in the way work was being handled. The final steps needed at Fitness First were –

1.

Changing the organisation structure in certain places depending on the agenda and need

2.

Make the business more result oriented through customer satisfaction

3.

Training for all personnel to understand customer relationship management

4.

Motivate the employees through personal belief to work towards rectifying the problems

5.

Open door communication policies to make operations transparent

6.

Introduce annual reward management system for employees and customers

A communication plan was the first step towards personnel involvement in the change process. When complacency sets in and people get comfortable with their surroundings, change mostly uproots them from this comfort zone and more often than not, the results are not very encouraging. The change agents brought into play an effective communication plan, which covered the scope of change, the effects and results. Since there was a need for restructuring, the involvement of people is necessary, listening and learning become prime to making it a success. The agent has to take people into confidence about how the change will affect them internally as well as externally, from the view point of the organisation as well as personally. Another important factor to be remembered by the change agents is the five-model process for managing change – diagnosis, planning, implementation, control and learning. At fitness first the first two stages were near completion and the following three were moving at a parallel pace with the ensured commitment of the staff. According to Margaret Davis and David Weckler (1996), a major factor underpinning the success of failure of change is the capability of the organisation in question. Organisational capability is a big part of the organisation’s competitive advantage; it is also a reflection of its inherent flexibility, adaptability, and capacity to preserve single-mindedness, rationality despite all pressures, internal or external.

Coming to fitness first, now that a detailed analysis of the organisation structure and resources was through with a new one in place, displacement of employees from their previous positions had to be dealt with patience. It is important to time and again bring in communication tools and enforce the change objective and what it does on a larger scale. The anxiety and insecurity need to be dealt with, once the commitment is part of the change project, success is not difficult. Once the change agents had spent time, money and effort in designing the new organisation chart, it was important to see how well it could be implemented. This brought us to the three important ingredients of implementation – communication, impact analysis and transition management. In this case the employees needed to know if the reporting system would be different, working in different divisions under different people would be a part of this transition. The customers needed to know if the services changed with this process in flow and if the representatives they dealt with earlier would also change. On all accounts, effective communication was introduced through a first ever group wide meeting being called to mitigate or absolve any doubts which might hinder the change process. The customers were dealt with newsletters and individual meetings as deemed appropriate. Fitness First change agents had devised a list of ripples these changes might create and so there were already back up resources and plans in place. Each Change Agent had accounted for a transition manager in their teams who would be responsible in overseeing that the transition took place as effectively and smoothly as possible.

After long, fitness first had brought changes in the structure and introduced open communication channels; there was more autonomy in the organisation. This gave way to a common platform for employees to chip in ideas about growth potential and customer enrolment. The sports centre introduction was seen as a moderate expansion plan and so new associates and trainers were introduced to cater to the demands of upcoming talent. Apparently a talk with the old members revealed that they missed personal training regimes and a dedicated coach scenario, which led them to the decision of quitting membership. The introduction of the Customer Relationship Management program was an effective measure, which reintroduced one to one personal communication between members and the club centres. There was a monthly reward program for the most successful idea of the month; all these tools went a long way in hauling employee confidence, motivation and loyalty. The customers were also content and satisfied with the resurgence of these change measures, which showed responsiveness on part of the club towards their reaction and value. Customers always need to feel important and taken care of; this is the oldest adage for any successful business.

To conclude the design of an organisation cannot be rigid. Given the current competitive environment and unpredictable markets, they need to be more in tune with the customers and changing business conditions. The only constant is change and so any organisation – their structure and business processes need to be productive, flexible, adaptable and responsive to changing business needs. Fitness First was able to bring about internal changes which the management deemed fit, yet in the future there will always be need for more review processes to see when and where another change might be required. This was a learning lesson for fitness first, a platform for them to realise the need to become a learning organisation to stay abreast of competition and external environment. Senge (1990) introduced the concept of the learning organisation, one, which constantly reflects, understands, and evolves and changes based on internal and external conflicts and needs. All organisations need to imbibe the qualities of a learning organisation and the sooner they do o the better. Finally Change involves the interaction of a number if systems within an organisation. These may interact with one another in ways, which will either facilitate or inhibit change. A key factor in managing change effectively is to understand how these systems interact with one another. Openness to understanding these interdependencies is identified by Senge as being a crucial part of ‘the learning organisation’ [Handy Charles (1999), p 12 – 25].

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Part A

In the UK, trademarks are filed and protected on a first-come first-served basis. In this case, therefore, the Canadian All Reds have registered a trademark in the UK and this will take priority over the attempt by Preston Rugby Union Club (PRU). Therefore, when PRU go to register the name ‘Lancashire All Reds’, the Canadian All Reds could object to the registration. There are several grounds upon which they could object to the registration; these objections would have to be lodged at the Company Names Tribunal which is a department within the UK Intellectual Property Office. In order to make an objection, it will be necessary for the Canadian All Reds to show that the name is the same as their name and that they have built up a degree of goodwill or reputation with the name. The name does not have to be exactly the same; however, it does have to be so similar that it is likely to mislead individuals into believing that the two are linked.

One of the factors that have been established when objecting to a trademark registration is that ‘a genuine, properly substantiated likelihood of confusion’ exists. The case of Royal Berkshire Polo Club stated that, in order for an objection to be successful, it is absolutely essential that there is this element of confusion. In this case, the Royal Berkshire Polo Club attempted to register a trademark that was objected to by the Polo Ralph Lauren Company by virtue of section 5(2) of the Trade Marks Act 1994, stating that it believed the mark was similar to identical goods. This would be the same objection that the Canadian All Reds would bring, due to the fact that they are similar products and that confusion is likely . It was also argued by Ralph Lauren that they had built up a substantial amount of goodwill and as the Canadian All Reds have been in operation for over a century and gained considerable success in this time, it is likely that this argument could also be used by the Canadian All Reds.

It was held, in this case, that it was necessary to consider what a reasonable consumer would think and whether confusion would be reasonably likely. Based on this, it will be necessary for the Canadian All Reds to argue that allowing the name ‘Lancashire All Reds’ (particularly given their nickname ‘All Reds’) would confuse consumers. As the Canadian All Reds’ trademark is registered in the UK and the Lancashire All Reds are also attempting to register in the UK, there is a definite overlap of jurisdiction. Moreover, it is also highly likely that there would be some confusion due to the fact that both organisations operate substantially in the same market place, i.e. in rugby. Based on this and combined with the fact substantial goodwill has been built up in the name ‘Canadian All Reds’, it would seem likely that they would be able to object, successfully, to this trademark registration.

Part B

One of the first issues that the Canadian All Reds will have to consider is whether or not they actually own the intellectual property rights to the logo. The logo was designed by an independent designer employed by the Canadian All Reds. In these circumstances, it would be normal for the contract between the designer and the Canadian All Reds to ensure that any intellectual property rights stemming from the relationship are vested in the Canadian All Reds; this needs to be checked, before the Canadian All Reds could bring any action.

The logo is not registered and therefore the action open to the Canadian All Reds would be either passing off or design right infringement . Design rights protect the unique shape or design of a product and not the two dimensional shape. For example, in this case, the actual design of the scarves could be protected and the Canadian All Reds could bring an action against John in relation to the scarves, alongside any action being brought in relation to the logo itself. Design rights are not registered; they are automatically vested in a new design when it is recorded in material form. The Canadian All Reds, therefore, need to ensure that the design right in the merchandise is vested in them, before they become available to the public. This will be the evidence required in order to ensure that an action against John is possible. It should be noted that design rights only exist in the UK and although international recognition is possible, it is not offered as standard. Clothing is capable of gaining design right protection as held in the unreported case of Jo-Y-Jo Ltd v Matalan, in 1999, where knitted vests were held to have design right protection.

Alternatively, the Canadian All Reds could bring an action for passing off as defined in Reckitt & Colman Ltd v Borden Inc , which they would be able to bring if they could prove that they have built up goodwill in their logo and that the logo of PRU was established and could be a misrepresentation which would confuse consumers. Finally, the Canadian All Reds would have to prove that they had suffered loss as a result. In this case, it may be difficult to prove that the loss has actually occurred, unless the Canadian All Reds could show that individuals were purchasing items from PRU instead of themselves, by accident, which is unlikely for rugby union fans who would understand the differences between the two teams.

Part C

In this case, the Canadian All Reds would have to rely on the law of passing off in order to prevent John from selling the scarves outside the grounds. It does not confer an exclusive right on the owner; it is a protection from misrepresentation. In order to prove the case for passing off, it would be necessary for the Canadian All Reds to show that they had goodwill in the mark, which they do have, and that there had been some form of misrepresentation and that this had damaged their goodwill . It would be up to the Canadian All Reds to show that they did have goodwill in the goods and the logo; they would also have to prove that there had been some form of false representation, whether it was intentional or not, to the public, by virtue of the goods being offered by John. For this to be the case, it will be necessary for them to show that there is a likelihood that the public would be deceived, but it has been established that the standard is not that of a ‘moron in a hurry’, but rather the public at large . The court will determine whether or not there is a similarity in terms of the goods . This may result in a difference of opinion in terms of whether or not the scarves without the words ‘All Reds’ on them would be deemed passing off, in comparison to the ones without the words on the scarves. When considering all factors including the look of the scarves, it is more likely that the court will deem the scarves with the words ‘All Reds’ written on them to be more deceptive than the plain scarves.

A similar case was seen in Arsenal Football Club v Matthew Reed . In this case, Mr Reed was selling unofficial merchandise such as scarves and hats that included marks similar to those of the Arsenal crest and logo. Arsenal brought an action for trademark infringement against Mr Reed, but Mr Reed argued that he was not using the mark as a trademark and was using it, rather, as merchandising, despite the fact that it was accepted that the customers did not necessarily think that the goods had come from the club, but rather that is was a ‘badge of support, loyalty or affiliation’. It was held, in this case, that it could be a trademark infringement where the use of the mark undermined the essential function of a trademark and that by allowing the merchandise to be sold, it would mean that the function of a trademark was a way of identifying origin. The judge stated: ‘As the ECJ pointed out, the actions of Mr Reed meant that goods not coming from Arsenal but bearing the trademarks, were in circulation. That affected the ability of the trademarks to guarantee the origin of the goods’.

Based on this, it is expected that the Canadian All Reds could rely on this case to prevent John from selling the merchandise.

Bibliography
Bainbridge, David I., Intellectual Property, Pearson Education, 2006
Bogusz, Barbara, Cygan, Adam Jan & Szyszczak, Erika M., The Regulation of Sport in the European Union, Edward Elgar Publishing, 2007
Bosworth, Derek L. & Webster, Elizabeth, The Management of Intellectual Property, Edward Elgar Publishing, 2006
Colston, Catherine & Middleton, Kirsty, Modern Intellectual Property Law, Routledge Cavendish, 2005
MacQueen, Hector L., Waelde, Charlotte & Laurie, Graeme T., Contemporary Intellectual Property: Law and Policy, Oxford University Press, 2007
Michaels. Amanda & Norris, Andrew, A Practical Guide to Trade Mark Law, Sweet & Maxwell, 2002
Phillips, Jeremy, Trade Marks at the Limit, Edward Elgar Publishing, 2006
Spinello, Richard A., Intellectual property rights, Library Hi Tech, 25, 1. 2007
Vaver, D., Intellectual Property Rights: Critical Concepts in Law, Taylor & Francis, 2006
Wadlow, Christopher, The Law of Passing-Off, 3rd revised ed., 2005

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“Homicide law should be reformed as it is inappropriate for someone to be held liable for murder if they did not intend to kill.”

To what extent do you agree with this statement?

Homicide is the collective term for both murder and manslaughter in England and Wales. Murder is a common law offence that has developed through the courts over time. The common definition of murder comes from Edward Coke who wrote, murder occurs when a person of sound body and mind unlawfully kills any human being under the Queen’s peace with malice aforethought. [1] This definition lays out both the actus reus and mens rea of the offence. The actus reus is uncontroversial: the killing of any human being during the Queen’s peace. This makes murder a result crime; liability flows from an action (or omission) of the defendant resulting in death. Controversy and academic debate surrounds the second part of the offence, namely the mens rea element. Malice aforethought has been interpreted by the courts as meaning with intent to kill or cause grievous bodily harm. It is this second interpretation of malice aforethought that brings the debate. It means a person can be convicted of the legal system’s ultimate, heinous crime despite a lack of intention to kill. Lord Steyn expressed the problem eloquently in R v Powell; “in English law, a defendant may be convicted of murder who is in no ordinary sense a murderer.” [2]

The proponents of change base their arguments around fair labelling, mandatory sentencing, interpretation of the current law and the contradictory results of as is. Debate only follows where there are two points of view, and despite the pitfalls of the current law on murder, there are proponents of the current system. The arguments for the current system revolve around the sanctity of life, difficulty of overcoming the evidential burden, a deterrent approach and a view of social responsibility. These differing viewpoints will be explored below in more detail.

One of the major complaints about the current law is based on the idea of fair labelling. In our society it is seen as unjust to label someone inaccurately, especially when that label is one of murderer. Glanville Williams wrote, “the particulars stated in the conviction should convey the degree of the offender’s moral guilt, or at least should not be positively misleading as to that guilt… In any case, a man may feel a sense of injustice if the terms of the conviction do not represent his real guilt.” [3] To be labelled a murderer without holding the intention to kill would not be representative of the defendants ‘real guilt’. Being convicted of murder not only results in a mandatory life sentence, but once, or if, the defendant leaves prison, the label remains. This will impact on that person’s life potentially destroying his family, his career and right to a normal life after serving his sentence. Roger highlights the problem of fair labelling, “present labels of murder and manslaughter are each much too broad and lose their core meaning on account of their breadth. The law of murder at present equates the paedophile who kills his victim to ensure his silence with the man who intends to cause grievous bodily harm because he is getting carried away in an argument, or perhaps in defending his property.”[4] Society draws a great distinction between the two individual scenarios mentioned by Roger however the label of murderer does not. When this label is present, society tends to overlook the details of the individual circumstances and takes the label on its own.

Another major problem with the current law is the mandatory life sentence for murder. Many people would agree the most heinous crime deserves the most severe punishment however, as has been highlighted already, a convicted murderer has not necessarily carried out this heinous act as perceived by society. Currently, judges have no discretion with a murder conviction. Since the Murder (Abolition of Death Penalty) Act 1965 a conviction of murder carries with it the sentence of life imprisonment[5]. The precise length of the sentence varies under the guidelines derived from Coroners and Justice Act 2009 [6] however this still sets the minimum sentence at 15 years for a defendant over the age of 18. This is to be contrasted with manslaughter for which the judge has absolute discretion on sentencing up to a maximum of life imprisonment. This allows for a judge to mitigate the severity of the crime through the sentence, a mechanism unavailable in murder[7]. Due to a court interpreted definition of murder, a defendant faces a mandatory life sentence instead of a much lower sentence based on the crime he truly had the mens rea for. It is this draconian approach to sentencing that makes someone held to be liable for murder when they did not intend to kill inappropriate.

There are practical issues alongside legalistic ones, such as is the definition of grievous bodily harm, or serious bodily harm. If the liability for murder depends on the intention to cause this level of harm, there should be very clear and concise guidelines as to what this level of harm is. William Wilson writes about the obscurity of grievous bodily harm, “it is defined to mean nothing more precise than “serious” as opposed to “actual” bodily harm.”[8] This definition and guidance is not robust enough to fairly legitimise a murder charge. Further, to the abstruseness of the level of harm required, allowing grievous bodily harm to lead to a murder charge at all can result in the prosecution and conviction of a person for not only something he did not intend, but actually for something he precisely intended to avoid. There are several famous examples of this undesirable outcome such as that of kneecapping, a practice whereby the knees are targeted to punish the victim but with the precise intention of keeping them alive. Lord Goff entertained this scenario along with another of glassing. Despite the resulting death and clear intention to cause serious bodily harm with a broken glass, the jury “could not bring themselves to call him a murderer” and Lord Goff sympathised with them. [9]

It is the combination of the above arguments that lead people to cry out for reform of the law of homicide as it is currently inappropriate in regards to a murder charge without the intention to kill. However, there are also proponents of the current law.

There is a strong argument for the law to enforce responsibility for one’s actions. If one attacks another with the intention to cause them serious bodily harm, and that attack results in the death of victim, then the attacker is morally culpable for the victim’s death. This is a view endorsed by William Wilson and others, “I take the uncomplicated view, as the Criminal Law Commissioner has elsewhere argued, that those who intentionally attack others are morally responsible for and so fully legally accountable for the consequences of so doing whether or not such consequences were foreseen.”[10] This view depends on one’s idea of the purpose of the criminal law however, for the law to hold society responsible for the outcome of their actions is more than acceptable for the majority. The current law also fits with the harm principle whereby, “the State is justified in criminalizing any conduct that causes harm to others”[11]. This view is compatible with sanctity of life arguments. For many in society, sanctity of life is sovereign, as shown by its inclusion in the European Convention of Human Rights[12]. This granting of the Right to Life necessitates any taking of life to be regulated tightly. This has led to problem areas in the law such as euthanasia and abortion, the laws for which are based on the law of murder. In light of high profiles decisions of the court system in these areas such as Nicklinson v Ministry of Justice

[13]

the time for change in the homicide area is not now. Parliament refuses to reform the law and neither do the courts. These decisions have been made in light of high volumes of political and legal argument yet the current system has won through. Changing the definition of murder could not only have a negative impact on the law of homicide, but also these other, highly emotive and controversial areas of law.

The current law is not only compatible with these controversial areas but has also been affirmed at the highest level. The so called ‘GBH rule’ was the subject of a House of Lords decision in R v Cunningham

[14]

in which the rule was affirmed by the House including the then Lord Chancellor. Further, “the adjective ‘serious’ has not caused problems in the past, where juries have been instructed in murder cases” [15], and as such does not need to be reformed. This affirmed law is aligned with arguments for the law to act as a deterrent of social harms. The intentional causing of serious bodily harm is without doubt something society wants deterred, and having a severe punishment for this harm, not only in the law of homicide but also through the Offences Against the Person Act 1861[16], is a method of deterrence. Without the inclusion of this element in the law of homicide, not only would the deterrent for serious bodily harm be weaker, but many ‘true’ murderers would escape conviction for murder, thus creating a fair labelling problem, contradicting one of the arguments put forward by proponents of change. This is because it is very difficult to prove true intent to kill. There would be many scenarios where the defendant did intend to kill the victim however this couldn’t be proved due to the evidential burden. However, by using the intention to cause grievous bodily harm, a number of these defendants could be found guilty of murder.

On balance there are strong arguments for homicide law to be left as is to deter violent crimes and make society responsible for their actions. However the law cannot be left simply because other areas of law are based upon them. There are many problems with the law as it is currently, particularly surrounding fair labelling, mandatory sentencing and difficulty of interpretation and implementation. These problems go right to the core of our legal system and cannot continue to go unchanged. The Law Commission has been ignored repeatedly by parliament but their worries remain and proposals could improve the current system. Homicide law should be reformed as it is inappropriate for someone to be held liable for murder if they did not intend to kill and equality for all under the law must always be the ultimate practice.

Bibliography

Ashworth A and Horder J, The Principles of Criminal Law (7^th edn, OUP 2013) 28

Coke E, ‘Institutes’ 3 Co Inst 47

Ashworth A, ‘Principles, Pragmatism and the Law Commission’s Recommendations on homicide law reform’ [2007] Crim L R 333

Goff R, ‘The mental element in the crime of murder’ (1988) 104 LQR 30

Wilson W, ‘The structure of criminal homicide’ [2006] Crim LR 471

Williams G, ‘Convictions and Fair Labelling’ [1983] CLJ 85

Roger J, ‘The Law Commission’s proposed restructuring of homicide’ (2006) 70(3) J Crim L 223

Crown Prosecution Service, ‘Sentencing Manual’ (CPS, Jan 2012) < http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/murder/> accessed 21 August 2014

R v Powell [1999] 1 AC 1

Nicklinson v Ministry of Justice [2014] UKSC 38

R v Cunningham [1982] AC 566

Offences Against the Persons Act 1861

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2

Criminal Justice Act 2003

Coroners and Justice Act 2009

Murder (Abolition of Death Penalty) Act 1965

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“In view of a justification defence to both direct and indirect discrimination, the law will continue to do little to prevent age discrimination”

Critically evaluate this statement as a reflection of the current position of the law in this area.

The current law on discrimination is laid down in the Equality Act 2010. Age is one of the protected characteristics within the Act. ¹ The term ”Age” refers not only to a person’s age, but also to persons in a particular age group.² The Equality Act stipulates that direct discrimination occurs where a person treats less favourably another due to the latter’s protected characteristic. ³ Thus, there must be a comparator to compare with. If one does not exist, the court would create an imaginary comparator. The comparator must be in the same or not in a materially different position from the plaintiff in all aspects with the exception of being a member of the protected class.⁴ The comparison exercise must be reasonable.⁵ The Tribunal applies an objective test for less favourable treatment. ⁶ Indirect discrimination can be claimed where there is an ostensibly neutral provision, criterion or practice which indirectly discriminates against the claimant.⁷ The indirect discrimination provisions are aimed to tackle ”disguised age barriers” rather than barriers stemming from retirement. Thus, the fact that an individual cannot obtain a qualification needed for a promotion before retirement does not mean that he has been discriminated against. ⁸

In contrast to other forms of direct discrimination, direct age discrimination can be justified. Although the motive for discriminating is irrelevant, ⁹ the employer could raise a defence that the discriminatory acts were proportionate means of achieving a legitimate aim.¹⁰ Legitimate aims and proportionality are distinct issues which must be examined by separately by the Tribunal.¹¹ Indirect discrimination is justified using the same principle. The Tribunal must strike an objective balance between the discriminatory effect of the provision and the reasonable needs of the business. There must be a need for the provision and it must be reasonably necessary. ¹²

The peculiarities of age as a protected characteristic should be pointed out. Age discrimination includes a wide range of objective justifications unlike sex discrimination where there are very few and race discrimination where there are virtually none. This is logical given the fact that age discrimination is related to many complex issues such as retirement, business needs or working culture. Such peculiarities superficially imply that in most occasions, the employer’s policies would be justifiable and age discrimination claims should be a response only to the most heinous conduct. Even though direct discrimination claims are becoming a rare phenomenon as most companies have developed solid equal opportunities policies and training, there have been several recent direct age discrimination cases where managers have made discriminatory remarks in view of the employee’s performance. ¹³ Furthermore, a 2012 DWP report pointed out that age-related assumptions and stereotypes are still prevalent in the UK.¹⁴ Thus, a careful balancing act between the employer’s legitimate aims and the severity of the discriminatory measure is prudent.

The background of the current legislation should also be considered. The Equality Act 2010 is a consolidating legislation, replacing the provisions of the Employment Equality (Age) Regulations 2006 which implemented the Equal Treatment Directive. In that regard, the objective justification defence is a recognised concept in EU Law. InIncorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case) ¹⁵ The European Court of Justice acknowledged that it is acceptable to derogate from the provisions of the Equal Treatment Directive¹⁶ relating to age discrimination in situations where there are legitimate public interest objectives. The means of implementing the objectives must be appropriate to the aim and reasonably necessary for its achievement. ¹⁷ The Court has recognised legitimate objectives such as inter-generational fairness and dignity. A policy, criterion or provision which is justified based on staff retention and workforce planning meets the inter-generational fairness objective. Avoiding the necessity to dismiss older workers on the basis of incapacity or underperformance has been directly related to the dignity objective. Avoiding the need for expensive and divisive disputes about capacity and underperformance would also meet said aim. However, it is recognised that direct and indirect age discrimination cannot be identically justified. ¹⁸

Age Discrimination and Retirement

An example of a discriminatory but justifiable provision is a legislation permitting compulsory retirement on the ground of age. The European Court has held that said legislation was necessary for checking unemployment and encouraging recruitment. ¹⁹ A compulsory retirement clause for partners in a law firm has also been justified on the grounds that it allowed associates of the firm the opportunity of partnership after a reasonable period; facilitated the planning of the partnership by having a realistic long term expectations as to when vacancies would arise; and limited the need to expel partners by way of performance management, which contributed to the collegiate environment within the firm.²⁰

In Harrod v Chief Constable of West Midlands Police the authority applied a compulsory retirement provision within the Police Pensions Regulations 1987 to force a large number of officers to retire. Generally, a discriminatory practice is not justifiable on the basis of cost but may be justified on the basis of efficiency. However, the distinction between the two can sometimes be blurred. Improving efficiency was accepted by the Tribunal as a legitimate aim. However, the measure was disproportionate. The discriminatory practice was applying the Regulation to all officers only because they were within its ambit. There were other less discriminatory alternatives such as voluntary retirements, part-time working and career breaks, which were not considered.²¹

In Bloxham v Freshfields Bruckhaus Deringer²² the Tribunal held that Bloxham had been treated less favourably than partners aged 55 or over as, being only 54, he was subject to a 20 per cent reduction. However, modification of the pension scheme to make it more financially sustainable and fairer to younger partners was held to be a legitimate and necessary aim and the firm had successfully demonstrated that the amendments were a proportionate means of achieving this aim.

Access to Employment

Another example of a justifiable policy is restricting a job position to applicants over a certain age. ²³ This constraint may be reasonable considering the requirements of the job in question. In the same spirit, the Equality Act recognises an exception to some of its provisions²⁴ relating to promotion and access to employment if the employer can demonstrate that age is an occupational requirement and that said requirement is a proportionate means of a achieving a legitimate aim.²⁵ This is particularly relevant for professions within the film or sports sectors.

Enhanced Redundancy Payments

The Equality Act permits employers to consider age as a factor when deciding whether to make an enhanced redundancy payment. ²⁶ Although such practices may be prima facie discriminatory, there have been many cases of recognised justifications. For example, a redundancy scheme whereby payments are raised depending on age and length of service was held to meet legitimate aims.²⁷ Such aims were: encouraging loyalty, supporting older workers who are more vulnerable in the job market and providing an incentive to older workers to volunteer for redundancy, which would free senior posts for younger employees. In another example, the employer, DWP, justified an enhanced payment for older employees as part of a scheme by presenting evidence which demonstrated that older employees were unemployed for a longer period of time and had more family and financial responsibilities. ²⁸ The aim of the enhanced payment policy was to provide proportionate monetary support until the employee finds other employment or retires. The court recognised that even though the scheme could have been made non-discriminatory at no extra cost by reducing the payments, this did not render the scheme disproportionate. This implies that there is no requirement that it is absolutely necessary to take into account whether there are alternative, less discriminatory measures. It was also recognised that due to the nature of the scheme, the individual circumstances of the claimant could not be taken into account. The caveat is that such subtleties may serve as a carte blanche for employers to discriminate on the grounds of age.

Dismissal due to Age

Although in both direct and indirect discrimination the Tribunal employs the same test, following Seldon v Clarkson Wright and Jakes ²⁹ the employer must demonstrate a social policy aim not merely a private business aim to justify direct discrimination. Because of the more severe nature of direct discrimination, it is not illogical to argue that more scrutiny should be placed on the legitimacy of the employer’s objectives and the proportionality of its measures.

In O’Reilly v BBC³⁰ the plaintiff was successful in her claim for age discrimination. The company dismissed her in order to change the image of the Countryfile program to appeal to a younger audience. The tribunal acknowledged that this was a legitimate aim, but it held that the measure was disproportionate as it was not necessary to replace the plaintiff with younger presenters to achieve the aim. Similarly, in McCririck v Channel 4 Television Corporation ³¹ the claimant was dismissed in order to change the image of the program. An important distinguishing point in that case was that the defendants conducted a research exercise which identified negative views associated with the claimant’s image and character. No such research was carried out in O’Reilly. Moreover, Channel 4 considered the plaintiff’s personal qualities, particularly his reputation as holding old-fashioned views, which were indirectly linked with his age. ³² The Tribunal concluded that the defendants have used proportionate means.

An interesting point is that in McCririck, the decision to dismiss was justified by evidence and based to a larger extent on the plaintiff’s style and to a lesser extent on his age. In contrast, in O’Reilly, the decision was based primarily on the stereotype that the plaintiff could not appeal to a younger audience because she was older. This serves as an example of a situation where the law should intervene to protect the employee from counterproductive stereotypes which may, in certain situations, by disguised under neutral, ubiquitous policies.

In conclusion, the cases examined demonstrate the wide array of justifications within different contexts. Some of the justifications appear to be specific only to age discrimination. Objectives such as dignity may be unnecessarily vague particularly against the background of a company policy or scheme where the employee’s individual’s circumstances are seldom a relevant consideration. Justifications such as avoiding the need for costly and divisive disputes can be controversial in light of the potential harm suffered by the plaintiff. Medical research by Florida State University College of Medicine demonstrated that older people who perceive age discrimination experience lower physical and emotional health than people who perceive sex or race discrimination.³³ In that regard, cases such as O’Reilly and McCririck represent an illustrative example of the very thin line between a proportionate measure based on evidence and a measure based on stereotype.

Word Count: 1774

BIBLIOGRAPHY
Books

Bell, A; Employment Law (2^nd edn; Sweet & Maxwell, London 2006)

Honeyball, S; Honeyball & Bowers’ Textbook on Employment Law (11^th edn; Oxford University Press, Oxford, 2010)

Slewyn, N; Selwyn’s Law of Employment (16^th edn; Oxford University Press, Oxford, 2011)

Online Resources:

The Lawyer, ‘Age Discrimination Time for Revision’ http://www.thelawyer.com/download.aspx?ac=68830 accessed 20 July 2014

Legal Week Law, ‘ More than just a number – three key age discrimination lessons from recent cases ‘ http://www.legalweeklaw.com/download/-key-age-discrimination-lessons-recent-20289 Legal Week Law accessed 20 July 2014

Richard Lister, ‘Channel 4 dismissed John McCririck because of style, not age’ [2013] Lewis Silkin http://www.lewissilkin.com/Knowledge/2013/December/Channel-4-dismissed-John-McCririck-because-of-style-not-age.aspx#.U8w07vumXlQ accessed 20 July 2014

Table of Statutes

EC Directive 2000/78/EC

Employment Equality (Age) Regulations 2006

Equality Act 2010, c.5, c.13, c. 13(2), c.19,

c. 39(1) (a); c.39 (1) (c); c.39 (2) (b); c. 39(2) (c); Schedule 9, paragraph 1; Schedule 9, paragraph 13

Table of Cases

Bloxham v Freshfields Bruckhaus Deringer ET 2205086/2006

Clements v Lloyds Banking plc UKEAT/0474/13/JOJ

Eweida v British Airways [2010] EWCA Civ 80

Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419

Incorporated Trustees of the National Council on Aging v Secretary of State for Business, Enterprise and Regulatory Reform (the Hayday case ) [2009] All ER (EC) 619

James v Eastleigh BC [1990] 2 AC 751

James v Gina Shoes Ltd UKEAT/0384/11/DM

Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195

MacCulloch v ICI plc [2008] ICR 1334

McCririck v Channel 4 Television Corporation ET 2200478/2013

O’Reilly v BBC ET 2200423/2010

Network Rail Infrastructures v Gammie (EAT (Scotland), 6 March 2009)

Palacios de la Villa v Cortefiel el Servicios SA [2008] All ER (EC) 249

Seldon v Clarkson Wright & Jakes [2012] UKSC 16

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11

Smith v Safeways Stores [1996] IRLR 456

Wolf v Staldt Frankfurt am Main [2010] IRLR 244

This work was produced by one of our professional writers as a learning aid to help you with your studies

Introduction

The declaratory theory of law is quite simply that judges do not make or create the law, the merely declare what the law is and what it has always been. The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning. The legislative body of the United Kingdom, Parliament, is elected and therefore, in theory, a reflection of the majority view on key issues such as euthanasia, gay marriage and terrorism measures. The reality is the English legal system has two main sources of law when it comes to the determination and deliverance of justice. There is the common law doctrine of precedent which has evolved with the judiciary and as a result, some would argue is highly uncertain. The second source of law takes the form of statute and as a result of the legislative wording that exists, is significantly more certain. Regardless of an individual’s view on the matter, it has to be accepted, as stated by Lord Irvine of Laring, that, within a certain limit, the role of judges will require a degree of legitimate law-making. The limits of this law making ability is defined by the English constitution and entangled key principles, such as parliamentary supremacy.

“The judges do every day make law, though it is almost heresy to say so.”

The reality is that the English Legal System has developed as such that the judiciary do demonstrate a degree of judicial creativity which results in the creation of law. There are two key cases, well known to all English lawyers which demonstrate the fact that the judiciary do make the law. The first is the famous tort case of Donoghue v Stevenson . In this instance, the claimant was asking the judiciary to develop a principle that was otherwise not in existence. The problem was that the claimant was asking the judges to not only change the law so that it supported her case but to also retrospectively apply that law to the event in question (i.e. the snail in the ginger beer incident). The result was that in 1932 the judges stated that the defendant had a duty of care towards the claimant that did not actually exist in 1928 when the incident occurred. There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in this manner. The first is the most obvious but equally the most constitutionally concerning theory that the judges simply created new law and then retrospectively applied it to the event in question. There are some obvious issues here in terms of the principles of law and also the English constitution . The second of school of thought is the least applicable in terms of academic sway but is the most compatible with the principle of the English judicial system. This is the application of the declaratory theory of law, whereby the judges in this case were simply stating the law as it always has been. The next important case for consideration in this aspect is the criminal law case of R v R . This case involved the conviction of a defendant for raping his wife. Prior to the determination of this case there was no such thing as rape within a marital relationship; it was implied through the virtue of being married that sex would always be consensual. However, this conviction drastically changed the law by removing this marital exemption. The declaratory theory of law would have you believe that this is what the law had always been and that there was no new law being made. However 300 years of precedent in the form of such an exemption existing would contradict such a position. As a result, it has to be accepted that the declaratory theory of law is not a valid theory anymore and that judges do create law for legitimate purposes.

Separation of Powers

As the law has developed, so have the academic theorists who argue that the judiciary can make law within certain narrow confines. This is not necessarily a negative concept, as many would have you believe, as the ability of the judiciary to make law without accountability is both an advantage and a disadvantage. The development of law in this manner means that the fact that judges do not have to worry about voting statistics is an advantage in ensuring that the correct and just path is followed . Rather than issues being dealt with in accordance with the mob mentality of the general public, they are determined without such pressures and in accordance with a pure moral conscious. The law can be changed quickly in this manner which makes the judiciary incredibly versatile. There is however a limitation on this power, which is embodied in the separation of powers which contains levels of checks and balances. It is important to appreciate two aspects of this problem. The first is the United Kingdom is one of the few countries in the world that does not have a written or codified constitution . This means that there are an extensive number of areas which have had to develop through doctrine and principle over a long period of time as there has been no specific document to resolve the question at hand. The second is that the concept of the separation of powers is a political notion and not a legal principle . The political concept of separation of powers is possibly as old as democracy itself, as its origins can be traced back to the father of logic, Aristotle. However, a number of legal principles have influenced the manner in which the political world has functioned. The most influential is that of Dicey’s theory of parliamentary supremacy . This principle has influenced and dictated the extent of judicial creativity and activism and has acted as a check on the judiciary . This effectively makes the judicial branch the weakest branch of the three as the courts recognise that they can be overridden by Parliament. This was demonstrated in the case of Burmah Oil v Lord Advocate . In this case, the House of Lords held that the proprietor of the oil fields was entitled to compensation from the government for the lawful damage that had been caused. However, Parliament then enacted the War Damage Act 1965 which retrospectively exempted the Crown from paying such compensation. This effectively frustrated the decision of the House of Lords and resulted in the Court being overridden.

Conclusion

It has to be accepted that the judiciary to alter the law and allow for it to develop through their judicial reasoning. However this is not something to be feared, as the judiciary is still the weakest branch out of the three constitutional branches and it has not yet exceeded its judicial remit. The use of parliamentary principles such as Parliamentary Sovereignty means that the powers of the judiciary are limited without the concept of justice being infringed upon.

Bibliography

Cases

Burmah Oil v Lord Advocate [1965] AC 75

R v R (rape – marital exemption) [1991] HL

Books

Alan, TRS, Law, Liberty and Justice: the legal foundations of British Constitutionalism Oxford University Press, Oxford, 2003, chapter 3

Lord Denning, The Reform of Equity in C.J. Hamsori (ed). Law Reform and Law-Making (1953)

Pollard, D. Constitutional and Adminstrative Law: Text with Materials Oxford University Press, Oxford, 2007, 15

Journals

Baroness Hale ‘ A Supreme Court for the United Kingdom’ (2003) 119 LQR 49

Lord Bingham ‘The Old Order Changeth’ (2006) 122 LQR 211

Lord Steyn ‘Democracy, the Rule of Law and the Role of Judges’ [2006] EHRLR 243, 246

Woodhouse, D. ‘The Constitutional and political implications of a United Kingdom Supreme Court’ (2004) 24 LS 134

Legislation

War Damages Act 1965

This work was produced by one of our professional writers as a learning aid to help you with your studies

The International court of justice held that ”it is for non-member states to act in accordance (sic) with those decisions (of the UN security council)” ( Namibia Opinion (1971) para.126 )

Introduction

The sources of public international law have been articulated within Article 38(1) of the Statute of the International Court of Justice; United Nations Security Council resolutions are not included within this. The Namibia Opinion, despite its suggestion in para.126, cannot be considered an authority for the proposition that Security Council resolutions are binding on non-member States, particularly read within the context of the ICJ judgement as a whole. Nor does the judgement support the view that UN Security Council resolutions are a source of public international law. More recently, however, there has been some support for the view that certain Security Council resolutions have taken on a legislative character, that the Security Council is becoming a legislature for the World and therefore becoming a law-making body. Not surprisingly, there are a number of States who have expressed concern with this view. This is not least because the Security Council appears to have extensive powers, which having little legal regulation and coupled with the fact that the organisation is highly undemocratic, does not afford the impartiality that is required for such a function.

Security Council Resolutions

The term ‘resolution’ has been used in United Nations (UN) practice in a generic sense, but it includes broadly two kinds of statements: recommendations and decisions. When the International Court of Justice (ICJ) refers to Security Council resolutions, it reserves the expression ‘decision’ for binding resolutions and ‘recommendation’ for non-binding ones. Security Council resolutions are generally only binding on the addressee, which may be one member, some members, all members, or other UN organs. It can even be binding on ‘those members of the Security Council which voted against it and those members of the United Nations who are not members of the Council’. However, with regard to non-UN member states, Oberg has argued that the most coherent interpretation of a difficult passage in the Namibia Opinion rejects any direct binding effect. Therefore, it is argued that despite the ICJ statement in the Namibia opinion in that ‘it is for non-member states to act in accordance (sic) with those decisions (of the UN Security Council)’, that such resolutions are not binding on non-member states. In general, treaties only bind parties, in accordance with the concept within international law that consent is required to be bound by such obligations. Finally, since almost all States are now members of the UN, it would be hard to find non-member States to be bound in this way.

Sources of Public International Law

The sources of public international law are articulated within Article 38 (1) of the Statute of the ICJ. These include international conventions, international custom, and general principles. Judicial decisions and academic writings are also subsidiary means of legal interpretation. Therefore, if UN Security Council resolutions are a source of public international law, they must fall within one of these categories.

De Brichambaut has explained that since the Security Council adopts resolutions, it can be assumed that it creates norms within the institutional framework that is defined by the UN Charter. However, this does not mean that these norms are source of public international law, but that the Security Council can create rights and obligations with respect to UN member States. The Security Council therefore acts only in accordance with its authority as delineated within the UN Charter.

Chapter VII UN Charter

The Security Council is a political organ and makes political decisions; however, it does produce resolutions, which have legal consequences. It is a legally effective collective security system, and its activities are defined within Chapter VII of the UN Charter. If the Security Council therefore makes a determination that there has been a ‘threat to peace, breach of the peace, or act of aggression’ under Article 39, it may exercise powers pursuant to Articles 40 to 42 of the UN Charter. Since this concept has no definition within the UN Charter, it gives the Security Council the ability to exercise wide discretion. Once the conditions within Article 39 are satisfied, Article 40 enables the Security Council to impose ‘provisional measures’, which are legally binding on States. Article 41 then empowers the Security Council to impose economic or diplomatic sanctions, in order to give effect to the resolution. Finally, Article 42 authorises the Security Council to take action by air, sea or land forces to maintain or restore international peace and security. Therefore, the UN Security Council may appear to be imposing legal sanctions on states, however, the link between the Charter mechanisms for peace maintenance and the concept of legal sanctions is tenuous. The purpose of enforcement action ‘is not: to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law’.

Mandatory decisions under Chapter VII, triggered by Article 39, are the outcome of political considerations, not legal reasoning, nor are its proceedings subject to judicial procedures. The determination of what constitutes a ‘threat to peace, breach of the peace, or act of aggression’ is a selective and to a large extent arbitrary process. The Security Council is not required to match the gravity of the situation to its response and it is not required to adopt the measures provided under Chapter VII in any particular order. Therefore, it is hard to conceive of the Security Council as a law-making body.

Advisory Opinion on Namibia

In the Namibia Opinion, the ICJ recalled that although non-member States are not bound by Article 24 and 25 of the UN Charter, that they had been called upon in Security Council ‘resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regards to Namibia’. The ICJ went on to say that any state entering into relations with South Africa concerning Namibia, could not expect the UN or its members to recognise such a relationship. Since the UN General Assembly Mandate of South Africa in Namibia had been terminated, ‘and South Africa’s continued presence in Namibia been declared illegal’ the ICJ considered that ‘it is for non-member States to act in accordance with those decisions’.

However, as Gowlland-Debbas has explained that Security Council determinations of illegality and invalidity are essentially declaratory and not intended to create the illegality or nullity of the acts in question. The powers of the Security Council cannot be considered to be legislative powers therefore, even in a broad sense. As Judge Onyeama emphasised in his separate opinion in the Namibia case, stating:

The declaration of illegality of the continued presence of South Africa in Namibia did not itself make such presence illegal; it was… a statement of the Security Council’s assessment of the legal quality of the situation created by South Africa’s failure to comply with the General Assembly’s resolution… it was in fact a judicial determination.

Therefore, it is clear that the Security Council does not make the law and therefore its resolutions do not constitute a source of public international law. They do have a role however, in interpreting current law and contribute to the law-making process.

Customary International Law

Article 38 of the ICJ Statute refers to ‘international custom, as evidence of general practice accepted as law’. In the Fisheries case, Judge Read described customary international law as ‘the generalisation of the practice of States’. As Crawford has explained, ‘it is the conclusion drawn by someone as to two related questions: (a) is there a general practice; (b) is it accepted as international law?’ A custom arises therefore when a particular practice has become general. It is considered that the practice of international organisations can constitute one element of State practice. In Libya/Malta Continental Shelf case, the ICJ explained that the substance of customary international law should be sought from State practice and opinio juris of States. Opinio juris may be obtained from General Assembly or Security Council resolutions, if their subject matter is not too restricted to particular circumstances. Therefore, although Security Council Resolutions are not a source of public international law, they do constitute State practice, which may contribute to customary international law.

Treaty Law

Article 103 UN Charter provides that obligations of member States under the UN Charter should prevail over other International agreements. Therefore, since Security Council Resolutions are obligations under the UN Charter, these can take precedence over International Treaties. However, Security Council resolutions are created using a very different process to Treaties. In the Kosovo advisory opinion, the ICJ considered factors relating to the interpretation of resolutions of the Security Council. They explained that ‘Security Council resolutions are the product of a voting process provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body’.

Interpretation of Security Council resolutions is also very different to interpretation of Treaties. According to the Vienna Convention on the Law of Treaties, the starting point is the intent of the parties, and the best evidence of common intent is the specific language of the treaty. In terms of Security Council Resolutions, their implications can be incredibly far reaching, particularly for the State against whom the enforcement measures are being taken. As Frowein has argued: ‘such a resolution is the legal basis for the most severe encroachment upon the sovereignty of a member of the United Nations’. Therefore, although such resolutions have considerable impact and may even take precedence over Treaty law, they are essentially only a source of rights and obligations for member States of the UN and not a source of public international law.

Security Council as Lawmaker

Despite the fact that Security Council Resolutions cannot be considered to be sources of international law, there are many areas where the Security Council has made significant contributions to the body of international law. These areas have been enumerated by Michael Wood and include statehood: recognition and non-recognition; the law of treaties; State responsibility; international criminal law; international humanitarian law; international human rights law; and the international administration of territory.

Reference has been made to the Security Council as a ‘World Legislature’ and it has been suggested that a new legislative stage started with the adoption of Resolution 1373 on September 28, 2001. The president of the UN Security Council, in referring to the planned adoption of Resolution 1540 of April 28, 2004, described the ongoing consultation process for that resolution as ‘the first major step towards having the Security Council legislate for the rest of the United Nations membership’. Krisch has even gone so far as to say that ‘[b]y means of its enforcement powers, the Security Council has in fact replaced the conventional law-making process on the international level.’

Talmon has claimed that the hallmark of any international legislation is the general and abstract character of the obligation imposed. He suggests that Security Resolutions are framed in this manner. For example Resolution 1390, relating to the freezing of Al Qaeda assets, exhibit the characteristics of the legislative or generic resolution. This kind of resolution has also been referred to as a ‘resolution, not in response to a particular fact situation’. Therefore, it is argued that these resolutions are similar to obligations entered into states as international agreements. These new legislative or generic resolutions therefore have been referred to as international legislation.

At the same time, there are those who express concern at the Security Council’s increasing tendency to assume new and wider powers on behalf of the international community, by passing resolutions which are binding on all member States. There are others who express the opinion that the Council has no such legislative authority, claiming that the purported enactment of global legislation ‘is not consistent with the provisions of the United Nations Charter’. There may be some justification in these concerns, after all the UN Security Council is a political institution and not a legal one. It is also a highly undemocratic and has few legal constraints upon its own actions. Therefore, if it is the case that UN Security Council Resolutions are making their way into the realms of public international law via this route, then this appears to be a dangerous step.

Conclusion

The ICJ’s Namibia Opinion did not make Security Council resolutions binding on non-member states. Although paragraph 126 has been referred to as a ‘difficult paragraph’, taking the judgement as a whole it is hard to arrive at this conclusion. It is also clear that this judgment did not impact upon Security Council resolutions status as a source of public international law. Although such resolutions may add to the body of state practice which influences the development of customary international law, these resolutions cannot be considered law in themselves. Nevertheless, there is a growing body of opinion that has spoken of the legislative function of the Security Council and has identified certain ‘generic’ or ‘legislative’ resolutions. Some UN Member States have expressed the view that these are the beginnings of a legislative function within the Security Council. There are clear dangers in recognising this view, the Security Council is first and foremost a political and not a law making body and appears to lack the impartiality required to fulfil such a function.

References
Cases

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 404

Fisheries (UK V Norway). ICJ Reports 1951

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971 < http://www.icj-cij.org/docket/files/53/5595.pdf > accessed 15th February 2013

Libya/Malta Continental Shelf case, ICJ Reports 29-30

Books

Crawford, James Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, Oxford, 2012 p.23

De Brichambaut, Marc Perrin, The role of the UN Security Council, in Michael Byers (Ed.) The Role of Law in International Politics, Oxford University Press, Oxford, 2000

Dixon, Martin, McCorquodale, Robert and Williams,Sarah, Cases and Materials on International Law, 5th edition, Oxford University Press, Oxford, 2011

Harris, David J. Cases and Materials on International Law, 7th edition, Sweet & Maxwell, London, 2010

Kelsen, Hans, Law of the United Nations: A Critical Analysis of its Fundamental Problems, The Lawbook Exchange, New Jersey, 2000

O’Brien, John, International Law Abingdon, Routledge-Cavendish, 2009

Walter, Christian, Voneky, Silja, Roben, Volker and Schorkopf, Frank (eds) Terrorism as a challenge for National and International Law: Security versus liberty? Springer, Heidelberg, 2004

Journal Articles

Gowlland-Debas, Vera, ‘Security Council enforcement action and issues of state responsibility’, (1994) 43(1) International Comparative Law Quarterly, 55-98

Oberg, Marco Divac, ‘The legal effects of resolutions of the UN Security Council and General Assembly on the jurisprudence of the ICJ’ (2005) , 16(5) European Journal of International Law, 879-906

Talmon, Stefan, ‘The Security Council as World Legislature’, (2005) 99(1) American Journal of International Law, 175-193

Yee, Sienho, ‘The dynamic interplay between the interpreters of Security Council ?resolutions.’ (2012) 11(4) Chinese Journal of International law, 613-622

Web References

Press Briefing, Press Conference by Security Council President < http://www.un.org/News/briefings/docs/2004/pleugerpc.DOC.htm > accessed 15th February 2013

UN Doc. S/PV 4950 < http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Chap%20VII%20SPV%204950.pdf > accessed at 15th February 2013

Wood, Michael, ‘The UN Security Council and International Law: The Legal Framework of the Security Council’, Hersch Lauterpacht Memorial Lectures, First Lecture, 7th November 2006 < http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_hersch_lecture_1.pdf > accessed 13th February 2013

Wood, Michael,’ The UN Security Council and International Law: The Security Council and the use of Force’, Hersch Lauterpacht Memorial Lectures, Third Lecture, 9th November 2006 < http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_hersch_lecture_3.pdf > accessed 13th February 2013