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Acuerdos plenarios y la búsqueda de la adecuación del derecho penal a nuestra estructura social

COMENTARIO AL ART 1358 DEL CÓDIGO CIVIL PERUANO.

B. Teorias relativas

7.9. LA POLÍTICA CRIMINAL DEL ESTADO EN LOS DELITOS DE VIOLACIÓN SEXUAL DE MENOR DE EDAD.

7.9.2. Acuerdos plenarios y la búsqueda de la adecuación del derecho penal a nuestra estructura social

The FGC Education Programme was implemented to improve the performance of all companies in the industry, whether they are members of the FGC or not. Hence, at present, entry to the courses is open to any company or individual, irrespective of FGC affiliation. However, in 2010, companies who are members of the FGC are questioning what value they get for their $30,000 membership fee. Hence, because of their “industry wide” brief the FGC want to make their training programmes available to the whole industry, thereby maximising use of the courses and benefit to the industry. However, at the same time they want to make them exclusive to their members thereby providing tangible evidence of the benefits of membership.

In this context one interviewee (Company E), who is a member of the FGC Working Group overseeing the training programmes, stated: “We (FGC) have brochures (about the FGC courses) we are trying to get to HR managers in companies who are in the FGC. Broadly we do not want to wave it too much outside of the FGC companies because the intention is to raise the bar and hence capabilities and competitive advantage for FGC members.”

Hence the FGC itself is facing a dilemma as it has two opposing positions. As a Provider of courses with a focus of upskilling the whole industry, it needs to use all possible means of maximising the use of the courses by all companies in the industry, whether they are members of the FGC or not. In contrast, the FGC also wants to restrict participation in the courses to FGC member companies to provide a specialised benefit to improve the position of those companies who have paid their $30,000 membership fee. Construction of the polarity map for this dilemma is based upon identifying the opposing “requirements” of the FGC as a training provider and an industry agent.

 Significant position as industry representative

 Significant income

 Enormous potential pool of membership  Industry negotiator.

 Industry wide focus

 Delivering specialised service and tangible benefit to members.

 Creating competitive advantage for members

 Assists membership drive for FGC.

 Seen to be working for members

 Industry focus including companies who are not paid-up members

 Difficult to demonstrate or quantify benefits to industry

 Difficult to separate benefits to members ($30,000) from same benefits provided to none members for free

 Hence, difficult to justify $30,000 fee

 Excludes none FGC members.  Creates resentment and anti FGC

sentiment in industry.

 Diverts focus and resources from main purpose of FGC (Lobbying Government).  Creates resentment from FGC members

who can not afford course fees

 Reinforces a “have” (large companies) and “have not” (medium to small companies) and “elitist” division within the FGC members

Management of the polarity: This is a seemingly unsolvable problem for the FGC as the organisation is mandated to have an industry wide focus and undertake programmes that benefit of the whole industry. However, restricting access to the FGC courses to paid-up member companies to provide them with a competitive advantage clearly is not benefiting the whole industry. By contrast, if they do not provide tangible and quantifiable benefits to their members then they face a direct threat to their survival because why would any company pay $30,000 to belong to an organisation which delivers nothing to them.

In the polarity map the FGC’s prime imperative as the industry representative lobbying government and representing the Suppliers at National level to the Retailers, firmly positions it in [L+]. Their ideal position as a course provider is in [R+], but because of their prime objective the FGC can not move totally into [R+]. Hence their ideal position must be to remain in [L+], but move some way towards [R+].

FGC as an industry representative FGC as a course Provider L+ R+ L- R-

To achieve this new position in the polarity they must find a way to allow the companies who are not paid-up members of the FGC to access the courses, but without “offending” the paid up members. This will require either “promoting” those who are not members to join the FGC and/or providing them with access to the training courses, but in a way that maintains an identifiable extra benefit to paid-up members. To manage this dilemma two courses of actions are available to the FGC.

The starting point is to promote the courses to the whole industry but offer clearly discounted course fees for paid-up members of the FGC. This however rebounds against the problems identified above in terms of addressing affordability of courses for SME’s. Managing the dilemma therefore requires that the FGC find a way to discount attendance at the courses at the same time as making it easier for SME’s to afford membership of the FGC.

Achieving this would require that membership of the FGC be offered on a graduated (relative to annual turn over) scale of membership. Member companies could then be allowed access the FGC courses at a discounted fee (say $1,000 instead of $2,000) with the $1,000 shortfall to the management company being made up from FGC membership income. This would not only promote companies, particularly SME’s, to join the FGC but also give them access to the member’s discount for the courses. Alternatively, they could discount FGC membership relative to the number of training courses the staff of member companies attend. This would thereby not only promote the upskilling of the whole industry - the original 2004 intent of the FGC Education Programme – but increase the membership base of the FGC and also provide member companies with a special benefit (discounted course fees) for being members.

Bonding

Although the interviewees did not support the concept of bonding, several of them use the technique in various situations. In addition, anecdotal information from students attending FGC courses is that employers are becoming increasingly concerned that funding employee training is increasing their portability. This appears to be more of an issue for SME’s than for larger companies. Consequently there is a growing trend

towards employers “bonding” staff who go on company funded training. Under this regime if the employee leaves the company within 2 years of the training they have to pay back the full cost of the training.

Unfortunately the practical outcome of bonding is often the complete opposite of its’ intent. Instead of bonding promoting employees to take the training and stay with the company for a specified period, it is acting as a complete deterrent to employees attending training courses. Hence, whilst bonding is essentially an issue between the company and the individual employee, it has an obvious impact on the uptake of FGC course - it makes staff members reluctant and even resistant to attending courses. It is therefore a polarity that the FGC must manage even though they are not a direct “player” in the employer-employee bonding relationship. Construction of the polarity map for this dilemma is based upon identifying the “benefits” to the Company of bonding and not bonding.

Managing the polarity: Bonding is primarily a dilemma for the company and an issue between the company and the employee. However, as it impacts on the FGC as a course provider it is necessary for the FGC to manage the dilemma. As the FGC can not “forbid” companies from bonding, they must create an industry environment which dissuades the company from imposing a bonding regime. This can be achieved by the FGC including a “message” against bonding in the earliest documentation sent about the courses and repeating it in all documentation about the course. The message should document the case against bonding, quoting the comments made by interviewees. One in particular, which could become a “slogan” for the courses, is the saying “What if I train someone and they leave, what if you don’t train them and they stay”.

Another theme could be the comment made by the Director of Company E when he said “if you are training people and they leave for a higher paid job in another company you are training the wrong people. If you train the right people, in line with where the company is going and also their personal goals, they will stay.” Another line could be his other comment about training creating competitive advantage for a company, “if a company needs to be better than competitor companies then they need to train their staff more than other companies.” In addition, Company D could be given as an example of training working in practice.

 Achieves staff training  Increases company capital

 Captures benefits of training expenditure to company for a period, particularly for expensive courses

 Addresses portability issues.

 Good for employees to have “skin in the game”

 Achieves staff training

 Increases individuals personal capital  Demonstrates company’s commitment to

staff.

 Increases staff capability

 Fosters staffs commitment to company, but also.

 Promotes retention and helps recruitment  What if I train them and they leave? What if

you do not training them and they stay?

 Poor performance from unmotivated staff who do not want to be in the company.  Demonstrates company’s focus on

company and not staff.

 Creates discontentment in staff.  Potential barrier to recruitment

 Counterproductive as staff may refuse to attend training then everybody misses out on benefits

 Increases individual’s portability.

 If staff leave the company has expended money for no return.

 If staff leave there is no gain in company capital

There is one practical action which could also be used. One message that is clear from this current investigation is definitely undertake staff training, but be selective about who you train. Hence to support this theme, the FGC could provide companies with a free, on-line, pre-training assessment of potential candidates’ capabilities in terms of whether the training will meet the needs of the company and the individual. Then a training programme can be recommended and delivered in the topics that will improve their skills. This will build their stimulation and personal capital such that they will want to perform better and stay with the company, and thereby remove the necessity for the company to bond them.

BONDING NOT BONDING

L+ R+

CHAPTER 6: CONCLUSIONS

In 2010 there is a shortage of trained and experienced staff in some topic areas in the FMCG industry but the shortage is not critical as it was perceived to be in 2004 when the FGC Education Programme was instigated. Comparing the number of people who have attended the FGC courses up to 2010 (100 participants) with the pool of potential attendees identified by the FGC as “industry wide” (36,000 people) in 2004, attendance has been “lower than expected”. However this perception about attendance is flawed because two key factors lead the FGC to grossly overestimate the labour market shortage, and hence size and urgency for training, as “industry wide” in 2004.

The first key factors is that the FGC did not undertaking a needs analysis to identify the actual size of the labour market shortage or the pool of people that needed training. Rather, based upon the problem some FGC member companies were experiencing in recruiting (and retaining) trained FMCG people in some topic areas, they inferred that the need was “industry wide”. In reality, at that time, from the FGC’s prioritisation of training topic needs, the shortage appears to have been in the mid-level sales area (key account management) and some “specialist” areas such as Logistics and Supply Chain Management, neither of which require large numbers of staff.

The second key factor is that given the members of the FGC in 2004 were all senior managers in FMCG companies, it seems incongruous that they allowed this misconception to pass unchallenged and approved the set up of the FGC Education Project. In this context, there are strong implications that the practice of people “saying one thing, but doing another” (Argyris 1985) applied to this decision. Clearly members of the FGC supported the set up of the FGC Education Project on the basis that “this is good for the industry so we should do it”. However, they did not identify that their individual companies were not facing this shortage because they were taking alternative approaches to resolve the shortage.

These two factors combined to give false expectations to the training providers who became associated with the FGC Education Programme that the whole of the industry (36,000 people) would be candidates for training and hence the perception in 2010 that attendances have been “lower then expected”.

There can be no doubt that there was a labour market shortage of skilled FMCG people in 2004, albeit significantly smaller than “industry wide”, but a number of factors have changed in the FMCG industry that have further significantly reduced the size of the shortage in 2010. Since 2004 the larger companies have developed “dedicated, in-house” programmes to upskill their staff and recruited experienced staff from overseas and other industries. This has virtually removed their need to recruit skilled staff from the New Zealand labour market, thereby reducing the pressure on the labour market and minimising their need for training courses from external Providers.

As large FMCG companies satisfy their training needs with their own in-house courses, it is the medium to small sized companies (SMEs) that are the target market for externally provided training courses such as the FGC Education Programme. However the cost/affordability of training staff and an attitude that training does not provide significant benefits to the company, are two key barriers to SME’s training their staff. This therefore reduces their use of the FGC training courses.

In analysing how the FGC can increase attendance at their training courses several “problems” were identified for which there are no practical “solutions” as they are created by internal factors within companies which the FGC is powerless to affect. These “problems” are associated with in-house training in large FMCG companies, cost/affordability of courses and attitudes against staff training in SMEs, bonding of staff and opposing “demands” on the FGC as an industry representative and course provider. By treating these “problems” as “dilemmas” and hence “polarities to be managed” (Johnson 1992) options are identified which the FGC can apply to these problematic situations to improve the uptake of their courses.