組合活動した大学の外国人講師7人雇い止め「ユニオンの排除が目的か」弁護士が批判

東京・豊洲などにキャンパスがある「芝浦工業大学」で英語を教えていたが、3月末に雇い止めになった外国人の元非常勤講師7人が4月7日、厚労省記者クラブで会見を開いた。元講師たちは、カリキュラムの変更を理由に雇用契約が更新されなかったのは無効だとして、雇用の継続を訴えた。

7人は労働組合を結成して、大学側と労働環境の改善に向けた交渉をしていた。7人を支援する弁護士は「ユニオンを排除するためにカリキュラムを変えたのではないか」と語っている。

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Japan sees progress on sexual harassment, but some still don’t get it

| ILLUSTRATION BY CHRIS MACKENZIE

BY HIFUMI OKUNUKI

Once upon a time, the English word “harassment” was unfamiliar to Japanese ears. Over the past quarter-century the word has burrowed its way deep into the collective consciousness, at times even replacing the Japanese word iyagarase. Today one would be hard-put to find a citizen unfamiliar with the English version and its many derivatives (see below).

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Under Japanese law, breaks are sacred and standby counts as work

Labor law covers a great deal of territory, from wages, work hours, transfers and performance evaluation to dismissals, selling of business rights and industrial accidents. One subject often overlooked is break time or kyūkei. My labor law encyclopedia devotes far fewer pages to this subject than just about any other topic. It is, after all, labor law, not “rest law.”

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Job insecurity among Japan’s university teachers is a recipe for further decline

Buyer's market
Buyer’s market: With the population shrinking, colleges in Japan are desperate to seize a share of the dwindling ‘customer base.’ | ANN AKINO

Universities in Japan are caught up in a cutthroat struggle for survival. As the population of children plummets, so, in turn, does the number of college entrants.

The decline is particularly stark considering that the number of universities had swelled on the back of the postwar baby boom and bubble economy. Institutions of higher learning are frantic to seize a share of the dwindling “customer base.” Universities choosing students is a thing of the past: Now students select universities.

Born in the early 1970s, I’m what’s known in Japan as a second-wave baby boomer. As a college student in the early 1990s, I experienced the emotional stress and hardship of entrance-exam hell. Many uni hopefuls failed their exams and became so-called wandering ronin for a year until the next round of tests. The term was derived from samurai in the Meiji Era and earlier who left their feudal domain and thus belonged nowhere. During this “nowhere time,” these modern-day academic ronin often studied from early morning until late at night, leading to nervous breakdowns and even cases of children murdering their overbearing parents.

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Japanese firms have much to lose in battles over bogus outsourcing

What is a gyōmu itaku contract? It is basically an outsourcing contract: A company decides it cannot handle a certain job itself, so it outsources the work to another company — or an individual. Individuals on gyōmu itaku contracts are not considered rōdōsha (employees/workers) in the legal sense, and are thus not protected by the Labor Standards Law or most other labor laws. In that way, gyōmu itaku contracts differ greatly from employment or labor contracts (rōdō keiyaku).

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Tozen Vlog for April 8, 2014

The year in labor: the Top 5 pains of 2013

By Hifumi Okunuki
Illustrations by Time O’Bree

Japan’s old calendar called December shiwasu (師走). These two kanji mean “teacher” and “run.” The idea was that the last month of the year is so busy that even a staid, starch-shirted professor finds him or herself scurrying around like a rabbit, trying to get everything done on time.

As we hurtle toward 2014, it’s time to look back on how the Year of the Snake treated labor. In keeping with the growing trend on TV, blogs and news sites, I’ve devoted this final edition of the year to a Top 5 list. The Top 5 Labor Pains of 2013 will focus on what really shook things up in terms of labor relations and employment law. In keeping with convention, I’ll count backwards.

Note: These are my personal picks and you may question my choices or believe other labor news to be more deserving of inclusion. If so, please don’t hesitate to let me know.

5. The planned ‘special dismissal zone’

As covered in my Oct. 8 column, “The Special Dismissal Zone: where legal protections no longer apply,” the Shinzo Abe government’s National Strategy Special Zone Working Group announced in May a scheme to remove all protections from abusive dismissals in a special zone, in the hope of creating “the most business-friendly environment in the world.” “Business-friendly” here means “free to dismiss at will.” This “dismissal at will” is known as “employment at will” in the U.S.

The media jumped on the plan, calling the proposed area a “dismissal zone,” to which academic Tatsuo Hatta, the head of the working group, retorted, “It’s a job creation zone, not a dismissal zone.”

What kind of jobs do these planners intend to create for us? Since firms are free to employ and un-employ workers at will, these workers will in effect become interchangeable parts in the corporate machine. For every job created, employers can cherry-pick which workers to let go, leading to massive turnover and great social instability.

The plan raised such an uproar that it has been put off for now. But proponents will not roll over so easily. When the winds are right, they are sure to give it another shot.

4. Rin Danda, labor standards inspector

I cannot overemphasize the significance of the fact that a labor standards inspector was made the protagonist of a TV series.

I had already read the comic book “Dandarin,” which follows the adventures of plucky Rin Danda, and was concerned that something might be lost in translation en route to TV. I have been reassured by the first series, which ended Wednesday. It is obvious that producers have researched the Labor Standards Bureau properly and have carefully avoided making the script preachy.

Ratings have been poor, but the series has gone a long way toward conveying the reality facing the modern worker in Japan.

3. The Fukushima far-more-than-50

Do you remember the “Fukushima 50″? They were the workers who struggled frantically to regain control over the Fukushima No. 1 nuclear power plant just after the triple meltdown caused by the March 11, 2011, Great East Japan Earthquake and ensuing tsunami. The domestic and foreign media heaped accolades upon them, suggesting they were heroes burning with a sense of mission who demonstrated remarkable courage in fulfilling their duties with scant regard for their own lives.

More than 2½ years have passed, yet the government and society have nearly forgotten those who still toil day and night at the plant. If they were to drop their tools for even a night, the resulting contamination could leave our country uninhabitable. And it isn’t just 50 of them anymore — let’s recognize the thousands of heroes who have worked, still work and will work at the Fukushima No. 1 plant to contain the contamination and protect our environment.

And what are working conditions like for these heroes? Unfortunately, many workers there are slaving under horrible sweatshop conditions. Tokyo Electric Power Co. hires layer upon layer of subcontractors, sub-subcontractors and so on, with most workers involved in the cleanup eking out a living on the very lowest tiers of this exploitation pyramid.

The biggest problem with this structure is that no one can figure out who is accountable for employment and working conditions. With little or no preparation or training, these workers are suddenly thrust into highly dangerous tasks beyond the reach of labor law but well within the reach of harmful daily doses of ionizing radiation. Even their “danger pay” is skimmed by their bosses and their bosses’ bosses.

Most workers grin and bear it without a peep of protest, fearful of losing the only job they can find. Recently, however, one worker employed by a fifth-tier subcontractor took action. He was told upon hiring that he would not have to work in dangerous conditions, yet he was assigned to increasingly high-exposure tasks, such as removing glass near one of the reactor buildings. The day after he protested that he had been promised a safe job, he was fired.

He joined a labor union, which requested collective bargaining with five companies, including Tepco itself, over demands such as reinstatement, an end to false outsourcing (gisō ukeoi) and the payment of the promised danger money. Only his direct employer — the fifth-tier subcontractor — agreed to negotiate. His union sued Tepco and the other defiant firms in the Tokyo Labor Commission for refusing to engage in collective bargaining. Tepco claimed to know nothing of the request for collective bargaining and refused to comment.

Going on three years since the accident, we still have little to show in terms of protecting the rights of nuclear power plant workers.

2. ‘Black company’ makes it into Top 10 buzzwords

The winning “Buzzwords of the Year” for 2013 in the annual contest held by publishing house Jiyukokuminsha and correspondence education provider U-Can were “Ima desho!” (Why not now!), omotenashi (hospitality),jejeje (an expression of surprise) andbaikaeshi (double payback). I won’t go into the above expressions here, but I will discuss burakku kigyō, which made the Top 10.

Literally, the term means “black company,” but it might more properly be rendered as “evil corporation.” The phrase describes firms who find profit and success by scoffing at labor laws and brutally exploiting employees, particularly young workers who do not know the law. Some companies literally work their employees to death. Or suicide.

The word went viral thanks to the efforts of Haruki Konno, the director of the labor consultancy NPO Hojin Posse.

Some have pointed out that using a term derived from the English word “black” to mean “evil” is racist toward those of African descent. There are many words in Japanese that seem to associate “black” with negative things:kuroboshi (defeat), haraguroi hito (mean person) and kuro (guilty), to name but a few. There are also exceptions: kurooto (professional) andkuroji (profitable), for example.

For better or worse, burakku kigyō has seeped deep into the language this year and has raised awareness of the existence of some very bad companies. While this is certainly a social problem, it’s also true that it’s up to workers to stand up for themselves and join forces with their colleagues to improve their conditions.

1. Clock starts on the ‘five-year rule’

I had difficulty deciding which Labor Pain to pick for the No. 1 spot this year. In the end, I decided that the “five-year rule” may end up having the greatest impact on workers — for good or ill, it remains unclear. For my part, I cannot help being pessimistic about this change to the Labor Contract Law.

About 26 percent of workers in Japan are on fixed-term contracts. The risk of nonrenewal hangs over their heads each time their contract concludes. It is much easier to fire such workers than those with ordinary permanent contracts. Many companies hire workers on these temporary contracts even though the work is anything but. This “permatemp” status continues year after year and renewal after renewal.

The purported objective of the new rule is to increase job security for the millions on such contracts by letting them attain permanent status after five years. Many employers, however, have decided to go 180 degrees against the spirit of the law and are already planning to let workers go before they reach the five-year milestone, thus making their jobs even less secure.

A small minority of employers are bucking this trend and moving actively to let their workers attain permanent employment status. But even this year — the first year of the five-year “clock” — we see want-ads flooding job sites advertising positions with five-year ceilings.

More frightening still, while employers seem to know enough about the law to evade it, a September study by Japan’s largest union federation, Rengo, indicated that 88 percent of workers on fixed-term contracts were unaware of the nature of the change to the Labor Contract Law. That has to change. We need to know the law in order to use it.

I want to thank all my readers for taking the time to read this year’s 12 Labor Pains. Next year, I plan to take the column in an all-new, more fun direction. Have a good New Year’s and see you in the Year of the Horse.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the second Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Send your comments and story ideas to community@japantimes.co.jp.

http://www.japantimes.co.jp/community/2013/12/11/general/the-year-in-labor-the-top-5-pains-of-2013/

Labor law reform raises rather than relieves workers’ worries

labor pains 14

Story originally published in Japan Times

A new specter hangs over Japan: the specter of insecure employment. The source of this insecurity is the August 2012 reform of the Labor Contract Act related to fixed-term employment. Due to take effect April 1, the thrust of the reform is as follows:

1. Workers employed on fixed-term contracts for five years must be granted open-ended employment if they apply for it (Article 18).

2. Establishes clear legal parameters for refusing contract renewal, or yatoidome. (Article 19). (Note: This has already gone into effect.)

3. Prohibits groundless linking of fixed-term employment to unfair working terms (Article 20).

Workers with open-ended (kikan no sadame no nai koyō) and fixed-term employment (yūki koyō) face disparities that don’t logically follow from the simple fact that open-ended employment has no end date. The first is pay. Employers tend to pay their yūki koyō workers a good deal less than their permanent workers. Fixed-term workers tend to be given less professional responsibility, fewer or no promotions, and less or zero pay hikes, bonuses and severance pay.

Japan’s largest retailer reportedly pays winter bonuses of between ¥400,000 and ¥500,000 to many of its permanent staff, and ¥20,000 to fixed-term employees doing the same work. On top of that, fixed-term workers face layoff anxiety each time their contracts come up for renewal, effectively meaning it’s impossible for them to make any long-term plans in their lives.

The original purpose of yūki koyō was presumably to enable employers to find workers to complete work projects that themselves were of fixed duration. In that way, the term of the contract would reflect the time-fixed nature of the work itself.

Yet companies routinely use temporary contracts for work that continues far beyond the end date. They do this to slash labor costs and to shirk all social and economic responsibility for their employees — a responsibility that firms are expected to take seriously in Japan.

Last August’s reform purports to “relieve the nonrenewal anxiety of workers on fixed-term contracts, rectify unfair working conditions justified by the fixed-term relationship, and to realize a society where workers can keep working without anxiety.”

However, even before it kicks in, many employers are bludgeoning the spirit of the reform. Far from increasing job security, companies are scrambling to set up mechanisms to kick out their workers before five years elapses. Employers are citing the new law to justify three-year limits on renewals, and even no renewals at all.

Gone are the days when employers equated “human resources” with “human treasure,” punning on the word jinzai — the days when treating workers with dignity and respect was the secret of corporate success. Overseas commentators once heaped praise on the three sacred treasures that sustained postwar Japan’s rapid economic growth: lifetime employment, seniority pay and company unions (see Ezra F. Vogel’s 1979 book “Japan as No. 1″).

Japanese workers were often disparaged abroad as “economic animals.” But the trade-off was that in exchange for bearing long working hours and the arbitrary dictates of the employer, and with the support of the “three treasures,” the fanatical salaryman could count on “secure, permanent employment.”

Those days are gone. As of March 1, the ranks of fixed-term workers stood at 14.1 million, or more than 25 percent of Japan’s total workforce of 54.52 million, according to a Ministry of Internal Affairs and Communications study. With 1 in 4 workers on a fixed-term contract, such a basic desire as job security is edging out of reach, and workers are more atomized than ever. This does not bode well.

And that’s not all. In addition to job security, the principle of equality between worker and employer, a founding principle of Japanese labor law, has been reduced to a husk of its former self. Imagine the effect nonrenewal anxiety hanging over the heads of workers must have on their workplace behavior and relationship with management. They will have to put a great deal of effort into making sure they stay on their boss’s good side.

This state of affairs naturally casts a dark shadow over union activism. Can workers in fear for their jobs band together and raise their voices to assert their rights? Some may have the courage, but many others will take the safe, silent route.

So on top of everything else, this legislation will have a chilling effect on union activism among those on fixed-term contracts. One unionized company has even resorted to putting all new hires onto six-month contracts with no renewal whatsoever. The purpose is to prevent further unionization from gaining a foothold.

Those who will work only six months at a company are unlikely to join a union and fight for better conditions. So the employer now simply sits back and waits for existing members to fall away due to natural attrition. Few drafters of this reform considered the potential abuse of fixed-term employment for the purpose of union-busting.

Having read this far, you will be forgiven for thinking that yūki koyō has no up-side. However, looking at the glass half-full, if you somehow make it to the five-year mark, you will find yourself in a tenured position, unable to be dismissed without legitimate reasons according to the law and social norms. For the employer, this amounts to a loathsome shackle that prevents easy layoffs.

The new law also makes nonrenewal — yatoidome — illegal if there is good reason to expect renewal. What constitutes “good reason” belongs to the notorious gray zone of Japanese law, meaning different judges will rule differently. The law also prohibits unreasonably low working conditions for fixed-term employees compared with regular employees. Again, “unreasonable” remains undefined.

At the end of the day, I believe the reform is irredeemable. To really fix things, we need to prohibit fixed-term employment itself (in most cases) — what is called “regulating at the entrance.”

Let’s look at a legal case study.

The plaintiff started with a six-month contract, then a yearlong one, with publisher Akashi Shoten. Three months into the second contract, the plaintiff and 21 other employees unionized. The plaintiff became an executive of the local union.

When the next renewal period came around, Akashi Shoten management offered the plaintiff a contract with an explicit nonrenewal clause. The plaintiff tried to negotiate a renewal without the new clause, but management held firm. The plaintiff signed the contract but later sued to overturn the nonrenewal.

Tokyo District Court ruled on July 30, 2010, that the plaintiff had in effect been compelled to sign the contract with the nonrenewal clause. The judge also ruled that the yatoidome was invalid as it lacked objective grounds according to social norms, meaning the same bar had to be used as for a dismissal of a permanent employee.

Although not taken up by the court, the publisher also discriminated against other union members and executives. Many were shocked that Akashi Shoten — this paragon in the arena of human rights, famous for protecting the weak and fighting discrimination — was in fact union-busting.

It’s important that we learn from examples of companies using fixed-term contracts to crush unions. Naturally, the best way to fight back is to unionize — and fast.

Labor law protects expectant and new mothers — to a point

http://www.japantimes.co.jp/text/fl20121016lp.html

 

Tuesday, Oct. 16, 2012

By HIFUMI OKUNUKI

I had a labor consultation with a woman who said: “The other day I told my company I was pregnant. My boss asked me to quit because the firm can’t afford to give me time off. One of my coworkers once resigned before giving birth but I want to stay on. Do I have to quit now that I am pregnant?”

The short answer is no. The longer answer is: no way.

Today’s labor laws do not permit the dismissal of a woman for being pregnant; neither do they allow her to be asked to resign. Labor Standards Law Article 65, Sections 1 and 2, mandate maternity leave as follows: “An employee may take the six weeks before birth as leave, while the employer must not allow her to work for the eight weeks after birth (excepting the last two weeks of that period, during which she may work if she requests it and has a doctor’s note permitting it).”

Article 19 also prohibits dismissal for the first 30 days upon her return to work. Equal Employment Opportunity Law Article 9 also shifts the burden onto the employer to prove that the reason for dismissing a pregnant woman is something other than the pregnancy itself. Without proof, the dismissal is invalid.

The article also prohibits any kind of disadvantageous treatment of women who take maternity leave as prescribed. Such prohibited treatment includes pay cuts, demotions, status changes from seishainregular to irregular employee, transfers, suspensions, lower bonus payment, bad evaluations, etc.

Two cases dominate jurisprudence and the law journals on this issue.

Nihon Schering K.K. is the Japanese subsidiary of a German pharmaceutical firm. Twenty-four employees sued the company for lost wages due to one clause of a labor management agreement (LMA) between the drug maker and the No. 2 Union that read: “Any days off for maternity leave, menstruation leave, childcare leave or paid holidays will be counted when calculating attendance rates, and any worker with less than 80 percent attendance will be denied promotions and pay raises.”

The Supreme Court’s Petty Bench ruled on Dec. 14, 1989, that “any provision that suppresses the right to holidays guaranteed by law violates kōjo (public morals) and is therefore invalid,” a victory for the plaintiffs.

Fourteen years later, the same bench cited the above case to reach a more ambiguous verdict.

An employee of Toho Gakuen (Toho Academy) sought to recover two bonuses denied her because she took eight weeks off for maternity leave and then reduced her work hours because of subsequent childcare commitments. On Dec. 4, 2003, the judge overturned the wage regulation that deprived her of the bonuses but permitted the school to prorate the bonus, reducing it in proportion to the hours and days she was off.

The court’s logic was based on Article 65 of Labor Standards Law, which does not require that the leave itself be paid, so long as there are no other deductions. (This is similar to the law on strikes, which prohibits any disadvantageous treatment but does not require that the time struck be paid.)

The cut in her bonus payments proved to be deep for the woman working at Toho Academy, since the bonuses had accounted for more than 30 percent of her annual income. Such cuts to income discourage us women to have and raise children — not good news in a society that needs more children.

Maybe the Supreme Court should take a bit broader view and consider the financial “labor pains” involved in having a child.

Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women’s University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union. On the third Tuesday of each month, Hifumi looks at a famous case in Japan’s legal history to illustrate an important principle in labor law.