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Restore the shuttered-up New Year’s of yore

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For the workers' sake: Next New Year's, spare a thought for the employees of convenience stories, restaurants and supermarkets who have to work through the holiday period to satisfy customer demand in today's 'convenience culture.' | KYODO
For the workers’ sake: Next New Year’s, spare a thought for the employees of convenience stories, restaurants and supermarkets who have to work through the holiday period to satisfy customer demand in today’s ‘convenience culture.’ | KYODO


BY HIFUMI OKUNUKI

First of all, I would like to wish a happy new year to all the readers of Labor Pains. While labor news has generally been a gloomy topic of late, it is my hope that this year will bring brighter things for me to write about.

As I draft this first column of 2014, I am sitting in front of my computer at 10 at night in my apartment in downtown Tokyo. The suddenly vacated metropolis is blanketed in an uncanny hush. Hardly any cars can be seen passing by. In the great New Year’s exodus, many of the inhabitants of Tokyo have returned to their various hometowns across Japan, leaving the city in a temporary state of near-abandonment.

I can’t say that I’ve ever disliked this vacated Tokyo. In fact, I enjoy the calm atmosphere. Watching “Kohaku” (an annual pop music contest televised on New Year’s Eve), chatting about this and that, eatingtoshikoshi soba (a noodle dish with tempura served on Dec. 31) — this kind of traditional New Year’s Eve suits me just fine. And, even if I were to absentmindedly forget the tempura for the soba, I wouldn’t have to worry because, in this day and age, most supermarkets remain open all through the holiday season. It is no longer rare to see a supermarket open its doors even on New Year’s Day.

It wasn’t always like this. Back in my day, we took it for granted that for the period from the evening of Dec. 31 to Jan. 3, nearly everything would be shuttered up. On the morning of New Year’s Eve, stores would be scenes of chaos, packed with shoppers frantically stocking up on supplies to last the week. My mother used to take my sister and me along as well, to help carry bags for her, and both of us would barely be able to hold all the shopping. For us kids, the pressure of knowing that if we forgot something we would have to do without it over the holidays brought with it a strange sense of excitement.

But today’s young people have probably never experienced all that. Convenience stores that open 365 days a year, 24 hours a day now dot the Japanese landscape, and supermarkets are closely following with ever longer business hours, to the point that the end of the year no longer feels like such a special time.

I sometimes wonder if this new “convenience culture” is a good thing. Of course, from the standpoint of consumers, being able to buy anything you need any time provides a sense of security, and this convenience could be considered to be something positive. But at the same time, if we look at it from the workers’ perspective, that convenience comes at the direct cost of more labor through the holiday period. Convenience stores, supermarkets, DVD rental shops, family and fast food restaurants,izakaya, karaoke parlors — all kinds of establishments remain garishly and noisily open for business in spite of the New Year’s holiday.

The people working at these places have to sacrifice their private lives for the sake of their jobs. Of course, you could argue that the people working at these stores freely choose to do so. However, I doubt that most of the people working in these jobs are in a position to make very “free” choices. Rather, I suspect that they are cajoled or even coerced into taking these shifts. I can’t help but have misgivings about the idea of forcing people into situations where they have to make personal sacrifices for the sake of customer convenience.

For contrast, let’s look at how the same issue is handled in another country. In Germany in 1900, a law called the Shop Closing Act (Ladenschlussgesetz) was passed that remains in force to this day. Under this law, shops are in principle not allowed to open outside the hours of 6 a.m.-8 p.m. on Mondays to Saturdays — or at all on Sundays and national holidays. While airports and train stations are exempt and many other revisions have followed over the years, gradually resulting in the law being relaxed significantly, the Shop Closing Law continues to regulate business hours in Germany.

The motivations behind this act were threefold. First, for religious reasons, the government wanted to preserve Sunday as the Christian Sabbath. Second, the law’s proponents hoped to protect the livelihoods of “all workers.” They feared that longer business hours would result in employees being forced to work longer hours to match. Third, the government wanted to protect small businesses. In other words, it worried that with unregulated business hours, large companies that could afford to extend business hours would gradually rob smaller companies of their customers and thereby threaten their very existence.

As I’ve written about over and over in my Labor Pains articles, overwork is one of the most serious social ills afflicting Japan today. About 5 million people — 10 percent of Japan’s workforce — toil more than 60 hours a week, according to a 2012 study by the Ministry of Internal Affairs and Communications.

Theoretically, Article 32 of the Labor Standards Law gives workers the protection of the eight-hour day and the 40-hour week, and bans work above those limits. However, exceptions to this law are often recognized. While so-called 36 Agreements (a kind of deal struck between workers and management about overtime, named after Article 36 of the same law) are required for overtime to be permitted, in practice many companies are able to extract unpaid overtime from their workers without concluding any such deal.

On top of that, in an investigation published on Dec. 30, the Tokyo Shimbun found 1,343 cases of companies that incorporated “fixed overtime pay” lump sums into regular wages and then forced workers to work past the hours originally set in their contracts or, alternatively, did not even give a clear figure on how much overtime was being paid for.

Furthermore, under the Labor Standards Act, provisions exist allowing for flexible arrangements such as irregular working hours, flex-time, work outside the workplace and discretionary labor. (Under the discretionary labor system, employer and employee are supposed to decide between them how long a job should take, with the employer then paying the worker for those hours regardless of how many hours are actually worked.) In other words, the law that is supposed to protect the health and livelihood of workers in Japan is riddled with loopholes, and the country is sadly filled with employers willing to exploit these loopholes and overwork their employees.

So once again this year, I have ended up returning to a gloomy theme. However, this New Year’s Day, I dare to dream of how different things might be if we were to look at the people working at our convenience stores, supermarkets and restaurants not from the perspective of consumers blindly seeking convenience, but, like the framers of Germany’s Shop Closing Act, as people who believe that all workers should be protected.

In that spirit, and not out of nostalgia, I suggest that we work to bring back the old, shuttered-up New Year’s Day.

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.

Originally published here:
http://www.japantimes.co.jp/community/2014/01/08/general/restore-the-shuttered-up-new-years-of-yore/#.UtdzeHnCWwe

The year in labor: the Top 5 pains of 2013

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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/

Real ‘labor cops’ also deserve to get the star treatment

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By Hifumi Okunuki

Television meant little to me until this autumn. Now, every Wednesday at 10 p.m., I sit squarely in front of the tube, glued to the set for the next hour of the new comedy “Dandarin.”

In the show, Yuko Takeuchi plays a stubborn, by-the-book labor standards inspector named Rin Danda who loathes letting even the slightest infraction slide, making for some awkward, tense moments when she comes up against her more see-no-evil, hear-no-evil coworkers. Perhaps not surprisingly, never before has a TV show starred a labor standards inspector; before this series went on air, most people probably had no idea what they do.

Takeuchi told a magazine, “I never even knew the job of labor standards inspector existed until I got this role.” It’s not that the actress knows less than the average citizen; it’s that the job was nearly invisible and played no role in the quotidian lives of most people.

That said, recent high-profile cases of restructuring layoffs, unfair dismissals, long work hours, karōshi (death from overwork), karō jisatsu (overwork-induced suicides), incidents of sexual and power harassment, workplace bullying and other sometimes-life-or-death issues (the list goes on and on) suggest it was high time to shine a light on this invaluable profession. TV has regained meaning in my life — and, I hope, in the lives of others.

Tackling such a serious, inherently boring topic and attempting to turn it into a bundle of laughs for TV must have been quite a challenge — and a risk — for the producers. They have done all that and more. The show says a great deal about Japanese office politics and corporate practices that are long overdue some serious scrutiny.

Today some 52 million workers toil at about 4.3 million workplaces in Japan. First and foremost, labor standards inspectors are responsible for all these workers’ lives, safety and health. On top of that, they are supposed to ensure that working conditions comply with all relevant labor laws and regulations. They must pass a civil servants’ exam before being placed at one of the many labor standards inspection offices dotted around the country.

Inspectors have the right to regularly conduct compulsory spot raids on companies to investigate their records. They also have judicial police powers to seize assets to cover unpaid wages and even to arrest violators. They are often called “labor cops,” which would seem to be a pretty fair description.

With all these powers at the disposal of labor inspectors, you could be forgiven for imagining Japan must be a workers’ paradise where employee protections are universally respected. The sad fact, however, is that Japan is awash with rogue bosses who think of nothing but their bottom lines and how they can squeeze every last ounce of production from their workers. Ironically, the extraordinary enforcement powers inspectors have are precisely what makes them hesitant to act.

There is even a jargon term for useless inspectors who make their rounds to each company, take a quick glance around the workplace and leave: kyoro-kan. The word kyoro means to glance around, while kan means inspector. I wouldn’t dream of suggesting that all inspectors are kyoro-kan, but I have encountered several unmotivated inspectors in the past who did their best to discourage, dishearten and dissuade workers who had mustered the courage to blow the whistle on their bosses.

However, the biggest problem is systemic rather than personal. First, there are far too few inspectors. Tokyo Shimbun’s evening edition on Nov. 11, 2012, ran the headline “Tokyo’s 23 wards have one inspector for every 3,000 workplaces.” Such a ratio precludes thorough enforcement. Yet the government is pushing for further cuts and reduced hiring. Even the passionate few inspectors must feel powerless when faced with such daunting numbers. To do their job properly, they would have to — no irony intended — work themselves to death.

Here, I’d like to introduce an ongoing court case brought on Feb. 22, 2011, by the family of a 24-year-old man who killed himself due to working excessive overtime. He joined construction company Shinko Plantech in 2007 and supervised repair construction.

Working more than 40 hours a week of overtime violates the Labor Standards Law unless management has signed an Article 36 agreement (saburoku kyōtei) with a union or employee representing a majority of the workforce. Employers must register such agreements with their local labor standards inspection office (rōdō kijun kantokusho).

Guidelines limit overtime hours to 45 per month with exceptions, including construction. Shinko Plantech signed a saburoku kyōtei with the union for 200 extra hours per month. The worker could not handle the stress and killed himself a few months after hitting 218 hours of overtime work per month.

The family didn’t just sue the company; they also sued the labor standards inspection office for accepting such an outrageous saburoku kyōtei agreement — and even the labor union for signing it. It is the first lawsuit against a labor union for a karō jisatsu. The plaintiffs are asking for ¥130 million in damages, and the district court verdict is expected any day now.

In terms of overtime hours, the Ministry of Health, Labor and Welfare has drawn a line beyond which they believe workers face a high danger of death from overwork. That line is 80 hours for two to six months straight, or 100 hours for even one month. Shinko Plantech blew that number out of the water with their deal capping overtime at 200 hours per month — and they didn’t even comply with that number. The labor union then signed this deal — a pact that would make even yellow unions blush.

So what’s to be done? I think we need to get back to basics. We must never allow workers to work themselves into an early grave. Period. Let’s learn from Rin Danda, who unflinchingly and unapologetically squares off against scofflaw employers in the name of her prime directive: protecting workers. Even when her coworkers make fun of her dedication, she retorts, “I’m just doing my job.”

Yes, indeed, the job of a labor standards inspector is to protect the lives of workers. With that in mind, the central government must hire more inspectors so that they can take heart from the example of Rin Danda and pride in protecting Japan’s 52 million workers.

See Philip Brasor’s Oct. 20 Media Mix column, “Imagining civil servants who actually serve,” for more on “Dandarin.”
Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached attozen.okunuki@gmail.com. On the second Thursday of the 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/2013/11/13/issues/real-labor-cops-also-deserve-to-get-the-star-treatment/#.Urvog3m1lZg

Is Sulejman Brkic no longer a member of the ICC Family?

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Tozen member Sulejman Brkic was bloody illegally fired.

Fired TeacherICC Language Schools is a language school that has six branches in the Kanto area, with its headquarters in Yokohama. Sulejman Brkic has been teaching English and French courses at this school for twenty years. He has always been very popular among his students, not only because of his superb teaching skills, but also for his charming personality and his wry sense of humor. Sulejman loves his job, and has worked passionately for the past two decades.

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スレイマン・ブルキッチ組合員は、もう「ICC Family」じゃないの？！

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koushiboshu02a株式会社ICC（本社：横浜市）は、関東地域に６つのスクールをもつ語学学校です。スレイマン・ブルキッチ組合員は、20年間にわたり、ICCで英語とフランス語の講師として仕事をしてきました。ちょっぴり皮肉やさんながらとてもチャーミングな彼は、教え方にとても定評があり、生徒たちからの人気も抜群でした。彼はやりがいと情熱をもって20年間働いてきました。

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The Special Dismissal Zone: where legal protections no longer apply

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Strange bedfellows: Osaka Mayor Toru Hashimoto (right) chats to fellow co-leader of the Japan Restoration Party Shintaro Ishihara in Tokyo in June. Hashimoto announced last month that Osaka Prefecture and city will jointly submit a proposal to the Cabinet Office to set up a Special Challenge Zone where some labor protections would be relaxed or waived.
Strange bedfellows: Osaka Mayor Toru Hashimoto (right) chats to fellow co-leader of the Japan Restoration Party Shintaro Ishihara in Tokyo in June. Hashimoto announced last month that Osaka Prefecture and city will jointly submit a proposal to the Cabinet Office to set up a Special Challenge Zone where some labor protections would be relaxed or waived.

I couldn’t believe my ears when I heard about the government’s recent proposal to set up a Special Dismissal Zone on Japanese territory. “A what?” I hear you cry.

The Shinzo Abe government wants to make Japan “the most business-friendly climate in the world.” In May, he set up a National Strategy Special Zone Working Group, made proposals to local governments and corporations, and announced that special zones, or tokku, for health care, agriculture, education and other areas will be established.

The plan is to be submitted to an extraordinary session of the Diet in autumn as the Industrial Competitiveness Strengthening Bill. Most controversially, a so-called Special Employment Zone is among the options being considered, an idea that has already been dubbed the Special Dismissal Zone, or kaiko tokku, by the media.

Currently, throughout Japan, employers must overcome several high hurdles before they can dismiss an employee legally. In short, you can’t fire someone without a damn good reason.

The thinking for the Special Dismissal Zone, however, is that rules about sackings would be relaxed roughly to the point of “employment at will,” as is practiced in some parts of the United States. Within the zone, the idea is that if the worker and employer agree ahead of time on what behavior warrants dismissal, then such a dismissal under those circumstances will always be permitted, regardless of bothersome legal protections outside the zone. For instance, if employer and employee agree that the worker can be dismissed for turning up late once, then the employer can legally sack that worker when he clocks in at 9:30 for the very first time.

A second special feature of this zone would be that work hours would not be restricted for employees earning above a certain salary — currently set at about ¥8 million a year. That means employers could theoretically make their employees work all night and not pay them a single yen for the overtime. Such a high salary is safely beyond the grasp of most of us working stiffs, but keep an eye out for that falling floor — and watch out as that zone spreads.

A third sweetener for these business oases: The “five-year rule” wouldn’t apply if foreign workers make up more than 30 percent of an employer’s work force. This rule refers to the change to the Labor Contract Law (Article 18) that gives workers the chance to win permanent status if they stay with an employer for more than five years. I spoke about the problems emerging with this legal change in March (“Labor law reform raises rather than relieves workers’ worries,” March 19). Whatever the shortcomings of this reform, the special zone would suspend this protection to all company employees if a firm’s gaijinquota tops 3 out of 10.

Responding to the announcement of the kaiko tokku plan, Osaka’s firebrand mayor, Toru Hashimoto, on Sept. 11 announced that Osaka Prefecture and Osaka city will jointly submit a proposal to the Cabinet Office to set up a zone that would encourage performance-based wages, to be called the Special Challenge Zone. This zone would include Osaka’s economic heart, the Midosuji area. Companies paying above a certain wage would enjoy relaxed work-hour restrictions and the right to fire at will.

Osaka prefectural Gov. Ichiro Matsui stressed that the zone would only affect elite workers. “This is for highly skilled professionals, not for low-income workers,” he said. “This enables mismatches between employer and employee to be rectified by moving around high-income, highly skilled, self-confident workers. This is not for workers barely making ends meet.”

For workers, these plans come as a bolt out of the blue. What is going on here? Well, according to the government, clarifying dismissal rules will boost the development of new industries and attract start-up and foreign firms, creating a healthy investment climate in Japan for the world’s corporations.

Many business and political leaders whinge about how hard it is to fire someone in Japan. “It is harder to dismiss a worker in Japan than in any other country in the world,” they whine. “Japan is going to be left behind.” Is that really the case?

Article 16 of the Labor Contract Law states: “A dismissal is invalid and the right to dismiss has been abused when it lacks objective, rational grounds and cannot be deemed reasonable according to social norms.” I took this up in my February 2012 column (“Oversleeping radio anchor set tough precedent for firing staff,” Feb. 28, 2012).

In Japan, case law often leads to laws being rewritten. The wording of Article 16 has its origins in a Supreme Court case brought against Nippon Salt Manufacturing in 1975. The gist of the ruling was that employers cannot fire workers whenever they please. Since workers earn wages that form the basis for their livelihood and enable them to raise families, unchecked dismissals could lead to the breakdown of the family unit and cause instability even within society as a whole. Wages are the basis of workers’ livelihoods, so sackings should be avoided — that was the thinking behind this legal principle of kaikoken ranyō hōri, or abuse of the right to dismiss.

Business leaders and some politicians counter that the principle has left Japanese workers overprotected, and that it damages Japan’s competitive edge in the world. I must disagree strongly. Establishing the principle that you cannot dismiss a worker without good reason stabilizes industrial relations, places limits on the exercise of runaway, arbitrary power by employers, and helps preserve social harmony.

During Japan’s period of dramatic postwar economic growth, companies rallied under the slogans of “lifetime employment” and “your company is your family.” Jobs were far more secure back then. Granted, the slave-like treatment of workers during that time tarnishes the sheen of job security, but at least workers were not treated as disposable objects, to be used then tossed away like garbage.

The government and business community are swearing up and down that the new zones will only apply to elite, high-income workers. But I have no doubt that if we deregulate dismissal in these zones, the deregulation will break out into the wider world. This in turn will encourage workers to see each other as rivals rather than comrades, enemies rather than allies. When that day comes, who will be laughing from their high perch? The answer is too obvious to state.

More than 35 percent of workers in Japan are in irregular or contingent employment. Income is declining while the number of work hours and the number of workers not enrolled in the shakai hoken health and pension scheme continue to rise.

As Japan ages, more and more workers must provide nursing care to parents on top of tough, long-hour jobs. More employees are taking time off work, resigning or even killing themselves due to depression, which is now considered by some to be the national disease.

The last thing Japan needs is a Special Dismissal Zone to make workers more miserable than ever.

“Taking back Japan” is one of the Abe government’s favorite catchphrases. Around town, you see this phrase in bold letters splashed across huge posters depicting the prime minister gazing into the distance, the Hinomaru flag fluttering in the background. But I cannot see where Abe’s eyes are looking. From and to where does he want to “take Japan back”?

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Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the third Tuesday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.

This article originally published in the Japan Times at:
http://www.japantimes.co.jp/community/2013/10/07/how-tos/the-special-dismissal-zone-where-legal-protections-no-longer-apply/#.UlZp5hYijHg

Union, business concerns put limits on freedom of speech by Hifumi Okunuki

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Hot on the heels of their romp to victory in the race for control of the House of Councilors, the Liberal Democratic Party is chomping at the bit to overhaul the Constitution, which has not been amended since it was signed into law in 1946. The ruling party proposes gutting Article 9, which forever bans war, and laying the legal groundwork for an official national military.

Today I won’t address this folly; rather, I’d like to discuss the tension between employees’ danketsuken (right to solidarity) and employers’ right to free speech under the as-yet-untweaked Constitution.

Article 21 guarantees without condition all freedom of “assembly, association, speech and publication.” All these freedoms apply to employers as well as employees.

Article 28 guarantees danketsuken: “The right of workers to come together in solidarity and to bargain and act collectively is guaranteed.” Together these are known as the three labor rights (rōdō sanken): danketsuken, dantaikōshōken and dantaikōdōken — the right to solidarity, to collective bargaining and to strike.

The Trade Union Law was built on the foundation that is Article 28. That law’s Article 7.3 prohibits interference (shihai kainyū) in the operation of a union by management. What this means in practice is that management’s freedom of speech is restricted to the extent that it interferes in the running of a union.

So when does an employer’s speech constitute illegal interference?

The most famous case to address the tension between an employer’s freedom of speech and the prohibition on union interference is the Prima Meat Packers case. The company had a closed shop, meaning membership in the union was a condition of employment and leaving or being expelled from the union meant automatic dismissal from the firm.

The union had bargained collectively several times over a wage demand during the spring labor offensive known as shuntō. After rejecting management’s latest offer, the union declared that talks had broken down.

The company president responded by sending the following memo to all employees:”It is unclear how union executives assess the company’s sincerity, but the union has announced the breakdown of talks. I believe this indicates an imminent strike. To me this seems like nothing more than striking for the sake of striking. This is quite regrettable. It is absolutely impossible for the company to raise its offer, so we are now have no choice but to take a drastic measure. I urge that both sides act in moderation.”

This document caused quite a kerfuffle in the union, with many members getting cold feet about striking. In the end nearly 200 members crossed the picket line.

The union sued for redress in the Tokyo Labor Commission, claiming the president’s message constituted interference in the union, discouraging members from striking and thereby violating Article 7.3 of the Trade Union Law. Both the Tokyo commission and then the National Labor Commission ruled in the union’s favor. The company dragged the case to court, but both the district and high courts upheld the Tokyo commission’s ruling.

Undeterred, management appealed to the Supreme Court. On Sept. 10, 1982, this fifth adjudicating body upheld all four lower rulings, handing workers a powerful judicial precedent.

The court’s reasons (ruling in italics):

1. While employers’ right to free speech is indeed protected by Article 21 of the Constitution, that right must be restricted by the prohibition on violating the danketsuken (right to solidarity) protected in Article 28.

The “right to solidarity” might sound strange to those who grew up in other countries, since it seems to imply a right to a feeling. In Japan, however, danketsuken is inviolable and trumps even free speech.

2. The content, method and timing of speech, the position and rank of the speaker, and the impact of the speech on union members, union organization or operation, when all considered together, determine that interference (shihai kainyū) has occurred.

The courts here again give themselves extraordinary latitude in deciding what is against the law, indicating that each case must be considered separately by each court.

3. Although the document was addressed to “employees,” it was effectively addressed to “all union members” since the company had a closed-shop agreement with the union. By criticizing the union leadership, there was a danger that the letter could drive a wedge between the executive and rank-and-file membership. The “drastic measure” had a menacing quality toward the union members. The call to “act in moderation” discouraged members from striking.

The court concluded that the document interfered with the independent operation of the union, including the decision to strike. (If I were of the management persuasion, I’d commend their persistence in appealing the first labor commission decision — no less than four times!) Ever since, the courts have consistently ruled that free speech does not extend to union interference.

Now let’s take a look at the other side of the coin.

The Supreme Court ruled on Dec. 20, 1983, in favor of a manager at Shinjuku Post Office who, at his own private home, spoke with employees and criticized the existing union’s militancy, while encouraging the employees to join a second union that was about to be formed. The court said, “The action might not have been fair, but it does not constitute union interference.”

On Dec. 21, 1970, Tokyo District Court likewise defended Oita Bank’s right to publish an internal newsletter describing the bank’s wage policies right in the middle of wage talks. The court said the bank was merely stating its opinion and was in no way committing shihai kainyū.

In the U.S., the right to free speech, protected by the First Amendment of that country’s Constitution, trumps both union and business rights. Thus, Target and other retailers are permitted to show their workers slick, professionally made infomercials with good-looking actors warning about how much unions will hurt workers (Google “Target’s Anti-Union Propaganda Video” and check it out). U.S. businesses openly hire anti-union consultants to bad-mouth unions to their hearts’ content, as long as they don’t engage in quid pro quo threats or promises tied to union membership.

In Japan, the situation is the reverse: Union and business rights both trump freedom of speech. This means that certain things management might say about a union at the workplace are illegal because they might discourage workers from joining or encourage them to leave the union, discourage them from striking or encourage them to scab, etc. The aforementioned Target video would be flagrantly illegal in Japan.

The labor laws in each country reflect their different histories, structure, ideology and social norms. I will leave you to decide which system is fairer, but I would suggest that management has overwhelmingly more intrinsic financial, positional and propaganda power than the average labor union.

I would be interested to know to what extent our readers think that freedom of speech should be protected. Should it trump union rights?

Changes to Japan’s employment law effective from 1 April 2013

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Changes to Japan’s employment law effective from 1 April 2013
As of 1 April 2013, Japan’s minimum retirement age will increase to 65 years, with further restriction on scope to refuse re-employment after an earlier company retirement age. New amendments to Japan’s Labour Contracts Act (“LCA”) will also come into effect, concerning fixed term employees and employment contracts.

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Employers’ ‘box them in, drive them out’ tactics fail legal test

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Surely few employees would jump out of bed every morning, itching to start work at the “Department for Driving Them Out”? But what is an oidashi-beya? And what scary entities are to be driven out?

The answer is neither ghosts nor zombies. It is you. Some companies have been known to set up departments dubbed by critics as oidashi-beya to make their employees feel so unwelcome that they quit voluntarily, thus saving the company the hassle and messy legal responsibilities associated with dismissal.

One such company is a major player in education and publishing, Benesse Corp. Its name is a portmanteau of the Latin adverb for “well” (bene) and the present infinitive of the copula “to be” (esse), and its corporate philosophy stresses the idea of “wellbeing,” including “teamwork, people development, fairness and active participation in the workplace.” Benesse uses the kanji 財 instead of 材 (both read zai) in the name of its human resources department (jinzaibu), suggesting it sees its workers as part of the company “treasure” rather than just “material.” Yet this company, which purports to pride itself on benevolence, apparently had no qualms about trampling over at least one long-serving employee, treasure or not.

Benesse found itself in court recently in a challenge to the legality of its oidashi-beya. The defendant started working for the company’s predecessor, Fukutake Shoten, as a part-timer in the late 1970s. In the early 1990s she became a seishain regular employee. In the mid-noughts, she was seconded to and named section leader at subsidiary Benesse Business-mate, Inc. to help promote the employment of those with disabilities.

One day in 2009, an HR manager dropped by her workplace and asked if she would like to extend the period of assignment or return to HQ. The plaintiff chose the latter but received no further contact. When she asked about her status, she was told that cutbacks had eliminated her position and there was no place for her to return to. After refusing an offer of a transfer from Tokyo to a remote post in Shikoku, she was told she would join seven others in the Annex to the HR Department, a section she would later learn was Benesse’s oidashi-beya.

The eight were told: “You are problematic. Please take two or three months to ascertain your strengths and weaknesses so that you can challenge yourselves anew.”

But the plaintiff had never been told she was problematic. She had never dreamed she would start in her new office with this type of sendoff, and understandably, it made her extremely anxious.

Her anxiety turned out to be well-founded. She was ordered not to answer the phone, not to carry a business card and to look for a division within the company that would accept her. Her annual pay was cut by ¥2 million. Her department name was changed to the Operations Support Center, although nothing really changed. She found herself left off the guest list for company celebration and farewell parties and was denied access to the company’s intranet.

Tasks assigned to her and others in the department included topping up supplies, making photocopies, cleaning up cardboard boxes in the company library and checking for missing tiles and dirty spots on the ceiling in the offices on each floor.

This employee had served the company for decades, yet now found herself robbed of her pride and falling deeper and deeper into irrelevance. The department had been set up to make her and others feel so miserable that they would resign of their own accord.

The plaintiff decided she had had enough. But rather than quitting, she sued Benesse. She claimed that the “existence of the Annex to the HR Department itself was illegal as its real purpose was to apply extreme pressure on employees to resign, and that the order to transfer to that department was thus invalid.” Benesse denied all her claims.

The Tokyo District Court’s Tachikawa Branch ruled in favor of the plaintiff on Aug. 29 last year. “The Annex to the HR Department was likely set up to encourage resignation and is undeniably an illegal system,” the court said. The ruling also invalidated the ¥2 million reduction in annual pay, saying the cut “exceeded acceptable bounds of discretionary authority.” The company appealed but in the end settled with the plaintiff on undisclosed terms.

The Benesse case reminded me of the zashikirō (tatami jail) case of 14 years ago. Game developer Sega Enterprises set up what it called a “personal room” for one of its workers. He was assigned to no particular department and set no specific tasks, and was later pressured to resign because of “poor performance.” The “personal room” was dark and windowless with two desks, three or four chairs and a phone with no outside line, leading people to call it the zashikirō, after the rooms used to hold criminals and lunatics in the Edo Period.

In the end, the company fired him, citing its shugyō kisoku work rules, which stipulated that dismissal was acceptable if “work performance is inferior and shows no sign of improvement.” The worker sued to reverse the dismissal. Tokyo District Court overturned the dismissal on Oct. 15, 1999, ruling that the reason cited was insufficient since it could mean simply below the average for the company workforce. The court also said the company failed to take measures to improve the worker’s skills.

The only way for workers to fight these companies — which can appear scarier than ghosts or zombies — is to take a clear, courageous fighting stance. What companies fear more than anything else is solidarity among their workers.

If you are suffering at work, find coworkers you can talk openly with. If one of your colleagues is being harassed, speak up and get him/her to confide in you. When workers cooperate to improve their lot instead of competing with one another, the challenge of driving out the demon of corporate bullying can look a lot less frightening.

By Hifumi Okunuki

http://www.japantimes.co.jp/community/2013/04/16/how-tos/employers-box-them-in-drive-them-out-tactics-fail-legal-test/#.UZ2p4b-ElZI

Mazda temp-staff practice ruled illegal

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Mazda temp-staff practice ruled illegal
Yamaguchi court: Displaced 13 should be regular employees

http://www.japantimes.co.jp/news/2013/03/14/national/mazda-temp-staff-practice-ruled-illegal/#.UVFDtL8WZZJ

YAMAGUCHI – The Yamaguchi District Court ruled Wednesday that Mazda Motor Corp.’s temp-staff employment practice is illegal and recognized regular employee status for 13 former temp-staff workers displaced by the automaker.

The rare recognition that displaced temporary workers should be regular employees is expected to affect similar pending lawsuits. The court also ordered Mazda to pay wages that the 13 should have received as regular employees.

The temp-staff worker law requires companies to directly employ workers dispatched by temporary staffing agencies if the employees continue work at the firms for three consecutive years.

Under its temp-staff employment practice, Mazda directly employed temporary workers as “support employees” for just three months after their three consecutive years of service, later shifting their status back to temps.

The practice to effectively maintain workers as temporary staff for more than three years violated the temp-staff worker law, the court said.

The ruling came in a suit filed by 15 plaintiffs — some of whom worked as temporary staff at Mazda’s Hofu plant in Yamaguchi Prefecture for up to five years and seven months before being displaced during or after the outbreak of the global financial crisis in December 2008.

The court found 13 of the 15 plaintiffs as subject to the support employee system and recognized them as regular employees.

The plaintiffs filed the lawsuit in April 2009, claiming that Mazda had been adjusting the hiring period to be less than three years by temporarily hiring temp-staff employees as regular employees for about three months under the “support employee” system.

The plaintiffs said the system allowed Mazda to “hire skilled temp workers for a long time but fire them whenever they wanted,” calling the act “loophole.”

Meanwhile, Mazda had claimed that temp workers had accepted to work as temp staff and “support employee” positions out of their own volition.

“Mazda had not intended it, and therefore, it does not violate the law,” Mazda’s lawyers said in court.

Mazda called the decision regrettable, adding that it will consider what to do after pouring over the content of the ruling.

In June 2009, the Yamaguchi and Hiroshima prefectural labor bureaus recommended that Mazda correct the “support employee” system.

Shinji Eto, 48, one of the plaintiffs who had been displaced by Mazda, told the court last April that he just wanted to live a normal life, being paid for his work and occasionally being able to go out for drinks with friends.

“I want to say with pride that producing cars at Mazda is my job,” Eto said. “I just want to live a normal life.”