Japan’s culture and courts need to get with the program on overtime

TV series have for decades now overused a broad range of formulaic plot devices. Let me give you an example:
The heroine scrambles to get out of the house in the morning on her way to work. She runs down the street only to collide with a man walking the other way. Blushing, she showers him with apologies and in all the kerfuffle, a piece of jewelry slips off to the ground unnoticed. Days later she runs into him (figuratively this time) in a chic cafe, and romance brews. For variety, replace jewelry with wallet, train pass or other item; stir and bake.

It was embarrassing for me even to type the above tired TV trope. But there’s an even tireder one, this time in both senses of the word. I refer, of course, to the overtime trope:
A man decides to surprise his girlfriend on her birthday with a fancy dinner. He buys a present, makes the reservations, prepares everything and tells her to meet a such and such a place in Ginza at 7 p.m. sharp — and don’t be late!

He works throughout the day in excited anticipation of the birthday dinner. The end of his work day comes. Now all he needs to do is rush to get ready to leave. Just as he is going out the door, his boss scurries over to him, saying, “Hey, young (insert name), an important client just phoned in a complaint. They’re really pissed. You gotta go over there and apologize.”

“What the hell? Why don’t you frigging go over there, old man?” is what our hero thinks but does not say. He rushes off to the unhappy client who beats him over the head with scorn, derision and dissatisfaction. He apologizes profusely, and as he goes through the ritual of apology, the clock ticks past 8, 9 and finally 10 p.m. His girlfriend tires of waiting and goes home thinking: “This man cares nothing for me, even on my birthday. He’s just terrible.”

This formula is used over and over again on TV. It is usually the man who stands up the birthday girl. Another common feature is that the woman starts off angry but, in the end, the misunderstandings are resolved and she finds she loves him precisely because he is the kind of man who takes responsibility at his company to do that extra overtime work. The man who is willing to stay at work until his work is finished is portrayed as handsome, manly, attractive to women. This glorification of overtime work — as if it were a virtue rather than an odious social ill — sickens me.

When an employee is asked to do overtime, can he or she refuse? What if you bought a ticket to a concert six months ago but today your boss asks you to do overtime? Most workers would say, “I’m sorry, I have a concert and cannot do overtime.” But what if your boss replied as follows?: “Hey, you intend to refuse a direct work order? Then I’ll have to dismiss you on disciplinary grounds.”

A famous court case ruled on Nov. 28, 1991, on whether overtime work was obligatory. Let’s first look at the background to the Hitachi Musashi plant case.

The plaintiff worked in the radio manufacturing division of Hitachi’s Musashi plant. One day, it was discovered that he had done shoddy work during his normal work hours. His boss ordered him to stay after hours and redo the work properly. The employee refused the order and did the work the following day.

The company suspended him for two weeks. The employee continued to insist he had no obligation to follow such an order. Management disciplined him three times more then eventually fired him, stating that he remained unrepentant. So the worker sued, claiming the disciplinary dismissal was invalid.

First of all, it is important to understand that any work over eight hours a day or 40 hours a week is illegal. There is one exception, and that is if the employer and the employee’s representative have signed an Article 36 agreement. This agreement refers to the article in the Labor Standards Act that permits overtime work as an exception. The agreement must have a ceiling on the number of overtime hours per month. To repeat, without an Article 36 agreement (saburoku kyōtei), overtime work is illegal.
Secondly, even when such an agreement exists, all overtime work must be paid — at 125 percent for hours beyond 8 per day or 40 per week, or for hours between 10 p.m. and 5 a.m.

Hitachi did have a saburoku kyōtei. The district court ruled in favor of the plaintiff, saying that the dismissal was invalid. The high court overturned this, saying that the existence of the saburoku kyōtei agreement as well as similar stipulations in the shūgyō kisoku work rules meant that as long as the details were reasonable, then the obligation to do overtime is a contractual one that cannot be shirked. The Supreme Court upheld the high court’s ruling.

As far as jurisprudence goes, this means that as long as a saburoku kyōtei exists, a worker is obliged to work beyond the hours of the employment contract within the guidelines of the saburoku kyōtei agreement. An employer is thus permitted to give a disciplinary dismissal to an employee who is in such a situation if he/she refuses to do overtime.

Labor law experts are divided on this issue into two camps: The hōkatsuteki dōisetsu, or comprehensive agreement theory camp, believes that the saburoku kyōtei agreement or the shūgyō kisoku work rules are collective in nature and bind each individual just as an individual employment contract does. So the consent of the each individual worker is unnecessary. The kobetsuteki gōisetsu, or individual agreement theory camp, believes that shūgyō kisoku work rules or saburoku kyōtei agreements are insufficient to bind an individual employee, and therefore the obligation to do overtime work arises only with the agreement of each individual worker.

The Supreme Court obviously allied with the hōkatsuteki dōisetsu camp. This ruling gave broad license to employers to force workers to do overtime, particularly when procedures to choose employee representatives are often illegal and result in an employee that hardly represents the workers. The ruling also permits employers not only to dismiss, but to hand out a disciplinary dismissal to those who refuse. Disciplinary dismissals in Japan are far more serious than ordinary ones because they can result in nonpayment of promised severance packages.
This reasoning opens the door to near-slave-like long hours and exploitation. It also flies in the face of government slogans about achieving “work-life balance” and reducing Japan’s excessively long work hours.

Let me propose a brand new trope for TV dramas: Man looks at boss with confidence and says, “Overtime? No, I have a dinner date with my girlfriend to celebrate her birthday. Goodbye.” Man exits scene.
That would be cool. That would be human. That kind of man should be popular with women and would be a good model for all of us — men and women — in our real lives.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at tozen.okunuki@gmail.com. Labor Pains appears in print on the fourth Monday Community Page of the month.