Everything you always wanted to know about Shakai Hoken.
Learn all the facts about Japan’s Shakai Hoken health and pension system and let us disabuse you of some persistent myths. Questions will be answered after the seminar.
The Special Dismissal Zone: where legal protections no longer apply
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”?
——————————
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
Matahara: turning the clock back on women’s rights
Matahara: turning the clock back on women’s rights
‘Maternity harassment‘ concept coined amid reports of bullying over pregnancy at work
BY HIFUMI OKUNUKI
“When I told my company I was pregnant, they fired me.”
“I was delighted to be hired by a company I loved. Then my boss made me promise not to get pregnant for a while.”
In last October’s Labor Pains, I discussed maternal job rights in “Labor law protects expectant and new mothers — to a point.” Today, I would like to address a new legal concept known as “maternity harassment,” or matahara, in the syllabic acronym engendered by this growing — and disturbing — trend.
Union, business concerns put limits on freedom of speech by Hifumi Okunuki
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?
JCFL・JAPAN COLLEGE OF FOREIGN LANGUAGES
日本外国語専門学校（JCFL・JAPAN COLLEGE OF FOREIGN LANGUAGES)は、誠実に団体交渉のテーブルにつくべきだ！
「通訳ガイド養成所」の設立から、41年の歳月が経ちました。」と自らのホームページで謳うように、数多くの通訳のプロを輩出してきた日本外国語専門学校（JCFL／JAPAN COLLEGE OF FOREIGN LANGUAGES) 。それなのに、組合との団体交渉になると、組合員らの使用言語（英語）の通訳を一切拒絶し、「交渉は日本語でのみやる。通訳をつけるなら組合でつけろ」の一点張りで、約半年の間、実質的な団体交渉を拒否し続けています。そもそもの発端は、組合加入通告をした一人の組合員が、通告のわずか２週間後に契約更新の拒絶を受けたことによります、当初より日本外国語専門学校は、団体交渉を行う際に、「ここは日本であり、日本語でしか団交に応じない」、「通訳の手配は組合でやれ」との姿勢を押し通しました。英語講師らの職場での労使関係上の使用言語は常に英語であり、必要なときは学校側が必ず通訳者を準備しています。それなのに、なぜ、組合との団交になると、通常の労使関係と一変した扱いをするのでしょうか。それでも、組合は、一人の組合員の職の喪失という重大な問題の解決を何よりも優先するために、母語ではない日本語で、必死に交渉をしてきました。しかし、組合員らの通常の労使関係上の言語ではない言語での交渉はうまくいきません。何度も言葉に詰まっても、学校側は知らんぷりです。さらにひどいのは、学校側は常にプロの通訳者を同席させているにもかかわらず、通訳者は一切の通訳をせず、ただ黙って団交の様子を見守っていることです。いったい、何のために同席させているのでしょうか。嘲笑されているかのような姿勢に、組合は毎回大きな無力感と屈辱感を抱いています。組合は、日本外国語専門学校に対して、実質的な中身のある団交に向けて努力をするよう、強く求めます。
Five-Year Rule Seminar
有期労働契約の新たな“５年ルール”とは
〜５年でGood byeってホント？〜
Five-Year Rule Seminar
Does new Labor Contract Law mean five years and out? Or five years and in?
新しい労働契約法についてのセミナーを開催します！
日 時：２０１３年７月７日（日）Sunday, July 7, 2013 2pm to 5pm
午後２時００分〜午後５時００分（途中10分休憩あり）
☆参加無料！ No entrance fee！
講 師：Instructors： Attn. Shoichi Ibuski (Akatsuki Law Firm)
指宿 昭一弁護士（暁法律事務所）
Hifumi Okunuki (Executive President of Zenkoku Ippan Tokyo General Union/
Teaches at Sagami Women’s University)
奥貫 妃文（全国一般東京ゼネラルユニオン執行委員長、相模女子大学専任講師）
今年から、労働契約法に有期労働契約に関する３つのルールが新たに加わりました。
This year Labor Contract Law added three new rules for fixed-term employment.
☆Point１．有期労働契約の期間の定めのない労働契約への転換（いわゆる「５年ルール」の新設）
Fixed-term contracts switch to permanent employment after 5 years
☆Point２．有期労働契約の「雇止め法理」の法定化
The law codifies rules for refusal to renew fixed-term contracts
☆Point３．有期労働契約であることによる不合理な労働条件の差別禁止
The law prohibits illegitimate discrimination against fixed-term employees
今回の法改正は、現在、実際に有期で働く人たちにどのようなインパクトを与えるのでしょうか。とくに、大学で有期で働く先生たちは、５年になる前に契約を打ち切られてしまうのではないかという大きな不安を抱いています。また実際に「契約は３年まで」、「更新はしません」といった文言を募集要項に掲載する大学も、ちらほら見られるようになりました。
What impact will this have on those currently working fixed-term contracts? Particularly teachers at universities are worried they might be non-renewed before reaching the five-year mark. Some universities are already putting out want-ads announcing the post is only for three years and will not be renewed.
しかし、不安ばかりではどうにもなりません。まずは、この法律の趣旨をしっかりと理解したうえで、どのように「安定した雇用」を権利として求めていくべきなのか、そして、具体的にどのような闘い方をすればいいのか、このセミナーでみんなで考え、知恵を出し合っていきましょう。そして、有期労働契約で働く友人、知人のみなさんにも、ぜひ、このセミナーに一緒に参加しようと声をかけてください。
Anxiety alone will solve nothing. First let’s find out precisely what the new law says, how we can pursue the right to job security and specifically how to fight. This seminar will provide a chance to put our heads together and prepare. Please bring your friends, acquaintances and anyone else who works on fixed-term contracts to this seminar.
なお、このセミナーでは特に顕著な影響が出ている大学の非常勤講師の問題を多く取り扱う予定ですが、もちろん、有期労働契約はすべての労働者に共通する問題です。すべての業種の人たちにご参加いただければと思っています。
We will focus in particular on university part-time teachers, who will be particularly impacted by this change, but of course the problem is shared by all workers on such contracts and all are very welcome.
◆ プログラム Program
１ 有期雇用労働者と労働法〜これまでの法制度と今回の改正について（指宿昭一弁護士）
Fixed-term employees and labor law. The law ’till now and the new amendment. (Attn. Shoichi Ibuski)
２ 質疑応答 Q&A
３ 大学の非常勤講師をめぐるこれまでの労働判決と最近の動向（奥貫妃文）
Case law and recent trends for part-time instructors at universities. (Tozen President Hifumi Okunuki)
４ 質疑応答 Q&A
〜10分休憩〜 10-minute break
５ 会場の実態報告＆ディベート 〜今後、法改正に対してどう対処すべきか〜
Workplace reports from the floor and debate. What is to be done?
６ 「有期労働契約実態調査」記入のお願い
Please answer our questionnaire on your fixed-term employment
◆ 場 所 Venue : Osaka Keizai Hohka Daigaku Tokyo Azabudai Seminar House
〒106-0041 Tokyo, Minato-ku, Azabudai 1-11-5, Tokyo Azabudai Seminar House
* Take Hibiya Line to Kamiyacho Station, Exit 1. Then a five-minute walk.
（TEL：03-5545-7789 E-mail：capp@keiho-u.ac.jp ）
５年ルールセミナーパンフレット（日本語）
有期労働契約の新たな“５年ルール”とは？
〜５年でGood byeってホント？〜
新しい労働契約法についてのセミナーを開催します！
日時：２０１３年７月７日（日）
午後２時００分〜午後５時００分（途中10分休憩あり） ☆参加無料
講師： 指宿 昭一弁護士（暁法律事務所）
奥貫 妃文（全国一般東京ゼネラルユニオン執行委員長、相模女子大学専任講師）
今年から、労働契約法に有期労働契約に関する３つのルールが新たに加わりました。
☆Point１．有期労働契約の期間の定めのない労働契約への転換
（いわゆる「５年ルール」の新設）
☆Point２．有期労働契約の「雇止め法理」の法定化
☆Point３．有期労働契約であることによる不合理な労働条件の禁止
今回の法改正は、現在、実際に有期で働く人たちにどのようなインパクトを与えるのでしょうか。とくに、大学で有期で働く先生たちは、５年になる前に契約を打ち切られてしまうのではないかという大きな不安を抱いています。また実際に「契約は３年まで」、「更新はしません」といった文言を募集要項に掲載する大学も、ちらほら見られるようになりました。
しかし、不安ばかりではどうにもなりません。まずは、この法律の趣旨をしっかりと理解したうえで、どのように「安定した雇用」を権利として求めていくべきなのか、そして、具体的にどのような闘い方をすればいいのか、このセミナーでみんなで考え、知恵を出し合っていきましょう。そして、有期労働契約で働く友人、知人のみなさんにも、ぜひ、このセミナーに一緒に参加しようと声をかけてください。
なお、このセミナーでは特に顕著な影響が出ている大学の非常勤講師の問題を多く取り扱う予定ですが、もちとん、有期労働契約はすべての労働者に共通する問題です。すべての業種の人たちにご参加いただければと思っています。
◆プログラム
１ 有期雇用労働者と労働法〜これまでの法制度と今回の改正について（指宿昭一弁護士）
２ 質疑応答
３ 大学の非常勤講師をめぐるこれまでの労働判決と最近の動向（奥貫妃文）
（早稲田大学、大阪大学等）
４ 質疑応答
〜10分休憩〜
５ 会場の実態報告＆ディベート 〜今後、法改正に対してどう対処すべきか〜
６ 「有期労働契約実態調査」記入のお願い
７ おわり
◆場 所：大阪経済法科大学麻布台セミナーハウス
〒106-0041 東京都港区麻布台1-11-5東京麻布台セミナーハウス
地下鉄日比谷線神谷町駅出口①から徒歩５分
地図：http://www.keiho-u.ac.jp/research/asia-pacific/access.html
Tozen supports Anti-nuclear demonstration in Tokyo.
Today 2nd June 2013, thousands of angry people gathered at Tokyo Parliament and expressed their opposition to nuclear plants. Nearly 25,000 people from different prefectures came to Tokyo to participate in a rally. Tozen members joined the rally.
Changes to Japan’s employment law effective from 1 April 2013
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.
Precedent backs (nearly) equal pay for equal work
In 2012, Japan had 51.73 million workers, of which 33.3 million were regular employees, or seishain, according to the latest survey by the Ministry of Internal Affairs and Communications. Contingent, or nonpermanent, workers (including part-timers, haken dispatch and shokutaku semiregular employees) numbered 18.43 million, over 35.5 percent of the workforce.
When I first began studying labor law in graduate school over a decade ago, contingent workers (hiseiki rōdōsha) were a peripheral phenomenon, but today they form a central pillar of Japan’s workforce.
So what’s wrong with being a contingent worker?
First of all, most have temporary or fixed-term contracts, which translates into roughly zero job security. Despite it being mandatory, many employers fail to enroll their contingent employees in Japan’s shakai hoken health and pension scheme. This raises anxiety among workers about what will happen when they get ill or old.
The biggest problem, however, is wage differences between nonpermanent and seishain employees. For example, these days we see ever more supermarkets and food companies employing low-wage shop managers, posts that were once held exclusively by seishain. They make, say, ¥900 an hour with no bonus and no severance pay. Their responsibilities and hard work are on par with those of the seishain they work with, but there the parity ends. Today, contingent workers make Japan’s industrial world go round.
But is this situation fair or even sustainable?
Labor law says little about discrepancies between the conditions of seishain and contingent workers. Article 3 of the Labor Standards Law prohibits discrimination based on “social standing,” but courts have already interpreted this phrase to exclude employment status. Article 8 of the Part-time Worker Labor Law, enacted in 1993, prohibits discrimination, but “part-timers” affected by the law are limited to those who have open-ended employment, do the same jobs as seishain and are dealt with the same manner as ordinary workers. (Pāto in Japanese has a far broader meaning than “part-time” in English and often includes full-time temporary or other contingent employment.) Few if any part-time workers satisfy such conditions, making the law little more than e ni kaita mochi, or “rice cakes in a painting,” as the saying goes. (In other words, like “pies in the sky,” you can’t eat ‘em.)
The most famous legal challenge to disparities between the two types of workers came in the mid-1990s. Twenty-eight women working on recurring two-month contracts for an auto parts company mustered their courage, unionized and challenged their wage disparity with their seishain colleagues in Nagano District Court. Despite flimsy legal grounding, they asked the court to order the employer, Maruko Keihoki Co., to pay wages lost due to pay that was far less than their seishain coworkers, despite the fact they worked the same production line, did the same job and clocked in on the same hours and days.
Seishain regular workers were paid a basic monthly wage that increased in line with seniority, while the “two-monthers” received daily wages amounting to 60 percent of the average of their seishain coworkers. The plaintiffs asserted that getting lower pay for the same work violated the principle articulated in Article 90 of the Civil Code called kōjo ryōzoku, or public order and morality.
Leading labor law scholars sounded off against the claim, saying Japan has no legal principle of equal pay for equal work and that the court should refuse redress. The claimants’ chances looked dim.
On March 15, 1996, however, the gods smiled down on the Maruko Keihoki 28, with the court ruling that “although equal pay for equal work cannot be considered itself a requirement of public order and morality, the principle is reflected in the two pay-parity provisions (Articles 3 and 4) of the Labor Standards Law and should be a universal value of a society that treats all as equal under the law. Any wage disparity that violates this principle goes beyond the legitimate discretion of the employer and therefore violates public order and morality.”
The judge then ruled that any wages falling below 80 percent of the equivalent for seishain must be repaid to the plaintiffs. This arbitrary threshold baffled commentators, as the court was in effect saying wage disparity is wrong on the one hand, but that 20 percent was fine and dandy.
Maruko Keihoki appealed and the parties settled in what is rightly considered a complete victory for the plaintiffs. The deal included a change from daily to monthly wages, repayment of the disparity in wages, summer and winter bonuses equal to those of seishain staff, and identical severance packages upon leaving the company.
This was the first ruling to recognize wage disparity between the two types of workers as a violation of public order and morality, or kōjo ryōzoku. Despite the mixed message, it is hard to overestimate the impact this verdict has had on later rulings.
The plaintiffs had no specialized labor law knowledge and they fought while caring for their families. Their unifying gripe was the injustice of doing the same work and hours for two-thirds of the pay of their colleagues. Their simple rejection of this indignity inspired them to fight on.
An uplifting addendum to this anecdote is that the seishain at Maruko Keihoki fought arm in arm with the plaintiffs. One regular worker said: “We were astonished when we heard the wages of these women who work right next to us. We thought it was unacceptable and that we had to fight alongside them to rectify it.”
This labor union brought together regular and irregular staff in the fight for equal pay. Lest we forget, this landmark victory was born of worker solidarity that transcended employment status.
by Hifumi Okunuki
http://www.japantimes.co.jp/community/2013/05/21/issues/precedent-backs-nearly-equal-pay-for-equal-work/#.UZ2p4r-ElZI