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
Employers’ ‘box them in, drive them out’ tactics fail legal test
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
Labor law reform raises rather than relieves workers’ worries
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.
Mazda temp-staff practice ruled illegal
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.”
Teachers are workers, not martyrs: the severance scandal that isn’t
Saints or sinners?: Some media outlets and politicians appear to be apoplectic over the decision by some state school teachers to retire months early to safeguard potentially millions of yen in severance pay. | AP
Story originally published in Japan Times
“Teachers quitting before graduation?!” the headlines screamed as we headed into the new year.
Traditionally, Japanese teachers head into retirement after March school graduations. However, this January, many teachers left their posts ahead of time, in a wave of resignations that began in Saitama and spread across Japan.
But why?
The story begins with teachers’ severance payments — specifically, the Yoshihiko Noda Cabinet’s decision in August last year to drastically reduce them. The move by the last Democratic Party of Japan-led administration came in response to a fiscal 2010 study of public-sector pension obligations that found the average central government employee’s severance payment was ¥4 million more than that of private-sector workers.
The Ministry of Internal Affairs and Communications ordered local governments to “make cuts in line with those to central government employees.” However, as the ministry did not specify when these measures were supposed to be taken, the local governments have implemented them at different, haphazard times.
The results have been chaotic. Coming back to Saitama, the local government there has decided to reduce all severance payments from February, with the difference in retirement payments for teachers before and after that time coming to roughly ¥1.4 million.
The result is — apparently unexpectedly — that of the 1,290 teachers due for retirement this year, 104 are choosing to retire in January.
The effects of this will also extend beyond teachers to police officers and other civil servants.
Here, let’s step back for a moment and think about what place teachers occupy in our society today. I can’t help but think there’s something strange going on.
Take, for example, what the new minister of education, Hakubun Shimomura, said in response to reports of early teacher retirements: “Teachers ought to put students first and stay at their posts through the end of the school year.” Or Councilor Satsuki Katayama, also of the newly elected Liberal Democratic Party, who blasted teachers in a blog posting last month: “(If highly paid local government employees had stopped these measures), the national government would have been unable to make savings of ¥10-20 billion, and local governments would be unable to make nearly ¥100 million worth of savings. . . . Have people lost all honor? Is there no goodness left in mankind?” (Note that Katayama seems to have no problem with “highly paid” public servants such as herself.)
Even at the best of times, public-servant-bashing is a popular political pastime. However, it is becoming dangerously entwined with a “myth of the teacher-martyr” — that is, the idea that teachers should spare not a thought for such worldly concerns as money, and put their school and students at the absolute front and center of their lives.
With all this, one cannot help but think that the teachers who are retiring early this year are among the most brazenly selfish human beings gracing God’s green Earth. And, by implication, that the teachers staying on must be simply wondrous.
But somehow that seems a bit much.
First, as painfully obvious as it may be, it’s worth remembering that teachers are workers. And in light of the martyrization of Japanese teachers currently going on, I wonder what impression is being pressed into the minds of today’s young Japanese.
Can it possibly be good for Japan if the first thing that tomorrow’s workers learn about adult life is that you positively should sacrifice yourself to your job? What would happen if they emerge into adult life and find themselves working under terrible conditions? Will they make use of their rights to improve things for themselves and their fellow workers? Or will they think back to their teachers and the example they set, and grin and bear whatever newer and more ridiculous abuses come their way?
Today’s teachers are burdened with myriad challenges, ranging from bullying to dealing with monster parents, from coping with students who become hikikomori (children who withdraw completely from society) to acting as guidance counselors for students facing the complexities of the modern world. Countless teachers are taking sick leave due to mental health issues, committing suicide or simply dying from overwork. And if society forces teachers to adhere to unrealistic standards of perfection, then it will leave them all the more with no alternative to these drastic measures.
To put it another way, if teachers are being forced to literally sacrifice themselves to create a fun and positive learning environment, how fun, positive or educational could that environment possibly be? If we want children to grow up to enjoy full and meaningful lives, shouldn’t the adults we pay to set them a good example themselves enjoy full and meaningful lives?
And if that’s the case, shouldn’t teachers have decent and secure working conditions (and here I’m not just talking about salaries)? “Education = sainthood = forced martyrdom” doesn’t really achieve any educational aim in any way, shape or form.
Here I want to come back to severance. A severance payment is a reward for many long years of service, so, in contrast to regular pay, you can only claim it when you retire. While there are cases when changes in management or labor-management relations can bring about changes in severance agreements, it seems only logical that promises about severance made when a work contract is signed shouldn’t be able to be changed part-way through.
In Japan, when work regulations or labor-management agreements are concluded, severance payments are treated as “deferred wages.” Because of their crucial role in providing for daily life in old age, it is completely unacceptable to allow reductions in severance to be made easily.
While it is legal to make reductions to severance during regular negotiations over wages, case law stipulates that due to the above considerations, this is allowable only in cases of “extreme need” (Omagari-shi Agricultural Cooperative Case, Supreme Court ruling, Feb. 16, 1988).
To consider some concrete examples, we could look at the famous 1983 ruling against Mikuni Hire, where the Supreme Court found that the company’s reduction in severance payments was unreasonable because it didn’t provide sufficient compensation.
In another famous ruling against Michinoku Bank in 2000, the Supreme Court found the company’s cuts to be unreasonable due to a lack of transitional measures put in place for employees and, again, insufficient compensation in exchange for the cuts.
At any rate, it seems no protest was made by unions in the face of the remarkable cuts made to teachers’ severance pay. As teachers are local government employees, they are covered by Article 52, Paragraph 1 of the Local Public Service Law. Under this law “employee organizations,” which are unions in fact if not in name, are charged with representing the interests of workers.
It is at precisely such a time that unions should be fighting tooth and nail to preserve education workers’ rights. And from there, if they can fight to preserve not only teachers’ rights, but also the rights of all their fellow workers, then that would open up the possibility of changing not just a single industry, but the whole world.
AKB48: Unionize and take back your lost love lives
BY HIFUMI OKUNUKI
They started performing on stages in Tokyo’s Akihabara electronics district, and today their ubiquity is unrivaled. The current flavors of the month pepper the TV schedules and covers of weekly magazines all year round. In Tokyo, you can’t swing a carrot without hitting a giant poster of one or a bunch of the all-grinning, all-dancing “Vegetable Sisters.” AKB48 are, hands down, the busiest and most successful girl group in Japan.
They have spawned spinoffs in other cities: SKE48 from Nagoya’s Sakae district, NMB48 from Osaka’s Namba neighborhood and HKT48, from Fukuoka’s Hakata. Last year, their inspiration transcended national borders and a testy territorial dispute as the franchise set up shop in Shanghai as SNH48, hot on the heels of the group’s first foreign foray, Jakarta’s JKT48. Another offshoot, TPE48, is planned for Taipei.
The original AKB48 troupe now numbers 87 members (that’s including “trainees”), making it the largest pop group in the world. Among these teenagers and 20-somethings, cut-throat competition has arisen alongside gross disparities between the fortunes of the most popular, the less so, and those whose day on the big stage just never comes.
Their management prohibits the girls from having romantic relationships, with a contract clause stating that “Unrequited love is permissible, but you cannot return the affection.” Several members have been pushed to resign or “graduate” after photos leaked out revealing the girl was dating.
Quite recently, the much-loved Yuka Masuda announced her sudden resignation from the group after stepping over the no-love-life line. Photos splashed all over a weekly magazine suggested she had spent the night at a male celebrity’s home. Though not officially “dismissed,” it is clear that decisions in her personal life cost her her job.
Although not all scholars agree, I believe even celebrities such as AKB48 members are protected by labor standards law. This month I’d like to examine two questions: 1) Does the law permit chastity clauses? and 2) Can an employer fire someone for violating such a rule?
Labor contracts, like all contracts, are predicated on the assumption of agreement between two parties. But that does not mean that anything goes when it comes to their provisions. Four conditions must all be met to legitimize each and every term of a contract: kakuteisei (determinacy),jitsugen kanōsei (achievability), tekihōsei (legality) andshakaiteki datōsei (social justification).
It is the fourth, shakaiteki datōsei , that concerns us in the AKB48 case. This concept entails general ideals of morality and justice, specifically kōjo ryōzoku (public order and morality), a crucial and broadly ranging legal principle enshrined in Article 90 of the Civil Code.
Contract terms that violate kōjo ryōzoku are invalid. Textbook examples include: paying for a crime; terms that violate fundamental human rights, such as gender bias; terms that restrict individual freedom; and those that violate social morals such as human trafficking, prostitution or geisha provisions. While traditional geisha exist within the scope of the law, asking an employee to “entertain” a client does not.
Most would consider it an unjustifiable invasion of privacy if an ordinary company prohibited their employees from taking a lover. Apologists for the AKB48 chastity clause argue that a girl’s value as an idol is compromised if it becomes known she has a boyfriend because her job is to “sell fantasies” to male fans. In fact, quite a few fans have commented on chat sites that they felt “betrayed” and “lied to” by AKB members who began dating.
I have a different view. Teenage girls and women in their 20s are at an age when their love life is the most exciting — a time that’s arguably the best chance to experience the ups and downs of the adventures of love and life. Their managers and producers surely don’t have the right to deprive them of that opportunity.
Some might say that if the girls want love, they shouldn’t join the group in the first place. This argument could be and is used by the worst corporate exploiters to justify just about any illegal contract provision.
So can you be fired for violating such a provision, for a reason grounded in your private life? Dismissals must have “objective and rational grounds” (Labor Contract Law, Article 16).
Asahikawa District Court on Dec. 27, 1989, ruled against a company (Hankiko Setsubi) that fired a female employee but not a male one after discovering the two were committing adultery.
Management reasoned that even if it does not interfere with work, “adultery adversely affects the company’s moral order, hurts coworkers’ motivation, and makes the president lose face.” While acknowledging that the woman’s actions were illegal and immoral, the court said that only specific damage to the running of the company constitutes hurting the workers’ moral order or motivation, a condition not met in this case.
Thus judicial precedent prohibits disciplinary action for problematic personal behavior that has no connection with work duties. Meanwhile, only if such personal actions severely damage a company’s overall reputation can they be considered to have seriously damaged the company’s moral order.
It is clear that the AKB48 chastity clause fails to meet the court’s criteria for legitimate grounds for dismissal.
To members of AKB48: If you want to fight for your right to live and love freely, you’ll need solidarity with your fellow band members, so why not establish a union? The “Vegetable Sisters” should be sisters in deed as well as name — not rivals.
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. Usually on the third Tuesday of the month, Hifumi looks at a famous case in Japan’s legal history to illustrate an important principle in labor law.
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.
Foreigners on welfare face pension burden
http://www.japantimes.co.jp/text/nn20121017a1.html
Wednesday, Oct. 17, 2012
Planned end to premium waiver sparks cries of discrimination
Kyodo
The Japan Pension Service wants to drop the pension premium waiver for foreigners who are on welfare, effectively ending a long-held practice of treating them the same as Japanese, sources said Tuesday.
The government-linked body that runs the public pension systems has drawn up a guideline to end the uniform premium waiver for foreigners on welfare, drawing immediate fire from human rights activists who liken the end of the exemption to discrimination based on nationality.
In fiscal 2010, roughly 1.41 million households were on public assistance, including around 42,000 headed by foreign residents.
In a reply dated Aug. 10 to an inquiry from a local-level pension service office, the Japan Pension Service said that “public assistance benefits are provided to foreigners living in poverty just like those provided to Japanese nationals, but foreigners are not actually covered by the law on public assistance.
“Under the national pension law, the (premium) waiver is accorded only to those subject to the law on public assistance,” the service said. “It is thus not applicable to foreigners.”
The Kokumin Nenkin basic pension system is designed mainly for people not employed by corporations, including self-employed workers, students and part-time workers.
The national pension law stipulates that the premium waiver applies to people who are on welfare benefits paid under the public assistance law or via a welfare ministry ordinance.
Presumably because the public assistance law stipulates that only Japanese nationals are eligible for welfare, the Japan Pension Service drew up the new guideline that drops the foreigner exemption.
But in practice, certain qualified foreign residents, including those with permanent residency and with Japanese spouses, are receiving public assistance benefits thanks to a humanitarian decision by the welfare ministry in 1954 that municipal governments must accept applications from foreign nationals in dire need of support.
In 1982, when the nationality clause in the national pension law was abolished, foreign residents became legally eligible to join the public pension system.
The requirements for foreigners to receive public assistance and the amount of benefits they can receive are the same as what applies for Japanese, because the system is geared to ensure the minimum standard of living.
The Japan Pension Service believes that while all Japanese on welfare should qualify for the full waiver of premiums for the state-run pension plan, foreign residents who have jobs but are on welfare due to low income should not. They may have to pay some of the legally required premiums based on their income level.
For example, a foreigner living alone who earned ¥570,000 or more the previous year may now be required to pay some of the around ¥180,000 in annual premiums, if the current waiver is revoked.
“JPS and the welfare ministry must have been aware that foreign residents on welfare nationwide have been waived from the national pension premiums,” said Shinichiro Nakashima, head of Kumustaka, a group based in the city of Kumamoto that supports foreign residents.
“Foreign residents who won’t be able to pay the premium could end up with no pension benefits in the future. (The government) should abolish the nationality clause in the public assistance law, and treat foreign residents the same as Japanese.”
An official at the Health, Labor and Welfare Ministry, which oversees the pension service, said that “it’s not that we’ve changed the policy. We are just restoring what should have been the case. While it depends on income levels, I would think many will still see payments entirely waived in reality” even under the new guideline.