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?

JCFL・JAPAN COLLEGE OF FOREIGN LANGUAGES

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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

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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）

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2013-06-16_160457

 

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

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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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Precedent backs (nearly) equal pay for equal work

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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

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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

Labor law reform raises rather than relieves workers’ worries

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labor pains 14

Story originally published in Japan Times

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let’s look at a legal case study.

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

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

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

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

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

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.”