Language school firm will appeal decision
After hearing more than three years of testimony, the judge took only a minute to read the court’s verdict rejecting Berlitz Japan’s ¥110 million lawsuit against striking teachers and their union and reaffirming organized labor’s right to take industrial action.
According to the Feb. 27 Tokyo District Court ruling, “There is no reason to deny the legitimacy of the strike in its entirety and the details of its parts — the objective, the procedures, and the form of the strike. Therefore there can be no compensation claim against the defendant, either the union or the individuals. And therefore it is the judgement of this court that all claims are rejected.”
The battle of Berlitz began on Dec. 13, 2007, when teachers belonging to the Berlitz General Union Tokyo (Begunto) launched a strike against Berlitz Japan. The teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6 percent pay hike, a one-off one-month bonus and enrolment in Japan’s health insurance and pension system.
The strike grew into the largest sustained industrial action in the history of Japan’s language school industry. Over 11 months, teachers of English, Spanish and French struck 3,455 lessons in walkouts across Kanto.
In November 2008, Begunto filed an unfair labor practices suit at the Tokyo Labor Commission. The union alleges Berlitz Japan bargained in bad faith and illegally interfered with the strike by sending a letter to teachers telling them to stop walking out.
On Dec. 3, 2008, Berlitz Japan, claiming the strike to be illegal, sued for ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga, and Louis Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen).
Berlitz Japan claimed the union’s tactics of giving strike notice at the last minute and making it difficult for the company to bring in replacement teachers were illegal and designed to harm the company.
Begunto filed additional complaints against the company at the Tokyo Labor Commission in 2010 after Berlitz Japan dismissed two of the union executives named in the lawsuit. One teacher lost his job after he requested a leave of absence of more than a year in order to serve as a reservist in Afghanistan, the other after she requested an additional four months unpaid leave to recover from late-stage breast cancer.
Yumiko Akutsu, one of the union’s lawyers, told supporters after the verdict that the win was “a complete victory — on not one point did we lose, not one single point.”
Reading from the court’s ruling, she explained that the court found the objective of the strike to be legitimate because “the strike’s purpose was to realize the union demands they had clearly stated to management in 2007 and 2008.”
Because teachers had different work schedules at different language centers and often didn’t receive their schedules until 7 p.m. the night before working, the court also rejected the company’s claims that the last-minute notice given by teachers before striking lessons was illegal. “Strike notice just before the strike cannot be considered illegitimate”, the court ruled.
After the win, Carlet stressed the significance of the victory as an important defense of the right to take industrial action in Japan. “This is a very important victory for the right to strike,” he told union members. “I think people often forget how important the right to strike is. The right to strike was not granted us by governments or by management. Workers fought in many countries around the world and gave their blood, sweat and tears to win this right to strike.”
Hiraga also emphasized the significance of the win, telling union members, “I think what the verdict represents is that the company sued you for damages as a way to weaken the union and as an illegal union-busting tactic, and it was denied by the courts.” Calling it a triumph not only for Begunto and Nambu, Hiraga told supporters, “This is a victory for the entire labor movement in Japan.”
According to Akutsu, a victory by the company “would have had a huge impact and a huge chilling effect on people’s willingness to strike.”
Gerald McAlinn, a professor at Keio University Law School, said that because Article 28 of the Constitution guarantees the right of workers to organize and bargain collectively, “Any decision by the court to the contrary would have been very strange and contrary to the fundamental rights of all workers in Japan.”
McAlinn emphasized three reasons for the importance of the case. First, “A ruling in favor of the company would have opened up an avenue for employers to circumvent the balance of power established by the labor union law.” He added that allowing employers to sue striking workers “would be a powerful weapon that could easily be used to chill the exercise of constitutional rights by workers all across Japan.”
The court’s ruling is also significant because of the somewhat unusual nature of the strike action. Unlike in a typical strike, where workers walk out en masse and stay out together, Berlitz instructors sometimes taught and sometimes downed chalk. Individual Begunto members struck individual classes in different language centers at different times, handing their strike notices over to management only a few minutes before the scheduled start of the lesson. This minimized the company’s ability to bring in replacement teachers and break the strike. According to McAlinn, “This case seems to legitimize the practice of refusing to work other than via the traditional all-out-together picket line strike.”
Finally, McAlinn believes the verdict matters because it was mostly foreign teachers in the dock. “The nationality of the defendants should not matter of course, but this decision makes this point clear,” he said.
The triumphant union executive members stress the need to move past legal confrontations and get back to negotiations with management. Hector Coke, Begunto president at the time of the strike and one of the teachers named in the lawsuit, told union members and supporters in a meeting after the verdict that it’s time to start negotiating and “build a better relationship with management. We should not be arrogant in the fact we won this case.”
Paul Kennedy, current Begunto president, echoed this point at a press conference after the verdict. “We look from this point forward to be able to negotiate with Berlitz Japan,” he told reporters. “This is a new start for both sides.”
However, Berlitz Japan didn’t wait long before deciding to continue the legal skirmish. Kennedy says he received notice that Berlitz Japan will appeal the verdict on Friday.
Michael Mullen, Berlitz Japan’s senior human resources manager, declined to comment on the case.
Berlitz Japan doesn’t necessarily have to submit new evidence in their appeal to the high court. “In my experience, the high court is not shy about reaching a decision different from that at the district court level if the judges see the facts or law differently,” said McAlinn. “Having said that, I would be surprised if the high court were to reach a different decision in this case.”
Meanwhile, Begunto and Berlitz Japan continue their legal battle at the Tokyo Labor Commission, buoyed by the district court victory.
“With this verdict,” says Carlet, “we will be in a very good position at the labor commission because the strikes were legal and that will make all the difference.”
However, legal experts don’t all share Carlet’s confidence. According to McAlinn, the verdict “shouldn’t have a direct impact on the union claims at the Tokyo Labor Commission” because “the two actions are governed by different laws and legal standards.”
Tadashi Hanami, former chair of the Central Labor Relations Commission and professor emeritus at Sophia University, agrees, explaining that the Tokyo Labor Commission “may take this verdict in consideration if it chooses so, but we can hardly predict whether it will do so or not because it’s not unusual that courts and commissions take completely different opinions.”
Union members also now face a large legal bill. “The general principle under Japanese law is for each side to pay their own court costs,” says McAlinn. Union members are now discussing ways to recover court costs from Berlitz Japan, says Kennedy.
Shakai Hoken Seminar
Do you know your rights when it comes to Shakai Hoken?
Chances are that management has mislead you about your legal rights to proper insurance and pension.
Find out everything you wanted to know about unemployment, health, workplace accident, nursing care and pension insurance from experts, Social Labor Consultant Takeo Eitani and Tozen Paralegal Hifumi
Okunuki.
Sunday, March 4 at 2pm, at our office.
Free Admission
Directions:
Zenkoku Ippan Tokyo General Union
Kokubo Building 3B, Yamabukicho 294, Shinjuku-ku, Tokyo 162-0801
Google Map Link | Mapion Map Link
全国一般東京ゼネラルユニオン
〒162-0801 東京都新宿区山吹町294小久保ビル3B
FAX: 050-3488-6734
Oversleeping radio anchor set tough precedent for firing staff
A radio news anchor oversleeps a live broadcast twice, forcing the radio station to cancel the broadcast. Should he be fired?
In the late 1970s, Japan’s Supreme Court weighed in. Case law on the legal principle of “abuse of the right to dismiss” (kaikoken ranyō hōri) was established by the famous Jan. 31, 1977 Supreme Court verdict in the Kochi Broadcasting case.
Mr. X worked as a radio announcer at Kochi Broadcasting’s news department. He overslept his 10-minute radio news spot starting at 6 a.m. twice in two weeks. The first time it happened, the news broadcast had to be cancelled, while the second incident delayed the start of the program by five minutes. Mr. X failed even to report the second incident to his superiors and then lied on the report that he was eventually compelled to submit.
The company dismissed Mr. X. Management claimed that a disciplinary dismissal was called for but that they had downgraded it to an ordinary dismissal out of consideration for his future job and other prospects. Mr. X sued for his job back, claiming that the company had abused the right to dismiss.
How did the court rule? The short answer is that X’s firing was indeed an abuse of the right to dismiss and was therefore invalid.
The court said: “Employers are not free to dismiss an employee whenever there are grounds for an ordinary dismissal; rather the expression of intent to dismiss constitutes an abuse of the right to [dismiss] and is therefore invalid if and when dismissal under the specific circumstances is notably illogical and cannot be accepted as reasonable according to social norms.”
In Japanese jurisprudence, this case set the precedent for all future cases of application of the legal principle of “abuse of the right to dismiss.”The court judged that the dismissal of Mr. X was overly harsh and lacked social legitimacy in consideration of several points, including that: although his absence caused the incident, it was neither malicious nor intentional; he apologized immediately after the first incidence of oversleeping; the broadcast pause due to the oversleeping was not particularly long; and that his ordinary work performance was not particularly bad.
At the time of the case, the law nowhere articulated the principle of abuse of the right to dismiss, but now Article 16 of the Labor Contract Law stipulates it as follows: “The right to dismiss has been abused and the dismissal is invalid when it lacks objective, rational grounds and cannot be deemed reasonable according to social norms.”
The flip side of this is that dismissals with objective and rational grounds may be valid. Case law includes two precedents that recognized dismissals, including a Tokyo District Court verdict of April 26, 2000, and another on Dec. 22, 2003, that validated dismissals due to poor professional performance.
The court determined that although the companies gave the employees the opportunity to improve their ability, there was little prospect of them rising to the level of average.
Today, when speaking of the Kochi Broadcasting case, some say that “dismissing an employee for oversleeping twice is completely reasonable.” Perhaps our society has become less forgiving toward workers.
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 week of each month, starting in March, Hifumi will discuss a famous case in Japan’s legal history to illustrate an important principle in labor law.
Berlitz loses suit over union teacher strikes
The Tokyo District Court on Monday rejected a lawsuit filed by Berlitz Japan Inc. that sought damages from union executives and its teachers for waging strikes and causing substantial damage to the company.
Presiding Judge Hiroshi Watanabe sided with the labor union and its workers, saying acts by the defendants “do not comprise any illegality.”
“There is no reason to deny the legitimacy of the strikes,” including their purpose or process, the court ruled.
Berlitz, the plaintiff, filed the lawsuit in December 2008. The language school chain claimed executives of the National Union of General Workers Tokyo Nambu, and affiliate Berlitz General Union Tokyo (Begunto) — particularly five activist, non-Japanese Berlitz teachers — conducted illegal strikes for 11 months beginning in December 2007.
According to the plaintiffs, union activities including coordinated strikes and delay of written notice of strikes “put the company’s existence itself in peril.” The plaintiffs claimed that acts by the defendants affected 3,455 classes during the span and caused some of its students to leave the school.
The company had sought compensation of ¥110 million each from Nambu, Begunto, an executive from each group and the five Berlitz teachers. The strikes involved more than 100 unionized foreign teachers of the chain.
The defendants meanwhile had said their strikes were within their rights, after Berlitz in 2007 rejected their requests, including a demand for a 4.6 percent raise and a bonus payment equal to a month’s pay.
According to the defendants, teachers at Berlitz hadn’t won an across-the-board raise for over 16 years. They claimed the lawsuit violated their right to union activities and collective action.
While similar civil cases have often been settled out of court, the case saw an extended period of negotiations that ultimately ended without an agreement.
Defense lawyer Yukiko Akutsu, who criticized the plaintiffs for causing the case to drag on for over three years, called Monday’s ruling “a complete victory” for her clients.
While touching on the possibility that the plaintiffs may file an appeal, Akutsu told a meeting following the ruling that the court “recognized that each of the strikes was legitimate.”
Overwork death recognized for worker at Fukushima plant
The death last May of a man who had engaged in work at the Fukushima Daiichi nuclear power plant after the nuclear crisis erupted there in March was recognized Friday as caused by overwork, according to a lawyer representing the man’s bereaved family.
A local labor standards inspection office in Yokohama, acting on a workers’ compensation claim by the family of [a subcontract worker dispatched by a construction firm in Shizuoka Prefecture], who died of a heart attack at age 60, determined that his cardiac infarction was caused by excessive physical and mental burdens arising from working overnight wearing protective gear and mask, lawyer Akio Ohashi said.
There have been 35 cases of workers’ compensation claims in connection with the nuclear disaster, and three of them involve a worker’s death. Aside from [that worker’s] case, the two others involved workers who died due to tsunami waves on the day of the disaster.
Nonregulars at record 35.2% of workforce
The ratio of nonregular workers in the labor force in 2011 hit a record average high of 35.2 percent, excluding [Iwate, Miyagi and Fukushima] the three prefectures severely affected by the March quake and tsunami, up 0.8 point from 2010, according to data compiled by the Internal Affairs and Communications Ministry.
The average for the year hit a record for the second straight year, the ministry said Monday.
The rise appears to have stemmed from the growing tendency of firms to hire fewer young people as regular workers and rehire veteran workers on a contract basis after their retirement.
By age bracket, the ratio of nonregular workers came to a record 32.6 percent among people aged between 15 and 34, while that among workers aged 55 and over was 51.5 percent, also an all-time high, the ministry said.
Nonregular workers aged between 15 and 34 numbered 1.7 million, up 20,000, it said.
Falsified labor deals rampant at Japan’s nuke plants, says suspect
A power plant construction and maintenance firm has falsified worker contracts for temporary labor at nuclear plants across Japan for years, according to statements by one of the company’s employees charged with involvement in the fraudulent agreements.
Hideo Ichise, 58, and two other people were indicted on Feb. 2 for the dispatch of a worker to the Oi nuclear plant in Fukui Prefecture under a false contract, a violation of the Employment Security Law. Ichise’s employer Taihei Dengyo Kaisha Ltd. — where he now serves as business manager after a stint as the firm’s Oi operations chief — along with Fukui Prefecture-based plumbing company Takada Kiko were also charged.
Investigators have discovered a dossier on falsified worker contracts at more than 30 Taihei Dengyo branches, further suggesting the firm has been involved in illicit labor deals involving nuclear power plants across the country.
Police have furthermore discovered cases of various personnel agencies siphoning off the wages of temporary workers at nuclear plants, while involvement of the Kitakyushu-based crime syndicate Kudo-kai has also been uncovered.
Taihei Dengyo’s operating officer was also quoted as telling police, “Our company alone cannot hire many workers, so we (falsified labor contracts) knowing it was illegal.”
[One worker in Saga Prefecture] was dispatched to a construction company by a temp agent called simply “boss.” Although there was ostensibly a contract with the construction company and the man worked directly under a construction company employee, “boss” apparently took 5,000 yen out of his 13,000-yen daily wage.
“There were gangsters among those bosses, and sometimes two bosses raked off my wages,” the Saga man recalls.
A temporary personnel agency operator says, “Parent companies send us requests for a certain number of workers, and we submit a list of people who then go and work under those parent companies at nuclear power plants. We give the workers their wages after deducting our share.” Another agent told the Mainichi, “There are times when gangsters are involved in recruiting workers. It is easy for us to hire them because they save us the trouble.”
http://mdn.mainichi.jp/mdnnews/news/20120204p2a00m0na016000c.html
Panel says bullying by peers, subordinates also power harassment
A government panel studying measures to combat bullying at work recommended Monday that harassment by peers and subordinates be included in definitions of power harassment in the workplace.
In the government’s first proposal to define power harassment, often associated with abuse of power by bosses, the panel said in its report that power harassment could occur not only between people in different hierarchical positions but when there are gaps in expertise in specialized fields such as information technology.
The number of consultations related to bullying or harassment at work brought to the attention of the ministry’s regional labor departments across the country has increased from about 6,600 cases in fiscal 2002 to around 40,000 in fiscal 2010.
The report said there are six types of power harassment — physical attacks such as assault, mental attacks such as threats, ignoring or leaving someone out of the loop, burdening someone with excessive work, deliberately giving someone very little work to do and prying into someone’s personal affairs.
The working group determined there is a need to expand the definition of power harassment as it found from interviews with companies and the examination of litigation that there are a growing number of cases in which workers are continually ignored by peers and where younger employees well-versed in IT harass people in more senior positions who are less knowledgeable.
http://mdn.mainichi.jp/mdnnews/news/20120131p2g00m0dm019000c.html
外国人労働者、５％増の68万人 10月
厚生労働省は27日、2011年10月時点での外国人雇用の届け出状況を発表した。外国人労働者数は68万6246人となり、届け出ベースで前年比5.6％増えた。東日本大震災の復旧需要などを背景に製造業などで短期雇用に就く外国人が増えたとみられる。
外国人労働者を雇っていると届け出た事業所数は前年比7.2％増の11万6561カ所。働く人を国籍別にみると、中国が29万7199人と最も多く全体の43.3％を占めた。産業別では製造業が最も多い26万5330人となり、全体の38.7％だった。
07年に施行した改正雇用対策法に基づき、日本で働く外国人の状況を集計した。同法はすべての事業主が外国人労働者を雇った場合はハローワークに届け出るよう義務付けている。
3 nabbed over fake contract for nuclear repair work in Fukui
Police have arrested three people for allegedly dispatching a worker to the Oi Nuclear Power Plant in Fukui Prefecture under a falsified contract, sparking a police probe into the yakuza’s possible involvement in nuclear-related jobs, investigative sources say.
The Fukuoka and Fukui prefectural police forces on Jan. 12 announced the arrests of Hideo Ichise, 58, of Tsuruga, Fukui Prefecture, Yoshimi Tomita, 59, of Maizuru, Kyoto Prefecture, and Kanae Ikegami, 36, of Kitakyushu’s Wakamatsu Ward, on suspicion of violating the Employment Security Law.
Police suspect Soshin Kogyo dispatched workers to nuclear power facilities, thereby providing the Kudo-kai [a Kitakyushu-based crime syndicate] with a source of funds, according to investigative sources. The case has sparked a rare police investigation into the alleged involvement of yakuza in nuclear-related employment in Japan.
According to police investigators, the three were implicated in an unlawful contract scheme in which a male employee of Soshin Kogyo was dispatched to Kansai Electric Power Co.’s Oi plant and forced to engage in repair work under the supervision of Taihei Dengyo from early March to late September in 2010. The three have admitted to the allegations, the sources say.
Fukuoka police and others with knowledge of the case say the fake contract was set up through deals between Soshin Kogyo and Takada Kiko, and between Takada Kiko and Taihei Dengyo. The Fukuoka and Fukui police forces believe the Soshin Kogyo employee served as a temporary worker in violation of the law, and suspect he may be just one of several temporary staffers sent to nuclear power facilities under bogus contract deals, investigative sources say.
Various temporary agencies have been suspected of siphoning off workers’ wages and crime syndicates are suspected of playing a part in dispatching such temporary workers.
http://mdn.mainichi.jp/mdnnews/news/20120113p2a00m0na015000c.html