Does new Labor Contract Law mean five years and out? Or five years and in?
「５年ルールセミナー」開催します！
◆ Date：日 時
Sunday, December １, 2013 2:00pm to 5:00pm
２０１３年１２月１日（日）午後２時００分〜午後５時００分
No entrance fee！ 参加はどなたでも無料です。
Real ‘labor cops’ also deserve to get the star treatment
By Hifumi Okunuki
Television meant little to me until this autumn. Now, every Wednesday at 10 p.m., I sit squarely in front of the tube, glued to the set for the next hour of the new comedy “Dandarin.”
In the show, Yuko Takeuchi plays a stubborn, by-the-book labor standards inspector named Rin Danda who loathes letting even the slightest infraction slide, making for some awkward, tense moments when she comes up against her more see-no-evil, hear-no-evil coworkers. Perhaps not surprisingly, never before has a TV show starred a labor standards inspector; before this series went on air, most people probably had no idea what they do.
Takeuchi told a magazine, “I never even knew the job of labor standards inspector existed until I got this role.” It’s not that the actress knows less than the average citizen; it’s that the job was nearly invisible and played no role in the quotidian lives of most people.
That said, recent high-profile cases of restructuring layoffs, unfair dismissals, long work hours, karōshi (death from overwork), karō jisatsu (overwork-induced suicides), incidents of sexual and power harassment, workplace bullying and other sometimes-life-or-death issues (the list goes on and on) suggest it was high time to shine a light on this invaluable profession. TV has regained meaning in my life — and, I hope, in the lives of others.
Tackling such a serious, inherently boring topic and attempting to turn it into a bundle of laughs for TV must have been quite a challenge — and a risk — for the producers. They have done all that and more. The show says a great deal about Japanese office politics and corporate practices that are long overdue some serious scrutiny.
Today some 52 million workers toil at about 4.3 million workplaces in Japan. First and foremost, labor standards inspectors are responsible for all these workers’ lives, safety and health. On top of that, they are supposed to ensure that working conditions comply with all relevant labor laws and regulations. They must pass a civil servants’ exam before being placed at one of the many labor standards inspection offices dotted around the country.
Inspectors have the right to regularly conduct compulsory spot raids on companies to investigate their records. They also have judicial police powers to seize assets to cover unpaid wages and even to arrest violators. They are often called “labor cops,” which would seem to be a pretty fair description.
With all these powers at the disposal of labor inspectors, you could be forgiven for imagining Japan must be a workers’ paradise where employee protections are universally respected. The sad fact, however, is that Japan is awash with rogue bosses who think of nothing but their bottom lines and how they can squeeze every last ounce of production from their workers. Ironically, the extraordinary enforcement powers inspectors have are precisely what makes them hesitant to act.
There is even a jargon term for useless inspectors who make their rounds to each company, take a quick glance around the workplace and leave: kyoro-kan. The word kyoro means to glance around, while kan means inspector. I wouldn’t dream of suggesting that all inspectors are kyoro-kan, but I have encountered several unmotivated inspectors in the past who did their best to discourage, dishearten and dissuade workers who had mustered the courage to blow the whistle on their bosses.
However, the biggest problem is systemic rather than personal. First, there are far too few inspectors. Tokyo Shimbun’s evening edition on Nov. 11, 2012, ran the headline “Tokyo’s 23 wards have one inspector for every 3,000 workplaces.” Such a ratio precludes thorough enforcement. Yet the government is pushing for further cuts and reduced hiring. Even the passionate few inspectors must feel powerless when faced with such daunting numbers. To do their job properly, they would have to — no irony intended — work themselves to death.
Here, I’d like to introduce an ongoing court case brought on Feb. 22, 2011, by the family of a 24-year-old man who killed himself due to working excessive overtime. He joined construction company Shinko Plantech in 2007 and supervised repair construction.
Working more than 40 hours a week of overtime violates the Labor Standards Law unless management has signed an Article 36 agreement (saburoku kyōtei) with a union or employee representing a majority of the workforce. Employers must register such agreements with their local labor standards inspection office (rōdō kijun kantokusho).
Guidelines limit overtime hours to 45 per month with exceptions, including construction. Shinko Plantech signed a saburoku kyōtei with the union for 200 extra hours per month. The worker could not handle the stress and killed himself a few months after hitting 218 hours of overtime work per month.
The family didn’t just sue the company; they also sued the labor standards inspection office for accepting such an outrageous saburoku kyōtei agreement — and even the labor union for signing it. It is the first lawsuit against a labor union for a karō jisatsu. The plaintiffs are asking for ¥130 million in damages, and the district court verdict is expected any day now.
In terms of overtime hours, the Ministry of Health, Labor and Welfare has drawn a line beyond which they believe workers face a high danger of death from overwork. That line is 80 hours for two to six months straight, or 100 hours for even one month. Shinko Plantech blew that number out of the water with their deal capping overtime at 200 hours per month — and they didn’t even comply with that number. The labor union then signed this deal — a pact that would make even yellow unions blush.
So what’s to be done? I think we need to get back to basics. We must never allow workers to work themselves into an early grave. Period. Let’s learn from Rin Danda, who unflinchingly and unapologetically squares off against scofflaw employers in the name of her prime directive: protecting workers. Even when her coworkers make fun of her dedication, she retorts, “I’m just doing my job.”
Yes, indeed, the job of a labor standards inspector is to protect the lives of workers. With that in mind, the central government must hire more inspectors so that they can take heart from the example of Rin Danda and pride in protecting Japan’s 52 million workers.
See Philip Brasor’s Oct. 20 Media Mix column, “Imagining civil servants who actually serve,” for more on “Dandarin.”
Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached attozen.okunuki@gmail.com. On the second Thursday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Send your comments and story ideas to community@japantimes.co.jp.
[日本語版]Japan College of Foreign Languages Once Again Interferes With Legal Union Activity. We will not back down! またもや正当な組合活動を妨害した日本外国語専門学校（ＪＣＦＬ） ～それでも、私たちはへこたれません！
今朝（2013年10月18日）東ゼンJCFL支部組合員、東ゼン組合員、支持者が日本外国語専門学校（以下JCFLと略）に私たちの組合を拡大するためにJCFLでビラ配りをしました。以下はその報告です。
Japan College of Foreign Languages Once Again Interferes With Legal Union Activity. We will not back down! またもや正当な組合活動を妨害した日本外国語専門学校（ＪＣＦＬ） ～それでも、私たちはへこたれません！
This morning Tozen JCFL Local members, Tozen members, and supporters conducted a leafleting at JCFL in an effort to build our union there. Below is our report.
Leafleting Report
After gathering we walked together towards the school, put on our armbands, and got to leafleting. We began leafleting at 8:40. Several staffers immediately stood in front of the union members attempting to block them. The members kept their cool and persisted in leafleting, trying hard to get the leaflets to the students without touching the staffers. I tried to confront the staffers individually, informing them that this was a union action and they should not interfere. The staffers either ignored me or told me that they were outside to protect the students from cars, and that they are out there every day. Principal Iizuka said this several times as well. School staff, however, do not greet students in the street on a daily basis.
Is Sulejman Brkic no longer a member of the ICC Family?
Tozen member Sulejman Brkic was bloody illegally fired.
ICC Language Schools is a language school that has six branches in the Kanto area, with its headquarters in Yokohama. Sulejman Brkic has been teaching English and French courses at this school for twenty years. He has always been very popular among his students, not only because of his superb teaching skills, but also for his charming personality and his wry sense of humor. Sulejman loves his job, and has worked passionately for the past two decades.
スレイマン・ブルキッチ組合員は、もう「ICC Family」じゃないの？！
株式会社ICC（本社：横浜市）は、関東地域に６つのスクールをもつ語学学校です。スレイマン・ブルキッチ組合員は、20年間にわたり、ICCで英語とフランス語の講師として仕事をしてきました。ちょっぴり皮肉やさんながらとてもチャーミングな彼は、教え方にとても定評があり、生徒たちからの人気も抜群でした。彼はやりがいと情熱をもって20年間働いてきました。
Shakai Hoken Seminar
Everything you always wanted to know about Shakai Hoken.
Learn all the facts about Japan’s Shakai Hoken health and pension system and let us disabuse you of some persistent myths. Questions will be answered after the seminar.
The Special Dismissal Zone: where legal protections no longer apply
I couldn’t believe my ears when I heard about the government’s recent proposal to set up a Special Dismissal Zone on Japanese territory. “A what?” I hear you cry.
The Shinzo Abe government wants to make Japan “the most business-friendly climate in the world.” In May, he set up a National Strategy Special Zone Working Group, made proposals to local governments and corporations, and announced that special zones, or tokku, for health care, agriculture, education and other areas will be established.
The plan is to be submitted to an extraordinary session of the Diet in autumn as the Industrial Competitiveness Strengthening Bill. Most controversially, a so-called Special Employment Zone is among the options being considered, an idea that has already been dubbed the Special Dismissal Zone, or kaiko tokku, by the media.
Currently, throughout Japan, employers must overcome several high hurdles before they can dismiss an employee legally. In short, you can’t fire someone without a damn good reason.
The thinking for the Special Dismissal Zone, however, is that rules about sackings would be relaxed roughly to the point of “employment at will,” as is practiced in some parts of the United States. Within the zone, the idea is that if the worker and employer agree ahead of time on what behavior warrants dismissal, then such a dismissal under those circumstances will always be permitted, regardless of bothersome legal protections outside the zone. For instance, if employer and employee agree that the worker can be dismissed for turning up late once, then the employer can legally sack that worker when he clocks in at 9:30 for the very first time.
A second special feature of this zone would be that work hours would not be restricted for employees earning above a certain salary — currently set at about ¥8 million a year. That means employers could theoretically make their employees work all night and not pay them a single yen for the overtime. Such a high salary is safely beyond the grasp of most of us working stiffs, but keep an eye out for that falling floor — and watch out as that zone spreads.
A third sweetener for these business oases: The “five-year rule” wouldn’t apply if foreign workers make up more than 30 percent of an employer’s work force. This rule refers to the change to the Labor Contract Law (Article 18) that gives workers the chance to win permanent status if they stay with an employer for more than five years. I spoke about the problems emerging with this legal change in March (“Labor law reform raises rather than relieves workers’ worries,” March 19). Whatever the shortcomings of this reform, the special zone would suspend this protection to all company employees if a firm’s gaijinquota tops 3 out of 10.
Responding to the announcement of the kaiko tokku plan, Osaka’s firebrand mayor, Toru Hashimoto, on Sept. 11 announced that Osaka Prefecture and Osaka city will jointly submit a proposal to the Cabinet Office to set up a zone that would encourage performance-based wages, to be called the Special Challenge Zone. This zone would include Osaka’s economic heart, the Midosuji area. Companies paying above a certain wage would enjoy relaxed work-hour restrictions and the right to fire at will.
Osaka prefectural Gov. Ichiro Matsui stressed that the zone would only affect elite workers. “This is for highly skilled professionals, not for low-income workers,” he said. “This enables mismatches between employer and employee to be rectified by moving around high-income, highly skilled, self-confident workers. This is not for workers barely making ends meet.”
For workers, these plans come as a bolt out of the blue. What is going on here? Well, according to the government, clarifying dismissal rules will boost the development of new industries and attract start-up and foreign firms, creating a healthy investment climate in Japan for the world’s corporations.
Many business and political leaders whinge about how hard it is to fire someone in Japan. “It is harder to dismiss a worker in Japan than in any other country in the world,” they whine. “Japan is going to be left behind.” Is that really the case?
Article 16 of the Labor Contract Law states: “A dismissal is invalid and the right to dismiss has been abused when it lacks objective, rational grounds and cannot be deemed reasonable according to social norms.” I took this up in my February 2012 column (“Oversleeping radio anchor set tough precedent for firing staff,” Feb. 28, 2012).
In Japan, case law often leads to laws being rewritten. The wording of Article 16 has its origins in a Supreme Court case brought against Nippon Salt Manufacturing in 1975. The gist of the ruling was that employers cannot fire workers whenever they please. Since workers earn wages that form the basis for their livelihood and enable them to raise families, unchecked dismissals could lead to the breakdown of the family unit and cause instability even within society as a whole. Wages are the basis of workers’ livelihoods, so sackings should be avoided — that was the thinking behind this legal principle of kaikoken ranyō hōri, or abuse of the right to dismiss.
Business leaders and some politicians counter that the principle has left Japanese workers overprotected, and that it damages Japan’s competitive edge in the world. I must disagree strongly. Establishing the principle that you cannot dismiss a worker without good reason stabilizes industrial relations, places limits on the exercise of runaway, arbitrary power by employers, and helps preserve social harmony.
During Japan’s period of dramatic postwar economic growth, companies rallied under the slogans of “lifetime employment” and “your company is your family.” Jobs were far more secure back then. Granted, the slave-like treatment of workers during that time tarnishes the sheen of job security, but at least workers were not treated as disposable objects, to be used then tossed away like garbage.
The government and business community are swearing up and down that the new zones will only apply to elite, high-income workers. But I have no doubt that if we deregulate dismissal in these zones, the deregulation will break out into the wider world. This in turn will encourage workers to see each other as rivals rather than comrades, enemies rather than allies. When that day comes, who will be laughing from their high perch? The answer is too obvious to state.
More than 35 percent of workers in Japan are in irregular or contingent employment. Income is declining while the number of work hours and the number of workers not enrolled in the shakai hoken health and pension scheme continue to rise.
As Japan ages, more and more workers must provide nursing care to parents on top of tough, long-hour jobs. More employees are taking time off work, resigning or even killing themselves due to depression, which is now considered by some to be the national disease.
The last thing Japan needs is a Special Dismissal Zone to make workers more miserable than ever.
“Taking back Japan” is one of the Abe government’s favorite catchphrases. Around town, you see this phrase in bold letters splashed across huge posters depicting the prime minister gazing into the distance, the Hinomaru flag fluttering in the background. But I cannot see where Abe’s eyes are looking. From and to where does he want to “take Japan back”?
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Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the third Tuesday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
This article originally published in the Japan Times at:
http://www.japantimes.co.jp/community/2013/10/07/how-tos/the-special-dismissal-zone-where-legal-protections-no-longer-apply/#.UlZp5hYijHg
Matahara: turning the clock back on women’s rights
Matahara: turning the clock back on women’s rights
‘Maternity harassment‘ concept coined amid reports of bullying over pregnancy at work
BY HIFUMI OKUNUKI
“When I told my company I was pregnant, they fired me.”
“I was delighted to be hired by a company I loved. Then my boss made me promise not to get pregnant for a while.”
In last October’s Labor Pains, I discussed maternal job rights in “Labor law protects expectant and new mothers — to a point.” Today, I would like to address a new legal concept known as “maternity harassment,” or matahara, in the syllabic acronym engendered by this growing — and disturbing — trend.
Union, business concerns put limits on freedom of speech by Hifumi Okunuki
Hot on the heels of their romp to victory in the race for control of the House of Councilors, the Liberal Democratic Party is chomping at the bit to overhaul the Constitution, which has not been amended since it was signed into law in 1946. The ruling party proposes gutting Article 9, which forever bans war, and laying the legal groundwork for an official national military.
Today I won’t address this folly; rather, I’d like to discuss the tension between employees’ danketsuken (right to solidarity) and employers’ right to free speech under the as-yet-untweaked Constitution.
Article 21 guarantees without condition all freedom of “assembly, association, speech and publication.” All these freedoms apply to employers as well as employees.
Article 28 guarantees danketsuken: “The right of workers to come together in solidarity and to bargain and act collectively is guaranteed.” Together these are known as the three labor rights (rōdō sanken): danketsuken, dantaikōshōken and dantaikōdōken — the right to solidarity, to collective bargaining and to strike.
The Trade Union Law was built on the foundation that is Article 28. That law’s Article 7.3 prohibits interference (shihai kainyū) in the operation of a union by management. What this means in practice is that management’s freedom of speech is restricted to the extent that it interferes in the running of a union.
So when does an employer’s speech constitute illegal interference?
The most famous case to address the tension between an employer’s freedom of speech and the prohibition on union interference is the Prima Meat Packers case. The company had a closed shop, meaning membership in the union was a condition of employment and leaving or being expelled from the union meant automatic dismissal from the firm.
The union had bargained collectively several times over a wage demand during the spring labor offensive known as shuntō. After rejecting management’s latest offer, the union declared that talks had broken down.
The company president responded by sending the following memo to all employees:”It is unclear how union executives assess the company’s sincerity, but the union has announced the breakdown of talks. I believe this indicates an imminent strike. To me this seems like nothing more than striking for the sake of striking. This is quite regrettable. It is absolutely impossible for the company to raise its offer, so we are now have no choice but to take a drastic measure. I urge that both sides act in moderation.”
This document caused quite a kerfuffle in the union, with many members getting cold feet about striking. In the end nearly 200 members crossed the picket line.
The union sued for redress in the Tokyo Labor Commission, claiming the president’s message constituted interference in the union, discouraging members from striking and thereby violating Article 7.3 of the Trade Union Law. Both the Tokyo commission and then the National Labor Commission ruled in the union’s favor. The company dragged the case to court, but both the district and high courts upheld the Tokyo commission’s ruling.
Undeterred, management appealed to the Supreme Court. On Sept. 10, 1982, this fifth adjudicating body upheld all four lower rulings, handing workers a powerful judicial precedent.
The court’s reasons (ruling in italics):
1. While employers’ right to free speech is indeed protected by Article 21 of the Constitution, that right must be restricted by the prohibition on violating the danketsuken (right to solidarity) protected in Article 28.
The “right to solidarity” might sound strange to those who grew up in other countries, since it seems to imply a right to a feeling. In Japan, however, danketsuken is inviolable and trumps even free speech.
2. The content, method and timing of speech, the position and rank of the speaker, and the impact of the speech on union members, union organization or operation, when all considered together, determine that interference (shihai kainyū) has occurred.
The courts here again give themselves extraordinary latitude in deciding what is against the law, indicating that each case must be considered separately by each court.
3. Although the document was addressed to “employees,” it was effectively addressed to “all union members” since the company had a closed-shop agreement with the union. By criticizing the union leadership, there was a danger that the letter could drive a wedge between the executive and rank-and-file membership. The “drastic measure” had a menacing quality toward the union members. The call to “act in moderation” discouraged members from striking.
The court concluded that the document interfered with the independent operation of the union, including the decision to strike. (If I were of the management persuasion, I’d commend their persistence in appealing the first labor commission decision — no less than four times!) Ever since, the courts have consistently ruled that free speech does not extend to union interference.
Now let’s take a look at the other side of the coin.
The Supreme Court ruled on Dec. 20, 1983, in favor of a manager at Shinjuku Post Office who, at his own private home, spoke with employees and criticized the existing union’s militancy, while encouraging the employees to join a second union that was about to be formed. The court said, “The action might not have been fair, but it does not constitute union interference.”
On Dec. 21, 1970, Tokyo District Court likewise defended Oita Bank’s right to publish an internal newsletter describing the bank’s wage policies right in the middle of wage talks. The court said the bank was merely stating its opinion and was in no way committing shihai kainyū.
In the U.S., the right to free speech, protected by the First Amendment of that country’s Constitution, trumps both union and business rights. Thus, Target and other retailers are permitted to show their workers slick, professionally made infomercials with good-looking actors warning about how much unions will hurt workers (Google “Target’s Anti-Union Propaganda Video” and check it out). U.S. businesses openly hire anti-union consultants to bad-mouth unions to their hearts’ content, as long as they don’t engage in quid pro quo threats or promises tied to union membership.
In Japan, the situation is the reverse: Union and business rights both trump freedom of speech. This means that certain things management might say about a union at the workplace are illegal because they might discourage workers from joining or encourage them to leave the union, discourage them from striking or encourage them to scab, etc. The aforementioned Target video would be flagrantly illegal in Japan.
The labor laws in each country reflect their different histories, structure, ideology and social norms. I will leave you to decide which system is fairer, but I would suggest that management has overwhelmingly more intrinsic financial, positional and propaganda power than the average labor union.
I would be interested to know to what extent our readers think that freedom of speech should be protected. Should it trump union rights?