SNA (Tokyo) — Kata-tataki, or taps on the shoulder, indicate a series of actions a boss takes to drive a worker to quit without outright firing them. It establishes that the subsequent contract termination is mutually agreed, as opposed to a unilateral and contestable firing. The legal jargon for such “shoulder tapping” is taishoku kansho. In this installment of Bread & Roses, I’d like to explain the practice and introduce a recent, surprising verdict in a court case over its validity.
Many laud Article 8 of the brand new Part-time/Fixed-term Employment Act as Japan finally recognizing the principle of same-work-same-pay. But one word in that article gave me pause: unreasonable.
The Part-time/Fixed-term Employment Act (enacted in April 2020 for regular firms and small businesses a year later), prohibits unreasonable treatment of employees on regular and irregular/contingent contracts. Article 8 stipulates, “The employer must not create a disparity that could be deemed unreasonable between the base pay, bonus and other conditions of short-term/fixed-term employees and ordinary employees, with due consideration to what could be deemed appropriate in light of the nature and purpose of the compensation as well as the details of the operations the worker is involved, the degree of corresponding responsibility, the details of the work duties, the potential for job changes of the two groups of employees and other circumstances. (Emphasis mine.)”
Disparities between contingent and regular employees are forbidden if they are unreasonable. Does that mean that reasonable disparities are fine? Let’s see what the courts are up to on this front.
On March 30, 2022, NHK Web News ran a story on how women driven to financial hardship due to the corona pandemic are increasingly turning to sex work. (https://www3.nhk.or.jp/news/html/20220330/k10013558231000.html)
The report notes that sex workers’ “growing presence in busy urban neighborhoods has spurred police to take enforcement action but also to assign case officers to provide support and to accompany the arrested women to life consultant centers run by local governments.” The cops have begun to provide support for the women’s futures from a social welfare perspective, rather than just cracking down.
In August 2018 at the age of 19, Le Thi Thuy Linh arrived in Japan to work as a jisshusei intern. Each day, she handled agricultural wastewater at a tangerine orchard in Kumamoto Prefecture. Japan’s rapidly ageing population has created a dearth of agricultural workers, forcing farmers to turn to young foreign interns like Linh to maintain their farms.
SNA (Tokyo) — Remote work is no longer a remote concept. Since the start of the coronavirus pandemic, we have seen telework, work-from-home, and workations soar in the popular imagination, and indeed become a reality in many lives. The very meaning of work is undergoing a tectonic transformation before our eyes. So let’s look at telework’s oft-missed underbelly.
Top of any list of terrible Japanese work customs must come long work hours and unpaid overtime.
Below those come mad morning and evening rush hours with train cars packed up to 200% capacity with straphanging workers–sushi-zume (“sushi in a bento box”) or, as anglophones say, “packed like sardines.” The brutality of commutes in urban Japan have inspired commentators to commonly make a pun on the word tsukin (commuting) by replacing it with the phonetically identical, but spelled in kanji differently word tsukin (pain). Most of us have come to resign ourselves to the reality that rush-hour nightmares will never end, and we just have to suck it up.
On November 16, the Tokyo Metropolitan Government announced the disciplinary dismissal of a 28-year-old school nurse for moonlighting as a sex worker for more than a year.
Tokyo officials interrogated her after receiving an anonymous tip about her after-hours work. The primary and middle school nurse said she wanted to save enough money to live on her own in the city. The officials used the word menshoku (removal/dismissal from office) rather than kaiko (dismissal from employment) since she was a local government civil servant.
SNA (Tokyo) — Suit-clad office workers, long-haul truck drivers, ramen shop food preparers, fake priests at faux churches, insurance solicitors, rice paddy farmers, maid cafe servers, security guards, nurses, train conductors, schoolteachers, nursery school caregivers, bank tellers, garbage collectors, plumbers, paralegals, social workers… How many megabytes would it take to list all jobs that occupy the days of the workers who make our society run?
Riddle me this: What job permits you, during a single lifetime, to experience any job on the planet?
Give up? Acting. An actor on stage or screen can do any job that exists and even any job that does not exist. On stage and for a limited time only, before the final curtain, you can become a queen or a serial killer.
The Japanese word rodosha is often translated as “laborer,” but the word “worker” better reflects the ubiquity of its usage. For labor law, however, the word rodosha should on most occasions be translated as “employee,” since it delineates a relationship with management, rather than one’s position in society.
In this piece, I will use rodosha, meaning “employee protected by the various labor laws in Japan.”
Is a stage actor a rodosha? Does she enjoy all protections accorded to a rodosha under labor law?
A recent court case may provide the answer.
Defendant Air Studio Company produces stage plays, films, studio management, handles celebrities, and runs restaurants. The theater troupe Air Studio stages performances nearly each week.
The plaintiff signed a contract and joined the troupe at age 22, dreaming of becoming an actor. In addition to performing on stage, the plaintiff also worked on sets, props, sound, lights, and other tech crew duties–all unpaid. After four years, the firm began paying him a ¥60,000 (US$540) “support stipend” each month. He devoted himself to acting and backstage work without a break, clocking up to twelve hours a day, with no time to eat properly. He fell into financial hardship. At the end of his rope and no future in sight, he left the troupe in 2016.
Then, he sued the company for back wages for his performances and tech crew work. The question arises: was he an employee? Was his work rodo, deserving of wages as stipulated in the Labor Standards Act?
On September 4, 2019, Tokyo District Court ruled that his backstage activities were indeed rodo and in engaging in those activities, he was indeed a rodosha, protected by labor laws. But the court did not recognize his acting on stage as the work of an employee of the company.
Both sides appealed the split verdict to the Tokyo High Court. The plaintiff insisted that his acting too was labor protected by labor law, while the defendant claimed that none of his various duties could be characterized as wage labor performed by an employee (rodosha).
Almost a year later, on September 3, 2020, the High Court ruled in favor of the actor, recognizing all the work, including performing on stage, as labor subject to wage regulations.
The lower court had said that acting on stage was an optional part of his job and that he was free to accept or refuse. Freedom to accept or refuse is a key principle that determines rodosha status in Japanese courts.
The appellate court agreed that the actor could refuse to act on stage with no apparent disadvantageous repercussions, but noted that “one joins a theater troupe in order to act on stage, making refusal inconceivable under normal circumstances. The troupe members prioritized completing the tasks received from the defendant and had no realistic option other than to comply with orders. Thus, they cannot be said to have had the right to accept or refuse.”
The Tokyo High Court concluded that the job fit the definition of a rodosha in Article 9 of the Labor Standards Act and ordered the defendant to pay unpaid wages of ¥1.85 million (US$16,670).
This verdict sent shock waves through the Japanese theater industry, where unpaid apprenticeships have always been the norm. Ripples had spread throughout the industry even with the lower court’s ruling that backstage work was… well… work. But the judge’s ruling that even acting on stage was subject to wage regulations terrified the industry.
We labor law academics have always considered anyone who must follow orders–regardless of the name of the job–as rodosha, but indignant business representatives asked if the court is trying to destroy the Japanese theater industry, and predicted the extinction of all theater troupes, other than giants such as Shiki Theater Company.
It’s fair to say that those pursuing an acting career often struggle with no money but abundant aspiration. Masato Sakai often speaks on television about how he dropped out of college to found his own theater troupe, only to have to string together part-time jobs for a decade as this theater attracted no audiences. He laughs while recounting how he resorted to eating wild dandelions when he was flat broke.
He is not alone–many successful actors share similar experiences.
Many might feel some resistance to this verdict, since this is a world actors choose willingly to dive into. Why should they be counted as an ordinary rodosha? If they are rodosha, then they are entitled to job security and cannot be fired without a darn, good reason.
Yet, actors usually must audition to get parts in a world of cutthroat competition with few cast.
I understand this sentiment for what it’s worth. At the same time, I oppose settling for some sort of extraterritoriality that deprives actors of all labor law protections. While considering the special nature of the work of an actor, we must also ensure an environment that enables them to live lives befitting of human beings.
This article was written by Hifumi Okunuki, and originally published by the Shingetsu News Agency (SNA).
SNA (Tokyo) — We were told that the 1985 Equal Employment Opportunity Act (EEOA) marked the “dawn” of a new age for female workers in Japan. No more could employers blithely set up special marry-and-leave retirement systems for their female employees, a practice that had been considered perfectly legal. Several amendments boosted the reach of the law and wording revisions extended protection from gender discrimination and sexual harassment to male workers.
But, in many ways, Japan remains stuck in its old patriarchic ways. Bucking an international trend, Japan still prohibits same-sex marriage and post-nuptial couples must choose one surname, usually the husband’s (unless one partner is a foreign national). And the law retains the word “gender,” leaving unclear what if any protection is extended to LGBTQ workers.
SNA (Tokyo) — During a May 30 demonstration in front of central Tokyo’s JR Takadanobaba Station, my labor union, Tozen Union, called upon the Japanese government to overhaul its immigration system and to protect the human rights of foreigners.
We persisted despite a heavy downpour, joined by the two younger sisters of Wishma Sandamali, a 33-year-old Sri Lankan woman who died after medical neglect in a Nagoya immigration detention center.
Wayomi Rathnayake called on the Immigration Bureau to release all video, documents, and information related to her sister’s death. Japan’s immigration bureaucracy has a history of opacity and arbitrary treatment of foreigners. We demanded that the government guarantee foreigners’ right to life, regardless of visa status. We must not accept valuing some lives less than others, due to flukes of fate that determine citizenship and residence status.
SNA (Tokyo) — I teach a weekly class on social security theory at a nursing college. When I read comments from the aspiring nurses, I can see their passion for alleviating human suffering, as well as for the class, which is gratifying as a teacher.
The Covid pandemic that has spread over the globe over the past year has impacted medical facilities the most. Tokyo recently declared its third state of emergency, as the daily toll of new patients sometimes exceeds 1,000 people. Japan doesn’t restrict people’s movement as in a mandatory lockdown; the state of emergency means only that restaurants and department stores close an hour earlier than usual, and restaurants serve fewer alcoholic beverages.