law

The year in labor: the Top 5 pains of 2013

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By Hifumi Okunuki
Illustrations by Time O’Bree

Japan’s old calendar called December shiwasu (師走). These two kanji mean “teacher” and “run.” The idea was that the last month of the year is so busy that even a staid, starch-shirted professor finds him or herself scurrying around like a rabbit, trying to get everything done on time.

As we hurtle toward 2014, it’s time to look back on how the Year of the Snake treated labor. In keeping with the growing trend on TV, blogs and news sites, I’ve devoted this final edition of the year to a Top 5 list. The Top 5 Labor Pains of 2013 will focus on what really shook things up in terms of labor relations and employment law. In keeping with convention, I’ll count backwards.

Note: These are my personal picks and you may question my choices or believe other labor news to be more deserving of inclusion. If so, please don’t hesitate to let me know.

5. The planned ‘special dismissal zone’

As covered in my Oct. 8 column, “The Special Dismissal Zone: where legal protections no longer apply,” the Shinzo Abe government’s National Strategy Special Zone Working Group announced in May a scheme to remove all protections from abusive dismissals in a special zone, in the hope of creating “the most business-friendly environment in the world.” “Business-friendly” here means “free to dismiss at will.” This “dismissal at will” is known as “employment at will” in the U.S.

The media jumped on the plan, calling the proposed area a “dismissal zone,” to which academic Tatsuo Hatta, the head of the working group, retorted, “It’s a job creation zone, not a dismissal zone.”

What kind of jobs do these planners intend to create for us? Since firms are free to employ and un-employ workers at will, these workers will in effect become interchangeable parts in the corporate machine. For every job created, employers can cherry-pick which workers to let go, leading to massive turnover and great social instability.

The plan raised such an uproar that it has been put off for now. But proponents will not roll over so easily. When the winds are right, they are sure to give it another shot.

4. Rin Danda, labor standards inspector

I cannot overemphasize the significance of the fact that a labor standards inspector was made the protagonist of a TV series.

I had already read the comic book “Dandarin,” which follows the adventures of plucky Rin Danda, and was concerned that something might be lost in translation en route to TV. I have been reassured by the first series, which ended Wednesday. It is obvious that producers have researched the Labor Standards Bureau properly and have carefully avoided making the script preachy.

Ratings have been poor, but the series has gone a long way toward conveying the reality facing the modern worker in Japan.

3. The Fukushima far-more-than-50

Do you remember the “Fukushima 50″? They were the workers who struggled frantically to regain control over the Fukushima No. 1 nuclear power plant just after the triple meltdown caused by the March 11, 2011, Great East Japan Earthquake and ensuing tsunami. The domestic and foreign media heaped accolades upon them, suggesting they were heroes burning with a sense of mission who demonstrated remarkable courage in fulfilling their duties with scant regard for their own lives.

More than 2½ years have passed, yet the government and society have nearly forgotten those who still toil day and night at the plant. If they were to drop their tools for even a night, the resulting contamination could leave our country uninhabitable. And it isn’t just 50 of them anymore — let’s recognize the thousands of heroes who have worked, still work and will work at the Fukushima No. 1 plant to contain the contamination and protect our environment.

And what are working conditions like for these heroes? Unfortunately, many workers there are slaving under horrible sweatshop conditions. Tokyo Electric Power Co. hires layer upon layer of subcontractors, sub-subcontractors and so on, with most workers involved in the cleanup eking out a living on the very lowest tiers of this exploitation pyramid.

The biggest problem with this structure is that no one can figure out who is accountable for employment and working conditions. With little or no preparation or training, these workers are suddenly thrust into highly dangerous tasks beyond the reach of labor law but well within the reach of harmful daily doses of ionizing radiation. Even their “danger pay” is skimmed by their bosses and their bosses’ bosses.

Most workers grin and bear it without a peep of protest, fearful of losing the only job they can find. Recently, however, one worker employed by a fifth-tier subcontractor took action. He was told upon hiring that he would not have to work in dangerous conditions, yet he was assigned to increasingly high-exposure tasks, such as removing glass near one of the reactor buildings. The day after he protested that he had been promised a safe job, he was fired.

He joined a labor union, which requested collective bargaining with five companies, including Tepco itself, over demands such as reinstatement, an end to false outsourcing (gisō ukeoi) and the payment of the promised danger money. Only his direct employer — the fifth-tier subcontractor — agreed to negotiate. His union sued Tepco and the other defiant firms in the Tokyo Labor Commission for refusing to engage in collective bargaining. Tepco claimed to know nothing of the request for collective bargaining and refused to comment.

Going on three years since the accident, we still have little to show in terms of protecting the rights of nuclear power plant workers.

2. ‘Black company’ makes it into Top 10 buzzwords

The winning “Buzzwords of the Year” for 2013 in the annual contest held by publishing house Jiyukokuminsha and correspondence education provider U-Can were “Ima desho!” (Why not now!), omotenashi (hospitality),jejeje (an expression of surprise) andbaikaeshi (double payback). I won’t go into the above expressions here, but I will discuss burakku kigyō, which made the Top 10.

Literally, the term means “black company,” but it might more properly be rendered as “evil corporation.” The phrase describes firms who find profit and success by scoffing at labor laws and brutally exploiting employees, particularly young workers who do not know the law. Some companies literally work their employees to death. Or suicide.

The word went viral thanks to the efforts of Haruki Konno, the director of the labor consultancy NPO Hojin Posse.

Some have pointed out that using a term derived from the English word “black” to mean “evil” is racist toward those of African descent. There are many words in Japanese that seem to associate “black” with negative things:kuroboshi (defeat), haraguroi hito (mean person) and kuro (guilty), to name but a few. There are also exceptions: kurooto (professional) andkuroji (profitable), for example.

For better or worse, burakku kigyō has seeped deep into the language this year and has raised awareness of the existence of some very bad companies. While this is certainly a social problem, it’s also true that it’s up to workers to stand up for themselves and join forces with their colleagues to improve their conditions.

1. Clock starts on the ‘five-year rule’

I had difficulty deciding which Labor Pain to pick for the No. 1 spot this year. In the end, I decided that the “five-year rule” may end up having the greatest impact on workers — for good or ill, it remains unclear. For my part, I cannot help being pessimistic about this change to the Labor Contract Law.

About 26 percent of workers in Japan are on fixed-term contracts. The risk of nonrenewal hangs over their heads each time their contract concludes. It is much easier to fire such workers than those with ordinary permanent contracts. Many companies hire workers on these temporary contracts even though the work is anything but. This “permatemp” status continues year after year and renewal after renewal.

The purported objective of the new rule is to increase job security for the millions on such contracts by letting them attain permanent status after five years. Many employers, however, have decided to go 180 degrees against the spirit of the law and are already planning to let workers go before they reach the five-year milestone, thus making their jobs even less secure.

A small minority of employers are bucking this trend and moving actively to let their workers attain permanent employment status. But even this year — the first year of the five-year “clock” — we see want-ads flooding job sites advertising positions with five-year ceilings.

More frightening still, while employers seem to know enough about the law to evade it, a September study by Japan’s largest union federation, Rengo, indicated that 88 percent of workers on fixed-term contracts were unaware of the nature of the change to the Labor Contract Law. That has to change. We need to know the law in order to use it.

I want to thank all my readers for taking the time to read this year’s 12 Labor Pains. Next year, I plan to take the column in an all-new, more fun direction. Have a good New Year’s and see you in the Year of the Horse.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the second Thursday of each 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.

http://www.japantimes.co.jp/community/2013/12/11/general/the-year-in-labor-the-top-5-pains-of-2013/

Real ‘labor cops’ also deserve to get the star treatment

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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.

http://www.japantimes.co.jp/community/2013/11/13/issues/real-labor-cops-also-deserve-to-get-the-star-treatment/#.Urvog3m1lZg

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?

Labor law protects expectant and new mothers — to a point

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http://www.japantimes.co.jp/text/fl20121016lp.html

 

Tuesday, Oct. 16, 2012

By HIFUMI OKUNUKI

I had a labor consultation with a woman who said: “The other day I told my company I was pregnant. My boss asked me to quit because the firm can’t afford to give me time off. One of my coworkers once resigned before giving birth but I want to stay on. Do I have to quit now that I am pregnant?”

The short answer is no. The longer answer is: no way.

Today’s labor laws do not permit the dismissal of a woman for being pregnant; neither do they allow her to be asked to resign. Labor Standards Law Article 65, Sections 1 and 2, mandate maternity leave as follows: “An employee may take the six weeks before birth as leave, while the employer must not allow her to work for the eight weeks after birth (excepting the last two weeks of that period, during which she may work if she requests it and has a doctor’s note permitting it).”

Article 19 also prohibits dismissal for the first 30 days upon her return to work. Equal Employment Opportunity Law Article 9 also shifts the burden onto the employer to prove that the reason for dismissing a pregnant woman is something other than the pregnancy itself. Without proof, the dismissal is invalid.

The article also prohibits any kind of disadvantageous treatment of women who take maternity leave as prescribed. Such prohibited treatment includes pay cuts, demotions, status changes from seishainregular to irregular employee, transfers, suspensions, lower bonus payment, bad evaluations, etc.

Two cases dominate jurisprudence and the law journals on this issue.

Nihon Schering K.K. is the Japanese subsidiary of a German pharmaceutical firm. Twenty-four employees sued the company for lost wages due to one clause of a labor management agreement (LMA) between the drug maker and the No. 2 Union that read: “Any days off for maternity leave, menstruation leave, childcare leave or paid holidays will be counted when calculating attendance rates, and any worker with less than 80 percent attendance will be denied promotions and pay raises.”

The Supreme Court’s Petty Bench ruled on Dec. 14, 1989, that “any provision that suppresses the right to holidays guaranteed by law violates kōjo (public morals) and is therefore invalid,” a victory for the plaintiffs.

Fourteen years later, the same bench cited the above case to reach a more ambiguous verdict.

An employee of Toho Gakuen (Toho Academy) sought to recover two bonuses denied her because she took eight weeks off for maternity leave and then reduced her work hours because of subsequent childcare commitments. On Dec. 4, 2003, the judge overturned the wage regulation that deprived her of the bonuses but permitted the school to prorate the bonus, reducing it in proportion to the hours and days she was off.

The court’s logic was based on Article 65 of Labor Standards Law, which does not require that the leave itself be paid, so long as there are no other deductions. (This is similar to the law on strikes, which prohibits any disadvantageous treatment but does not require that the time struck be paid.)

The cut in her bonus payments proved to be deep for the woman working at Toho Academy, since the bonuses had accounted for more than 30 percent of her annual income. Such cuts to income discourage us women to have and raise children — not good news in a society that needs more children.

Maybe the Supreme Court should take a bit broader view and consider the financial “labor pains” involved in having a child.

Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women’s University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union. On the third Tuesday of each month, Hifumi looks at a famous case in Japan’s legal history to illustrate an important principle in labor law.