The flip side of coveted public-sector jobs in Japan: fewer rights

I research labor law and teach it to university students. In the first class, I break up the two groups of labor laws — those related to individual and collective labor relations — for my students. Individual labor relations law begins and ends with the 1947 Labor Standards Act (rōdō kijun hō); its collective counterpart is surely the 1950 Trade Union Act (rōdō kumiai hō).

About 99.9 percent of my 18-20-year-olds look blank the first time they hear the word “rōdō kumiai,” or labor union. Some of them have arubaito (part-time jobs) and thus already have become rōdōsha (workers) protected by labor laws, but they have not heard of labor unions and have no idea what such a creature looks like. I have my work cut out trying to explain to them the concepts of labor unions, collective bargaining and striking.

A popular professional aspiration among university students today is to join the ranks of kōmuin, or government employees. Civil servants have stable employment, meaning they don’t have to worry about the possibility of being laid off. Their work hours and days off are usually quite favorable compared with those at private-sector firms. (At least that is what is said — that is the reputation. The reality is not so straightforward.)

Once, the hot jobs were high-income positions with finance firms or trading houses, but today’s youth are more sober, preferring a steady, grounded career path. A 2015 poll by Adecco Group asked children between 6 and 15 years old in seven Asian countries and regions what they wanted to be when they grow up. Children in Japan answered in the following order of popularity: 1) company worker; 2) soccer player; 3) civil servant; 4) baseball player. Note the perhaps unexpected answers ranking 1) and 3). “Government employee” made the top 10 only in Japan.

I don’t know what small children envision as a typical day in the life of a civil servant. First, it’s important to make clear that there are several different types of government employee. There are those who work in city, ward and tax offices, legal affairs bureaus, the Immigration Bureau; there are police officers, firefighters, public school teachers, judges, prosecutors, labor standards inspectors — the list goes on. Saying “My dream is to become a civil servant” covers a range so broad that the expression begins to lose any meaning.

Amazingly, each type of civil servant has different labor rights in Japan. I ordinarily teach labor law that protects private-sector employees, so when I tell my students that the labor laws for civil servants differ by type of job, they express shock, particularly when they find out that civil servants have fewer rights than other workers.

Ordinary workers in Japan are protected by Article 28 of the 1947 Constitution, specifically the rōdō sanken. This term refers to the three bedrock rights (ken) — the right to solidarity (danketsu ken — more on that later); the right to collective bargaining (dantai kōshō ken); and the right to collective action (dantai kōdō ken), including strikes.

Whenever studying the Japanese Constitution, be sure to note the subject of the sentence, because therein lies a treasure trove of controversy. Whether it’s kokumin(the people, which came to mean the Japanese people) or nanbito (all people, including foreigners) or no subject, which also means the article applies universally.

Article 28 takes kinrōsha, or workers, as its subject. Ordinarily, one would think — and I do think — that this word applies to all workers, whether public- or private-sector, government functionary or factory worker. Two laws were enacted, however, that kick civil servants out of this group. They were the National Civil Servants Act and the Local Civil Servants Act. Let’s see how.

1) Right to solidarity

Civil servants have a civil-servant version of a labor union. Rather than a rōdō kumiai, it’s called a shokuin dantai, or “staff group,” as stipulated in Article 108.2 of the National Civil Servants Act and Article 52 of the Local Civil Servants Act. This group also serves to maintain or raise the working conditions of its members.

So far, so good. It looks like civil servants here have roughly the same rights as private-sector workers. Unfortunately, not all civil servants can join these groups. That is to say, not all government employees have the right to solidarity. Those excluded include police officers, prison employees, firefighters and members of the Coast Guard and Self-Defense Forces.

2) Right to collective bargaining

Staff groups that meet certain conditions and register with the National Personnel Authority can hold collective bargaining with the NPA, which decides the working conditions for all national government employees. The catch is that they cannot negotiate over working conditions or the content of their work. They can discuss social and welfare issues, including staff parties, all of which raises the question of whether these discussions can realistically be called collective bargaining. Anyway, that’s what they are called. These staff groups also cannot sign collective agreements or labor-management agreements.

3) Right to collective action (strike)

Strikes and even certain “sabotage” operations are covered under the right to collective action. This right is to be exercised only as a last resort after talks between management and a union have broken down. Neither national nor local civil servants enjoy the right to strike. Some legal scholars, however, believe that these civil-servant laws violate the Constitution and that government employees in fact do have the right to strike.

As the law stands now, though, it seems clear that the three basic labor rights of civil servants are heavily restricted.

So why are civil servants’ rights so restricted in the first place? That takes us back to the Occupation years just after World War II. The U.S. administration in Japan saw a growing tide of unionism just after the war and feared the people would increasingly come under the influence of communism. In July 1948, Supreme Commander for the Allied Powers Gen. Douglas MacArthur issued the so-called MacArthur Document. It ordered the Japanese government to prohibit civil servants from engaging in collective bargaining or dispute action. The government responded with Government Order No. 201, depriving its own employees of collective action rights.

As for the constitutionality of these laws? On Oct. 26, 1966, the Grand Bench of the Supreme Court found such restrictions legitimate. This was the Zentei Tokyo Chuyu Case. The verdict read:

Restricting basic labor rights protected under Article 28 of the Constitution must take the following into consideration: 1) Restrictions must be minimized to the greatest possible extent, ensuring rationality in comparison to the need to secure respect for basic labor rights versus the need to maintain and increase benefits for the populace as a whole; 2) Restrictions should be limited to jobs and industries that are highly public in nature and whose stoppage would or could cause serious hindrance to the lives of the citizenry, and even then, only when the restrictions are necessary to avoid such stoppages; 3) Any disadvantageous treatment to those who oppose these restrictions should not be more than necessary … criminal penalty should be limited to only when necessary; and 4) When it is unavoidable to restrict basic labor rights, substitute measures must be implemented.

This wasn’t the end of it. Two more cases came out of the courts, both on April 2, 1969, and they both seemed to be pushing toward the end of the restrictions.

However, on April 25, 1973, in the famous Zennorin Keishokuho case, the Supreme Court stepped up and put its foot firmly down, saying once and for all that restrictions on the basic labor rights of civil servants were — that key word that is always sought in Japanese courts — gōriteki, or reasonable and rational.

So as it stands now, the government permits all employees to strike except its own. It will be up to some future civil servants to again challenge the constitutionality of laws restricting their basic right to strike.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at Labor Pains appears in print on the fourth Monday Community Page of the month. Originally published in The Japan Times.