A democratically elected rep is every worker’s legal right

Workers’ voice in negotiations: The lack of a freely and fairly elected workers’ rep could cost employees dearly in the long run, allowing management to alter work rules and worsen conditions with little resistance. | BLOOMBERG

Last week Mr. A came to me for a labor consultation.

“I have worked for Company A for nearly three years,” he said, “and recently I received an email from human resources announcing an election for workers’ rep (jūgyōin daihyō). The email said that the rep’s job would be to communicate the opinion of the workforce on any changes to work rules (shūgyō kisoku), and that Ms. B had been nominated for the post. It went on to say that if an objection from a majority of employees was not received by a certain date, then management would consider her the victor.”

It was the first time Mr. A had heard anything about such a position. He asked me, “What on Earth is a workers’ rep? What do they do? I have nothing against Ms. B, so should I just leave it to her?”

Mr. A’s questions are good ones. The company’s explanation is just not good enough — in fact, its behavior in this case is illegal. First, let me fill in the blanks left by the company about the role of workers’ reps.

The Labor Standards Act (LSA) and other laws contain many articles making reference to a jūgyōin daihyō representing a majority of workers. Management must consult the rep whenever it is considering creating or changing work rules.

Management has to sign an agreement with the workers’ rep (the agreement is called a rōshi kyōtei) in order to introduce the following policies:

a) Forced transfer of a portion of wages into a personal savings account.

b) Wage deductions other than those permitted in the LSA (which areshakai hoken health and pension insurance, and income taxes).

c) Flextime

d) Exemption from laws obliging that breaks be taken by all employees at the same time.

e) Overtime and work on holidays.

f) Management fixing the dates of all but five of workers’ legally guaranteed paid holidays (workers ordinarily can freely choose when they take paid holidays, but with this system they can only freely choose five among the paid holidays accorded by the LSA).

g) Conversion of paid holidays from days into blocks of hours.

These are just some of the examples that demonstrate the important role the workers’ rep plays. The jūgyōin daihyō is supposed to represent the will of all the workers, or at least the majority. If a labor union exists that represents more than 50 percent of the workers, then the union automatically serves the role of the workers’ rep.

Let’s return to Company A’s internal email. The firm has no majority union, so the jūgyōin daihyō must be elected from among the workforce. Mr. A works for the company yet he was given no opportunity to run for election, nominate a coworker or even vote for rep. By the time he received the email, the sole nominee had already been decided by the company. The process was completely lacking in transparency, and the company will consider Ms. B to have won not if she receives a “yes” from the majority but, rather, unless she receives “no” vote from the majority. Company A’s process for choosing a workers’ rep means that rep will not necessarily represent a majority of workers.

Legally, this is a clear red card. Article 6, paragraph 2 of the Rules for Implementation of the Labor Standards Act stipulates that the rep cannot be a member of management and must be elected through ballots, the raising of hands or other (according to a March 31, 1999, Labor Ministry directive) “clearly democratic” process. Part-timers as well as seishain(regular employees) must be part of the election as well — as they are all workers who will be subject to the work rules.

In Japan, employers cannot let their workers toil in excess of eight hours per day or 40 hours per week unless they have signed a written agreement with the rep. This agreement is called a saburoku kyōtei (36 agreement) because it is stipulated in Article 36 of the LSA.

On June 22, 2001, the Supreme Court ruled against photo album firm Tocollo Co. for choosing the leader of a social club at the company as the workers’ rep, who then went on to sign a saburoku kyōtei that permitted overtime work. The country’s highest court said the selection process was illegal because the head of a social club does not represent a majority of employees, as required by law.

The ruling makes clear that Company A is breaking the law by excluding employees from the election of their own representative, and by appointing a company rep rather than a workers’ rep. Unfortunately, many companies in Japan engage in similar illegal practices.

I can imagine the managers at some of these companies watching reports of some overseas dictatorship or rigged elections on TV and mumbling, “How awful!” They then go to work the next day and exercise autocratic power within their companies, including running elections with barely a shred of substantive democratic process. Perhaps they see no irony or contradiction in this.

But responsibility for perpetuating such bad practices lies not only with management. The worker must resist the temptation to shirk the troublesome task of standing for workers’ rep and just leaving it to someone else. Shirking your responsibility could come back to bite you in the behind, in the form of degraded working conditions that management may try to slip in later, including backbreaking overtime hours.

The lack of a freely and fairly elected workers’ rep could cost you dearly in the long run. Having read this far, you can’t say you haven’t been warned!

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 fourth Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.

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