Credibility of justice system in spotlight as highest court to make ruling on JAL layoffs
BY HIFUMI OKUNUKI
Kuala Lumpur, 1977. The rain came down in torrents. The control tower instructed pilots to circle the airport pending better weather. The pilots had the option to divert to a nearby airport where things were quieter. Japan Airlines (JAL) was pushing its employees to cut costs, and the pilot of JAL’s DC8-60 decided not to divert and to circle until the rain let up.
But the rain did not yield. The DC8-60 ran low on fuel and was forced to land come what may. Eight of the 10 crew and 26 of 29 passengers perished in the ensuing crash. This tragedy would inspire one JAL employee, Taeko Uchida, to get serious about union activism in a way that would decades later find her leading a legal and labor battle against Japan’s flagship carrier.
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).
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 saburokukyōtei (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 email@example.com. On the fourth Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
What is a gyōmu itaku contract? It is basically an outsourcing contract: A company decides it cannot handle a certain job itself, so it outsources the work to another company — or an individual. Individuals on gyōmu itaku contracts are not considered rōdōsha (employees/workers) in the legal sense, and are thus not protected by the Labor Standards Law or most other labor laws. In that way, gyōmu itaku contracts differ greatly from employment or labor contracts (rōdō keiyaku).
(Reuters) – Japan is considering expanding a controversial program that now offers workers from China and elsewhere permits to work for up to three years, as the world’s fastest-aging nation scrambles to plug gaps in a rapidly shrinking workforce.
Prime Minister Shinzo Abe’s Liberal Democratic Party on Tuesday submitted a proposal to let workers to stay for up to five years, relax hiring rules for employers and boost the number of jobs open to them.
New NHK President Katsuto Momii made headlines around the world with his claim that “comfort women” have been a common feature of conflicts involving “every country.” Using sex slaves in wartime, he said, was only wrong according to “today’s morality.” Causing great concern to press-freedom advocates, he also insisted that “when the government says ‘right,’ we cannot say ‘left.’ “
Tokyo General Union (Tozen) protests the firing of member Sulejman Brkic in front of the language school ICC. He worked there for 22 years and was fired for asking for his legally allotted paid holidays.
First of all, I would like to wish a happy new year to all the readers of Labor Pains. While labor news has generally been a gloomy topic of late, it is my hope that this year will bring brighter things for me to write about.
As I draft this first column of 2014, I am sitting in front of my computer at 10 at night in my apartment in downtown Tokyo. The suddenly vacated metropolis is blanketed in an uncanny hush. Hardly any cars can be seen passing by. In the great New Year’s exodus, many of the inhabitants of Tokyo have returned to their various hometowns across Japan, leaving the city in a temporary state of near-abandonment.
I can’t say that I’ve ever disliked this vacated Tokyo. In fact, I enjoy the calm atmosphere. Watching “Kohaku” (an annual pop music contest televised on New Year’s Eve), chatting about this and that, eatingtoshikoshi soba (a noodle dish with tempura served on Dec. 31) — this kind of traditional New Year’s Eve suits me just fine. And, even if I were to absentmindedly forget the tempura for the soba, I wouldn’t have to worry because, in this day and age, most supermarkets remain open all through the holiday season. It is no longer rare to see a supermarket open its doors even on New Year’s Day.
It wasn’t always like this. Back in my day, we took it for granted that for the period from the evening of Dec. 31 to Jan. 3, nearly everything would be shuttered up. On the morning of New Year’s Eve, stores would be scenes of chaos, packed with shoppers frantically stocking up on supplies to last the week. My mother used to take my sister and me along as well, to help carry bags for her, and both of us would barely be able to hold all the shopping. For us kids, the pressure of knowing that if we forgot something we would have to do without it over the holidays brought with it a strange sense of excitement.
But today’s young people have probably never experienced all that. Convenience stores that open 365 days a year, 24 hours a day now dot the Japanese landscape, and supermarkets are closely following with ever longer business hours, to the point that the end of the year no longer feels like such a special time.
I sometimes wonder if this new “convenience culture” is a good thing. Of course, from the standpoint of consumers, being able to buy anything you need any time provides a sense of security, and this convenience could be considered to be something positive. But at the same time, if we look at it from the workers’ perspective, that convenience comes at the direct cost of more labor through the holiday period. Convenience stores, supermarkets, DVD rental shops, family and fast food restaurants,izakaya, karaoke parlors — all kinds of establishments remain garishly and noisily open for business in spite of the New Year’s holiday.
The people working at these places have to sacrifice their private lives for the sake of their jobs. Of course, you could argue that the people working at these stores freely choose to do so. However, I doubt that most of the people working in these jobs are in a position to make very “free” choices. Rather, I suspect that they are cajoled or even coerced into taking these shifts. I can’t help but have misgivings about the idea of forcing people into situations where they have to make personal sacrifices for the sake of customer convenience.
For contrast, let’s look at how the same issue is handled in another country. In Germany in 1900, a law called the Shop Closing Act (Ladenschlussgesetz) was passed that remains in force to this day. Under this law, shops are in principle not allowed to open outside the hours of 6 a.m.-8 p.m. on Mondays to Saturdays — or at all on Sundays and national holidays. While airports and train stations are exempt and many other revisions have followed over the years, gradually resulting in the law being relaxed significantly, the Shop Closing Law continues to regulate business hours in Germany.
The motivations behind this act were threefold. First, for religious reasons, the government wanted to preserve Sunday as the Christian Sabbath. Second, the law’s proponents hoped to protect the livelihoods of “all workers.” They feared that longer business hours would result in employees being forced to work longer hours to match. Third, the government wanted to protect small businesses. In other words, it worried that with unregulated business hours, large companies that could afford to extend business hours would gradually rob smaller companies of their customers and thereby threaten their very existence.
As I’ve written about over and over in my Labor Pains articles, overwork is one of the most serious social ills afflicting Japan today. About 5 million people — 10 percent of Japan’s workforce — toil more than 60 hours a week, according to a 2012 study by the Ministry of Internal Affairs and Communications.
Theoretically, Article 32 of the Labor Standards Law gives workers the protection of the eight-hour day and the 40-hour week, and bans work above those limits. However, exceptions to this law are often recognized. While so-called 36 Agreements (a kind of deal struck between workers and management about overtime, named after Article 36 of the same law) are required for overtime to be permitted, in practice many companies are able to extract unpaid overtime from their workers without concluding any such deal.
On top of that, in an investigation published on Dec. 30, the Tokyo Shimbun found 1,343 cases of companies that incorporated “fixed overtime pay” lump sums into regular wages and then forced workers to work past the hours originally set in their contracts or, alternatively, did not even give a clear figure on how much overtime was being paid for.
Furthermore, under the Labor Standards Act, provisions exist allowing for flexible arrangements such as irregular working hours, flex-time, work outside the workplace and discretionary labor. (Under the discretionary labor system, employer and employee are supposed to decide between them how long a job should take, with the employer then paying the worker for those hours regardless of how many hours are actually worked.) In other words, the law that is supposed to protect the health and livelihood of workers in Japan is riddled with loopholes, and the country is sadly filled with employers willing to exploit these loopholes and overwork their employees.
So once again this year, I have ended up returning to a gloomy theme. However, this New Year’s Day, I dare to dream of how different things might be if we were to look at the people working at our convenience stores, supermarkets and restaurants not from the perspective of consumers blindly seeking convenience, but, like the framers of Germany’s Shop Closing Act, as people who believe that all workers should be protected.
In that spirit, and not out of nostalgia, I suggest that we work to bring back the old, shuttered-up New Year’s Day.
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 firstname.lastname@example.org. On the second Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
Originally published here: