Is Sulejman Brkic no longer a member of the ICC Family?

Tozen member Sulejman Brkic was bloody illegally fired.

Fired TeacherICC Language Schools is a language school that has six branches in the Kanto area, with its headquarters in Yokohama. Sulejman Brkic has been teaching English and French courses at this school for twenty years. He has always been very popular among his students, not only because of his superb teaching skills, but also for his charming personality and his wry sense of humor. Sulejman loves his job, and has worked passionately for the past two decades.

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スレイマン・ブルキッチ組合員は、もう「ICC Family」じゃないの?!


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The Special Dismissal Zone: where legal protections no longer apply

Strange bedfellows: Osaka Mayor Toru Hashimoto (right) chats to fellow co-leader of the Japan Restoration Party Shintaro Ishihara in Tokyo in June. Hashimoto announced last month that Osaka Prefecture and city will jointly submit a proposal to the Cabinet Office to set up a Special Challenge Zone where some labor protections would be relaxed or waived.
Strange bedfellows: Osaka Mayor Toru Hashimoto (right) chats to fellow co-leader of the Japan Restoration Party Shintaro Ishihara in Tokyo in June. Hashimoto announced last month that Osaka Prefecture and city will jointly submit a proposal to the Cabinet Office to set up a Special Challenge Zone where some labor protections would be relaxed or waived.

I couldn’t believe my ears when I heard about the government’s recent proposal to set up a Special Dismissal Zone on Japanese territory. “A what?” I hear you cry.

The Shinzo Abe government wants to make Japan “the most business-friendly climate in the world.” In May, he set up a National Strategy Special Zone Working Group, made proposals to local governments and corporations, and announced that special zones, or tokku, for health care, agriculture, education and other areas will be established.

The plan is to be submitted to an extraordinary session of the Diet in autumn as the Industrial Competitiveness Strengthening Bill. Most controversially, a so-called Special Employment Zone is among the options being considered, an idea that has already been dubbed the Special Dismissal Zone, or kaiko tokku, by the media.

Currently, throughout Japan, employers must overcome several high hurdles before they can dismiss an employee legally. In short, you can’t fire someone without a damn good reason.

The thinking for the Special Dismissal Zone, however, is that rules about sackings would be relaxed roughly to the point of “employment at will,” as is practiced in some parts of the United States. Within the zone, the idea is that if the worker and employer agree ahead of time on what behavior warrants dismissal, then such a dismissal under those circumstances will always be permitted, regardless of bothersome legal protections outside the zone. For instance, if employer and employee agree that the worker can be dismissed for turning up late once, then the employer can legally sack that worker when he clocks in at 9:30 for the very first time.

A second special feature of this zone would be that work hours would not be restricted for employees earning above a certain salary — currently set at about ¥8 million a year. That means employers could theoretically make their employees work all night and not pay them a single yen for the overtime. Such a high salary is safely beyond the grasp of most of us working stiffs, but keep an eye out for that falling floor — and watch out as that zone spreads.

A third sweetener for these business oases: The “five-year rule” wouldn’t apply if foreign workers make up more than 30 percent of an employer’s work force. This rule refers to the change to the Labor Contract Law (Article 18) that gives workers the chance to win permanent status if they stay with an employer for more than five years. I spoke about the problems emerging with this legal change in March (“Labor law reform raises rather than relieves workers’ worries,” March 19). Whatever the shortcomings of this reform, the special zone would suspend this protection to all company employees if a firm’s gaijinquota tops 3 out of 10.

Responding to the announcement of the kaiko tokku plan, Osaka’s firebrand mayor, Toru Hashimoto, on Sept. 11 announced that Osaka Prefecture and Osaka city will jointly submit a proposal to the Cabinet Office to set up a zone that would encourage performance-based wages, to be called the Special Challenge Zone. This zone would include Osaka’s economic heart, the Midosuji area. Companies paying above a certain wage would enjoy relaxed work-hour restrictions and the right to fire at will.

Osaka prefectural Gov. Ichiro Matsui stressed that the zone would only affect elite workers. “This is for highly skilled professionals, not for low-income workers,” he said. “This enables mismatches between employer and employee to be rectified by moving around high-income, highly skilled, self-confident workers. This is not for workers barely making ends meet.”

For workers, these plans come as a bolt out of the blue. What is going on here? Well, according to the government, clarifying dismissal rules will boost the development of new industries and attract start-up and foreign firms, creating a healthy investment climate in Japan for the world’s corporations.

Many business and political leaders whinge about how hard it is to fire someone in Japan. “It is harder to dismiss a worker in Japan than in any other country in the world,” they whine. “Japan is going to be left behind.” Is that really the case?

Article 16 of the Labor Contract Law states: “A dismissal is invalid and the right to dismiss has been abused when it lacks objective, rational grounds and cannot be deemed reasonable according to social norms.” I took this up in my February 2012 column (“Oversleeping radio anchor set tough precedent for firing staff,” Feb. 28, 2012).

In Japan, case law often leads to laws being rewritten. The wording of Article 16 has its origins in a Supreme Court case brought against Nippon Salt Manufacturing in 1975. The gist of the ruling was that employers cannot fire workers whenever they please. Since workers earn wages that form the basis for their livelihood and enable them to raise families, unchecked dismissals could lead to the breakdown of the family unit and cause instability even within society as a whole. Wages are the basis of workers’ livelihoods, so sackings should be avoided — that was the thinking behind this legal principle of kaikoken ranyō hōri, or abuse of the right to dismiss.

Business leaders and some politicians counter that the principle has left Japanese workers overprotected, and that it damages Japan’s competitive edge in the world. I must disagree strongly. Establishing the principle that you cannot dismiss a worker without good reason stabilizes industrial relations, places limits on the exercise of runaway, arbitrary power by employers, and helps preserve social harmony.

During Japan’s period of dramatic postwar economic growth, companies rallied under the slogans of “lifetime employment” and “your company is your family.” Jobs were far more secure back then. Granted, the slave-like treatment of workers during that time tarnishes the sheen of job security, but at least workers were not treated as disposable objects, to be used then tossed away like garbage.

The government and business community are swearing up and down that the new zones will only apply to elite, high-income workers. But I have no doubt that if we deregulate dismissal in these zones, the deregulation will break out into the wider world. This in turn will encourage workers to see each other as rivals rather than comrades, enemies rather than allies. When that day comes, who will be laughing from their high perch? The answer is too obvious to state.

More than 35 percent of workers in Japan are in irregular or contingent employment. Income is declining while the number of work hours and the number of workers not enrolled in the shakai hoken health and pension scheme continue to rise.

As Japan ages, more and more workers must provide nursing care to parents on top of tough, long-hour jobs. More employees are taking time off work, resigning or even killing themselves due to depression, which is now considered by some to be the national disease.

The last thing Japan needs is a Special Dismissal Zone to make workers more miserable than ever.

“Taking back Japan” is one of the Abe government’s favorite catchphrases. Around town, you see this phrase in bold letters splashed across huge posters depicting the prime minister gazing into the distance, the Hinomaru flag fluttering in the background. But I cannot see where Abe’s eyes are looking. From and to where does he want to “take Japan back”?

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 at On the third Tuesday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.

This article originally published in the Japan Times at:

Matahara: turning the clock back on women’s rights


Matahara: turning the clock back on women’s rights
Maternity harassment‘ concept coined amid reports of bullying over pregnancy at work

“When I told my company I was pregnant, they fired me.”
“I was delighted to be hired by a company I loved. Then my boss made me promise not to get pregnant for a while.”

In last October’s Labor Pains, I discussed maternal job rights in “Labor law protects expectant and new mothers — to a point.” Today, I would like to address a new legal concept known as “maternity harassment,” or matahara, in the syllabic acronym engendered by this growing — and disturbing — trend.

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Union, business concerns put limits on freedom of speech by Hifumi Okunuki

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?

Changes to Japan’s employment law effective from 1 April 2013

Changes to Japan’s employment law effective from 1 April 2013
As of 1 April 2013, Japan’s minimum retirement age will increase to 65 years, with further restriction on scope to refuse re-employment after an earlier company retirement age. New amendments to Japan’s Labour Contracts Act (“LCA”) will also come into effect, concerning fixed term employees and employment contracts.

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Mazda temp-staff practice ruled illegal

Mazda temp-staff practice ruled illegal
Yamaguchi court: Displaced 13 should be regular employees

YAMAGUCHI – The Yamaguchi District Court ruled Wednesday that Mazda Motor Corp.’s temp-staff employment practice is illegal and recognized regular employee status for 13 former temp-staff workers displaced by the automaker.

The rare recognition that displaced temporary workers should be regular employees is expected to affect similar pending lawsuits. The court also ordered Mazda to pay wages that the 13 should have received as regular employees.

The temp-staff worker law requires companies to directly employ workers dispatched by temporary staffing agencies if the employees continue work at the firms for three consecutive years.

Under its temp-staff employment practice, Mazda directly employed temporary workers as “support employees” for just three months after their three consecutive years of service, later shifting their status back to temps.

The practice to effectively maintain workers as temporary staff for more than three years violated the temp-staff worker law, the court said.

The ruling came in a suit filed by 15 plaintiffs — some of whom worked as temporary staff at Mazda’s Hofu plant in Yamaguchi Prefecture for up to five years and seven months before being displaced during or after the outbreak of the global financial crisis in December 2008.

The court found 13 of the 15 plaintiffs as subject to the support employee system and recognized them as regular employees.

The plaintiffs filed the lawsuit in April 2009, claiming that Mazda had been adjusting the hiring period to be less than three years by temporarily hiring temp-staff employees as regular employees for about three months under the “support employee” system.

The plaintiffs said the system allowed Mazda to “hire skilled temp workers for a long time but fire them whenever they wanted,” calling the act “loophole.”

Meanwhile, Mazda had claimed that temp workers had accepted to work as temp staff and “support employee” positions out of their own volition.

“Mazda had not intended it, and therefore, it does not violate the law,” Mazda’s lawyers said in court.

Mazda called the decision regrettable, adding that it will consider what to do after pouring over the content of the ruling.

In June 2009, the Yamaguchi and Hiroshima prefectural labor bureaus recommended that Mazda correct the “support employee” system.

Shinji Eto, 48, one of the plaintiffs who had been displaced by Mazda, told the court last April that he just wanted to live a normal life, being paid for his work and occasionally being able to go out for drinks with friends.

“I want to say with pride that producing cars at Mazda is my job,” Eto said. “I just want to live a normal life.”

Teachers are workers, not martyrs: the severance scandal that isn’t

labor pains 13

Saints or sinners?: Some media outlets and politicians appear to be apoplectic over the decision by some state school teachers to retire months early to safeguard potentially millions of yen in severance pay. | AP

Story originally published in Japan Times

“Teachers quitting before graduation?!” the headlines screamed as we headed into the new year.

Traditionally, Japanese teachers head into retirement after March school graduations. However, this January, many teachers left their posts ahead of time, in a wave of resignations that began in Saitama and spread across Japan.

But why?

The story begins with teachers’ severance payments — specifically, the Yoshihiko Noda Cabinet’s decision in August last year to drastically reduce them. The move by the last Democratic Party of Japan-led administration came in response to a fiscal 2010 study of public-sector pension obligations that found the average central government employee’s severance payment was ¥4 million more than that of private-sector workers.

The Ministry of Internal Affairs and Communications ordered local governments to “make cuts in line with those to central government employees.” However, as the ministry did not specify when these measures were supposed to be taken, the local governments have implemented them at different, haphazard times.

The results have been chaotic. Coming back to Saitama, the local government there has decided to reduce all severance payments from February, with the difference in retirement payments for teachers before and after that time coming to roughly ¥1.4 million.

The result is — apparently unexpectedly — that of the 1,290 teachers due for retirement this year, 104 are choosing to retire in January.

The effects of this will also extend beyond teachers to police officers and other civil servants.

Here, let’s step back for a moment and think about what place teachers occupy in our society today. I can’t help but think there’s something strange going on.

Take, for example, what the new minister of education, Hakubun Shimomura, said in response to reports of early teacher retirements: “Teachers ought to put students first and stay at their posts through the end of the school year.” Or Councilor Satsuki Katayama, also of the newly elected Liberal Democratic Party, who blasted teachers in a blog posting last month: “(If highly paid local government employees had stopped these measures), the national government would have been unable to make savings of ¥10-20 billion, and local governments would be unable to make nearly ¥100 million worth of savings. . . . Have people lost all honor? Is there no goodness left in mankind?” (Note that Katayama seems to have no problem with “highly paid” public servants such as herself.)

Even at the best of times, public-servant-bashing is a popular political pastime. However, it is becoming dangerously entwined with a “myth of the teacher-martyr” — that is, the idea that teachers should spare not a thought for such worldly concerns as money, and put their school and students at the absolute front and center of their lives.

With all this, one cannot help but think that the teachers who are retiring early this year are among the most brazenly selfish human beings gracing God’s green Earth. And, by implication, that the teachers staying on must be simply wondrous.

But somehow that seems a bit much.

First, as painfully obvious as it may be, it’s worth remembering that teachers are workers. And in light of the martyrization of Japanese teachers currently going on, I wonder what impression is being pressed into the minds of today’s young Japanese.

Can it possibly be good for Japan if the first thing that tomorrow’s workers learn about adult life is that you positively should sacrifice yourself to your job? What would happen if they emerge into adult life and find themselves working under terrible conditions? Will they make use of their rights to improve things for themselves and their fellow workers? Or will they think back to their teachers and the example they set, and grin and bear whatever newer and more ridiculous abuses come their way?

Today’s teachers are burdened with myriad challenges, ranging from bullying to dealing with monster parents, from coping with students who become hikikomori (children who withdraw completely from society) to acting as guidance counselors for students facing the complexities of the modern world. Countless teachers are taking sick leave due to mental health issues, committing suicide or simply dying from overwork. And if society forces teachers to adhere to unrealistic standards of perfection, then it will leave them all the more with no alternative to these drastic measures.

To put it another way, if teachers are being forced to literally sacrifice themselves to create a fun and positive learning environment, how fun, positive or educational could that environment possibly be? If we want children to grow up to enjoy full and meaningful lives, shouldn’t the adults we pay to set them a good example themselves enjoy full and meaningful lives?

And if that’s the case, shouldn’t teachers have decent and secure working conditions (and here I’m not just talking about salaries)? “Education = sainthood = forced martyrdom” doesn’t really achieve any educational aim in any way, shape or form.

Here I want to come back to severance. A severance payment is a reward for many long years of service, so, in contrast to regular pay, you can only claim it when you retire. While there are cases when changes in management or labor-management relations can bring about changes in severance agreements, it seems only logical that promises about severance made when a work contract is signed shouldn’t be able to be changed part-way through.

In Japan, when work regulations or labor-management agreements are concluded, severance payments are treated as “deferred wages.” Because of their crucial role in providing for daily life in old age, it is completely unacceptable to allow reductions in severance to be made easily.

While it is legal to make reductions to severance during regular negotiations over wages, case law stipulates that due to the above considerations, this is allowable only in cases of “extreme need” (Omagari-shi Agricultural Cooperative Case, Supreme Court ruling, Feb. 16, 1988).

To consider some concrete examples, we could look at the famous 1983 ruling against Mikuni Hire, where the Supreme Court found that the company’s reduction in severance payments was unreasonable because it didn’t provide sufficient compensation.

In another famous ruling against Michinoku Bank in 2000, the Supreme Court found the company’s cuts to be unreasonable due to a lack of transitional measures put in place for employees and, again, insufficient compensation in exchange for the cuts.

At any rate, it seems no protest was made by unions in the face of the remarkable cuts made to teachers’ severance pay. As teachers are local government employees, they are covered by Article 52, Paragraph 1 of the Local Public Service Law. Under this law “employee organizations,” which are unions in fact if not in name, are charged with representing the interests of workers.

It is at precisely such a time that unions should be fighting tooth and nail to preserve education workers’ rights. And from there, if they can fight to preserve not only teachers’ rights, but also the rights of all their fellow workers, then that would open up the possibility of changing not just a single industry, but the whole world.

A promise of employment is binding, Supreme Court ruled in late 1970s case

The coming of spring brings with it the sight of young women and men clad in black or navy suits, all carrying the same type of bag and sporting the most austere, no-nonsense hairdo and makeup, scurrying down the streets of metropolises around Japan. From a distance you’d be forgiven for thinking these youths are wearing uniforms and that all individuality had been banned by decree. Where are they all heading, and for what?

One of Japan’s employment practices entails companies hiring large batches of fresh college graduates all in one go. Today, even college juniors begin their third, penultimate academic year by sending out feelers to prospective employers. They spend a preposterous number of hours in a back-breaking, shoulder-stiffening ritual called shū katsu, drafting application documents, undergoing interviews, pretending to smile — all hell-bent on leaving a good impression and winning a saiyō naitei promise of employment from a coveted corporation.

Rather than a one-way promise, saiyō naitei is more properly defined as a prior agreement between a college student and an employer that contains a future right and obligation to work. The period between the date of this agreement and the first day on the job is called the naitei kikan. Students with a saiyō naitei agreement feel confident they will be working at that company come the April following graduation.

Yet, there have been several instances in recent years of companies canceling the agreement during the naitei kikan. In one particularly egregious case, students who clinched saiyō naitei the previous summer were notified of its cancellation in March, a month before their promised start date. So how does labor law interpret the rights of the would-be employee during this naitei kikan period?

Labor laws say nothing clear about saiyō naitei, but case law does have something to say about it. The Supreme Court set the precedent on July 20, 1979, in the Dai Nippon Printing case.

Let’s take a look at the case. University student X took the company’s entrance exam and was informed of the saiyō naitei promise in July. X’s university had a firm policy obliging students to take the first offer from a prospective employer to which the college had sent a letter recommending the student.

So, after receiving the saiyō naitei, the student sent a promissory note to Dai Nippon Printing and had to withdraw applications they had made to any other companies. But in mid-February of the following year, two months before the slated day of entrance, the company sent X a notice that the saiyō naitei had been revoked. No reason was given.

So X sued Dai Nippon Printing for the job, alleging that the revocation lacked rational grounds and was therefore invalid. In court, the printing firm explained that they “felt the (student) had a gloomy character and left a bad impression during the hiring test.”

The court ruled that the application was effectively an request for a labor contract, while the company’s saiyō naitei notification was in fact an offer of employment. That offer combined with the student’s promissory note constituted a binding labor contract between the two parties with a starting period deferred until just after graduation.

The judge stated that revocation is possible only when some unforeseen circumstance made it objectively rational and appropriate according to social norms to cancel, and that “a gloomy impression” hardly sufficed to meet those conditions. The revocation was therefore invalid and the student was instated at the company.

The Supreme Court noted that each case must be judged separately, as the surrounding circumstances vary. Although courts may rule differently in other cases of revocation, at least companies can no longer dismiss such promises of employments as “merely saiyō naitei.”

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.