Q1: What rights do workers have in Japan?
The Japanese Constitution (Article 28) guarantees three basic rights to workers. In Japanese these three rights are often referred to as 労働三権 (ro-do- san ken):
1. The right to organize collectively (団結権)
2. The right to bargain collectively (団体交渉権)
3. The right to act collectively (団体行動権)
The Trade Union Law applies and regulates these rights for trade unions. Any workers associations have these rights, but only registered trade unions are entitled to the protections contained in the Trade Union Law.
Q2: What is a Trade Union?
It is an association which promotes the economic well-being of its members without being a social, political or welfare organization (Article 2). It must NOT:
1. receive any financial help from employers.
2. represent the interests of management. Managers with the power to hire and fire are excluded, as are employees with access to confidential company information.
To be registered as a Trade Union with the local Labour Commission, and thereby be entitled to the protections of the Trade Union Law, it must also fulfill certain requirements (Article 5) in its constitution and practices (e.g. A.G.M.s, strike votes, democratic elections, etc.). Our union fulfils all these requirements, and we are properly registered.
Q3: Who can join a union?
Anyone can, but a union must be predominantly composed of workers (Article 2).
Q4: Do unions have a right to refuse membership?
Yes. Unions are private voluntary associations, and have the right to exclude people. However, no exclusion can be based on considerations of race, religion, sex, family origin or creed (Article 5).
Q5: What are the purposes of the Trade Union Law?
To quote Article 1 of the Trade Union Law:
The purposes of this law are to elevate the status of workers by promoting their being on equal standing with their employer in their bargaining with the employer, to protect the exercise by workers of autonomous self-organization…that they may carry out collective action…and to encourage the practice of collective bargaining… for the purpose of concluding collective agreements.
This is a very strong statement of affirmative action on behalf of unions, whereby union activity is not just tolerated, but promoted as something desirable for society. We should know this law, and know what it can do for us.
Q6: Does the Trade Union Law cover foreign workers in Japan, too?
Yes it does.
The Right To Organize
Q7: What does the “right to organize” mean?
Workers have the right to organize themselves into groups in order to better their economic standing. This phrase in Article 28 of the constitution basically guarantees the right to form trade unions.
Q8: Can I be fired for joining a union?
No. That would be an “unfair labour practice”, and is illegal (Article 7).
Q9: Can I hand out union information at work?
Some problems arise with this right, and the way it clashes with the employer’s right to the employees’ undivided attention during working hours. Handing out leaflets discreetly during a break time would be a fairly safe way, as it doesn’t interfere with the running of the business. On the other hand, talking at length with co-workers during working hours about the union would be risky from a legal standpoint.
Q10: Am I allowed to post union information on bulletin boards at work?
It depends on the company. If you do it, and are asked to stop, it’s best to stop. Unions have the right to organize in the workplace, but there are often good reasons to be cautious about using company boards without permission. This should never be done without consulting the union leadership.
Q11: Can the union demand its own bulletin boards?
Yes. Unions often demand boards, along with the right to use fax machines, telephones and photocopiers when first declaring themselves to an employer. Union boards are excellent tools for building unions in the workplace.
Q12: I’ve just joined the union. Do I have to declare this fact to my boss?
There is no such obligation in the law. Furthermore, the union will respect your right to privacy. While a branch is being organized in the workplace, it is the usual practice to keep things secret from the management. Obviously, in the end, once the organizing drive has reached its limits, the members have to declare themselves and negotiate.
On the other hand, if you’re the only union member in your workplace, and it’s difficult to recruit, it may sometimes be wiser to keep your membership quiet.
Q13: I’m nervous about being an open member. Surely it’s safer to keep it quiet?
Not necessarily. The protections guaranteed in the Trade Union Law for you as a union member are conditional on your membership being known to the employer. If, for example, you are a secret member and are fired, this cannot be construed as an “unfair labour practice”. It may well be an unfair dismissal, but we could not use the Labour Commission to contest the issue.
The Right To Bargain Collectively
Q14: What is collective bargaining?
Negotiations between properly delegated representatives of a union and the employer or his representatives who are given authority to conclude agreements with the union (Article 6).
Q15: Does the union have to have a majority in the workplace in order to hold collective bargaining?
No. Even if there is only one worker in the union, the company must hold collective bargaining when requested by that worker’s union.
Q16: Are there rules about how collective bargaining is to be done?
The union sends a request for collective bargaining to the employer, giving a place, date and time for the proposed bargaining, with a particular time limit, e.g. 4 to 6 p.m. and the demands or topics for bargaining. Once these things have been agreed on, they meet and negotiate.
The employer’s representatives have a duty to bargain in good faith. They break this duty if:
1. It is clear from their attitude that they have no intention from the start to reach an agreement.
2. The negotiators have no power to make decisions.
3. Their arguments are of doubtful reasonableness and insufficient explanation.
This means they must listen to the union’s demands, and they must respond to them with a counterproposal, following up with their own answers and contentions in accordance with the strength or concreteness of the union’s contentions. They must indicate the basis of their arguments and present necessary supporting data. If, for example, the union side says, “Give us a 10% pay raise”. The company can just say “no”, but if the union then goes on to say “But you’ve opened five new schools in the past year; it’s clear you’re making money”, the employer is obliged to show evidence to the contrary. The employer should offer a counterproposal.
Unfortunately, however, a company has no obligation to accept the union’s demands or to compromise with the union, and there is no real way to force a company to be honest in negotiations. That’s where the right to dispute comes in.
Q17: How often can the union make demands?
This is not regulated by law, so unions can make demands as often as they like, according to their own customs.
Q18: How about the union’s conduct in collective bargaining?
The union’s behaviour in speech and conduct is pretty much protected by law. Sometimes union negotiators might lose their tempers with a company that is obviously lying, or involved in union-busting, or any unfair acts in the area of labour relations, and there might be some raised voices, some unpleasant exchanges, etc. This is obviously not ideal, but sometimes very understandable, and the law takes this into account. This kind of aggressive behaviour in itself is not a good enough reason for the employer to call off collective bargaining or refuse to engage in collective bargaining in future. If, however, the union’s behaviour becomes physically violent, this would be grounds for refusal.
Q19: In collective bargaining, our arguments were more logical than the bosses’ but he didn’t change his mind. Isn’t this unfair?
Of course it is. However, an important point to remember is that, although sometimes things can be worked out in collective bargaining, it is foolish for the union to rely on clever logic to persuade the employer that its position is correct. An argument might be perfectly logical, but whether it will persuade an employer is another matter. What really counts is the union’s resolve and the members’ willingness to fight if negotiations break down.
Q20: Can an employer refuse to bargain with the union?
As stated above, only in unusual cases, such as violent behaviour by the union, etc. Basically, it is an unfair labour practice if the employer refuses (Article 7, clause 2). It is also a violation of Article 28 of the constitution which guarantees the right to bargain collectively, so it can also be seen as a tort, violating Article 90 of the civil code.
Q21: Can a union negotiate for non-members?
No. However, if someone gets fired, and then joins a union afterwards, the union has the right to negotiate for that person and take action on that person’s behalf. Whether he was a union member or not at the time of his firing is irrelevant, though it obviously puts the union in a weaker position to start off from. It should be pointed out that obviously unions are not obliged to take action just because someone joins with a problem.
Q22: What is a collective agreement?
It?s any agreement which comes about as a result of collective bargaining between a Trade Union and an employer concerning conditions of work or other matters, put into writing and signed by both parties (Article 14). It doesn’t need to have a title such as “Collective Agreement”, or any title at all. It comes into effect immediately after signing. Over 90% of all unions in Japan have collective agreements with employers.
Q23: How long are these agreements valid?
The longest legal term of validity is 3 years (Article 15). Any term over 3 years is treated as 3 years by law. If there is no limit, then the agreement is an indefinite term agreement, which could theoretically last forever. However, such an agreement can be cancelled by either party giving a minimum of 90 days notice. In Japan, collective agreements are generally of one year’s duration.
Q24: What happens if a collective agreement contradicts the terms of my contract?
Agreements between employers and unions always take precedence over individual contracts. If there is a contradiction, the collective agreement automatically nullifies or modifies that part of your contract. Collective agreements have a similar function to company working regulations, but also take precedence over such rules.
Q25: Can the union try to renegotiate the terms of a collective agreement?
The union can try, but during the period of validity of the collective agreement, the employer is not obliged to renegotiate it. Furthermore, the union cannot enter into a dispute over the contents of an agreement until that agreement has expired. This is known as the “Peace Obligation”.
Q26: What can we do if the employer breaks a collective agreement?
The union can file a complaint about this at the Labour Commission. Collective agreements can also be thought of as coming under contractual law, and so it would be theoretically possible to sue in civil court for breach of contract.
The Right To Collective Action
Q27: What is collective action?
This right is the teeth in the Trade Union Law. It covers two types of activity:
1. The right of dispute, which fundamentally means the right to strike.
2. The right to engage in union activities.
These two rights back up the right to collective bargaining, and give the union a real bargaining power. Without them, unions would be utterly dependent on employers’ generosity and reasonableness. These rights raise the union’s bargaining power to a level of equality with the employer, as is the stated purpose of the Trade Union Law.
It has been said that “war is diplomacy carried on through other means”, and we can say that a labour dispute is collective bargaining carried on through other means. All dispute acts should be seen as a continuation of collective bargaining, with the purpose of furthering demands put forward in collective bargaining. This is why striking over some issue without first raising that issue as a demand in collective bargaining cannot be considered lawful.
Q28: What kinds of dispute activity are there?
There are strikes, picketing, boycotts, slowdowns, and occupations of the workplace.
Q29: Are they all legal?
These rights have always been problematic in law because of conflicting rights in civil law prohibiting violation of work duties and harm to business, but basically they are legal within certain limits (examined below). The final recognition of these rights is based upon the idea that strikes and picketing are necessary to make collective bargaining work. Unions are exempt in Japan from criminal liability (Article 1) and civil liability (Article for their proper actions in labour disputes.
Q30: What does “proper acts” mean?
One difficult area with the right to collective action is that this action must be “proper” to be lawful. Let’s have a look at this “propriety”. There are three basic factors:
1. Who is taking the action?
2. What are the objectives?
3. What are the methods?
The Trade Union Law itself states no standards for the determination of the “propriety” of dispute acts. However, a judicial precedent has established the principle that “the decision of whether any dispute acts are proper should be made for individual dispute acts based on their purpose and means in regard to coordination with the existing legal order as a whole”. That’s the theory. In practice, the courts have ruled the following kinds of activities improper:
1. Unauthorized and wildcat strikes – without the permission of the union’s leadership.
2. Political strikes – Political issues are beyond the scope of collective bargaining.
3. Sympathy strikes – Undertaken to support a dispute of other workers with a different employer, and unrelated to collective bargaining with one’s own employer
4. Strikes undertaken without prior collective bargaining
5. Strikes undertaken during collective bargaining
6. Strikes not preceded by a strike notice
7. Strikes which violate the “Peace Obligation” (see page 5)
8. Acts of violence
9. Interference with the employer’s right to occupy his facilities
10. Obstruction of the freedom of non-union workers
Q31: Are there different kinds of strikes?
Yes. There are various kinds, all of which are considered proper:
1. All-out strikes
2. Partial Strikes
3. Designated strikes
4. Rolling strikes
5. Limited duration strikes
Q32: What is picketing?
The conduct of workers on strike of watching, accosting, persuading, appealing to, or forcefully preventing workers from entering or leaving the premises in order to reinforce the strike.
Q33: Is it legal?
It all depends how it’s done. Broadly speaking, coercive actions preventing the employer from carrying on his business are improper, though depending on the whole picture, the use of some force is sometimes judged lawful in Japan, especially in cases where outside scab labour is being used.
Q34: Surely an occupation of the workplace cannot be lawful?
The consensus is that workers staying at their place of employment is lawful, provided it does not interfere with the employer’s occupancy rights or operations of the business.
Q35: What are union activities?
Pretty much everything except strikes. Some would seem to be connected to labour disputes, like handing out leaflets and wearing ribbons at work. Others are just regular things like meetings and social events.
Q36: Can we distribute and stick up leaflets during labour disputes?
This is proper if:
1. order and discipline are not disturbed.
2. this does not interfere with the business or the employer’s control of the facilities.
3. the employer’s premises are not damaged.
The contents of the leaflets must be truthful, and connected with the employer’s labour policies, or management policies. Personal attacks, however, are not protected by law (even if these are true), and the union would run the risk of legal action.
Q37: In my contract, it says “The employee will not engage in any activities that might damage the business of the company”. I signed this, so this means I cannot take part in union leafletings outside my company. Am I right?
No. Whatever you signed in your contract to this effect is invalidated because the law of the land takes precedence. As a union member, you are guaranteed certain rights by the constitution and the Trade Union Law. You are free to engage in proper union activities, including leafletings and strikes.
Unfair Labour Practices
Q38: What are unfair labour practices?
1. Firing or disadvantageous treatment of a worker who joined or organized a Trade Union or
performed proper acts of a Trade Union.
2. “Yellow-Dog” contracts (contracts which include a clause prohibiting the worker from joining a union).
3. Refusal of collective bargaining without proper reasons.
4. “Control or interference” in the formation or management of a Trade Union.
5. Disadvantageous treatment for filing a case at the Labour Commission.
All these unfair labour practices by the company against union members are forbidden (Article 7). It should be noted that according to the Trade Union Law, unfair labour practices are nasty things which employers do. There is no such thing as a union unfair labour practice.
Q39: What is “control and interference”?
1. Denouncing the formation of a union.
2. Slander of the union and its members.
3. Firing or transferring people who play a key role in the union organizing effort.
4. Advising or appealing to employees to resign from or not to join the union.
5. Setting up a company union or encouraging employees to set one up and abandon their
Q40: My boss is a nice man, and he told me the union could bankrupt the company if they went on strike. He was very friendly and sincere, and I didn’t feel I was being harassed. Did he break the law?
Yes. It would be a mistake to see “control and interference” simply as harassment. “Control and interference” can appear in many guises. The most dangerous kind is often the “friendly” variety, whereby an employee is made to feel guilty of betraying the boss, or “going behind his back”. A very common example of this is the question: “Why didn’t you come to me directly with your concerns? I?m sure we could have sorted things out”.
Union members should not be fooled. These are textbook techniques for union-busters. “Control and interference” can be done by charming people as well as by thugs, but the overall result is the same: the union suffers.
Q41: The head teacher in my school is a foreigner, and he has been saying bad things about the union. I?m sure the boss told him to do it. Is this “control and interference”?
Very probably. It’s not only top managers, but also various levels of supervisors, and even employees acting for the benefit of management who can all be guilty of “control and interference”. In Japan, the acts of upper level management, even when not explicitly linked with the intention of the employer, will still be regarded as acts following the employer’s wishes. As for lower level supervisors, if the employer instructed them to perform these acts, or indicated his desire that they perform them, they will be regarded as the employer’s own acts.
Q42: Surely an employer has the right to freedom of speech?
Yes, but for an employer, this right is qualified by the Trade Union Law. It is true that criticism by the employer of the union’s policies or activities does not always constitute “control and interference”. If such actions include factors of threat, retaliation, or discriminatory conferring of advantages, they would clearly be illegal, but of course there are grey areas.
In fact, it is by far the safest way for an employer never to talk about the union at all with his employees, except in collective bargaining. This is the way the union recommends to employers.
The Labour Commission
Q43: What is the Labour Commission?
It’s an administrative agency, not to be confused with the Labour Standards Office, which offers procedures for correcting unfair labour practices. The Prefectural Labour Commissions are composed of commissioners representing the interests of labour, the interests of employers, and the public interest (11 of each in the case of Osaka (Article 19-12).
The unfair labour practices cases are formalized trial procedures presided over by a commissioner in which the union and the employer confront each other. Lawyers can represent the parties, but they are not necessary. Finally, the commissioners decide whether or not an unfair labour practice has been committed, and they issue orders either dismissing the complaint or providing administrative remedies.
The law does not envisage use of the Labour Commission as a normal form of procedure in labour relations. Employers and management are supposed to be able to settle problems by themselves through collective bargaining and collective agreements (Article 2, Labour Relations Adjustment Law), but sometimes unions have to apply for help from the Labour Commission. This should be regarded as an extraordinary measure.
Q44: What is the procedure?
The union submits an application for relief (“Kyusai”) from the unfair labour practices (Article 27), “detailing the concrete facts constituting the unfair labour practice”, and the “content of the remedy that is being sought”, e.g. “The defendant must rehire the fired union member, and write a letter of apology to the union, as follows. . .” The complaint must be filed within a year of the alleged unfair labour practice. The Labour Commission then immediately arranges initial examination procedures. There are two types of “Examination in unfair labour practices cases.
1. Investigations (Chosa)
2. Hearings (Shinmon)
First there is an investigation, then a hearing, or several hearings. The union and the employer appoint their own witnesses, who alternate. These hearings, open to the public, with defendant and plaintiff present, take place once every six weeks or so, lasting two hours each, with an examination and cross-examination. Documentary evidence is submitted by each side at any time during the process. This may take the form of statements, tape-scripts, letters, union or company documents, etc. These should always be regarded as backing up, or refuting the spoken testimonies by the witnesses. Finally, there may be an investigation at the end to clear up points. There may also be an attempt by the Labour Commission the bring the sides to an agreement before the judgement is given. This is called a “Wakai” (settlement), and can take several sessions before an agreement is reached. About 60 to 70% of cases are settled by compromises of this kind.
Q45: Can the Labour Commission demand witnesses or documents?
Yes. The chairman of the case can call witnesses, demand documents, and even order a search of the employer’s premises (Article 22). However, if the witnesses fail to attend, the Labour Commission does not have the authority to order fines, penalties, or arrests.
Q46: How can union members be prepared for such cases?
1. Every day’s schedules
2. All contracts
3. Letters from the company
4. Pay slips
5. The branch chair or some other member should keep a detailed diary of the branch’s activities, with dates, times, places, names, quotations, etc. The precision and detail will have a strong favourable impression on the judge.
6. If possible, tape negotiations, teachers’ meetings, one-on-one talks with management. Tapes may provide clear evidence of bad faith on the company’s part, slander of the union, or general “control and interference”.
Q47: How is it really possible to “prove” that my boss said this or that, without a tape?
The standard used to establish the facts in unfair labour practice cases is unclear. Labour Commission regulations state that “prima facie” proof is sufficient. High probability is what they have to rely on in many cases. If three union members write statements saying they heard the boss saying “I’m going to crush the union”, the Labour Commission is very likely to believe it.
Q48: I joined the union and got harassed. My health suffered as a consequence. I now want to pursue some kind of case against the company and claim damages. Will the union do this for me at the Labour Commission?
No. When this union sues for unfair labour practices at the Labour Commission, we are not asking for financial compensation for psychological damage. The Labour Commission limits itself very narrowly to violations of the Trade Union Law. The harassment mentioned above could be “control and interference”, but if you’re thinking of damages, the Labour Commission is the wrong place: that’s for a civil court to judge on. To some extent, we have to accept that if we make a union branch and end up fighting the company, it can be stressful for union members. Mutual support and courage are the best ways to deal with this: the Labour Commission will not protect anybody from stress.
Q49: What kind of judgements do Labour Commissions give?
The Labour Commission has broad discretion to give judgements fitting to particular cases. They may grant everything demanded by the union, or some part of it, or nothing at all.
1. In cases of disadvantageous treatment, the Labour Commission may rule that the victims be
restored to their original jobs and receive back pay.
2. In cases of refusal of collective bargaining, they may order the company to enter negotiations.
3. In control and interference cases, they may order the employer to stop such actions and to post a notice in the company apologizing to the union and promising not to commit such acts again.
Q50: Is there an appeals system at the Labour Commission?
Yes. If the Labour Commission orders the company to rehire a fired worker, they should do so immediately, but may then apply for a review at the central Labour Commission in Tokyo within 15 days of the order. The union or the individual union member concerned can also request a review.
Q51: What happens if the employer ignores the Labour Commission’s order?
Unfortunately, Labour Commissions have no executive power to enforce their decisions: this has to be done by pursuing the case in civil court. On the other hand, if a company ignores such an order, it gives the union the moral high ground in a labour dispute, and a good chance to make the dispute more widely known to the public.
Furthermore, if an employer violates an order of the labour commission which has been upheld by the final judgement of the courts, he is liable to a prison sentence of up to one year (Article 28).
Q52: What other services do Labour Commissions offer?
They offer several types of mediation services (Article 20):
1. Assen (conciliation), a procedure whose main aim is prompt mutual understanding between
labour and management.
2. Chotei (mediation), a device by which a proposal is offered to settle the dispute after hearing the claims of both parties.
3. Chusai (arbitration), a process in which an award is handed down.
The one that concerns us most is the first, “Assen”, which is a kind of non-binding conciliation service. If things come to a deadlock in a labour dispute, the union may file an application for Assen with the Labour Commission. Sessions are held at intervals of several weeks before three commissioners, representing the labour interest, the employer interest, and the public interest. The commission tries to understand both sides’ positions, and then bring them to a compromise.
Q53: These procedures seem quite slow. Is there a quicker way to stop employers’ unfair labour practices?
The union can apply for a “Jikko Kakuho” (a kind of executive order), or any kind of order, either written or oral, from the labour commission to the employer. It is generally held that abstract orders are not permissible, so they have to be aimed at particular violations.