The prevalence of the employment custom of saiyō naitei (tentative job offers) may well be peculiar to Japan. As I touched upon in my March 27, 2012, column, university juniors and seniors skip class to attend work seminars, company orientations, internships and, finally, a series of tests and interviews with prospective employers.
Universities wholeheartedly approve of this shūkatsu job-hunting mania and are therefore quite lenient about attendance, assignments and other mere scholastic responsibilities. If things go well, seniors find themselves the lucky recipients of a saiyō naitei — an early promise of employment to begin the first April after graduation.
Last Thursday’s Supreme Court verdict in the “maternity harassment” case brought by a physical therapist in Hiroshima was the first of its kind, overturning decades of business-friendly jurisprudence along with rulings from the district and high courts.
As I mentioned in last year’s September Labor Pains (“Mata-hara: turning the clock back on women’s rights”), the word mata-hara is short for maternity harassment, just as seku-hara and pawa-hara refer to sexual harassment and power harassment, respectively. Maternity harassment means workplace discrimination against pregnant or childbearing women, including dismissal, contract nonrenewal and wage cuts.
Universities in Japan are caught up in a cutthroat struggle for survival. As the population of children plummets, so, in turn, does the number of college entrants.
The decline is particularly stark considering that the number of universities had swelled on the back of the postwar baby boom and bubble economy. Institutions of higher learning are frantic to seize a share of the dwindling “customer base.” Universities choosing students is a thing of the past: Now students select universities.
Born in the early 1970s, I’m what’s known in Japan as a second-wave baby boomer. As a college student in the early 1990s, I experienced the emotional stress and hardship of entrance-exam hell. Many uni hopefuls failed their exams and became so-called wandering ronin for a year until the next round of tests. The term was derived from samurai in the Meiji Era and earlier who left their feudal domain and thus belonged nowhere. During this “nowhere time,” these modern-day academic ronin often studied from early morning until late at night, leading to nervous breakdowns and even cases of children murdering their overbearing parents.
Founded in April 2010 with 7 locals, Tozen Union has recently reached 15 active local unions (plus two dormant ones). Our membership has also roughly doubled during the past four years, with growth accelerating over the past 15 months.
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.
On May 25, a man wielding a saw attacked and wounded 19-year-old Rina Kawaei and 18-year-old Anna Iriyama, two members of bumper girl group AKB48, and a male staffer at an event where fans get to shake hands with their AKB idols.
Fortunately the injuries were minor, but fans were shocked. The victims and their AKB48 comrades must have been terrified.
My first Labor Pains column of the new fiscal year will look at the government’s recent proposal for bringing in foreign workers.
Various proposals on easing immigration restrictions for foreign workers have been bandied about in recent years, but they were inevitably scrapped because “Japan is but a tiny island nation.” (In fact, Japan is the fifth-largest island nation in the world, after Australia, Indonesia, Madagascar and Papua New Guinea.) Incidentally, there are currently 2.03 million foreign residents and more than 700,000 foreign workers in Japan, so the country is already quite multinational and multiethnic in composition.