I research labor law and teach it to university students. In the first class, I break up the two groups of labor laws — those related to individual and collective labor relations — for my students. Individual labor relations law begins and ends with the 1947 Labor Standards Act (rōdō kijun hō); its collective counterpart is surely the 1950 Trade Union Act (rōdō kumiai hō).
About 99.9 percent of my 18-20-year-olds look blank the first time they hear the word “rōdō kumiai,” or labor union. Some of them have arubaito (part-time jobs) and thus already have become rōdōsha (workers) protected by labor laws, but they have not heard of labor unions and have no idea what such a creature looks like. I have my work cut out trying to explain to them the concepts of labor unions, collective bargaining and striking.
Eleven years ago, baseball players walked off the field in protest for the first time in the seven-decade professional history of the game in Japan.
Owners wanted to consolidate two of the dozen pro teams, without offering a replacement. Players opposed the merger and were outraged that they had been kept out of the decision-making process. Atsuya Furuta of the Tokyo Yakult Swallows led collective bargaining on behalf of the Japan Professional Baseball Players Association union. Talks broke down and players struck six scheduled games over two days.
Players reached out to their fans with signing and photo events. Most fans sided with the striking players, but a vocal minority accused them of selfishness and having insulted their fans.
It always strikes me as odd how striking workers — rather than stubborn bosses — are often the ones accused of greed. The players did not take the decision to strike lightly; they had agonized over the decision and certainly were not taking their fans for granted. They made impassioned appeals to the fans that a strike was the only way they could save the wonderful spirit of the game.
このような政府の武力行使への積極姿勢に対して多くのNOの声が巻き起こった。その声はやがて学生たちの自発的な行動につながっていった。なかでも大きなムーブメントを巻き起こしているのは「SEALDs」（シールズ：Students Emergency Action for Liberal Democracy – s）という団体である。「自由と平和と民主主義」を守るというモットーのもと、現在の日本政府の軍事化に反対を表明するために、全国各地の大学生たちを中心に結成された団体だ。
GU court victory against gov’t over insurance to have major impact
On 20 March at 13:25, the Tokyo District Court ruled on the case of a General Union member who sued the Japanese government in an important test case regarding eligibility for enrollment in the Employees Health and Pension Insurance (shakai hoken). Read more at the GU website here.
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.