ACADEMIC APARTHEID UPDATE OCT 2005
EMPLOYERS BECOME MORE
SOPHISTICATED IN FINDING LOOPHOLES
TO UNDERMINE JOB SECURITY
By Arudou Debito
October 31, 2005 Draft 4 and final draft
(freely forwardable)
EXECUTIVE SUMMARY
Japan's employment
system, which is discovering the advantages (legal
loopholes, an ineffectual administrative system, an indolent judiciary)
of hiring contracted workers (Japanese as well as foreign), has become
dire. Employees are increasingly disposable at the whim of
the employer, with no effective recourse for labor abuses.
The only legally-protected status remaining is labor unions,
and the author advises readers to lose their negative preconceptions
about organized labor and join one
if they wish to have any job security in Japan.
BRIEF RECAP AND
INFORMATION SOURCES
-----------------------------------------
I have written copiously in the past about how non-Japanese educators
in Japan have had their job security systematically
undermined--historically (the "guest worker" status assigned to
foreigners since the Japanese university education system was
established in the late 1800s.), structurally (with separate, defined
categories, such as gaikokujin
kyoushi and gaikoujin
kyouin, by their very title reserved for foreigners only
with inferior job conditions), and legally (by designing systems which
effectively require nationality for "public-servant" jobs in
public-sector universities, and establishing contracted work for almost
all foreign educators with limited legal protections). This
system has been dubbed "academic apartheid" (cf. Ivan Hall, CARTELS OF
THE MIND), and with good reason: For well over a century,
Japanese full-time educators were automatically granted tenure (with
permanent employment until retirement age), while foreigners were
relegated to contract labor, with termination (i.e. via non-renewal) at
the whim of the employer. (More information and case studies available
at http://www.debito.org/activistspage.html#ninkisei)
Times change, and this brief is to bring you up to date, distilling
information from lectures given by Jonathan Britten, Evan Heimlich,
Robert Aspinall, and Stephanie Houghton at JALT's annual meeting in
Shizuoka (Oct 9, 2005, 9:40-11:10), under the auspices of the
Professionalism, Administration, and Leadership in Education (PALE)
Special Interest Group (http://www.debito.org/PALE).
Copious corrections and additions were made by Stephanie Houghton,
Michael Normoyle, and Louis Carlet (from the Fukuoka General Union, the
General Union, and Tokyo Nambu respectively, all sister branches of the
National Union of General Workers). All errors hereinafter
are the author's.
-----------------------------------------
INCREASING SOPHISTICATION BY
EMPLOYERS TO DISENFRANCHISE INCREASINGLY SOPHISTICATED EMPLOYEES
In 1999, I wrote an article entitled "Ten Plus Questions to Ask your
Next University Employer" (JALT's The Language Teacher, July 99,
available at http://www.debito.org/univquestions.html),
which has helped many people single out the stellar jobs from the
slugs. However, many schools themselves have discovered ways
to dupe even well-informed applicants, by creating loopholes in
Ministry of Education guidelines, labor laws, and good-faith
negotiations that are the basis of any contract labor conditions.
1)
Retitling positions:
In the bad old days, educational institutions would create employment
posts specifically designed to contain unstable, limited-duration
employment to foreign educators (the abovementioned gaikokujin
kyoushi/kyouin positions). Now, thanks to Ministry of
Education (MOE) directives insisting these positions be phased out,
said institutions are offering old wine in new
bottles. Job advertisements have positions not
titled by nationality, but as "language teacher" (gaikokugo kyoushi,
gogaku kyoushi, etc.), or for "native speakers of English".
It's still a job for a foreign teacher, with no improvement in job
security (and around double the class workload of their Japanese
colleagues). Institutions have defended themselves by
claiming, "Japanese can now also apply for these positions, therefore
there is no discrimination". Yet this assumes that 1)
discrimination or lack of job security becomes more justifiable by
treating all-comers badly, 2) this resolves an increasing ghettoization
of language teaching, and 3) Japanese would actually be stupid enough
to apply for one of these positions when they can get permanent tenure
elsewhere (decreasingly; more on this below).
2)
Increasing part-timer positions:
It's clear why an employer would prefer to hire a part-timer (hijoukin) over a
full-timer (joukin).
Through part-timing, employers get a contracted temporary worker,
fireable at will (i.e. by simply refusing to renew the contract), with
no (or significantly reduced) benefits to pay for:
unemployment insurance (shitsugyou
hoken), health insurance and pension (i.e. shakai hoken
"social insurance"), retirement stipend/severance pay (taishokukin),
raises, or annual bonus (usually amounting to around a third of yearly
salary). Although this is happening to Japanese too as
Japan's lackluster economy forces businesses to cut corners, the
situation for foreign educators (and increasingly foreign teachers in
the regular job market) is even less scrupulous, as employers find more
loopholes in the labor laws to exploit.
a)
According to Carlet, Japan has no clear legal definition
between "full-" and "part-time" work, in terms of working conditions,
hours, or pay. Hence at many eikaiwa schools,
such as NOVA and Berlitz, employers are leaving the status of all their
foreign staff contractually unclear, then claiming afterwards that "all
foreigners are part-timers" in order to deny them the same benefits as
Japanese staff.
b)
Under Japanese labor law or labor practices, 20 hours worked
per week entitles you to unemployment insurance, around 30 hours
qualifies you for social insurance (still untested in court, however),
and 40 hours is the legal maximum before you are supposed to get
overtime pay. So employers are hiring teachers
for just a little less than what should constitute a "full-time" amount
of hours--e.g. eikaiwa ECC contracting their foreign employees for less
30 hours per week. This way, the employer gets almost all the
labor without having to pay out the benefits. (cf. Japan
Times May 31, 2005 on how NOVA is doing it at http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20050531zg.htm)
c)
Employers are fine-printing work conditions to include
extraneous duties (such as "proofreading colleagues'
academic papers", "writing examinations", "attending summer camps"
etc.); this results in unpaid extra work for duties even regular
full-time employees do not have to undertake.
d)
Employers are increasing the use of shokutaku positions (such as
tokubetsu shokutaku,
or "special temporary worker"), which avoid the formal, legally-binding
use of more permanent-sounding positions (such as koushi, sennin, and kyouin).
This creates a class of foreign educators with "temp" jobs--at the
level of clerical staff, or even (as in the Prefectural University of
Kumamoto Case) janitors!
3)
Exploiting loopholes within the labor laws:
Employees, especially those with representation from domestic labor
unions (which have been swelling recently with foreign members), are
pointing out labor protections which every worker in Japan is entitled
to. However, employers are finding loopholes to
exploit. For example:
LABOR PROTECTION:
Contracted workers who face constant renewals are generally considered
"permanently employed full-time" (kikan
no sadame no nai koyou) at an institution if there have
been three or more continuous renewals. (This is precisely to
avoid the labor abuse of perpetually-renewed contracts.)
LOOPHOLE:
According to Carlet, the "permanently employed full-time"
status is more likely to be recognized if you are renewed a number of
times, but nowhere in law or case law is three renewals recognized as a
rule of thumb. More than the number of renewals is
the type of renewal. If the renewal is informal, slipshod, or
nothing but "a formality", then official intermediaries may acknowledge
"permanently employed full-time". But recent court decisions
have been mixed (with one JICA employee's dismissal upheld despite
eighteen renewals).
Widening the loophole further, employers are demanding employees
"reapply" for their positions every time their contract expires, or
issue "different" contracts—magically identical to last
year's (thus resetting the clock every year and avoiding consecutive
rehiring). Or offer three-year contracts (meaning those three
renewals take nine years). Or, worse yet, employers offer
just one contract, expressly capped as "terminal" at one or two
renewals, and wash their hands of any future responsibility.
The MOE has in fact approved this contracting style, as long as it
comes "with advance notice".
Consequently, many contracts have been even codifying their
abuses. Clauses, such as those forbidding "participation in
political activities", or NOVA's forbidding fraternization between
students and teachers (http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20040601zg.htm),
are even unconstitutional (and would hopefully be struck down should
someone have the stamina to take them to court). However,
those seeking redress have found Japan's judiciary generally siding
with employers. Ruling that a contract once signed is binding
no matter what, judges assume that employers and employees must have
negotiated as equals, and the requirement of "mutual consent" between
them has been satisfied.
Thus, contracts have become the trapdoor for employers to get rid of
employees with impunity--since the enforcement of labor protections has
been difficult, short of a lawsuit or intervention by an official
mediation network or a labor union. However, given the
obstacle course that is Japan's administrative and judicial system,
even getting someone to negotiate on your behalf is often quite
ineffective:
LABOR PROTECTION:
Under the Trade Union Law (Roudou
Kumiai Hou), workers have the right to roudou sanken
(collective bargaining and solidarity): i.e. join and form
unions, engage in collective bargaining with their employers, make
labor agreements (which may even override their original contracts) to
improve conditions or reinstate people, and take collective action
through the union such as leafleting and striking. This is
now even applying to more of the labor force: Until recently,
"government workers" (koumuin,
including foreign educators in public-sector schools) were not
"laborers" (roudousha),
and were not allowed the same labor rights, such as striking.
Now that public-sector universities have been privatized (houjinka), and
their employees made "non-bureaucrats" (hikomuin), this
means more people can take advantage of Trade Union Law protections.
LOOPHOLE:
One of the reasons why privatization has taken place is precisely
because it's easier to fire a non-bureaucrat. Now that they
are in the private sector, they face contract labor with all the
abovementioned loopholes, abuses, and decreased job security.
LABOR PROTECTION:
Trade Union Law requires employers to meet and engage in collective
bargaining in good faith with labor unions if contacted by them.
LOOPHOLE:
The law does not recognize the individual's right to collective
bargaining—only a union's. And if the aggrieved
employee has neither a) joined the union before the labor dispute
began, then b) nor had the courage to inform the employer that he or
she is a member of a labor union, then union protections are weakened
(since it is hard to claim an unfair labor practice against a union
when an employer fires workers without knowing they are union members).
LABOR PROTECTION:
Even still, the employer still has an obligation under the Trade Union
Law to engage in collective bargaining when formally requested to do so
by a union. Protections from unfair labor practices (as
defined in the Trade Union Law--such as trying to dissuade workers from
joining a union, punishing or firing them for being in a union, etc.)
come into force as soon as the employer is aware that a worker is a
union member, even if a dispute has already started.
LOOPHOLE:
The crux here is the union membership. The employer is less
at fault for abusing the employee's rights, more at fault for not
following proper procedure with the labor union. This means
that individual human rights are that much weaker a general concern in
the polity.
LABOR PROTECTION:
If collective bargaining fails, cases may be brought before official
channels, such as the Labor Commission (roudou iinkai) and
preliminary courts, which can mediate between aggrieved employees
(again, if represented by unions), and employers.
LOOPHOLE:
Labor Commission negotiations have had mixed results. Should
a settlement be unreached, LC findings against employers are rarely
legally binding (a ruling against an employer merely strengthens
employee arguments if the case gets taken to court).
Moreover, preliminary court precedents (cf. Gallagher and Worthington
cases) indicate that even if something so clear as a court preliminary
injunction (karishobun)
has been served acknowledging a labor abuse, judges in a real court
will later go out of their way to find in favor of the employer (in
Gallagher, the Asahikawa High Court even ruled against her because
she's a woman with a salaried husband!). Employers are
increasingly aware that LCs have limited effectiveness, so they dig in
and wait for a real courtroom to tip the scales in their favor.
(More information on these cases at http://www.debito.org/activistspage.html#ninkisei)
LABOR PROTECTION:
Protections are becoming more clarified at the ministerial
level. Labor unions recently secured a directive (effective
January 1, 2004) from the Ministry or Health, Welfare, and Labor
(Kousei Roudou Shou), entitled "Notification 357: The
Criteria on Conclusion, Renewal, and Termination of a Limited-Term of
Labor Contract". This makes it clear that even for perpetual
part-timers, a job dismissal can only happen after the employer has
given an explicit reason why (in writing if requested), with thirty
days' notice, and must "lengthen the term of contract as long as
possible" (meaning firing through non-renewal is not supposed to happen
just because a person has been there too long and become too
expensive). (See Appendix at the very
bottom for recent changes also to the Labor Standards Law (Roudou Kijun Hou).)
LOOPHOLE:
Clarifications notwithstanding, the force of law is pretty grey and
weak in Japan in general. Heimlich pointed out at JALT that
there is a difference in Japan between the rule of law, and the rule of
the use of law. Few employers or employees (except those
involved with labor unions) will even know about the existence of this
directive, and even then an employer will not be arrested for violating
the directive. For one thing, it is not a "law" (i.e.
something passed by the legislative branch), although it does have the
force of a law. And for another, there's no enforcement
mechanism. That's the paradox—laws which remain
unenforced by definition have no force of law. But who
will? The police won't, and the bureaucracy is, as we shall
see below, loath to act. So all people can do is wave the
directive around and hope the employer blinks first.
LABOR PROTECTION:
There are ministries out there, established both by the Constitution
and the laws, which are obligated to help taxpayers out, in this case
by redressing labor problems. That's what good governance is
all about.
LOOPHOLE:
Every year for decades, labor unions and NGOs have brought clear
evidence (flawed contracts, court decisions, case studies of employees
experiencing discrimination and unfair job termination) to all the
pertinent ministries at the highest level (cf. March 6, 2005 Diet Upper
House summit with bureaucrats, politicians, and NGOs/unions).
And every year for decades, the bureaucrats have claimed there is
insufficient evidence to act on specific cases--that these are issues
left to the employer's discretion. Yet the MOE and the
Ministry of Health, Labor and Welfare continuously refuse to release
crucial information (even when demanded by Dietmembers such as
Fukushima Mizuho), such as how many foreign educators are on contract
employment (which, if let out of the bag, would quantify the degree of
dichotomous treatment based upon nationality in Japan's university
system). In short, taking it to the administrative branch has
little effect. They won't act.
LABOR PROTECTIONS:
You can still take a dispute to court.
LOOPHOLE:
As mentioned above, Japan's judiciary is notorious for ruling on the
side of the employer. Precedents have been chipping away at
labor protections for the past fifteen years: If you sign a
contract, court precedent holds sway even if you inadvertently signed
away legally-guaranteed labor protections. You can face years
of constant contract renewals and then get summarily non-renewed for
being too expensive, even too "stale" (Gallagher case). Or
get fired because the boss doesn't like you or decided to clean
house. Any reason will do, and in some court cases, sackings
without express reasons at all (notwithstanding some cooked up in the
courtroom) have been affirmed as at the employer's
discretion. The bottom line: A business has a right
to survive, and the best judge of what will enable the business to
survive is being left to the discretion of the employer. Even
though the right to work is guaranteed by the Constitution (Article
27), firing somebody without effective recourse or appeal is not deemed
a criminal activity, one breaking any laws by abusing people's rights.
This may sound like an exaggeration, but look at the structure of the
system. Violations of labor standards do not result in
criminal cases (keiji
soshou), i.e. a lawsuit by the state against a lawbreaker,
but in civil cases (minji
soshou), which do not entail arrests, suspension of
business or working licenses, or any immediate financial sanction upon
the employer whatsoever. The employee, however, with more
limited financial resources, has to go to civil court for what may
amount to many years, substantial expenses, even possible social
opprobrium (however erroneous, the commonly-held view in Japan is that
people don't sue). Only to receive an arbitrary decision from
a judge with no accountability and limited appeal mechanisms.
Thus going to court in Japan is a crapshoot, and your chances of
victory, if court precedent is any guide, are not good, especially if
you are a foreigner and viewed as not having any real stake in this
society (i.e. "So what if you were fired? Go back to your
home country.").
CONCLUSIONS
Some might note that the decrease in job security is a common
phenomenon in the developed world—that the prevalence of
contracted labor and the decrease in permanent tenured positions
overseas is merely part of the evolution of the labor market.
However, bear in mind the earthquakes for employees in Japan are
happening without a clear system for redress or enforcement of
law. A system of unequal contract employment, which empowers
the employer without providing for checks and balances for labor
standards abuses, is coming into wider use. Employees in
Japan are more likely to lose their job under any circumstances with no
repercussions whatsoever for the employer.
This is, for a society which values lifetime employment, a sea
change. A little rumination reveals that these developments
are increasingly no longer nationality-based. More Japanese
are being employed as "part-time temps" nationwide; even Japanese
university educators are now being offered full-time contract work
instead of permanent tenure.
(The Part-Time Teacher's Union is conducting a survey on
this. Please see their website at http://www.hijokin.org/en2005.html
)
Although this is becoming endemic, this situation has always been the
worst for foreign workers. According to union data provided
by Carlet, in the Japanese labor force around 20% of all Japanese men,
50% of all Japanese women, and 90% of all foreigners are on
term-limited contracts!
In fact, these are chickens coming home to roost. The
generations spent denying rights for foreign workers has created a
corrupting legal atmosphere of precedents, adversely affecting labor
protections for Japanese as well. Economists may trumpet
theories of "increased labor mobility", "structural efficiency",
"trickle-down effects", and "creative destruction" associated with
these developments. But these do not account for the
less-quantifiable degree of social suffering, inflicted upon people
with insecure jobs and long-term investments--such as home loans,
children's college educations, even the acknowledgement of years of
dedicated service to the employer by the employee. (I also
believe that all economists should be paid only the minimum wage, so
they can personally experience the impact of their proposals and advise
policymakers more responsibly. But I digress.)
In any case, if you wish to work in Japan, understand that your
employment is ever more increasingly at the whim of the employer, and
you have little systematic recourse than in other countries if fired.
Except, of course, in Japan you do have labor unions, with swelling
memberships and even some (such as the General Union in Osaka) gaining
consultative status with the United Nations and contacting the
ILO. I suggest you shed any negative preconceptions you may
have about organized labor, and join one. Students of history
and immature capitalism before social welfare policy will understand
why labor unions existed and were very strong a century ago, even in
Japan. Things have gone downhill enough in recent decades to
warrant their resurrection. Join one before things go sour in
the workplace, and you will have more chance of keeping your job,
negotiating if troubles arise, and deterring labor standards
abuses. Contact details follow:
JAPANESE
EDUCATOR LABOR UNIONS: (for specific enquiries about
employment conditions and protections)
1.
Union of Part-Time Lecturers (Toku Kanren
General Workers Union University and Vocational School Part-time
Instructors Branch)
President: Noboru Shida Fax: 0426-27-4420
English consultation: Michiko Kamatani,
tel. 045-543-2960,
e-mail: Meat113@aol.com
2.
Union of Part-time Lecturers in the Hanshin Area
Union office: (06) 564-0027 c/o Mr
Fukuda, Asahicho, Suita-shi, 564-0027
e-mail: DPE01273@nifty.ne.jp
(Fukuda)
Tel/fax: 0744-29-2074 (Mr Nagasawa) or
0726-95-8031 (Mr Ejiri).
3. National Union of
General Workers Tokyo Nambu
Nambu Foreign Workers Caucus
President: Doug Ayers
General Secretary: Bob Tench
Tel: 03-3434-0669 Fax: 03-3434-0334
e-mail: carlet@jca.apc.org
website: http://www.nambufwc.org
4. General Union
Rokko Temma Biru 201 Temma 1-6-8 Kita-ku
Osaka-shi 530-
President: Mr. Yamahara
General Secretary: Paul Dorey
Tel: 066-352-9619 Fax: 066-352-9630
e-mail: gu@generalunion.org
website: http://www.generalunion.org
5. Education
Workers and Amalgamated Union Osaka
8th Floor, Nippon Word Data Bldg., 1-17
Kitahamahigashi, Chuo-ku, Osaka
540-0031
Contact: Neo Yamashita, Chair
Fax: 06-4793-0644 Tel: 06-4793-0633
email: info@ewaosaka.org
website: http://www.ewaosaka.org
6. Fukuoka
General Union
"BIOTOPE" Fukuoka NPO office,
4-7-2 Hakataekimae Hakata-ku Fukuoka-city
Contact: Eiji Kawaguchi, Executive Officer
Tel/Fax: 092-473-1222
cell-phone: 090-8396-7268
e-mail: fukuoka-general-union@nifty.com
Website: http://fukuoka.generalunion.org/index.htm
One self-indulgent final paragraph, which I include for my Internet
readers because I can:
For those who are Star Trek fans, the Japanese system for employees is
like being assailed by the Borg. Zap them with a weapon from
afar, and you might succeed in dropping one or two of them.
But employers soon understand the calibration of your weapon, and
adjust their shields to deflect the charge, exploit the loophole, and
resume the attack. By now we have used almost all the weapons
in our arsenal. All that's left is the good old fashioned
joust: getting in close, in their face, and en
masse. In a labor union. Again, that's all that's
left, so join one if you want to retain any job security.
Arudou Debito
Sapporo
debito@debito.org
http://www.debito.org
October 31, 2005
//////////////////////////////////////
Appendix
Labor Standards Law
Changes 2004
(This information was
provided by the General Union in Osaka.)
As of
January 1, 2004, some important changes to the Labor Standards Law
(Roudou
Kijun Hou) have taken place. Please note that these changes only affect
contracts made on or after January 1, 2004.
1.
Employment
contract terms can now be for up to three years for regular employees
and five years for some very special kinds of employees (mainly limited
to specialists in universities).
2.
Contracts
must stipulate whether or not there is a possibility of renewal.
Therefore, somewhere in the contract it must state that the contract is
either:
a.
renewable by mutual agreement of employer and employee
b.
non-renewable, or
c.
automatically renewable.
The
first option will probably be the most likely.
3.
Regarding
contract non-renewals, two major changes have taken place:
a.
30 days' notice must be given for a non-renewal of a second
contract. This does not apply to the first contract.
b.
A written reason for the non-renewal (of a second contract)
must be provided by the employer if requested by the employee. Again,
this does not apply to the first contract.
4.
A
written notice of dismissal must now be provided. Also, a reason must
be included and the reason for dismissal must be "objectively rational
and socially acceptable." Otherwise, the dismissal will be invalid.
The
problem with this is that even though the Labor Standards Office would
theoretically have the right to judge whether or not the dismissal is
valid, this right will probably not be used.
ACADEMIC APARTHEID UPDATE OCTOBER 2005 ENDS
Copyright
2005 Arudou Debito, Sapporo, Japan