Volume 10 Number 1 Winter 2003/2004

 

Table of Contents

Editor's Note

PALE: Origins and Current Direction by David P. Agnew

Dead End in the PUK Court Case by Farrell Cleary

2004 Update on the Kansai University Labour Dispute and Prosecution by David P. Agnew

Teachers Have a Friend in Neo Yamashita by David P. Agnew

What's Coming Up in the Next Issue...

 


Editor's Note

Happy New Year!

The PALE Journal has a new home, www.jaltpale.org, and newly elected officers in the PALE SIG. We welcome Edward Haig (Coordinator), Jonathan Britten (Program Chair), Peter Sakura (Publications Chair), Jean Simonian (Membership Chair) and Arudou Debito (Website Editor). They have an exciting programme planned for 2004 and will be publishing details in future issues of the PALE Journal and PALE Newsletter. I urge you to make sure to renew your PALE SIG and JALT membership to fully participate in events in Japan. International membership is also welcome. For details, please click on Membership at http://jalt.org/ .

Additionally, we have a discussion list. To subscribe, please send a blank message to PALE_Group-subscribe@yahoogroups.com. This list provides a forum for individuals to discuss and learn about a variety of issues of concern to PALE. All are welcome; JALT/PALE SIG membership is not necessary to join this list.

The Winter 2003-2004 issue of the PALE Journal continues in the tradition of documenting important cases and publishing articles that would otherwise never reach a wider audience in Japan or the world as such stories are ignored for the most part by mainstream Japanese media and international press agencies.

We begin with a bit of background on PALE and where it left off in 2001 when it nearly became a footnote in history due to internal politics. The disappointing end to the Prefectural University of Kumamoto (PUK) case then provides a poignant example of why PALE's work is so important and the lessons that can be learned when we ensure the struggles of foreign teachers in Japan are documented. The PUK case, as with others documented in our archive, provides us with valuable lessons for educators in Japan. The laws that are supposed to protect workers are often turned on their heads and used as weapons against us. Arudou Debito noted, in feedback for this issue, that "even if you enter into good-faith negotiations with existing labour issues settlement organs, and reach a good-faith settlement, taking the issue further to court will essentially void all future claims to employment rights. Sort of like voiding any employment rights after you sign a contract. Surely that is not what those labour organs are meant to be used for."

I add my own disheartening update to the Kansai University (KanDai) labour dispute and related criminal prosecution, which resonates with the valuable role PALE has played for me personally. The KanDai case built on the tactics used with PUK and involves several government agencies and the criminal justice system. The results so far have been downright shocking. The Japanese legal system seems geared towards acting as an agent of the government and business while only paying lip service to employment rights in the language used in Japan's labour laws, particularly if you are a foreign national.

We then pay tribute to Neo Yamashita and the inestimable merit of his efforts regarding several past and ongoing cases involving foreign educators in Japan. We are also trying something new with a preview of articles that will be available in the next issue of the PALE Journal.

Finally, I wish to announce that this will be the final issue with me as editor. I earnestly volunteered for this post when it was left vacant, and I will continue to support the group any way I can, but the new executive should now be left to chart their own course. Moreover, my intensive and important duties at work are not allowing me to devote as much energy as I feel needs to be put into this role. I invite PALE members to step forward and support the new executive as PALE Journal Editor. I will continue in my role as editor until the position is filled.

Once again, we need your support, particularly in terms of submitting material for publication, and in your continued interest in our work. Please contact the editor<editor@jaltpale.org> if you are interested in submitting, raising an issue, or in being involved.

David P. Agnew, Editor
PALE Journal of Professional Issues
February 2004



PALE: Origins and Current Direction
by David P. Agnew

Our group was initially formed in reaction to events and policies in Japanese society. Many thoughtful and dedicated persons have been part of PALE over the years and we are now seeing a flurry of activity with new PALE SIG officers moving into the driver's seat.

According to an overview of JALT's National Special Interest Groups published in August 1997:

"The JALT PALE N-SIG was formed to provide information and discussion on a broad spectrum of issues that underlay the field of language education as a professional endeavour. We consider the welfare of society as the defining attribute of a profession as well as the mission and the standard of professional competence and success. To that end, for the sake of continued development of the profession, commitment to ethics and continued education are essential. Furthermore, since language education plays an essential role in society and access to quality education should be the right of all people, we promote the independence and autonomy of the professional community, and at the same time believe that individual professionals bear responsibility for their role in language education.

To keep teachers apprised of current research and trends, we maintain a professional forum for administration, education, research and leadership. The PALE Newsletter has included articles on peer observation, student performance, copyright laws, publishing on the Internet and in Japan, tenure, adjunct faculty, discriminatory practices, announcements from other professional education organisations, controversy surrounding the Japanese Ministry of Education's guidelines, implementing theory in applied linguistics in the classroom, and teaching in large classes.
PALE considers the following points essential for language educators:
1. As a part of their normal work life, teachers should consider reading publications in educational principles and methodology as important as the mechanics of lesson preparation. Knowing how principles and methods interact with society's expectations places teachers in a coherent social context. The uninformed, isolated mentality on the other hand, undermines professional growth;
2. Cultivate an historical and international perspective of how the contributions made by others affects their working conditions, their ability to teach, and the demands on their own efforts;
3. Participate in education organisations and forums rather than complacently expecting others to carry the ball, and work to insure others the opportunity to participate rather than focusing administrative control in closed circles; and
4. Record your experiences for personal review and consider sharing them in the appropriate forum."

That same year, Gene van Troyer, then president of JALT, was moved to write a letter in reaction to the mass firings of teachers at Tokyo Foreign Language College. The following key points should be noted:

"One important aspect of professionalism is working conditions. By this I refer not to the physical, classroom situation, but to conditions of employment. Contracts, wages or salary, hours required in the classroom and office, grounds for termination and so forth, inevitably influence a teacher's ability to perform. It is, therefore, appropriate for a professional organization to express at least a general view on such matters."

He went on to argue:

"JALT does not have a specific employment-related policy, but it does have a policy on discrimination that is applicable here: The Japan Association for Language Teaching is opposed to discrimination on the basis of race, sex, creed, religion, national origin or ethnicity."

"JALT's educational mission is to promote excellence and professionalism in language teaching. As JALT President I assume that this is a goal shared by any educational institution that offers language learning programs, and that such institutions would be keenly interested in hiring and retaining the most competent and well-trained faculty as possible. Terminating faculty solely on the basis of union affiliation, which is a basic right guaranteed under the Constitution and Labor Standards Law, would seem to cast into doubt an institution's purported commitment to educational excellence."

"As a legally established academic association in Japan, JALT cannot address specific labour disputes or act as an advocator for individual members who are faced with unfair employment practices. JALT is not a labor union, which is formed under a different set of laws. What JALT can do officially is to speak out about general professional concerns, of which employment practices are a part, and how those practices affect the way teachers are able to perform."

By December 2001, the Standing Committee on Employment Practices (SCOEP) had been formed and had issued several recommendations to JALT:

WHEREAS JALT has historically regarded academia and pedagogy as the primary issues of language education; and

WHEREAS The above perspective neglects the overall social, political, and economic nature of education; and

WHEREAS It is necessary to recognize the linkage between educational/academic quality and employment practices to understand and improve language education; and

WHEREAS Employment practices and working conditions have a direct impact upon management, students, and faculty, as well as on the language education profession and Japan's educational system in general; and

WHEREAS Japan's educational system has engaged in long-standing and widespread use of limited-term employment specifically for non-Japanese, using discriminatory criteria such as nationality, sex, and age; and

WHEREAS The disadvantages of these discriminatory practices are compounded by the current system wide trend towards increased part-time and/or temporary employment, further increasing job instability for all nationalities; and

WHEREAS These systems and trends have created impediments to quality education and Japan's policy of "internationalization", such as premature retirement of competent educators, a comparative dearth of women in leadership and tenured positions, and ethnocentric faculties ill-equipped to provide global education befitting Japan's economic and political status; and

WHEREAS These systems and trends have created impediments to quality research, because the historically high turnover in non-Japanese faculty has resulted in discontinuity in administration, curricula, research and academic publications, hindering the international cross-pollenization and long-term collation and application of ideas crucial to the intellectual health and societal participation of any academic society; and

WHEREAS These systems and trends makes clear the need for academic organizations such as JALT to take measures to increase awareness of these deleterious practices, as JALT's constitutional purpose and specified activities state that it contribute to social education and international cooperation, and JALT has formally adopted a policy on discrimination that places JALT in opposition to the above discriminatory practices; and

WHEREAS JALT's Standing Committee on Employment Practices (SCOEP) is charged with recommending action plans which address the current concerns of its membership regarding discriminatory practices, thus making it necessary for SCOEP to engage in research to establish the type, extent and ramifications of these discriminatory practices to fulfill its mission within JALT; and

THEREFORE Be it resolved that JALT formally acknowledge the relation between employment practices and the quality of education, and that research into related employment issues and working conditions be formally recognized as an integral aspect of JALT's professional mission for the well-being of both Japan's educational system and the research that it fosters and necessitates.

The following motions are hereby moved to provide JALT the means to act upon this resolution as it directly relates to the concerns of SCOEP.

Motion One

JALT pass a resolution which clearly recognizes the links between pedagogy, quality of education, and employment status, and establishes that henceforth employment issues will be in perpetuity part of JALT's purview of concerns.

Motion Two

JALT assume a public and active role in heightening awareness of optimal educational goals, and in discouraging discriminatory practices which are deleterious to language education and language educators, through public statements of concern issued to its membership, the practitioners, government, and/or judiciary.

Motion Three

JALT formally establish a code of preferences for employment practices to be updated and published annually.

Motion Four

That SCOEP be charged with engaging in research to establish the type, the extent and the ramifications of these discriminatory practices, and publish these findings to fulfill its mission within JALT.

RATIONALE : It has been substantiated over several years of JALT Publications (cf. PALE Journal, inter alia), the vernacular and English-language press, and extensive interpersonal contact, that the Japanese academic job market is unstable particularly and by design for non-Japanese educators, women and older teachers, both part- and full-time. Full-time foreign faculty (generally and specifically relegated to gaikokujin kyoushi and -kyouin contract employment, have often found their positions terminated without cause or warning: women have found advancement and tenure much more difficult to obtain than men; older teachers are locked out of jobs and most teachers are forced to retire on the basis of age.

Part-timers of any nationality, given the trend of replacing full-timers with adjunct instructors, often find comparatively lower salaries, lack of health and insurance safety nets, and denial of publication rights--hindering their participation in and contribution to the academic world.

Ultimately, these practices adversely effect both student and teacher, as the former finds experienced educators often reshuffled year upon year for non-academic reasons, while the latter finds great difficulty making a living in this society.

However, JALT, as Japan's largest and best-recognized organization for language teaching, is in an advantageous position. It can make its influential voice heard on these issues, increasing awareness 1) by cooperating with organizations working to eliminate unfair employment practices, and 2) by promoting the amelioration of institutionalized discrimination and encouraging greater workplace equity via public statements to government and administrations. Conversely, internally, JALT, with its extensive information networks, may assist its members to find more equitable and stable job conditions. This is not an unusual task for an academic association, as TESOL, the American Association of University Professors, and several professional disciplines (cf. the American Association of Anthropology) have officially passed statements endorsing better working conditions for sectors of their educational job markets. JALT itself in the past year has sent letters of concern over cases involving the Prefectural University of Kumamoto and Asahikawa University. Hence it is time to institutionalize what is already being seen as necessary and being done.

Therefore, these SCOEP motions, if adopted, will not only earn JALT domestic and international recognition and praise, but also make JALT, in this time of stagnant memberships, more appealing as an institution to new and grateful members. Japan, as the world's second-largest economy, is no longer a place for a few foreign academics to spend a few years in a guest-lecturer position before going home. Twenty-First Century Japan is home for more non-Japanese academics than ever before, and it is time JALT adopted suitable policies to assist them not only pedagogically, but also in terms of employment issues.

JALT SCOEP RESOLUTION 2001 ENDS
Submitted in this revised form to JALT EBM, Sophia University, Tokyo,
January 27, 2001.

Committee Members :
Chair : Arudou Debito (ne Dave Aldwinckle), Koushi , Hokkaido Information University
Farrell Cleary, Koushi , Prefectural University of Kumamoto
Gwendolyn Gallagher, formerly of Asahikawa University
Michael H. Fox, Jokyouju , Hyogo University
John McLaughlin, Koushi , Heisei International University
Gene van Troyer, Jokyouju , Gifu University for Education and Languages
(Recommendations drafted by the Chair, revised and approved by Members Dec 15, 2000)

The SCOEP Resolution was submitted and not adopted by the JALT EBM in 2001, according to Arudou Debito, and "got put on perpetual hold after that as PALE suffered a crisis in identity when it tried to change its name to HELP, only to have Thom Simmons step in and try to take the leadership away. We lost (Michael) Fox after that, John McLaughlin moved to the US, and nobody would step into the void, so off PALE went into auto-pilot hiatus, until you (David Agnew) came along."

(Personal correspondence, January 2004)

The PALE Journal continued to exist on the web with yours truly carrying the ball for two years with Arudou Debito always there for support and hosting the Journal on his website. The SIG was essentially dormant until the end of 2003 when it saw life being breathed back into our group by members who see the value of what PALE and the PALE Journal have accomplished.

So, where do we go from here? I would like to take this opportunity to invite the new PALE SIG Officers and other PALE members to submit articles about the direction that they see PALE going. These opinions will then be published in the next PALE Journal. I would also like to see discussion heat up again on PALE's discussion group: to subscribe send a blank message to PALE_Group-subscribe@yahoogroups.com.



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Dead End in the PUK Court Case
Notes following the dismissal of the appeal of foreign teachers Cynthia Worthington and Sandra Mitchell in their unfair dismissal action. (1)

by Farrell Cleary (2)

After the hostile verdict of the Kumamoto District Court in October 2002, the "reflection meeting" (ȉ) of teachers, lawyers and supporters at local restaurant Yamaneko-ya, reached a consensus that the court's decision was so bad that there was no choice but to appeal, regardless of the slim chance that such an appeal would succeed.

The Appeal Court's decision (Nov. 2003) appears just as bad as that of the lower court's. The Appeal Court found that the two foreign teachers at the Prefectural University of Kumamoto (PUK), Cynthia Worthington and Sandra Mitchell, had not been dismissed unfairly and that they had not been discriminated against on the basis of nationality. The court found that as a result of the two teachers agreeing to a "wakai" (negotiated settlement) allowing for one year's reemployment (1999-2000), their status as appointees had ended. Moreover, using an argument that had been mentioned neither by the lower court, nor even by the lawyers for the university, the Appeal Court found that there had been no discrimination on the basis of nationality, since there were other foreign teachers employed on different terms with different responsibilities at the PUK. (3)

Is there anything to say except that the Appeal Court, like the District Court, has ignored the abundant evidence that the university discriminated on the basis of nationality, has ignored the evidence that the reasons given by the university for dismissing the "Foreign Teachers" were contrived and spurious, and has ignored the falsification of documents by the university and the Prefecture which served to mask the discriminatory treatment of foreign teachers at the PUK? Well, one could also say that Cynthia Worthington and Sandra Mitchell were losers, like Gwen Gallagher and Tim Korst, in a judicial lottery where the odds are stacked heavily against employees, and even more against foreign employees in the state sector. (Many other foreign teachers dismissed in similar circumstances have chosen to withdraw, rather than face the long odds in the courts.) Professor Kirk Masden (Gakuen Daigaku, Kumamoto), a driving force of the Kumamoto support group, made the following comment: " The issue of "discrimination" was something of a surprise to me in both cases. In neither case did we get a verdict that said, "Yes, this is discrimination but the law, as currently written, allows this". Rather, the verdict was "no discrimination". I was amazed by the level of proof required of "discrimination" and the arguments that can be used to say that something is not "discrimination" Arudou Debito was able to provide a rationale for the reluctance of the courts to concede the existence of discrimination in employment terms:

" ...Judges simply don't want more work. And are not interested from what I've seen (in the cases that PALE has covered) in establishing judicial precedent with any notion of consistency. They would rather people settle their messes outside of court. And they will not make victory clear and easy (if at all) if anybody bothers with the years of litigation." (4)

On the other hand, where there is an issue of discrimination not related to an action for unfair dismissal, then the judicial prospects are not necessarily so bleak, even for employees. Ms. Lee Hyun Ok, a Korean lecturer at the Kyushu University of Nursing and Social Welfare (Kyushu Kango Fukushi Daigaku), won a finding of discrimination on the basis of nationality in the Kumamoto District Court (April, 2001). It should be noted that in the Lee case, the action was against named administrators of a private university, somewhat easier targets than public entities, like the Prefecture or the PUK. Where, as in the Bortz and Arudou cases, employment is not an issue, and the discrimination is clear cut and blatant, the courts have been prepared to find in favour of the plaintiffs. Arudou Debito pointed out a further difficulty facing teachers bringing court action:

"[The situation] is complicated by the labour-issue chestnut that when you sign a contract, you acknowledge and agree to its terms. That is something that every judge that does not want to upset the applecart will refer to. I do not support this line of argument, of course, but that is what will keep getting thrown back in our faces time and time again. This is the reason why on the Blacklist of Japanese Universities I recommend that nobody ever sign a contract."

From the beginning (1994), the foreign teachers at the PUK knew that the court system would be an unlikely source of support. Our advisors told as much. However, we were also told that legal action, however doomed, was a necessary component of any political campaign against dismissal. We hoped that the publication of news of the submission of false documents to the Ministry of Education, combined with popular rejection of discriminatory policies, would force the PUK and the Prefecture to recognize that an injustice had been done to Mitchell and Worthington, and that they would rectify it. Ten thousand people signed a petition in support the foreign teachers at the PUK; there was constant publicity which must have been acutely embarrassing to the public relations officials of the Prefecture. However, the real politicians appeared unmoved. Compared with the hundreds of Minamata (5) victims which had been ignored for decades, a few foreign teachers must have seemed easy to ignore. Even the most image-conscious politicians in Kumamoto (both present and past governors) found it easy to do so.

While the court action failed, the PUK teachers managed to win some crucial admissions from the Prefecture, the University and the Ministry of Education. Thanks to the untiring efforts of lawyers, their union, The Kumamoto General Union, formed by the teachers and affiliated to the National Union of General Workers (NUGW), and the Mamorukai (the community support group for the teachers), the Prefecture and the University were forced to admit to the submission of false documents to the Ministry of Education, and to treatment of foreign teachers which seemed to be manifestly discriminatory. With regard to the former, the Prefecture simply said that it was an innocent mistake. This was accepted by the Ministry in a way which astounded veterans of the university system. With regard to the way in which foreign teachers were treated differently from Japanese, the Prefecture claimed legislative justification for the treatment. (6)

Thanks to the efforts of the teachers and their supporters, we now know that the courts, the administration (both provincial and national), the political class (with honourable exceptions) and the PUK will not only turn a blind eye to discrimination on the basis of nationality, but will condone the doctoring of documents concealing that discrimination. Of the various civil institutions, only the independent press emerged well from the affair, with both local TV and newspapers providing a fair account of the issue.

Now that court action has ended, and the teachers concerned are scattered to the four corners of the globe, one can attempt an assessment of the campaign. At the university level, the campaign of the foreign teachers has produced positive results in that the discriminatory "Foreign Teacher" (FT) posts have been eliminated. The cost of that success has been high. Along with the FT posts, three of the six teachers were eliminated, The President of the PUK, Teshima Takashi, had warned the foreign teachers early in 1998 that they might well regret the abolition of these posts should they persist in their demands. Teshima's veiled threats were realised in draconian fashion later in the year when the six FTs were given notice of dismissal and invited to reapply for three "new" posts. Three of the six were rehired under the new contracts, leaving three effectively dismissed.

Discrimination against foreign teachers still exists at the PUK as in many local body and national universities in Japan. All of the foreign teachers are on three-year renewable contracts, while none of the Japanese staff have such term contracts. This pattern of discriminatory employment of course is not unique to the PUK but is endemic throughout the national university system and is not uncommon in public--prefectural and municipal--universities. It is more than thirty years since Professor Suh Yon Dal started his campaign to end this discrimination and it is still being defended by the Ministry of Education.

I am still receiving reports of public sector universities taking initiatives which will accentuate the discrimination of foreign teachers.

In the light of the dubious quality of the judicial reasoning seen in the PUK case, one can understand the reluctance of foreign teachers to take court action against this discrimination. Before the dismissals in 1998, we were advised that such court action would be more likely to succeed if it was done on a national level, with teachers from all sectors of the Japanese system joining the action, and supported by a strong team of perhaps a hundred sympathetic lawyers. Of course, such an action could only be the result of the kind of political movement which still does not exist. In the meantime, the PUK teachers join the list of those victims of a discriminatory system who have refused to go quietly, but who have protested as they went: Ivan Hall, Dr. Kang (7), Steve van Dresser, Tim Korst and Gwen Gallagher. The PUK teachers have the distinction of embarking on their campaign against discrimination before they were dismissed. Our protests were given considerable resonance by the courageous, altruistic and loyal support of so many people in Kumamoto and in the wider Japanese community. (8) It was the support and energy of all of these people which made the issue of discrimination against foreign teachers a Japanese issue and made the wider community face once again the issues of immigration and human rights which had previously been seen mainly in terms of long-term Korean residents and "burakumin."

Farrell Cleary
(Formerly of the PUK)

Notes

1. Apart from Arudou Debito and Kirk Masden, I am grateful to Cynthia Worthington, Sandra Mitchell and Paul Beaufait whose input made it possible to write this article.

2. Formerly a teacher at the PUK (eight years as Foreign Teacher and three years as Lecturer [koushi]).

3. Summary of the decision provided by Professor Hanada Masanori.

4. Arudou's and Masden's comments were made in response to a draft of this article.

5. Minamata is also in Kumamoto Prefecture. The ridiculously drawn out court deliberations haven't endeared Kumamoto or Japan to the international legal community and environmental groups. "Over 3,000 victims have been recognized as having "Minamata Disease." It has taken some of these people over thirty years to receive compensation for this inconceivable event. In 1993, nearly forty years later, the Japanese courts were still resolving suitable compensation for the victims. Many people have lost their lives, suffered from physical deformities, or have had to live with the physical and emotional pain of "Minamata Disease". This suffering is all a result of the very wrongful and negligent acts of the Chisso Corporation who dumped mercury into the sea water and poisoned the people of Japan." (http://www.american.edu/TED/MINAMATA.HTM)

6. Legislation (1982) allowing the employment of foreign teachers as regular staff in public and national universities also mentioned that such staff could be employed for fixed terms. Both the Ministry of Education and now the Courts have held that this authorizes discrimination on the basis of nationality. It would have been more reasonable to hold that the legislation allowed for the imposition of term limits as long as it did not unfairly discriminate on the basis of nationality. For instance, term limits could have been used for visiting professors in a reasonable and non-discriminatory way.

7. Tsukuba University institutes a Gaikokujin Kyouin system, meaning contracts for foreigners, but leaves it up to the university president (Gakuchou) and the "Discussion councils" (hyougikai) to individually determine the duration of tenure. Has history of bad faith in negotiations, specifically starting in April 1985 by cleaning out its longer-serving kyoushi by promising them promotion to Gaikokujin Kyouin, then effectively firing them. This situation had to be settled by litigation (cf. Drs Kang, Teele, and Sawada), and afterwards Dr. Kang died a broken man at age 61. The school then tried to charge his widow one million yen back rent for his office! Ten pages of heart-rending bad faith are recorded in Ivan Hall's Cartels of the mind (ISBN 0-393-04537-4).

8. Just a few of the many names on the role of honour: Lawyers Mr. Matsuno (Nobuo) and Mr. Higashi; union activists Mr. Tanaka Nobuyuki, Mr. Okabe, Mr. Motomura, Mr. Nakao (NUGW), Mr. Otsuka ( Kumamoto School Office Workers' Union), John McLaughlin (University Teachers' Union), Dennis Tesolat (General Union); Japanese university professors Harada (Masazumi), Hanada (Masanori), Mushakooji and Arudou Debito; foreign academics teaching in Japan Gwen Gallagher, Ivan Hall, Kirk Masden, Suh Yon Dal and Joseph Tomei; interpreter Chinen Ayako; restaurateur Satoo Yoko; politician Ms. Hirano (Midori); and journalist Mr. Miyawaki.

Farrell Cleary taught at the PUK for eight years and at its predecessor, Kumamoto Women's University, for three years. He is at present in New Zealand pursuing his interest in postcolonial culture and learning Maori.

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2004 Update on the Kansai University Labour Dispute and Prosecution
by David P. Agnew

The dispute with Kansai University (KanDai) is now three years old.

Everybody knows that KanDai discriminates against foreign employees. The Ministry of Education, Culture, Sports, Science and Technology, the Ministry of Labour, the Osaka Labour Board, the Osaka Social Insurance Board, the Ibaraki Labour Inspectors Office, the Osaka Public Prosecutor, the Osaka Prefectural Assembly, the Japanese Diet, the Japanese media, KanDai students and the public at large all know about what KanDai is doing and that it is wrong. It is also against the law.

The EWA and I went to great lengths to make sure everyone who should know about KanDai's deeds, does. Everything we have done has been transparent and posted on our website for all to read. We have done everything by the book. We have filled out the forms, submitted them in a timely fashion, and never missed a deadline or appointment. Please see the Summer 2002 issue for the detailed chronology of the struggle against KanDai.

What is KanDai doing that specifically breaks the law and what are we doing about it?

A. Institutional discrimination against foreign employees at KanDai

Law:
According to Article 3 of the Labour Standards Law, an employer shall not engage in discriminatory treatment with respect to wages, working hours or other working conditions by reason of the nationality, creed or social status of any worker. A person who has violated the provisions of Article 3 shall be sentenced to penal servitude of not more than 6 months or to a fine of not more than 300, 000 Yen. (Article 119)

Problem 1:
KanDai created a new position in 1992, Special Foreign Language Lecturer, COut (tokunin gaikokugo koushi), which is staffed exclusively by non-Japanese teachers.

Problem 2:
The tokunin position is contracted on a yearly basis, as is becoming standard for contracts in Japan, but is capped at two renewals. Japanese teachers at KanDai do not have capped work terms. KanDai claims they were instructed by the Labour Inspection Office (LIO) to impose the three-year limit. Osaka Labour Board (OLB) investigates KanDai and reports that in matters of contract renewal LIO would not have advised KU regarding term limits in the Tokunin Teachers Working Rules in 1992 as it is not within their jurisdiction to enforce such a rule. Furthermore, the OLB emphasized that contracts may not exceed one year in length as mandated by law and there are no legal provisions for limiting renewals.

Problem 3:
KanDai claims the tokunin teachers are part-time employees in order to avoid paying benefits. OLB and Osaka Social Insurance Board confirmed that the tokunin position is a full-time teaching position. 40 hours/week. (Original section from KanDai contract here in Japanese)

Action 1:
Formed branch of Education Workers and Amalgamated Union (EWA) and petitioned the university to eliminate the three-year restriction, but it refused after nearly a year of collective bargaining.

Action 2:
Began labour dispute with a strike. The strike was followed by several demonstrations at or near KanDai to bring attention to the case.

Action 3:
Presented case to the Osaka Labour Relations Commission.

Action 4:
Reported discrimination to the Ibaraki Labour Inspection Office (LIO).

B. Infringement of Employment Insurance Act

Law:
Employment Insurance Act requires all employers to pay premiums for all full-time employees.

Problem 1:
KanDai refuses to pay unemployment insurance premiums for tokunin and other full-time employees.

Problem 2:
KanDai claims that because most other universities flaunt the law, KanDai is not obligated to obey the law.

Action 1:
Informed the Osaka Public Prosecutor of KanDai's violation of the Employment Insurance Act and asked for an indictment.

So, everybody knows KanDai is breaking the law and KanDai itself has never denied it. Perhaps the law in Japan is actually meaningful after all and KanDai will be held accountable? Not likely.

On December 11, 2003, the Osaka Labour Relations Commission (OLRC) handed down its decision regarding KanDai's unfair dismissal of yours truly and the illegal blocking of constitutionally guaranteed rights to protest by EWA. In its decision, OLRC did not protect me from being dismissed although OLRC knows that no Japanese teachers were hired under the same working conditions that I was; only foreign teachers are hired for the "Tokunin" positions. OLRC contends that because KanDai did not act against me for being a union member or being involved in union organising activities, it has done nothing wrong. It ignored the argument that Kandai is violating the law, and me, because I am a foreigner and the law they are sworn to uphold forbids differential working conditions based on nationality.

The Ibaraki Labour Inspection Office (LIO) has been on KanDai's heels ever since we brought the university's discriminatory policies out in the open. Earlier last year, on March 13, 2003, Ralph Fumularo, my colleague and fellow "Tokunin" met with representatives of the Ibaraki LIO to discuss the Tokunin three-year contract conditions at Kansai University. Mr. Famularo worked under the contract between 1997-2000. He informed the interviewers that he had been asked several times by coordinators of the English I Communication program to reapply after his one-year mandatory termination. He said he declined the job for several reasons. First, he said the Tokunin system made it impossible to continue a stable life in Japan as members of the teaching staff are forced out of their jobs and are potentially unemployed every fourth year.

Mr. Famularo and other former instructors, as well as the EWA, believe this is a racist policy being applied by Kansai University since such a contract is only given to non-Japanese nationals who are requested to work as Tokunin instructors. The LIO said they were aware of Kansai University's attempt to play semantics in attempting to deny racist hiring policies. In the University's jargon, the three-year limitation isn't applied to teachers on the basis of nationality because they are using the criteria of "native English speakers." Mr. Famularo's comment that there are very few "native English-speaking Japanese nationals" -- most likely, not enough to fill the staff of a communication program, was understood by the interviewers.

He went on to point out that such discriminatory hiring policies additionally discriminated against the spouses of non-Japanese instructors (more often, a Japanese national) and the mixed-race children of the instructor and spouse because of the economic hardships that are placed upon long-term resident instructors.

Referring to a statement written by me, Mr. Famularo agreed that the three-year contract is in direct conflict with the Ministry of Education's goal of improving English language education at all levels. He said that qualified and capable teachers with long-term experience and cultural knowledge of both their original home country and of Japan were essential to the continuity of a language program, and that awareness of the linguistic idiosyncrasies of the Japanese students was greatly beneficial in targeting potential and real language needs of the Japanese students. He said he hoped that Kansai University and other universities would abolish the three-year Tokunin contract and provide long-term positions for foreign language teachers based on qualification, experience and need.

So, again, the right people know about it, and are even quite understanding, but nothing is being done about it.

OLRC also failed to acknowledge that the discriminatory three-year cap on foreign teachers was part of negotiations between EWA and KanDai even though I wrote a statement to that effect on the contract that I signed and we had transcripts of officially taped conversations between KanDai and EWA, which supported the union's position. Nor did they acknowledge the letter I received from KanDai threatening me with immediate dismissal and prohibiting me from even stepping on the KanDai campus grounds unless I agreed to the term-limit. (The letter was in reaction to my note on the contract.) What can I say?

OLRC set a bad precedent when it refused to declare the awarding of a civil injunction, barring the union from legally demonstrating at the front gate of the university, an unfair labour practice. OLRC did admit that EWA is a true trade union, keeping in line with an earlier Central Labour Relations Commission (CLRC) ruling, and this at least can be seen as a victory for the union. This is significant because OLRC used to claim that EWA members were only protected by limited sections of labour law because they were not trade unionists. Following the CLRC ruling, EWA members are protected by all labour laws. This will impact all future cases.

An appeal has been submitted to the CLRC for both cases.

The Osaka Public Prosecutor's Office also decided to shirk its responsibilities by deciding not to indict KanDai. It claimed there is not enough evidence, although the Ibaraki LIO had deemed KanDai to be in violation of the law by treating foreigners differently. We have brought this case to the Committee for the Inquest of Prosecution, which can force the prosecution to take action. Don't hold your breath though.

Stay tuned...

Reflections

Seems almost ludicrous somehow, but over three years to the day have passed since EWA and I sent the letter demanding collective bargaining with KanDai on November 27, 2000; we still have much to do. Waiting us out, as mentioned in the PUK article in this issue, is a common strategy in Japan as many of us eventually have to move on and take care of our professional and familiar careers. I have decided to put more of a human face in this section, so that that my colleagues in Japan can see how much this case means to me.

I returned to Canada in April 2002. Several factors brought me back to my hometown after 12 incredible years of working, living and loving in Japan. It was the hardest decision of my life. The Japanese people, the food, the culture, even the weirdness that we often complain about, have become part of who I am. My wife of ten years and my beautiful daughter are Japanese. Should I have gone the distance like our dear Debito and become Japanese? Maybe, I guess I still can, but I shouldn't have to. My wife and I decided that my talents as a teacher were being wasted because of a system that would never let me grow professionally. Sure, I could have stayed and taken a contract here and a contract there, and maybe even found a decent enough university to tenure my tired old soul, but why should I be denied stable working conditions because of my nationality?

One powerful reason for going back to Canada that I haven't mentioned to many people was my experience in Washington, DC, on September 11, 2001. Not surprisingly, this also has a Japanese connection.

September 11, 2001, was the last day of a two-week tour that a fellow teacher and I had arranged for over twenty of our students from universities around the Kansai. (We had arranged a tour three times before what turned out to be our last). It was an absolutely perfect morning. The sky was blue, the weather warm and our group was anxiously waiting on the steps of the Library of Congress at around 9:30, across from the US Capitol building, for a prearranged tour of the library at 10:00. I was standing on the top steps of the library, looking across the Mall towards the Potomac when I saw the fireball and then heard several rumbling explosions coming from across the river in the area where the Pentagon is located (You can't see it directly as several museums and other buildings line that side of the Mall in that location). We didn't know what was going on, but we sensed that we should leave the area. Needless to say, all hell broke loose after that as I led the group towards Union Station and back to our dormitory at Columbia Union College in Takoma Park, Maryland.

We moved quickly towards Union Station Plaza along first street, stopping only at the Supreme Court to ask a police officer what was going on. He only waved us on. Just past the Senate Office Buildings we were stopped by a parking lot attendant who was waving lots of Mercedes and BMWs from the lot. I asked him if he was going to let all the rich people out first, at which time he stopped the cars and let us through. (Would liked to have thanked him again for his kindness). Once we boarded our Metro train towards Maryland, we could see the smoke billowing into the sky from the Pentagon. We had been next to the Pentagon the day before at Pentagon City Mall and actually inside the Pentagon on a guided tour a week before. We didn't know what was going on until we got back to the dormitory and flicked on the t.v. only to see the footage from New York. We were supposed to fly back to Japan on September 12, but we ended up having to stay an extra week as airports were closed or operating at limited capacity. I didn't mind. I didn't really want to get on an airplane anytime soon...

So, I arrived back just in time to start what would end up being my last semester teaching in Japan. The labour dispute was in full swing and life had to go on. The next seven months were stressful. I had to teach my wonderful students. I had to finish the fight with KanDai as so many people had put so much time and energy into it. I believed in what we were doing.

More negotiations, the strike, the prosecution case, the press conference, the OCLR hearings and cross-examination, and many other events began to take their toll. Even Tezukayama University in Nara, where I had taught for many, many years suddenly cut half my classes without having the decency to even talk to me first. It was time to take a break... I knew the struggle would move ahead and I was no longer needed in the flesh. I could support the case and EWA from my computer as webmaster of the union site no matter where I resided.

The battle continues.


David P. Agnew taught in Japan for over 12 years before returning to his hometown of Calgary, Alberta, Canada. He holds a BA in Sociology (Criminology Concentration) and an M.Ed. from Temple University specialising in TESOL. David has recently been teaching at Mount Royal College, the Southern Alberta Institute of Technology (SAIT) and the Calgary Catholic Immigration Society.

Teachers Have a Friend in Neo Yamashita
by David P. Agnew

It has been said that the most important factor in achieving success is consistency. When it comes to the battle for equal treatment for teachers in Japan, one constant has been the voice of activist Neo Yamashita.

Neo Yamashita's formative years were in the turbulent late 1960s. Neo started work at the Japan National Railway (JNR) soon after taking part in anti-US-base activities in Okinawa while still a student. He was subsequently fired by JNR after being arrested while participating in a rally against then US president Ford's visit to Tokyo. One year after being dismissed from JNR, Neo was employed as a staff member of the Japanese Teachers' Union (JTU) Toyonaka Branch in Osaka. After 13 years of service, he decided to form a new union with his colleagues as JTU had decided to join the largest, yet rather conservative union federation, Rengo. Neo and his colleagues established Education Workers and Amalgamated Union Osaka (EWA), which, for the first time for a union in Japan, accepted part-time teachers and staff in a union including public sector employees. Neo was elected secretary of EWA.

EWA gradually organised Japanese full-time and part-time teachers and staff at both public and private schools, in kindergartens and universities. During this period, Neo and EWA started to support the General Union's efforts to organise foreign workers and were involved in several cases. It was also at this time that foreign teachers employed at universities began to consult Neo and EWA about their problems. Ultimately, the General Union recruited excellent foreign activists and he felt he had done his part for them. Neo again turned his attention to EWA and the fight for the well being of education workers--this time including non-Japanese educators.

Neo Yamashita is the current chair of EWA. I first heard of him in the early 1990s during conversations with language teachers at various events in the Kansai region of Japan. In 1997, I met him for the first time when several part-timers were organising a union at Tezukayama Gakuin Junior College in Osaka (now defunct after being absorbed by Tezukayama Gakuin University) and he was there to negotiate on our behalf. We lost our jobs but the union won a settlement stemming from a decision by the Osaka Labour Relations Commission. This was my first real taste of the working conditions faced by veteran teachers in Japan and I was impressed by the unselfish commitment Neo gave to us during the whole process.

In the months to follow, I watched as foreign teacher after foreign teacher was shown the door--some after decades of service to their institutions and Japanese society. I later approached him about taking Kansai University to task after reading about the PUK and other cases in the PALE Journal. (See above article and archives concerning KanDai).

The following list of institutions, some of which are on the Blacklist and Blacklist for Part-time Teaching Positions at Japanese Universities, have been or are involved with EWA regarding foreign educators:

Currently in Labour Dispute
Kansai University
Kobe Shinwa College
Osaka Gakuin University
Seian/Seikei Osaka Gakuin University

In Negotiations
Kobe University
Otemon Gakuin University
Setsunan University

Branch/members Exist(ed)
Baika Junior College
Doshisha University
Eichi University
Hannan University
Himeji Dokkyo University
Hyogo University
Kansai University of Foreign Studies
Konan University
Kobe Shinwa Women's College
Kobe University of Foreign Studies
Kwansei Gakuin University
Kyoto University
Osaka Christian College
Osaka Jogakuin Junior College
Osaka University of Economics
Osaka University of Health and Sports
Osaka International University
Otemae College
Shiga University of Medicine
Shijonawate Gakuen Junior College
Tezukayama Gakuin Junior College (defunct)
Tezukayama Gakuin University
Tezukayama University, Nara

(Jr.) High Schools
Amagasaki City - in negotiation
Ashiya City
Kobe City
Soai

Neo Yamashita has spearheaded all of these cases and continues to support foreign teachers on a daily basis. Need I say more. A truly dedicated man. Unfortunately, lists such as this are bound to swell in the coming months as the privatisation of Japan's national universities gets into full swing.


Neo Yamashita recently graduated from Osaka City University Graduate School after specialising in regionalism in the Theoretical Economics programme. He had been unable to finish his BA because of his involvement in the student movement in the 1960s. He hopes to pursue a PhD after he steps away from union activities.

What's coming up in the next issue...

Does discrimination and unfair dismissal occur on the JET Programme, and does CLAIR sweep problems under the rug? One former JET's perspective.

Future direction of PALE.

 

 

 

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