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The Japan Association for Language Teaching (JALT)
Journal of Professional Issues
Professionalism, Administration and Leadership in Education
National Special Interest Group
Volume 4 Number 3 December 1998
STAFF ROSTER (click here):
TABLE OF CONTENTS
(click on item to page down to it)
Editor's Note (background information on why this case matters)
THE KUMAMOTO KENRITSU DAIGAKU CASE
A PRIMER ON THE KUMAMOTO PREFECTURAL UNIVERSITY SITUATION By Joseph Tomei
AN FAQ: Some Frequently Asked Questions Regarding the Situation of the Foreign Teachers at the Prefectural University of Kumamoto By Cynthia Worthington
PRESS RELEASE: KUMAMOTO GENERAL UNION STRIKE By Kumamoto General Union Staff
THE STRIKE: A Personal View By Farrell Cleary
RESPONSE FROM KUMAMOTO KENDAI: A Study in Terseness
FURTHER INFORMATION AVAILABLE ON THE WEB By Kirk Masden.
COUNTERARGUMENTS AND CONCLUSIONS: THE UNION VS THE UNIVERSITY By Cynthia Worthington
And on the topic of contracted private-sector laborers, essentially the status that Kendai is trying to apply to its "irregular temporary" foreign teachers:
THE EMPLOYMENT RIGHTS of Repeatedly-Renewed Private Sector Contract Workers By Steven van Dresser
PALE JOURNAL STAFF ROSTER
Hello and welcome to the December 1998 Issue of the PALE Journal. Again, apologies for the lateness of this issue, and our perfunctory excuse: time constraints; the JALT Omiya Annual General Meeting pushed PALE steering committee deadlines to end-November, and December, well, was December, and the end-year fanfare is never conducive to concerted writing. Moreover, as you may have noticed, this issue has its pagination cut in half--not due to a shortage of topics, mind you, but rather budgetary concerns. As is normal for N-Sig journals at JALT, ours is run on a shoestring budget, supported by membership and JALT funding. No complaints here, but as the year runs out and it becomes obvious how much our average 50-page Journal runs down our finances, we realize that something has to give. So this time we study the value of concision (admittedly, not your Editor's strong suit). Next edition we'll work on timeliness.
In this issue, we return to the ever-building backlog of employment abuse cases and focus on the situation in Kumamoto Prefectural University (Kumamoto Kenritsu Daigaku--not to be confused with Kumamoto Daigaku). Kumamoto, Japan's 15th largest city with about 630,000 people, has a total of six different universities which are quite closely knit in terms of reputation and academic cross-pollenation. Kumamoto Prefecture in particular advertises itself publicly as aiming for a sabetsu no nai machi ("a discrimination-free city"), which makes this case, as it unfolds, particularly embarrassing to the surrounding community.
As was referred to in previous PALE Journals (all of 1998's editions are available at http://www.debito.org/PALE/), this case completes an odious chain of events--where all three sectors of the Japanese university employment market (National, Public, and Private) have demonstrated the means and the will to abuse its foreign academics. The Korst Case at the University of the Ryuukyuus (National) showed how a wanton firing could blow up into ugly legal precedent--where the university finagled Korst's employment status so that he would be protected by no labor laws, an argument the district court irresponsibly accepted when denying Korst an injunction (cf. PALE April 98). The Gallagher Case at Asahikawa University (Private) showed that even though the labor laws (which differ between public-sector and private universities) can result in a court ruling in favor of the abused, there is no apparatus for enforcing the decision (indeed, Gallagher was simply de facto reinstated and then fired again; cf.PALE August 98). In this issue, for the sake of thorough follow-through, PALE features the Kumamoto Kenritsu Daigaku (Kumamoto Kendai, for short) Case, indicative of the situation in Public Universities.
The Kumamoto Kendai Case shows how a women's university (joshi daigaku), seeking approval five years ago to transform itself into a co-ed university with a new faculty, tried to have its cake and eat it too. Kumamoto Kendai submitted documents to Monbushou (The Ministry of Education, which has absolute control over curricula, budgeting, and appointments in the public sector) stating that its foreign academics under this new faculty would be sennin koushi--which generally means full-time employment status as far as Monbushou is concerned. However, once approval came through, Kendai turned around and offered some--but only--its foreign academics temporary, later terminal, job positions--with employment terms and terminology seen nowhere else in the Japanese academic job market. In short, Kendai said one thing to the government to receive accreditation and, once received, said another to its foreign staff. Now, backpedalling to cover their tracks, officials at Kendai are informally stating that the foreigners were in the know about the fraudulent nature of the documentation, and thus complicit in eliminating their own job positions. (This, however, will not be apparent in the formal responses from Kendai due to their terse and opaque tone: one response, for your information, is included in this Journal.)
Though this case is fascinating in its degree of dishonesty and fraudulence, it is also a laboratory for a completely different approach taken by the aggrieved in the labor dispute. Both the Gallagher and Korst Cases utilized legal avenues for redress, coupled with grass-roots support groups (Gallagher) and labor union formation (Korst). At Kendai, however, these foreign employees of the state, legally so disenfranchised from the university that they were effectively stripped of their state-employee status, found themselves able to unionize and go on strike--in fact the first in Japan by foreigners at a Public University. Those employees have not brought forth a legal suit (yet), but instead have taken it to the streets--petitioning local organizations and media, receiving signatures from local and international notables in support of their efforts, in an effort to harness the forces of community shame. The case is ongoing, and since the university still refuses to enter into binding negotiations with the union, PALE reports on this situation as the faculty enters the endgame--their contracts (and ultimately their entire curriculum) will be dissolved at the end of March, 1999. Expect an update.
Other than that, we have space for little else in this issue, which may feel a little fallow for those who enjoyed our bumper August issue with bonus book reviews, humor, and fiction. We hope that if you are reading this Journal of Professional Issues as a non-subscriber and/or a non-JALT member, that you will join our subscription lists and help us with our funding. We are volunteers at PALE, but feel this information is important enough to keep the public informed of what's going on. If you share this belief, contact Thomas Simmons (email@example.com) or Edward Tobias Haig (firstname.lastname@example.org) for more information.
Looking forward to a revitalized budget in 1999.
Dave Aldwinckle, Editor
PALE Journal of Professional Issues
A PRIMER ON THE KUMAMOTO
PREFECTURAL UNIVERSITY SITUATION
By Joseph Tomei, Tenured Instructor, Kumamoto Gakuen University
(Received by email <email@example.com> Wed, 9 Dec 1998,
First draft of an article published in JALT's THE LANGUAGE TEACHER Magazine, March 1999)
There is currently a labor dispute between Kumamoto Prefectural University and its foreign teachers. Here is a timeline with the significant events of the dispute:
In July 1993, four foreign teachers, all employees of Kumamoto Women's University, signed an Acceptance of Appointment Document (shunin shodakusho) in both English and Japanese that was submitted to Monbusho as part of the preparations for restructuring the school as Kumamoto Prefectural University, set to begin classes in April 1994. The university was also recruited for an additional 5 foreign faculty and those accepted applicants signed the same documents. In that document, the teachers are called sennin kyoin (full-time teachers in the English translations). In addition to these documents, the foreign staff were asked, as Monbusho requirements dictate, to submit specially formatted curriculum vitae to verify their qualifications. These documents are accepted by Monbusho and the university's application was approved.
However, in November 1993, four of the teachers were asked to sign contracts for 'special irregular, temporary/part-time'[hijoukin tokubetsu shokutakuin] positions. This meant that though the teachers teach a maximum workload and were responsible for making entrance exams, budget expeditures of the Language Center, making timetables and participate in curriculum decision, they do not receive bonuses, retirement allowances and were ineligible for promotion. The remaining five teachers were employed as 'regular' general public employees (joukin ippan koumuin) but were given term limited contracts (3 years). In response to this, the teachers sent a memo that said, in part, 'this list is not a demand for special treatment but a request to honor the agreements and understandings between Instructors and Monbusho, the Prefecture and the University...'
The university's position is that all the points of the position were stated during the recruitment process and they were explained throughly to the finalists and these discussions take precedence over any documents that were submitted to Monbusho. It also points out that because 'foreign teachers' are limited to teaching English-related subjects, the nature of their duties dictates the manner of their employment. Even though the foreign teachers teach a full class load and are provided with offices and research funds in an effort to see they have a good working environment, the university insists that they are only part-time teachers and no part-time worker can receive preferential treatment.
On December 3, 1993, an informal meeting was held to discuss the status and terms of the foreign teachers. The teachers were told that the documents they signed did not reflect their actual status but were only for the purpose of obtaining accreditation. On December 7, the teachers sent a letter of protest reiterating the response they made, which was that they expected the university to honor the documents they submitted to Monbusho.
After beginning work in April 1994, the teachers were then asked to sign contracts, which they refused to do. In July, a compromise was offered, that the teachers would sign administrative appointment documents that would allow them to continue working. The teachers, hoping this would lead to a resolution of the situation, did so.
In February 1995, the teachers were asked to sign a document entitled 'Confirmation of Employment Terms'. Disagreeing with the terms, they refused to sign the document until a section was appended stating that they had read, but did not accept the terms and proposed a set of revisions. This revised document was signed by President Teshima and the teachers classed as irregular part time teachers in February 1995.
The teachers continued to sign administrative appointment documents the next two years, but the university refused to meet with the teachers to discuss a resolution of the situation.
For the school year 1997, the teachers were asked to reapply for their positions, which they refused to do. The teachers formed a union on July 11, 1997 and requested formal negotiations, which began in October 1997 and continued until unilaterally broken off by President Teshima.
The university, on January 21, 1998, enclosed an agreement that changed the university internal title of their jobs from Gaikokujin Kyoushi to Gaikokugo Kyoushi, noting that the term of the Gaikokujin Kyoushi ended on 31 March, 1998 and that the new positions were term limited to 1 year. In addition, the university said that if the documents were not signed by February 10, 1998, the teachers would not be employed by the university. Acting on the advice of their lawyers, they signed the document.
In order to protest their treatment, on June 24, 1998, the union held a one-day strike, the first strike at a public university in Japan.
In July, the university initiated curriculum restructuring that would reduce the required credits for English. This reduction would necessarily entail a 50% reducation in the number of foreign teachers employed. See http://nacwww.nacsis.ac.jp/local/docs/02861.html
In October, President Teshima announced that, in order to normalize the management of the university, the 'part-time' foreign teachers' contracts would not be renewed and the President said that 'Discussions have begun with the prefecture on hiring foreigners on the same basis as their Japanese counterparts' (Kumanichi Shimbun, Oct. 1, 1998)/ However, when these announcements were posted, it was stated that the terms of employment were '3 years (renewable) for those who do not have Japanese nationality'
On December 7, 1998, a statement of support signed by 47 Japanese and foreign academics, lawyers and other supporters, was delivered to President Teshima and the governor of Kumamoto Prefecture, calling for the end of the discriminatory treatment of foreigners.
This is the overview. For more details on the specifics, read on:
Some Frequently Asked Questions Regarding the Situation of the Foreign Teachers
at the Prefectural University of Kumamoto
By Cynthia Worthington, President, Kumamoto General Union
(Received Thu, 18 Jun 1998, from Farrell Cleary <firstname.lastname@example.org> )
Q1:How is the employment of foreign teachers different from the employment of Japanese teachers?
A1:All of the Japanese sennin kyouin (full-time, regularly employed teachers) have unlimited term employment. In contrast, all of the foreign sennin kyouin have limited term employment, one year or three year terms. Moreover, many of these foreign teachers are employed as special part-time irregular teachers.
Q2:What is employment discrimination on the basis of nationality?
A2:If you are treated differently and worse than your colleagues because you are not from Japan, then you are a victim of discrimination. This is specifically forbidden by the Labor Standards Act, the Japanese Constitution, and the U.N. Convention of Human Rights, which Japan has signed.
Q3:Japanese people are employed on special part-time irregular contracts so how can foreign teachers say it is discriminatory to be employed this way?
A3:At Japanese public universities, administrative assistants and cleaners are employed on these contracts. No Japanese sennin kyouin are employed in this way; only foreign teachers are appointed as special part-time irregular employees. The reason this practice is discriminatory is that foreign teachers are employed under worse conditions than their Japanese colleagues, only because they are not Japanese.
Q4:How are these special part-time irregular appointments worse than regular appointments?
A4:Under the special terms of employment, foreign teachers do not receive bonuses, a retirement allowance, or numerous other benefits. For example, there are no provisions for promotion, and special foreign teachers cannot vote in university elections. Also, as one-year appointments, the special terms are much less secure than the unlimited term appointments that Japanese sennin kyouin work under.
Q5:Why are these contracts inappropriate?
A5:At this University, the foreign teachers have been formally recognized as sennin kyouin by the Ministry of Education. Like their Japanese colleagues, they have individual offices on campus and research budgets; they receive a regular salary which increases according to length of service. It is incongruous that full-time teachers such as these should be employed as irregular part-time teachers. No Japanese sennin kyouin in public universities are employed on such inappropriate terms.
Q6:Isn't ninkisei (term employment) legal?
A6:Although the law does permit universities to introduce ninkisei, it is not a justification for discriminatory employment practices. To date, ninkisei has not been introduced for Japanese teachers at this University or at any other public university. Only the foreign teachers are employed on term contracts, and Japanese laws still prohibit such discriminatory treatment. [for more information on Ninkisei itself, see http://www.debito.org/activistspage.html#ninkisei]
Q7:Foreign sennin kyouin don't have to do research, do they?
A7:Incorrect. Foreign sennin kyouin have responsibility to do research in the same way as their Japanese colleagues. They receive basic research budgets on the same scale and report on their research in the same way as Japanese sennin kyouin. The problem with being special here is that even though they do research, foreign teachers are still ineligible for promotion.
Q8:Foreign sennin kyouin don't have administrative responsibilities, do they?
A8:Incorrect. The foreign sennin kyouin were members of the Language Center Working Committee from 1994. They have been responsible for Language Center budget expenditures and for making timetables for English courses. They have participated in the writing of the English Curriculum for the Administrative Studies Faculty. They have participated in department meetings since 1988 and Faculty meetings since 1995.
Q9:Can the foreign teachers be given regular contracts?
A9:Yes. There is no legal impediment to the regularization of public employees who are working on irregular contracts. Moreover, in formal negotiations with the Kumamoto General Union on February 10, 1998, the President of the University stated that the University could regularize the foreign teachers if it wanted to.
Q10.Isn't the number of regular teachers set by the Prefectural Assembly?
A10:Yes. The number of regular prefectural employees is set by the Assembly, and regular teachers at the university are no exception. All the University has to do is propose regularization to the Assembly.
Q11:Isn't it common for public universities to employ foreign teachers in a way that is different from Japanese teachers?
A11:Yes. Sadly many universities do this. However, different treatment based on nationality is discriminatory, and an increasing number of universities have realized the inappropriacy of such discrimination. The number includes universities in Aichi, Aizu, Hiroshima, Miyazaki, and Yamaguchi, all of which are now treating teachers without regard to nationality.
Q12:Kumamoto Prefecture is in a budget crunch so it can't afford to regularize the foreign teachers, can it?
A12:Wrong. Regularizing the contracts of a small group of foreign teachers would require very little of the Prefecture's budget.
Q13:What does Kumamoto gain in return for regularizing foreign teachers?
A13:The current discriminatory practices of hiring foreign teachers under different, worse conditions nullify the Prefecture's efforts to bring about true internationalization. Discrimination tarnishes Kumamoto's image and diminishes educational opportunities for students at the Prefectural University of Kumamoto. Ending discrimination based on nationality will put Kumamoto back on the right track.
Q14:What's the solution?
A14:Regularize the foreign teachers. Where there's a will there's a way.
Kumamoto General Union contacts:
Cynthia L. Worthington, President 096-245-3419 (tel./fax) E-mail: email@example.com
Farrell D. Cleary, Vice President 096-364-8694 (tel./fax) E-mail: firstname.lastname@example.org
Snailmail Address: Kumamoto General Union, National Union Of General Workers, National Workers' Council 1-100 Tsukide 3-chome, Kumamoto City, Kumamoto 862-8502
Paul A. Beaufait 096-365-5650 (tel.) E-mail: email@example.com
Daniel T. Kirk 096-282-2602 (tel.) E-mail: firstname.lastname@example.org
Dr. Thomas L. Simmons (PALE Coordinator), Fax: 81 45 845 8242; Email: email@example.com
PRESS RELEASE: KUMAMOTO
GENERAL UNION STRIKE
By Kumamoto General Union Staff
(Received by email Thu, 18 Jun 1998, from Farrell Cleary <firstname.lastname@example.org> )
Kumamoto General Union will stage a one-day strike on June 24th in order to protest years of discrimination by Prefectural University of Kumamoto and Kumamoto Prefecture. They have failed to negotiate in good faith when they attended negotiations, and have recently refused to negotiate at all. The following is the message we have distributed in both Japanese and English to muster support.
RALLY FOR HUMAN RIGHTS
A Call for an End to Discrimination at the Prefectural University of Kumamoto
Gather at the Prefectural University of Kumamoto Wednesday, June 24, 1998 at 12:00 Noon
Unlike their Japanese colleagues, all of the full-time foreign teachers have limited employment terms-- one-year or three-year contracts. Moreover, many of the full-time foreign teachers are employed as "Special Part-time Irregular Foreign Teachers". This means no security of employment, no bonus, no promotion, and exclusion from full participation in the University. Employing full-time teachers on part-time contracts is of course contradictory. None of the full-time Japanese teachers at the Prefectural University of Kumamoto is employed in this way, which means this system of employment is blatantly discriminatory. Such discrimination on the basis of nationality is forbidden by the Labor Standards Act and the Japanese Constitution. Moreover, it is in violation of the United Nations Convention on Human Rights, which Japan is signatory to.
The teachers at the Prefectural University of Kumamoto have been petitioning the University for more than 15 years to end this discrimination. After years of fruitless attempts to improve the situation within the University, last year the teachers decided to seek public support. The National Union of General Workers [National Council] helped them to form their own union, the Kumamoto General Union, in July 1997. In October, they held a press conference and received sympathetic coverage in the regional media. However, the University has failed to show any willingness to remedy the situation. In February this year, the University imposed even worse contracts on the one-year foreign teachers. In the face of deteriorating employment conditions, the teachers have no alternative but to continue to fight discrimination and to defend their jobs by alternate means. Accordingly, the Union has called for a one-day strike for June 24, 1998. By taking this action, the teachers hope to raise public awareness of the discriminatory treatment at the Prefectural University of Kumamoto. With this public support, we seek to bring about equal treatment of all teachers, regardless of nationality.
We call on all concerned citizens to join us on Wednesday the 24th at noon for a rally against discrimination and for human rights. Even 10 minutes of your time would be appreciated. Please gather at the main entrance of the University, opposite the Red Cross Hospital.
Please send faxes of support to the University office with messages like the following: 'Abolish discrimination on the basis of nationality', 'Treat all teachers equally', 'True internationalization equals equality'. If possible, let us know that you have sent faxes to the University.
FAX: Teshima Takashi, President
Prefectural University of Kumamoto
3-1-100 Tsukide Kumamoto City 862
Kumamoto General Union
The Strike at the
Prefectural University of Kumamoto: A Personal View
By Farrell Cleary, Vice-President of the Kumamoto General Union.
On 24 June, 1998, foreign teachers at the Prefectural University of Kumamoto staged a one-day strike calling for an end to discrimination based on nationality. Three teachers on 'one-year, special, irregular, part-time contracts' went on strike supported by other foreign teachers at the university who, as regular public servants, are barred from striking by Japanese law. Also present in support of the strike were NUGW. officials from Tokyo, Osaka and Kitakyushu, and a score of NUGW. activists from around Kyushu. A mid-day 'Human Rights Rally' drew more than a hundred people, including students, supporters from other universities and regional NGOs, as well as a sprinkling of prefectural officials (and some teaching staff) busy with cameras and notebooks. Inter-union differences were put aside as solidarity messages were given by representatives of Zenroren-affiliated unions, and valuable logistical support was provided by a local Rengo-affilitated union. Faxes urging the university to end discrimination were sent to the President of the university from all over Japan. Kumamoto General Union President, Dr. Cynthia Worthington, urged the Prefecture to pay attentionto the billboard at present standing outside the Prefectural Office which proclaims: 'Yasashii Kumamoto: sabetsu no nai machi tsukuri' ['For a humane Kumamoto: let's make a discrimination-free city.'] After the rally and a press-conference, a statement was delivered to the university calling for the university to end its refusal to discuss the terms of appointment of the foreign teachers at collective bargaining. At a press conference immediately afterwards, the President of the University, Takashi Teshima, reaffirmed the earlier refusal to discuss the terms of appointment. He again denied that the university was discriminating. However, in the Kumamoto NichiNichi Shimbun (25 June) the university conceded that until 1997, the employment of so-called 'Foreign Teachers' had in fact been based on nationality. The university stated that this was no longer the case since the job title of the foreign teachers employed on the one-year contracts had been changed to 'Foreign Language Teacher'. Japanese nationals who were native speakers of English could become FLTs. The university failed to explain why the ability to speak English well should be the basis for a Japanese teacher working under inferior conditions to those of less-linguistically-endowed colleagues. At present there are no Japanese staff working on such one-year contracts and Teshima's statement is an indication that the university may be planning to introduce 'fixed-term' employment for its Japanese as well as its foreign staff. That of course would be one way of ending the discrimination.
With regard to the situation of the five foreign teachers who have 'regular' contracts but three-year term limits, the university was unable to do more than flatly state that the contracts were not discriminatory and that many universities imposed similar limits on foreign teachers (Kumamto Nichinichi Shinbun 25 June, 1998).
Background to the Strike
The National Secretary of the NUGW, Mr. Endo, said that the Kumamoto strike was the first by foreign teachers at a Japanese public university (Asahi Shinbun 25 June). While the Kumamoto teachers are not the only teachers in Japan to face discriminatary contracts, there are aggravating factors which explain their determination to win fair terms of employment. In 1993, they were asked by the Prefecture to sign documents accepting employment as sennin kyouin in the Japanese version and 'full-time faculty members' in the English. However, in April 1994 they were asked to sign documents accepting employment as 'special irregular part-time' teachers. The contradiction between the two documents was too blatent to accept and the teachers refused to sign the latter documents. For four years they refused to sign documents accepting 'part-time' status, maintaining that they were in fact full-time teachers and should be given appropriate documents. The refusal of the university to make any concessions and its imposition of even worse contractual conditions in April 1998 are the factors which produced the historic strike.
RESPONSE FROM KUMAMOTO
(Received via the Dead Fukuzawa Society Mailing List Thu, 3 Dec 1998 from Kirk Masden)
I am assisting a colleague of mine at Kumamoto Gakuen University in the preparation of a homepage to disseminate information regarding discrimination toward foreign faculty on the part of the management of the Prefectural University of Kumamoto. In the last half hour, I have hurriedly prepared the following draft translation of a document from the negotiation process. I have decided to post this document here for two reasons: (1) I believe it provides and upsetting glimpse of what the foreign faculty, particularly those employed on a one-year basis, have been faced with and the reprehensible attitude of the management of the Prefectural University of Kumamoto. Note that the president is refusing to negotiate upcoming employment terms with the union because the members (who were, at the time, already employed by the university) were merely "prospective employees." When one considers that those who joined the faculty did not anticipate (were not informed about) such one-year contracts, the attitude taken by the president is even more infuriating. (2) We need help in preparing translations like this. I would appreciate hearing from anyone willing and able to help.
I am sending this message to the H-JAPAN, DFS, and ISSHO mailing lists...
Kumamoto Gakuen University
June 10, 1998
To: Cynthia Worthington, President Kumamoto General Union
From: Teshima Takashi, President Kumamoto Prefectural University
In Regard to the Request for Collective Negotiations, Dated May 15, 1998 (Response)
Our response to your request, made on May 15th, is shown below.
In 1997, our response to a request for negotiations regarding the 1998 terms of employment was that, due to the nature of the employment of public officials, there is no basis for negotiations with prospective employees regarding the terms of their future employment and that therefore we would not negotiate the 1998 terms of employment. However, in 1998, because employment occurred, our position is that negotiations can be conducted if concrete issues requiring negotiation are identified regarding those terms that are effective until May of 1999.
In regard to the movement of individual offices, this is a managerial measure that was implemented in accord with a separate measure (the reassignment of "foreign faculty" and "foreign language teachers" to the various faculties of the university) that was set to be implemented by the university in 1998. Accordingly, the measure is necessary to maintenance of the common order of all faculty and staff of the university and, as such, is not subject to negotiation.
I. In regard to the lack of response to the request of February 10
In regard to the holding of a meeting to explain the terms of employment and to the extension of the February 10 deadline for signing the terms of employment agreement document, both have been implemented and known by the union so there is no need to respond.
2. In regard to the lack of response to the request of February 12
In regard to the request for negotiations pertaining to the establishment of employment regulations, we responded on March 10, 1998.
(The following page may not come out if your browser does not read Japanese)
平成10年6月10日 全国一般労働組合全国協議会委員長 クマモトゼネラルユニオン 委員長 シンシア ワージントン 様
熊本県立大学長 手島 孝
AVAILABLE ON THE WEB
By Kirk Masden, Tenured Instructor, Kumamoto Gakuen University
(Received from Kirk Masden <email@example.com> Tue, 5 Jan 1999)
Persons interested in the conflict between the management of Kumamoto Prefectural University and several foreign faculty they are employing may wish to look at the following web pages. They present accounts (in Japanese) of recent developments that were published in the Kumamoto Nichinichi Shimbun, the most widely read paper in the region (NB: visit these sites toute suite as newspaper URLs have a habit of becoming obsolete quickly in the quest for saving bandwidth--Ed.).
The Nishi Nihon Shinbun has also published several articles on developments, though they do not seem to be available free of charge on the Web.
1998/12/28 "Kumamoto-ken / kenritsu no gaikokujin kyoushi koyou mondai -- sabetsu teppai uttae gaitou shomei -- "Mamoru-kai" ga 1000 bun atsumeru"
1998/12/13 "Kumamoto-ken / gaikokujin kyoushi mondai -- Kumamoto-shi de symposium kaisai -- 'Daigaku no kaikoku' uttaeru"
1998/12/08 "Kumamoto-ken / "kokuseki ni yoru chigai nakuse" -- Kenritsudai no gaikokujin kyoushi ninyou mondai -- shimin dantai ga moushiire"
1998/10/02 "Kumiai de taiguu kaizen youkyuu no gaikokujin 6 kyoushi -- rainendo nin'you sezu"
The following page is one that I helped build. It contains much objective information but has been put together by people wishing to support the foreign faculty (myself included).
The page is in Japanese but has a link to English material. If you are able to read Japanese, please do not skip the newsletter -- it contains very recent and important information that is not yet available in English. This page will be updated from time to time with new material on unfolding events and more information on the background of the conflict.
Also, a scholarly debate on the issues related to this conflict is in progress on a mailing list called the "Daigaku kaikaku jouhou network." Unfortunately, the debate has not yet been archived. Persons interested in the network should view the following page (in Japanese only).
Finally, though it contains nothing on the specific developments in Kumamoto, the following page provides much information and opinion (in English and, to a lesser extent, in Japanese) on issues related to the employment of foreign nationals in Japanese universities.
It is currently difficult to find objective information on the conflict unfolding in Kumamoto. I hope that any readers who know of such information, or who discover anything misleading or inaccurate in the information I have provided above, will post that information to this list. I hope that this list can be a forum for lively discussion and debate on the issues inherent in the current conflict.
Kumamoto Gakuen University
CONCLUSIONS: THE UNION VS THE UNIVERSITY
By Cynthia Worthington
The first issue before the Labor Commission is a petition for an injunction-style directive (technically a jikkokakuho) claiming the decision not to renew teachers, including the union members, for the = academic year 1999/2000, constitutes an unfair labor practice. Specifically, the union claims that the university is retaliating against the teachers for formation of the union, its demands for negotiations, and for conducting a strike on June 24, 1998. Since those activities are protected under the Labor Standards Act and the Trade Union Act, the university's actions are illegitimate and arbitrary.
On October 1, 1998, the president of the university informed the teachers and the press that he had announced to the university council and received its approval of his plan to discontinue the system of employing teachers as hijoukin tokubetsu shokutakuin (special, irregular, part-time, temporary) (hereinafter hijoukin shokutaku). Therefore, six teachers, which includes three of the union members who participated in the June 24, 1998 strike, received notice that their positions will not be renewed for the next academic year. Further, the president announced that three new regular, full-time (joukin) positions will be created, and the classes of the six foreign teachers will be taught by a mix of full-time and true part-time teachers brought in from outside the university to teach one or two koma [classes] each.
The university claims that as public employees at a a public university, the teachers are 'appointed' (ninyou jouken) and therefore do not have a contractual arrangement with the university. It is thus within the discretion of the prefectural and university authorities to make an administrative decision not to renew employment. There is no right of expectation of renewal. Moreover, the university claims that it is under no obligation to negotiate terms and conditions of employment with the union, including renewal, since the teachers are public employees and 'appointed' under the Local Government Employees' Act (chihou koumuin hou). It also points to its foreign language education curriculum review, which resulted in September 1998 in a plan to eventually reduce the number of English courses offered, increase class size, and deemphasize communicative English to introduce reading comprehension and expression. This will reduce the number of English teachers required.
The union contends, however, that the university's decision not to renew employment was based on its desire to bash the union, which is an unfair labor practice. The university applied illegal pressure on the legitimate activity of the union to strike by 1) distributing leaflets to faculty telling them that a strike on campus would cause undue disturbance; 2) warning them that as regular public employees it is illegal to participate or help out in strike activity under the Local Government Employees' Act, art. 37, sec. 1; 3) on the day of the strike deploying personnel to take notes on who showed up at the strike activities. After the strike the university delivered a warning to the union to avoid a repeat strike performance. The union asserts the university's actions clearly show it intended to interfere with a protected union activity -- a strike. At a meeting with the union on Oct. 1, 1998, and to the press, the president of the university declared that the decision to discontinue employment of teachers as hijoukin shokutaku and thereby not renew the teachers presently employed under that system was due to the formation of the union and the 'confusion' (konran) caused by the strike. That is a clear indication that the university had failed to accept the right of the teachers to form a union and engage in permitted labor activities and had not been acting in good faith.
The union asserts, however, that the university's understanding of the nature of employment and permitted activity therein is subject to a different interpretation. The university has employed the teachers in the category of 'special, part-time, irregular, temporary' employees' under art. 3., sec. 3 of the Local Government Employees' Act. That section clearly states the Labor Standards Act (roudou kijun hou) and Trade Union Act (roudou kumiai hou) shall apply to employees in the public sector hired as special part-time temporary workers. Since the teachers are employed as special part-time temporary employees, then the rights conferred under the Labor Standards Act to negotiate terms and conditions should be applied. Moreover, there are legal cases that support the union's claim that the ambit of negotiations include discussion of the above since terms and conditions and the nature of employment are worker and work-related issues. Moreover, since it is not impossible to discuss these issues even under the Local Government Employees' Act, refusal to negotiate constitutes an unfair labor practice.
As far as the foreign education review process, the union contends that it is a thinly-veiled attempt to get rid of the union members. Review took place at an accelerated rate and in extraordinary meetings only after the strike occurred. The decision to reduce the number of English classes offered and increase class size, moreover, is contrary to the wishes of the students as shown in surveys conducted about revision of the English language curriculum. Moreover, implementation of the reorganization of the curriculum will take several years and does not currently necessitate reducing the staff of foreign teachers. In reality, the university has decided not to renew the employment of the six hijoukin shokutaku foreign teachers and instead chosen to replace them with real hijoukin brought in from outside the university to teach on an hourly basis. This also constitutes an unfair labor practice.
Second, he union believes that the teachers are improperly employed as hijoukin shokutaku and are already regular, full-time employees since 1) documents they signed and that were submitted by the university to Mombusho in 1993 reported them as sennin koushi/sennin kyouin; 2) the recruitment process and job announcements stated the positions were full-time with no mention of part-time hours or part-time status; 3) frequent promises and assurances were made by the directors of the Foreign Language Education Center of indefinite renewal; 4) there is a long history of renewal; 5) the actual nature of their work is full-time; and 6) art. 3, sec. 3 of the Local Government Employees' Act does not contemplate the type of work performed by the foreign sennin koushi/sennin kyouin at the university.
1) In 1993 as part of the accreditation process for the new Faculty of Administrative Studies, the teachers signed Acceptance of Appointments (shuunin shoudakusho) documents and CVs submitted to Mombusho stating they were full-time (sennin kyouin) faculty members affiliated to the Faculty of Administrative Studies. The documents state the teachers were sennin (full-time in the English version); no indication of part-time status is mentioned presumably to ensure Mombusho's approval of accreditation for the new faculty over the four-year oversight period. (Mombusho has only three types of education categories: sennin, kennin, and kentan -- translated as full-time, part-time, and full-time seconded to another faculty). Had the university reported some of its teachers as hijoukin, Mombusho would probably not have accepted the university's bid for accreditation. To avoid problems that would arise over the question of hijoukin or joukin, the university submitted all its forms stating that all non-Japanese faculty would be sennin.
Prior to signing and after numerous discussions and meetings, the teachers received assurances from the university and prefectural administrators that upon signing they would be employed in the same way as the Japanese regular teachers, that the usual meaning of sennin kyouin meant regular (joukin) status, and that they would be affiliated to the the Faculty of Administrative Studies. (Until 1995, the teachers had not been affiliated to a faculty, but rather were attached to the Foreign Language Education Center which is a resource facility.)
The university insists, however, that the term sennin kyouin doesn't mean joukin (full-time), that sennin kyouin can also include hijoukin, that the foreign sennin kyouin, which they improperly and disingenuously claim work 30-hours a week/20 days per month, are therefore also hijoukin. They also aver that a full explanation of the situation was given to the teachers before signing, that although the documents state that all the teachers are sennin kyouin for Mombusho purposes, only some teachers would actually be employed as regular, full-time teachers, while others would be employed as hijoukin shokutaku.
The actual documents submitted to Mombusho and recently retrieved by the union under Japan's version of the Freedom of Information Act, however, show the university reported the teachers as sennin koushi. The usual understanding in the academic field of the term sennin koushi does not encompass both regular and irregular/part-time teacher status. Sennin koushi/sennin kyouin means full-time (joukin) in accepted usage. Further, sennin koushi means full-time assistant professor (lecturer), thereby implying the right to be considered for promotion to associate professor or professor status. (At present, the teachers employed as hijoukin shokutaku are barred from promotion.)
The university's claim that sennin kyouin can also include hijoukin employment status has been contradicted twice by the president himself. First, at negotiations on February 9, 1998, after insisting that the hijoukin teachers were sennin kyouin according to the Mombusho definition (he also stated that the translation of sennin into full-time on the Mombusho documents was a translation error), he later denied that the teachers were sennin kyouin. The only plausible explanation for this contradiction is that he was applying the 'normal' university definition of sennin kyouin when he denied that status to the one-year shokutaku teachers. In other words, if the teachers were 'part-time' then they could not be sennin. The fact that President Teshima could not keep to the Mombusho definition even for the length of one negotiation session is an indication of how remote from normal usage and unusual it is to claim that sennin kyouin can also mean hijoukin shokutaku.
Later, at a meeting on October 15, 1998, when asked under what status the teachers were reported to Mombusho in 1993, the president stated that since the teachers are hijoukin shokutaku they could not have been submitted as sennin koushi. When confronted with the documents showing that the teachers were reported as sennin koushi, all he could do was mutter, "akiraka na misu" [a clear mistake]. Moreover, university council minutes also state that the teachers were promised faculty affiliation as sennin koushi.
2) From January to March 1993 during the recruitment process, the Center Director made no mention that the form of employment would be part-time nor were there any documents indicating such. The first the teachers learned of the part-time nature of the job was on their first day of work, April 1, 1993.
3) Each teacher received congratulations on approval by Mombusho as sennin kyouin by the Center Director in September 1993 and verbal assurances by the Center directors renewal would be indefinite.
4) The teachers have been renewed for as many as eight years.
5) The nature of the work of the regular, full-time and hijoukin shokutaku teachers is the same. They have a similar class load (komasuu), the same research budget, duty to report research, research office, committee responsibilities, entrance exams, student counseling, recruiting high school students, involvement in advising students about their graduation thesis. Neither the joukin nor the hijoukin teachers are responsible for going to companies looking for jobs for their students but there is no reason why it is not possible for them to do so other than the arbitary dictates of the university preventing them from doing so.
Even the university itself emphasized the problem of employing some foreign teaches as three-year joukin and others as one-year hijoukin in its 1996 genjou to kadai wherein it stated that while both types of teachers have the same responsibilities, the different status accorded is a problem.
Both joukin and hijoukin teachers have fundamentally the same responsibilities and duties. Yet the methods of employment disregard the actual nature of their work. The teachers are hijoukin in name only. In fact, they are really regular, full-time employees. There are no pertinent differences in responsibilties, and the documents submitted to Mombusho state that they are all sennin with no mention of part-time hours or part-time status. The English version reads full-time, not part-time.
6) Art. 3, sec. 3 of the Local Government Employees' Act which covers the employment of hijoukin tokubetsu shokutakuin was never intended to include the type of work performed by the teachers at the university. That section describes temporary work as consultants, special project workers, and other similar jobs in which there is no sense that the work is continuing in nature.
Third, the union also requested negotiations over the issue of the hijoukin shokutaku teachers' status and what it perceives as the discriminatory employment practices of the university in applying term limits to non-Japanese teachers only and employing only non-Japanese teachers as hijoukin shokutaku.
The university uses the 1982 Special Law to justify their continued use of term employment, ninkisei, for foreign teachers; yet even before that law was passed there was NO legal impediment to hiring foreign teachers full-time. The 1982 Special Law was enacted precisely to make it clear that universities are permitted to employ foreign teachers exactly the same as Japanese teachers and without term limits. Thus, the university can if it chooses, under that law, employ ALL its teachers the same, regardless of nationality.
In fact, a great number of public universities have abandoned such practice and employ teachers without term limits regardless of nationality. And, many, many private universities employ foreign teachers the same as their Japanese teachers while the number of national universities doing the same is increasing.
Nonetheless, even today in its job recruitment announcements for the 1999/2000 academic year, the university persists in its discriminatory practices by advertising positions for its foreign teachers with three-year term limits, a retreat from its position promoting internationalization. Yet, despite all the talk of internationalization, the university continues to make distinctions in its employment practices on the basis of nationality which the foreign teachers believe is discriminatory. But, the university has yet to accept the characterization of its employment practice as discriminatory.
Update to follow.
Ed's Note: Not directly connected with the Kumamoto Kendai Case, but touching upon the topic of rights for workers who fall under the Labor, not the Civil Servant, Laws, here is an important article outlining when employers can dismiss their employees, with a special mention in passing on how it applies to the educational job market.
The Employment Rights of Repeatedly-Renewed Private
Sector Contract Workers
By Steven van Dresser, Instructor, Miyazaki Women's Junior College
Many companies have begun hiring contract workers to do work previously done by regular "lifelong" employees. For Japanese and foreigners alike, working under contract can be intimidating. The uncertainty regarding future employment prospects can be stressful, to say the least. There is a body of law, however, which protects the employment security of so-called temporary workers. It may be useful to have some general idea of contract worker rights.
Unlike in the United States and in many other countries, in Japan a job is a constitutionally-protected right. The Japanese constitution (Article 27) states that, "All people have the right and the obligation to work.", and further (Article 28), "The right of workers to organize and to bargain and act collectively is guaranteed". The courts have ruled that the right to work can be taken from a worker under a very limited number of circumstances, each of which is well defined. These are (1):
1. Total incompetence.
2. Severe violation of work rules or law.
3. A union's demand for violating a union shop agreement.
4. Release of employees from temporary or seasonal jobs.
5. Reduction in workforce or business necessity
6. Change of curriculum (a special provision for faculty at academic institutions only).
Any dismissal outside of the above is considered to be an "abusive dismissal", an abuse of right, not allowed under the law.
II On what basis can a company terminate an employee?
A. Employee performance. The first three reasons listed above, i.e., violation of work rules, incompetence, or reversal of hiring contrary to a union shop agreement are the valid reasons for terminating a regular employee, based on the employee's performance. It is easy to see why a regular employee, i.e. one whose employment arrangements have no fixed time, is considered to be employed for a life-time. The other reasons for dismissal relate to corporate exigencies. B. Temporary Workers. Japanese courts have ruled that the temporary nature of a job is defined principally by the job, not the person filling the job. Temporary jobs have been defined as (2):
1. "Purely temporary workers who are hired because of very transitory
2. "Seasonal workers who are hired to meet seasonal business pressures."
3. "Ordinary temporary workers hired under short-term labor contracts ... which are extended in the absence of special circumstances, but who, in the event of a business slowdown are laid off ahead of regular employees (and much of whose work is not different from that of regular employees)." For employees under this category who have been repeatedly renewed, "the doctrine of abusive dismissal applies by analogy to refusals to renew short-term labor contracts." The courts have ruled that "the repeatedly renewed labor contract of a temporary factory worker is, essentially not different from a contract without a fixed period,'the legal regulation concerning dismissals should be applied to it by analogy.'" That is, a repeatedly renewed contract employee of this type is subject to the same protections against abusive dismissals as a regular employee, i.e., only violation of rules, incompetence, union agreements, or employment adjustment are valid reasons for dismissal. (3)
4. "Temporary workers who may be promoted to regular company employees
after their hiring for two or three month periods renewed several times and passing
a promotion examination."
5. "Temporary workers who are hired after mandatory retirement."
6. "Temporary workers whose contract renewals are limited (e.g. a six-month period which can continuously be renewed for a total of, but not more than two years)."
C. Reduction of Workforce. It has been ruled that repeatedly renewed contract workers are in an inferior position to regular employees in the event of "Employment adjustment." Under this ruling, all employees under short-term contract are subject to termination before "regular employees."4 However, before any dismissal under an employment adjustment takes place, the following rules must be followed: (5)
1. The employer must prove there is a need to reduce the number of employees
2. The employer must prove that other labor reducing measures, such as early retirements or transfers, have been tried and failed to reduce work force levels sufficiently.
3. The employer must set forth clear and reasonable policies for selecting specific persons to be dismissed. 4. The employer must explain to the union or the workers the need for an adjustment dismissal, its timing, scale, and method in order to obtain their assent, and must discuss these matters with them in good faith.
More recent rulings have specifically noted a category of contract worker whose contract term is one year. These workers fall between regular employees and short term temporary workers. Employers have the obligation to avoid dismissing these workers who do essentially the same work as regular employees.(6)
D. Change of Curriculum. As a special consideration for educational institutions, a change in curriculum can justify terminating some faculty at the same time as hiring others. Whether this can be used expressly for "getting rid of undesirable teachers" is being tested presently in the courts.
III Other Considerations
In addition to the limitations on terminations outlined above, even more restrictive rules apply when dealing with members of labor unions. Actions by employers to impede union activities or penalize employees for union participation are also illegal. "Dismissals of workers because they are union members, their having engaged in proper union activities, or similar reasons are invalid as violations of the public policy contained in the guarantee of organizational and other rights in Article 28 of the Constitution."(7)
An initial contract offering, a job offer, defines the labor relationship. Subsequent erosion of benefits and conditions don't necessarily void the original relationship. What you are first told may have more weight than what you are subsequently offered. Japanese court cases take a long time to process. Foreigners who don't have a right to remain in Japan, may not be able to effectively assert their employment rights. For those who can fight, often the courts will issue preliminary rulings which force employers to continue salaries and benefits until final resolution. Many cases are settled "out of court" after such preliminary rulings. Japanese courts don't always reach the same conclusions courts would reach in other countries. Often, results strain the imagination of what might seem logical in other circumstances. Sometimes it will seem that a court has bent the rules beyond all possibility to reach a conclusion the judge has already decided on. Invisible relationships do exist between Japanese governmental institutions and corporate institutions and this applies to courts as much as to parliamentary bodies.
One final word: any person reading this with real legal problems should probably seek advice from a lawyer. A nationally-based labor union should be able to recommend one, perhaps even one who provides "Pro Bono" consultations.
1) Most of the information relating to temporary workers is from Japanese Labor
Law, by Kazuo Sugeno, translated by Leo Kanowitz, University of Washington Press,
2) Sugeno, 1992, p. 154 3) Sugeno,1992, p. 156 referring to:
Yakigumi, Osaka High Court, January 27, 1960
Aisan Kogyo, Nagoya District Court, February 22, 1963
Toshiba Yanagimachi Kojo, Yokohama District Court, April 24, 1963
Mitsubishi Zosen, Nagasaki District Court, June 12, 1963
Toshiba Yanagimachi Kojo, Supreme Court, First Petty Bench, July 22, 1974,
3) Tokyo High Court September 30, 1970, 606 Judgements 3
4) Sugeno, 1992, p. 156 referring to: Hitachi Medeiko, Supreme Court, First Petty Bench, December 4, 1986
5) a representative case includes: Fuyo Business Service, Nagano District Court, Matsumoto Branch, March 29, 1996
6) Sanyo Denki Electric Appliances, Osaka District Court, October 22, 1991 (translated from Kazuo Sugeno, Japanese Labor Law of a later date, publication date unknown, p. 152) 7) Sugeno, 1992, p. 401 referring to: Trade Union Law, Articles 7 and 27
More information on Contract Employment in Japan (ninkisei) available on the Web at http://www.debito.org/activistspage.html#ninkisei
Previous issues of PALE Journal also available on the Web at http://www.debito.org/PALEJournals.html
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