By Arudou Debito
October 31, 2005  Draft 4 and final draft
(freely forwardable)

Japan's employment system, which  is  discovering the advantages (legal loopholes, an ineffectual administrative system, an indolent judiciary) of hiring contracted workers (Japanese as well as foreign), has become dire.   Employees are increasingly disposable at the whim of the employer, with no effective recourse for labor abuses.  The only legally-protected status remaining is labor unions, and the author advises readers to lose their negative preconceptions about organized labor and join one if they wish to have any job security in Japan.

I have written copiously in the past about how non-Japanese educators in Japan have had their job security systematically undermined--historically (the "guest worker" status assigned to foreigners since the Japanese university education system was established in the late 1800s.), structurally (with separate, defined categories, such as gaikokujin kyoushi and gaikoujin kyouin, by their very title reserved for foreigners only with inferior job conditions), and legally (by designing systems which effectively require nationality for "public-servant" jobs in public-sector universities, and establishing contracted work for almost all foreign educators with limited legal protections).  This system has been dubbed "academic apartheid" (cf. Ivan Hall, CARTELS OF THE MIND), and with good reason:  For well over a century, Japanese full-time educators were automatically granted tenure (with permanent employment until retirement age), while foreigners were relegated to contract labor, with termination (i.e. via non-renewal) at the whim of the employer. (More information and case studies available at http://www.debito.org/activistspage.html#ninkisei)

Times change, and this brief is to bring you up to date, distilling information from lectures given by Jonathan Britten, Evan Heimlich, Robert Aspinall, and Stephanie Houghton at JALT's annual meeting in Shizuoka (Oct 9, 2005, 9:40-11:10), under the auspices of the Professionalism, Administration, and Leadership in Education (PALE) Special Interest Group (http://www.debito.org/PALE).  Copious corrections and additions were made by Stephanie Houghton, Michael Normoyle, and Louis Carlet (from the Fukuoka General Union, the General Union, and Tokyo Nambu respectively, all sister branches of the National Union of General Workers).  All errors hereinafter are the author's.


In 1999, I wrote an article entitled "Ten Plus Questions to Ask your Next University Employer" (JALT's The Language Teacher, July 99, available at http://www.debito.org/univquestions.html), which has helped many people single out the stellar jobs from the slugs.  However, many schools themselves have discovered ways to dupe even well-informed applicants, by creating loopholes in Ministry of Education guidelines, labor laws, and good-faith negotiations that are the basis of any contract labor conditions.

1)    Retitling positions:

In the bad old days, educational institutions would create employment posts specifically designed to contain unstable, limited-duration employment to foreign educators (the abovementioned gaikokujin kyoushi/kyouin positions).  Now, thanks to Ministry of Education (MOE) directives insisting these positions be phased out, said institutions are offering old wine in new bottles.   Job advertisements have positions not titled by nationality, but as "language teacher" (gaikokugo kyoushi, gogaku kyoushi, etc.), or for "native speakers of English".  It's still a job for a foreign teacher, with no improvement in job security (and around double the class workload of their Japanese colleagues).  Institutions have defended themselves by claiming, "Japanese can now also apply for these positions, therefore there is no discrimination".  Yet this assumes that 1) discrimination or lack of job security becomes more justifiable by treating all-comers badly, 2) this resolves an increasing ghettoization of language teaching, and 3) Japanese would actually be stupid enough to apply for one of these positions when they can get permanent tenure elsewhere (decreasingly; more on this below).  

2)    Increasing part-timer positions:

It's clear why an employer would prefer to hire a part-timer (hijoukin) over a full-timer (joukin).  Through part-timing, employers get a contracted temporary worker, fireable at will (i.e. by simply refusing to renew the contract), with no (or significantly reduced) benefits to pay for:  unemployment insurance (shitsugyou hoken), health insurance and pension (i.e. shakai hoken "social insurance"), retirement stipend/severance pay (taishokukin), raises, or annual bonus (usually amounting to around a third of yearly salary).  Although this is happening to Japanese too as Japan's lackluster economy forces businesses to cut corners, the situation for foreign educators (and increasingly foreign teachers in the regular job market) is even less scrupulous, as employers find more loopholes in the labor laws to exploit.

a)    According to Carlet, Japan has no clear legal definition between "full-" and "part-time" work, in terms of working conditions, hours, or pay.  Hence at many eikaiwa schools, such as NOVA and Berlitz, employers are leaving the status of all their foreign staff contractually unclear, then claiming afterwards that "all foreigners are part-timers" in order to deny them the same benefits as Japanese staff.

b)    Under Japanese labor law or labor practices, 20 hours worked per week entitles you to unemployment insurance, around 30 hours qualifies you for social insurance (still untested in court, however), and 40 hours is the legal maximum before you are supposed to get overtime pay.  So employers are hiring teachers for just a little less than what should constitute a "full-time" amount of hours--e.g. eikaiwa ECC contracting their foreign employees for less 30 hours per week.  This way, the employer gets almost all the labor without having to pay out the benefits.  (cf. Japan Times May 31, 2005 on how NOVA is doing it at http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20050531zg.htm)

c)    Employers are fine-printing work conditions to include extraneous duties (such as "proofreading colleagues' academic papers", "writing examinations", "attending summer camps" etc.); this results in unpaid extra work for duties even regular full-time employees do not have to undertake.

d)    Employers are increasing the use of shokutaku positions (such as tokubetsu shokutaku, or "special temporary worker"), which avoid the formal, legally-binding use of more permanent-sounding positions (such as koushi, sennin, and kyouin).  This creates a class of foreign educators with "temp" jobs--at the level of clerical staff, or even (as in the Prefectural University of Kumamoto Case) janitors!

3)    Exploiting loopholes within the labor laws:

Employees, especially those with representation from domestic labor unions (which have been swelling recently with foreign members), are pointing out labor protections which every worker in Japan is entitled to.  However, employers are finding loopholes to exploit.  For example:

LABOR PROTECTION:  Contracted workers who face constant renewals are generally considered "permanently employed full-time" (kikan no sadame no nai koyou) at an institution if there have been three or more continuous renewals.  (This is precisely to avoid the labor abuse of perpetually-renewed contracts.)

LOOPHOLE:  According to Carlet, the "permanently employed full-time" status is more likely to be recognized if you are renewed a number of times, but nowhere in law or case law is three renewals recognized as a rule of thumb.   More than the number of renewals is the type of renewal.  If the renewal is informal, slipshod, or nothing but "a formality", then official intermediaries may acknowledge "permanently employed full-time".  But recent court decisions have been mixed (with one JICA employee's dismissal upheld despite eighteen renewals).

Widening the loophole further, employers are demanding employees "reapply" for their positions every time their contract expires, or issue "different" contracts—magically identical to last year's (thus resetting the clock every year and avoiding consecutive rehiring).  Or offer three-year contracts (meaning those three renewals take nine years).  Or, worse yet, employers offer just one contract, expressly capped as "terminal" at one or two renewals, and wash their hands of any future responsibility.  The MOE has in fact approved this contracting style, as long as it comes "with advance notice".  

Consequently, many contracts have been even codifying their abuses.  Clauses, such as those forbidding "participation in political activities", or NOVA's forbidding fraternization between students and teachers (http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20040601zg.htm), are even unconstitutional (and would hopefully be struck down should someone have the stamina to take them to court).  However, those seeking redress have found Japan's judiciary generally siding with employers.  Ruling that a contract once signed is binding no matter what, judges assume that employers and employees must have negotiated as equals, and the requirement of "mutual consent" between them has been satisfied.  

Thus, contracts have become the trapdoor for employers to get rid of employees with impunity--since the enforcement of labor protections has been difficult, short of a lawsuit or intervention by an official mediation network or a labor union.  However, given the obstacle course that is Japan's administrative and judicial system, even getting someone to negotiate on your behalf is often quite ineffective:

LABOR PROTECTION:  Under the Trade Union Law (Roudou Kumiai Hou), workers have the right to roudou sanken (collective bargaining and solidarity):  i.e. join and form unions, engage in collective bargaining with their employers, make labor agreements (which may even override their original contracts) to improve conditions or reinstate people, and take collective action through the union such as leafleting and striking.  This is now even applying to more of the labor force:  Until recently, "government workers" (koumuin, including foreign educators in public-sector schools) were not "laborers" (roudousha), and were not allowed the same labor rights, such as striking.  Now that public-sector universities have been privatized (houjinka), and their employees made "non-bureaucrats" (hikomuin), this means more people can take advantage of Trade Union Law protections.

LOOPHOLE:  One of the reasons why privatization has taken place is precisely because it's easier to fire a non-bureaucrat.  Now that they are in the private sector, they face contract labor with all the abovementioned loopholes, abuses, and decreased job security.

LABOR PROTECTION:  Trade Union Law requires employers to meet and engage in collective bargaining in good faith with labor unions if contacted by them.  

LOOPHOLE:  The law does not recognize the individual's right to collective bargaining—only a union's.  And if the aggrieved employee has neither a) joined the union before the labor dispute began, then b) nor had the courage to inform the employer that he or she is a member of a labor union, then union protections are weakened (since it is hard to claim an unfair labor practice against a union when an employer fires workers without knowing they are union members).  

LABOR PROTECTION:  Even still, the employer still has an obligation under the Trade Union Law to engage in collective bargaining when formally requested to do so by a union.  Protections from unfair labor practices (as defined in the Trade Union Law--such as trying to dissuade workers from joining a union, punishing or firing them for being in a union, etc.) come into force as soon as the employer is aware that a worker is a union member, even if a dispute has already started.

LOOPHOLE:  The crux here is the union membership.  The employer is less at fault for abusing the employee's rights, more at fault for not following proper procedure with the labor union.  This means that individual human rights are that much weaker a general concern in the polity.

LABOR PROTECTION:  If collective bargaining fails, cases may be brought before official channels, such as the Labor Commission (roudou iinkai) and preliminary courts, which can mediate between aggrieved employees (again, if represented by unions), and employers.

LOOPHOLE:  Labor Commission negotiations have had mixed results.  Should a settlement be unreached, LC findings against employers are rarely legally binding (a ruling against an employer merely strengthens employee arguments if the case gets taken to court).  Moreover, preliminary court precedents (cf. Gallagher and Worthington cases) indicate that even if something so clear as a court preliminary injunction (karishobun) has been served acknowledging a labor abuse, judges in a real court will later go out of their way to find in favor of the employer (in Gallagher, the Asahikawa High Court even ruled against her because she's a woman with a salaried husband!).  Employers are increasingly aware that LCs have limited effectiveness, so they dig in and wait for a real courtroom to tip the scales in their favor.
(More information on these cases at http://www.debito.org/activistspage.html#ninkisei)

LABOR PROTECTION:  Protections are becoming more clarified at the ministerial level.  Labor unions recently secured a directive (effective January 1, 2004) from the Ministry or Health, Welfare, and Labor (Kousei Roudou Shou), entitled "Notification 357:  The Criteria on Conclusion, Renewal, and Termination of a Limited-Term of Labor Contract".  This makes it clear that even for perpetual part-timers, a job dismissal can only happen after the employer has given an explicit reason why (in writing if requested), with thirty days' notice, and must "lengthen the term of contract as long as possible" (meaning firing through non-renewal is not supposed to happen just because a person has been there too long and become too expensive). (See Appendix at the very bottom for recent changes also to the Labor Standards Law (Roudou Kijun Hou).)

LOOPHOLE:  Clarifications notwithstanding, the force of law is pretty grey and weak in Japan in general.  Heimlich pointed out at JALT that there is a difference in Japan between the rule of law, and the rule of the use of law.  Few employers or employees (except those involved with labor unions) will even know about the existence of this directive, and even then an employer will not be arrested for violating the directive.  For one thing, it is not a "law" (i.e. something passed by the legislative branch), although it does have the force of a law.  And for another, there's no enforcement mechanism.  That's the paradox—laws which remain unenforced by definition have no force of law.  But who will?  The police won't, and the bureaucracy is, as we shall see below, loath to act.  So all people can do is wave the directive around and hope the employer blinks first.

LABOR PROTECTION:  There are ministries out there, established both by the Constitution and the laws, which are obligated to help taxpayers out, in this case by redressing labor problems.  That's what good governance is all about.

LOOPHOLE:  Every year for decades, labor unions and NGOs have brought clear evidence (flawed contracts, court decisions, case studies of employees experiencing discrimination and unfair job termination) to all the pertinent ministries at the highest level (cf. March 6, 2005 Diet Upper House summit with bureaucrats, politicians, and NGOs/unions).  And every year for decades, the bureaucrats have claimed there is insufficient evidence to act on specific cases--that these are issues left to the employer's discretion.  Yet the MOE and the Ministry of Health, Labor and Welfare continuously refuse to release crucial information (even when demanded by Dietmembers such as Fukushima Mizuho), such as how many foreign educators are on contract employment (which, if let out of the bag, would quantify the degree of dichotomous treatment based upon nationality in Japan's university system).  In short, taking it to the administrative branch has little effect.  They won't act.

LABOR PROTECTIONS:  You can still take a dispute to court.

LOOPHOLE:  As mentioned above, Japan's judiciary is notorious for ruling on the side of the employer.  Precedents have been chipping away at labor protections for the past fifteen years:  If you sign a contract, court precedent holds sway even if you inadvertently signed away legally-guaranteed labor protections.  You can face years of constant contract renewals and then get summarily non-renewed for being too expensive, even too "stale" (Gallagher case).  Or get fired because the boss doesn't like you or decided to clean house.  Any reason will do, and in some court cases, sackings without express reasons at all (notwithstanding some cooked up in the courtroom) have been affirmed as at the employer's discretion.  The bottom line:  A business has a right to survive, and the best judge of what will enable the business to survive is being left to the discretion of the employer.  Even though the right to work is guaranteed by the Constitution (Article 27), firing somebody without effective recourse or appeal is not deemed a criminal activity, one breaking any laws by abusing people's rights.

This may sound like an exaggeration, but look at the structure of the system.  Violations of labor standards do not result in criminal cases (keiji soshou), i.e. a lawsuit by the state against a lawbreaker, but in civil cases (minji soshou), which do not entail arrests, suspension of business or working licenses, or any immediate financial sanction upon the employer whatsoever.  The employee, however, with more limited financial resources, has to go to civil court for what may amount to many years, substantial expenses, even possible social opprobrium (however erroneous, the commonly-held view in Japan is that people don't sue).  Only to receive an arbitrary decision from a judge with no accountability and limited appeal mechanisms.  Thus going to court in Japan is a crapshoot, and your chances of victory, if court precedent is any guide, are not good, especially if you are a foreigner and viewed as not having any real stake in this society (i.e. "So what if you were fired?  Go back to your home country.").


Some might note that the decrease in job security is a common phenomenon in the developed world—that the prevalence of contracted labor and the decrease in permanent tenured positions overseas is merely part of the evolution of the labor market.  However, bear in mind the earthquakes for employees in Japan are happening without a clear system for redress or enforcement of law.  A system of unequal contract employment, which empowers the employer without providing for checks and balances for labor standards abuses, is coming into wider use.  Employees in Japan are more likely to lose their job under any circumstances with no repercussions whatsoever for the employer.

This is, for a society which values lifetime employment, a sea change.  A little rumination reveals that these developments are increasingly no longer nationality-based.  More Japanese are being employed as "part-time temps" nationwide; even Japanese university educators are now being offered full-time contract work instead of permanent tenure.  
(The Part-Time Teacher's Union is conducting a survey on this.  Please see their website at  http://www.hijokin.org/en2005.html )

Although this is becoming endemic, this situation has always been the worst for foreign workers.  According to union data provided by Carlet, in the Japanese labor force around 20% of all Japanese men, 50% of all Japanese women, and 90% of all foreigners are on term-limited contracts!

In fact, these are chickens coming home to roost.  The generations spent denying rights for foreign workers has created a corrupting legal atmosphere of precedents, adversely affecting labor protections for Japanese as well.  Economists may trumpet theories of "increased labor mobility", "structural efficiency", "trickle-down effects", and "creative destruction" associated with these developments.  But these do not account for the less-quantifiable degree of social suffering, inflicted upon people with insecure jobs and long-term investments--such as home loans, children's college educations, even the acknowledgement of years of dedicated service to the employer by the employee.  (I also believe that all economists should be paid only the minimum wage, so they can personally experience the impact of their proposals and advise policymakers more responsibly.  But I digress.)

In any case, if you wish to work in Japan, understand that your employment is ever more increasingly at the whim of the employer, and you have little systematic recourse than in other countries if fired.

Except, of course, in Japan you do have labor unions, with swelling memberships and even some (such as the General Union in Osaka) gaining consultative status with the United Nations and contacting the ILO.  I suggest you shed any negative preconceptions you may have about organized labor, and join one.  Students of history and immature capitalism before social welfare policy will understand why labor unions existed and were very strong a century ago, even in Japan.  Things have gone downhill enough in recent decades to warrant their resurrection.  Join one before things go sour in the workplace, and you will have more chance of keeping your job, negotiating if troubles arise, and deterring labor standards abuses.  Contact details follow:

JAPANESE EDUCATOR LABOR UNIONS: (for specific enquiries about employment conditions and protections)

1.   Union of Part-Time Lecturers (Toku Kanren General Workers Union University and Vocational School Part-time Instructors Branch)
    President: Noboru Shida Fax: 0426-27-4420
    English consultation: Michiko Kamatani, tel. 045-543-2960,
    e-mail:  Meat113@aol.com
2.   Union of Part-time Lecturers in the Hanshin Area
    Union office: (06) 564-0027 c/o Mr Fukuda, Asahicho, Suita-shi, 564-0027
    e-mail: DPE01273@nifty.ne.jp (Fukuda)
    Tel/fax: 0744-29-2074 (Mr Nagasawa) or 0726-95-8031 (Mr Ejiri).  
3. National Union of General Workers Tokyo Nambu
    Nambu Foreign Workers Caucus
    President: Doug Ayers
    General Secretary: Bob Tench
    Tel: 03-3434-0669 Fax: 03-3434-0334
     e-mail: carlet@jca.apc.org
    website: http://www.nambufwc.org
4.  General Union
    Rokko Temma Biru 201 Temma 1-6-8 Kita-ku Osaka-shi 530-
    President: Mr. Yamahara
    General Secretary: Paul Dorey
    Tel: 066-352-9619 Fax: 066-352-9630
    e-mail: gu@generalunion.org
    website: http://www.generalunion.org
5.  Education Workers and Amalgamated Union Osaka
    8th Floor, Nippon Word Data Bldg., 1-17 Kitahamahigashi, Chuo-ku, Osaka
    Contact: Neo Yamashita, Chair
    Fax: 06-4793-0644 Tel: 06-4793-0633
    email: info@ewaosaka.org
    website: http://www.ewaosaka.org
6.  Fukuoka General Union
  "BIOTOPE" Fukuoka NPO office,
  4-7-2 Hakataekimae Hakata-ku Fukuoka-city
  Contact: Eiji Kawaguchi, Executive Officer
  Tel/Fax: 092-473-1222
   cell-phone: 090-8396-7268
   e-mail: fukuoka-general-union@nifty.com 
  Website: http://fukuoka.generalunion.org/index.htm

One self-indulgent final paragraph, which I include for my Internet readers because I can:  

For those who are Star Trek fans, the Japanese system for employees is like being assailed by the Borg.  Zap them with a weapon from afar, and you might succeed in dropping one or two of them.  But employers soon understand the calibration of your weapon, and adjust their shields to deflect the charge, exploit the loophole, and resume the attack.  By now we have used almost all the weapons in our arsenal.  All that's left is the good old fashioned joust:  getting in close, in their face, and en masse.  In a labor union.  Again, that's all that's left, so join one if you want to retain any job security.

Arudou Debito
October 31, 2005

Labor Standards Law Changes 2004
(This information was provided by the General Union in Osaka.)

As of January 1, 2004, some important changes to the Labor Standards Law (Roudou Kijun Hou) have taken place. Please note that these changes only affect contracts made on or after January 1, 2004.

Employment contract terms can now be for up to three years for regular employees and five years for some very special kinds of employees (mainly limited to specialists in universities).

Contracts must stipulate whether or not there is a possibility of renewal. Therefore, somewhere in the contract it must state that the contract is either:

a.    renewable by mutual agreement of employer and employee
b.    non-renewable, or
c.    automatically renewable.

The first option will probably be the most likely.
Regarding contract non-renewals, two major changes have taken place:

a.    30 days' notice must be given for a non-renewal of a second contract. This does not apply to the first contract.
b.    A written reason for the non-renewal (of a second contract) must be provided by the employer if requested by the employee. Again, this does not apply to the first contract.

A written notice of dismissal must now be provided. Also, a reason must be included and the reason for dismissal must be "objectively rational and socially acceptable." Otherwise, the dismissal will be invalid.

The problem with this is that even though the Labor Standards Office would theoretically have the right to judge whether or not the dismissal is valid, this right will probably not be used.


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Copyright 2005 Arudou Debito, Sapporo, Japan