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Tuesday, Dec. 14, 2004

THE ZEIT GIST

Right side of the law

Louis Carlet fields some questions on Japanese labor law and workers' rights


Sacked without notice

I was working for an English-language school in Tokyo and got fired without any notice at all. My one-year contract doesn't expire for four more months. Can they do that?

YES and no. In the short term, employers fire workers for good reasons, bad reasons and for no reason. An employer must have a very good reason to fire an employee for it to hold up in a court of law, particularly in the middle of the term of an employment contract. Such reasons include excessive tardiness or absence. If performance is the reason, it must be extremely poor performance.

What can you do if you think you've been unfairly dismissed? Lots. First of all, refuse the dismissal explicitly both verbally and in writing, saving a copy for your records. Then while you, your union or your lawyer prepare a strategy to fight the dismissal, make sure to show up for work at your ordinarily scheduled hours, even beyond your official dismissal date.

This is a practice known as "shuro toso," or "reporting-for-work struggle." Each day you show up, bring a signed and dated statement of your intention to work, again with a copy for your records. If your employer tells you to leave, come back the next scheduled working day. And so on.

Probation confusion

I was with a language school for only three weeks and then got fired. My employer told me she doesn't have to pay me the one-month dismissal allowance because I was still under probation and also because I had poor teaching skills. What can I do?

EMPLOYERS set "probation periods" somewhat arbitrarily, anywhere from a few weeks to six months. If you are dismissed, however, your employer must either give one month's notice or one-month pay in lieu (or a combined total of one month).

The only exceptions are: If you commit a crime against the company and your employer registers for a special exemption from the Labor Standards Office (LSO -- "rodo kijun kantoku-sho"); or if you have worked with the company for less than two weeks. So in effect the law recognizes only two weeks as a "probation period" exempting employers from the one-month obligation.

If your employer refuses, go to the LSO and ask the folks down there to investigate.

Unemployment scheme

We work at a small school and recently asked to be enrolled in unemployment insurance, which we believe to be our right. Our employer agreed but then deducted 1.7 percent of our pay each month, meaning we are paying the company's portion as well as ours. Can he do that?

NO, he cannot. You are correct that all full-time employees working more than six months (and with an expectation of a year or more) have a right (in fact an obligation) to be enrolled in Japan's unemployment scheme, regardless of nationality.

You are also right that 1.7 percent of income is the total deduction to enroll in unemployment, including the employer's share (1 percent) and the employee's share (0.7 percent).

If your employer refuses to enroll you, head on down to your local Hello Work and ask them for help. If he deducts too much, consider it an unpaid wage claim and take it to the Labor Standards Office ("rodo kijun kantoku sho") or to summary court ("kan-i saibansho").

Unpaid overtime

I work at a translation company in Tokyo. I really like my job -- except the long hours. I start at 9 a.m. each day and get home around 11 p.m. I recently asked to be paid overtime, but my employer reminded me that she told me last year at the hiring interview that she doesn't pay overtime.

Is there any way I can get this cash?

A BLANKET statement such as "we don't pay overtime" at the time of the hiring interview or even written into a contract does not exempt an employer from her obligation to pay overtime for all work over 8 hours a day, 40 hours a week or for work after 10 p.m., all at overtime rates.

From an employer's perspective, the only way to get out of paying overtime is to write in the contract wording such as "20 hours overtime work each month is included in the monthly salary of 300,000 yen." If the number of hours is explicitly stated, then the employer might be able to squeeze out of it.

Otherwise, she must pay up.

Keep careful timecard and other records of all overtime you do, including the nature of the work.

Note two points: There is a statute of limitations on unpaid wage claims of two years, so if two years is approaching you might want to start a court case soon.

Second, an employer cannot order you to work overtime, meaning more than 8 hours a day or 40 hours a week, unless the employer has an Article 36 Agreement ("saburoku kyotei") with a union or employee representing a majority of employees.

Unless such a written agreement exists, you are free to refuse all overtime without penalty.

Dodgy dispatch

I am an Assistant Language Teacher at a middle school outside of Tokyo. My employer is a large dispatch company, but I'm not sure if it has a dispatch license.

My manager told me the company has a "gyomu-itaku" or "entrusted service contract" with the local school board. One thing confusing me is whether I am under the authority of my employer, the middle school or both.

ACCORDING to the nation's Education Law, all teachers should be under the authority of the principal and the local board of education. Under a "gyomu-itaku" or "entrusted service contract," however, you are only under the authority of your employer.

This means the school cannot instruct you, give you orders, or ask for your removal, etc., since the ALT "service" is "entrusted" to your employer.

Imagine contracting with a company to renovate your bathroom. You would not instruct the wielder how to wield or ask the company to take back a particular pipe-fitter. You entrust the entire operation to the company.

The Education and Labor Ministries have declared that these "gyomu-itaku" contracts for ALTs violate Japan's Dispatch Law.

Unfortunately, boards of education and private companies all around the country have yet to get the message. Many schools apparently want to avoid the responsibility of directly hiring foreigners but want the right to fire at whim and will. And they do.

Shifty practice

I'm working at a major publishing company in Japan. My working conditions are pretty good, but the company recently changed my shifts and working hours without even asking me. Can it do this?

IT is generally accepted that an employer cannot unilaterally change working conditions, particularly when it is for the worse, without very good reason.

For instance, a company cannot cut your pay just in order to save money. If your employer does so, you can usually claim the difference as unpaid wages.

Now the definition of a deterioration in working conditions ("rodo joken-no akka") is not crystal clear, but a drastic schedule change does fall into that category.

On the other hand, if the company can show dire need to change the schedule, the workers in the end may be forced to accept it. But the burden of proof is clearly on the employer not the employee.

In your case, you might want to challenge the company on the changes, maybe even demand they be canceled outright. On the other hand, if you want to avoid a head-on collision with management, you might want to offer to negotiate.

That is to say, you could offer to accept the changes if your company offers a raise as compensation for the new hours, and so on. Such a stance also shows better faith in the court of public opinion, or in a court of law. To reiterate, it is not management's prerogative to ram through changes detrimental to your working conditions.

Louis Carlet is deputy secretary of the National Union of General Workers Tokyo Nambu.

Send your labor law questions and experiences to community@japantimes.co.jp


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