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Tuesday, June 19, 2012

LIFELINES: LABOR PAINS

In 'right-to-work' Japan, employees should also have the right to rest


By HIFUMI OKUNUKI

According to the tagline for the 1991 film "City Slickers," "All you need in life is love, courage and paid holidays." Indeed, some of us may find meaning to our lives through single-minded devotion to our jobs, but without leisure time our bodies and minds would inevitably putter out. Taken to extremes, we may even start to wonder what we are living for.

In Japan, people have the "right" to work. They also have the right to rest. In this month's column we will address annual paid leave, or nenji yūkyū kyūka, a right guaranteed by Article 39 of the Labor Standards Law.

The law stipulates that employers must grant 10 paid holidays to workers employed more than six months who have worked at least 80 percent of their designated workdays during that period. The number of newly allotted paid holidays increases with each year of continued employment until it hits 20 days. You also have two years to take newly acquired paid leave — use them or lose them.

Despite this law, Japanese workers famously take few of their allotted paid holidays. Companies were obliged to grant an average of 17.9 paid days of leave in 2010, according to a study by the labor ministry. Workers actually took only 8.6 days, or 48.1 percent of their granted allowance of paid leave, far lower than in most countries. In the overworked nation that is Japan, most workers don't use — and therefore do lose — their paid holidays. The problem is so severe that legislators have created a bill that would force employers to force employees to take all their paid leave.

The point of paid leave is to free workers from unending toil with a long vacation designed to relax and refresh the body and mind. However, the Japanese work ethic seems to preclude such long vacations. Nevertheless, a small number have fought for their right to an extended break. The Supreme Court ruled on this issue on June 23, 1992, in a famous case against Jiji Press, Ltd. Let's take a peek.

The plaintiff had worked as a journalist for Jiji, was registered with the then Science and Technology Agency's press club, and had a great number of dealings with nuclear power. In June 1980, he asked his boss for a month of paid leave from Aug. 20 to Sept. 20 so that he could do a piece on nuclear power in Europe.

Management ordered him to take two separate breaks of two weeks each, claiming a month's absence would cause damage to the company's operations and that the firm couldn't find a replacement journalist. Jiji invoked the jiki henkō ken "right to demand change of period." This right can be used only when an employee's absence would interfere with the normal operations of the company — not just because things will get busy.

The plaintiff ignored the company's demand to split his vacation and went off to Europe. The company gave him a reprimand and reduced his bonus. The plaintiff sued to overturn the reprimand and restore the full bonus, claiming the company had no right to invoke jiki henkō ken.

Tokyo District Court ruled in 1987 that the company was within its rights. Tokyo High Court overturned that ruling, judging that the company had overstepped. The Supreme Court reversed again, determining once and for all that the company was right to order the change of period.

The court believed that a long vacation is more likely to interfere with the normal operation of the company, so "a certain amount of discretion must be given the employer" in determining how much to adjust the paid holiday. This does not grant employers total discretion, however. The court noted that the discretion must be within rational bounds.

The courts also noted that the plaintiff's job required a great deal of skill, knowledge and experience, making it harder to find a substitute during his absence, and that the court had shown consideration in hammering out a compromise with the plaintiff, including proposing splitting the vacation into two fortnights.

Long vacations impact any kind of workplace to a greater or lesser extent. But many seem to forget that paid holidays are a worker's right. If you stress out that a long vacation may affect the workplace, then you may never feel comfortable taking time off. Employers are required to make maximum effort to accommodate the timing and period of paid holidays desired by the worker. In my opinion, the Supreme Court lost sight of that obligation, but I'd be interested to hear what readers think.

Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women's University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union (Tozen). On the third Tuesday of each month, Hifumi discusses a famous case in Japan's legal history to illustrate an important principle in labor law. Send comments on this issue and story ideas to community@japantimes.co.jp


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