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Tuesday, Aug. 21, 2012
LIFELINES: LABOR PAINS
Tepco liable for contract workers' safety in Fukushima
By HIFUMI OKUNUKI
'Usually I spend New Year's Eve eating New Year's soba and go with my whole family to listen to the watch-night bell. But this year, I will spend Dec. 31 and Jan. 1 working. I will see the first sunrise of the year looking out over the sea driving along the highway toward the Fukushima No. 1 nuclear power plant. I will lean toward the sea and put my hands together in prayer for the 10 classmates I lost to the tsunami. This will have to serve as my hatsumode." (Fukushima worker's diary, Dec. 31, 2011, Tokyo Shimbun.)
As 2012 approached, people across the country counted in the new year, while crowds flocked to do hatsumode — the first temple visit of the year — just after midnight. Having overcome the tragedy of the Great East Japan Earthquake, the country is now suffering from a sort of recovery fever. This fever threatens to blind us to the situation of workers at Fukushima No. 1, who this year were unable to enjoy New Year's Eve or New Year's Day.
On Dec. 16, Prime Minister Yoshihiko Noda made his own "mission accomplished" statement, saying the "power plant accident has been brought under control." But we need to recognize that far from being "under control," the coming months and years will be crucial in terms of protecting the lives and safety of workers at Fukushima No. 1.
Less than 10 percent of the work at this nuclear power plant is conducted by those directly employed by Tokyo Electric Power Co. (Tepco). Over 90 percent is done by employees of subcontractors, sub-subcontractors and contractors several times removed. These workers come from a wide range of backgrounds, including some who gave up jobs in local agriculture or fishing, farmers and fishermen who work at the plants during the off-season, day laborers and former coal miners. Some have complicated stories to tell, or not to tell.
Few other workplaces require no experience or skill, and fewer still guarantee anonymity to those hoping to hide their background. Nuclear power firms also benefit from the weak position of such individuals since they are largely spared the obligations of most employers to protect the health and safety of each worker on-site.
Nuclear power plant laborers have no way to avoid some degree of exposure to ionizing radiation. Exposure to amounts of radiation over 1 sievert usually causes illness within a few days or weeks. But the effects of low levels of radiation — particularly over long periods — are still poorly understood, and ill health effects may takes months, years or even decades to manifest themselves. This means that thorough, long-term radiation management and health checks are needed for nuclear power plant workers.
Management faces quite serious, possibly criminal, liability if while understanding the risk radiation exposure poses, they endanger those working on-site through a complicated web of outsourcing. Article 87 of the Labor Standards Law holds firms that outsource (outsourcers) responsible for workplace safety and sanitation for workers employed by their subcontractor.
This is backed up by case law, particularly the Mitsubishi Heavy Industries Kobe Shipyard case. On March 4, 1999, the Supreme Court held the company responsible for the safety conditions of its subcontractor's employees because the workers were receiving orders from the outsourcer, using its equipment and tools and doing roughly the same work as the outsourcer's own employees. Mitsubishi Heavy therefore had responsibility for workplace accidents and illnesses.
Illnesses caused by radiation exposure from nuclear power plants are covered by Japan's Act on Compensation for Nuclear Damage. While the Japanese justice system is yet to see a major court case over radiation-related deaths, a French court in May found nuclear giant Areva responsible for the lung cancer death of a uranium miner working for a subsidiary in Niger and recognized his survivors' claim for 200,000 euro (¥20 million) in compensation.
But multiple layers of outsourcing make it harder for workers seeking recompense. This weak position translates into liability protection for the utility — a cynic might even suggest that this is why such multiple outsourcing exists in the first place.
Japan's Labor Standards Office has thus far recognized only 10 cases of radiation sickness caused by working conditions (see table below) due to the inherent difficulty in proving causation in individual cases. Recently it was revealed that subcontractors working at Fukushima No. 1 had been ordered to place lead covers over their dosimeters. Tepco claimed to have no knowledge of this (quite literal) cover-up. As long as the situation at Fukushima No. 1 remains hazardous, the workers' position remains weak and companies are shielded behind a network of contractual relationships, there will be opportunities for unscrupulous parties to exploit this situation.
In this writer's opinion, the working conditions at Fukushima No. 1 are an emergency within an emergency. I believe special laws should be promulgated to guarantee the safety and fair treatment of the workers, and enable them to seek redress through an independent third party. We must never forget or abandon even one of these workers, who hold in their hands the future of the country and endure on all our behalf the most grave of "labor pains."
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 firstname.lastname@example.org