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Tuesday, Dec. 18, 2012
Employers must be crystal clear about working times
By KYOKO HIJIKATA
Part-timer "Mary" writes: "Due to the nature of my work, the company wants me to come into the office only when they know they have work for me. This is two to three days a week, and not fixed according to any specific day.
"Therefore, when I leave work, I have to ask my boss when he wants me to come in next. Sometimes, he tells me orally on the spot, and sometimes he sends me an email asking if I can come in the next day. The other day, he asked me to come into the office on the very same day, and I felt very stressed. I would like to know what my rights are and what I could say to the company."
First of all, it's important to note that worker-related laws apply equally to part-time and full-time employees, according to Article 9 of the Labor Standards Act and Article 2 of the Labor Contract Act.
As for working conditions, Article 15 of the Labor Standards Act states that in concluding a labor contract, the employer should clearly indicate the wages, hours and other working conditions to the employee. "The nature of your work" does not excuse your employer from his obligation to clarify the conditions.
Considering that a worker is generally paid a salary according to the time spent at the workplace, working time is arguably the most important work condition of all. This is why an ordinance on enforcing the Labor Standards Act issued by the Ministry of Health, Labor and Welfare says that daily start and finish times, breaks, days off and holidays must be noted in your working conditions (Article 5).
In Mary's case, the employer only asks that she come to the office two or three days a week, without clarifying specific dates for the work. Because of this, Mary has to check with the boss to confirm the next time she will be needed — every single time she leaves work. Under these circumstances, we can certainly say that the employer has not set clear working conditions, which means they do not meet the standards required of the Labor Standards Act and are therefore invalid (according to Article 13).
So, given that portions of Mary's working conditions are invalid, what are her options?
First, as mentioned above, she can ask that her employer clarify her working conditions, including her working time, in writing.
Second, if the employer refuses to clarify the working conditions, she could go to a Labor Standards Inspection Office to report the case. The office would then conduct an investigation and either suggest or demand that the employer clarify the working conditions if a violation is found.
If the company were to dismiss Mary because of the report to the Labor Standards Inspection Office, that dismissal would also be invalid, since Article 104 of the Labor Standards Act states that an employer cannot dismiss a worker or subject a worker to other disadvantageous treatment just because he/she has filed a report.
Therefore, in the event that the company did attempt to dismiss her, Mary would be able to challenge the validity of the dismissal through negotiation with the company or by filing a claim with a labor tribunal court or even a suit in court. The labor tribunal is a forum that's designed to quickly resolve individual labor disputes, so it takes less time than filing a lawsuit. If an agreement cannot be reached at a labor tribunal, the parties would then be able to move to file a lawsuit. Also, an employee is able to file a lawsuit without going through the labor tribunal process.
Kyoko Hijikata is an attorney with the Foreigners and International Service Section (FISS) at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. Website: www.t-pblo.jp/fiss. Phone: (03) 6809-6200. Send all your questions to firstname.lastname@example.org