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Kunishige Sumida

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Safeguarding the personal rights of workers

Kunishige Sumida
Professor of Labor Law, Faculty of Law, Chuo University

Towards an age of individual labor disputes

The research subject of labor laws has undergone great changes during the 44 years that I have been involved in research and education related to labor law at Chuo University. This change can be described as a shift from group labor disputes to labor trouble occurring between individual workers and their employers (corporations). Safeguarding the personal rights of workers is also an important theme.

During the period of rapid economic growth, a dispute was conducted between labor unions who sought the return of benefits associated with economic growth and the capital that refused such requests. 1973 saw the dawn of a welfare state in which workers were promised a monthly pension of 50,000 yen by the government. How many people would believe that in the background of this welfare state was a strike by 3.5 million workers organized by the labor union at that time (National Committees Spring Offensive United Front)? However, this period in which labor unions exercised strong influence had its end signaled in December 1980 when a strike by the National Railroad labor union failed. The strike had been held for a period of 8 days, or 192 hours, in an effort to restore the right to strike which was prohibited by law.

In place of strong labor unions, there appeared labor disputes in which individual workers directly confronted their employers (corporations). Originally, labor relations were based on a contractual relationship consisting of regulations decided between workers and employers for the provision of labor and of wages which were paid as compensation for such provision of labor. There was no demand for a labor union to act as an intermediary between the two parties. Labor was performed by the worker himself, and obviously the labor union would not perform labor in place of the worker. In fact, the percent of workers participating in labor unions did not exceed 18.5%. At small and mid-sized corporations with less than 100 employees, the ratio of participation was an extremely small 1% to 2%. Furthermore, despite sounding like a formality, working hours, wages and other labor conditions decided by the labor contract were fundamentally determined through free negotiation by the relevant parties.

Relaxing of regulations and changes in Japanese-style employment

Statements such as these eliminate the meaning of existence for labor laws. When ignoring the fact that there is an inherent imbalance in the negotiation power of relevant parties (workers and employers) and abandon those parties to conduct free negotiation, workers will be forced to swallow the demands of employers who seek to establish longer (working hours) and cheaper (wage costs) labor conditions. Labor law considers this situation to be a threat to the existence of workers. Labor law can be described as a group of legislation which seeks to impose regulations on a variety of labor conditions while espousing the right to existence of workers. This philosophy shown by Article 1, Item 1 of the Labor Standards Act, which states that "labor conditions must fulfill the needs required for workers to lead a lifestyle worthy of human beings."

Problems arose afterwards. Upon entering a period of global economic competitiveness in the 1990s, the government sought to enact policies which would relax regulations in order to maintain and enhance the international competitive ability of corporations. More specifically, such policies espoused that regulations suppressing the freedom of corporate activities should be abolished or relaxed to the greatest possible extent. The regulatory legislation of labor laws was no exception to this trend. Japanese-style employment customs such as lifetime employment and age-based remuneration were revised. In exchange, policies were adopted for limiting regular employment to key divisions only, for filling special positions through temporary employment that includes hiring of foreigners, and for filling manual labor positions through irregular employment such as part-time workers, contract workers, temporary workers and commissioned workers. (These policies were known as an employment portfolio. The policies were proposed by the Japan Economic Federation in 1995 in a document entitled Japan-Style Employment in the New Age.) These policies were pushed forward by a series of revisions in labor laws. The number of regular employees decreased and the number of irregular employees increased. Furthermore, the ratio of women among employed workers rose to over 50% and even reached 34% of total workers. These changes resulted in an increase of disputes in which individual workers directly confronted corporations. These disputes created a variety of incidents which involved the issue of personal rights of workers.

A period of suffering for workers

Legally speaking, labor relations are established by contracts between workers and employers. However, this statement alone is difficult to link with the image of systematic conditions which form corporations. Instead, a more accurate expression is contained in a Supreme Court verdict which states the following: "Corporations establish corporate order by forming a rational and aggregate deployment organization by combining human elements which compose the corporation and physical facilities which are owned and managed by the corporation. Corporations then perform activities based on this corporate order." (National Railroad Sapporo Case; Supreme Court, Third Petty Bend; October 30th, 1979) In other words, workers are included in the human elements of corporate organizations through contracts, and each individual worker performs labor in accordance with directions from the employer. Irregular employment fits with the image of a limited contractual relationship in which workers perform labor as defined in a contract and received hourly wages. However, regular employees are required a sense of belonging to their companies. In exchange, in addition to wages which correspond with working hours, the employee is issued a variety of benefits and retirement allowances which cover the employee's lifestyle. When limiting our discussion to the case regular employees, Japanese companies can be described as pseudo-collectives that have maintained close human relationships with workers.

However, alterations in Japanese-style employment in the 1990s brought great changes to the relationship between companies and employees. From the perspective of corporations, business conditions were too severe to maintain convention employment customs. Corporations felt that they would not survive fierce competition by relying on equal treatment which did not focus on results. In response, corporations implemented an endless number of systematic personnel policies. For example, similar to the elimination of excessive liabilities and amortization of production facilities, corporations sought to eliminate surplus labor power (dismissal of employees) and fill that hole through irregular employees and outsourcing. Furthermore, corporations stated that compliance with regulations on working hours made it impossible to perform administrative tasks using a small number of highly-skilled employees. Corporations also implemented systems in which wages were paid based on ability and results. Of course, such policies were a disaster from the perspective of workers. Indeed, an extension of such policies was the dismissal of more than 200,000 temporary workers following the Lehman Shock, as was the year-end tent city that was established for workers who had lost their homes (2008-2009).

Aspects of workplace bullying

Recently, it is no longer unusual to hear words such as workplace bullying and power harassment. Legally speaking, these words refer to actions which are judged as being illegal due to violation of personal rights. However, laws were established to regulate public environments and are therefore difficult to apply to internal events in closed corporations which contain close human relationships. There was a long period in which corporations possessed something approaching extraterritoriality. Above all, corporations are entities in which organization and control is performed by employers. As a member of that organization, workers are required to maintain corporate order and to perform labor in accordance with orders from employers. Additionally, regarding the management of workers, emphasis has been placed on internal aspects such as loyalty to the corporation (loyalty is doubted when workers refuse overtime or take too many holidays) and political inclinations.

Therefore, in many initial cases of workplace bullying, the perspective of loyalty or defiance towards the company was used as a reason to reject employees affiliated with labor unions or minority groups, or employees who held certain political beliefs. The rejected workers held firm to their beliefs and fought with their employers over issues such as unfair labor practice (violation of the right to assemble) and discrimination on the grounds of belief (Article 14 of the Constitution, Article 3 of the Labor Standards Act).

However, the situation was transformed upon entering the period of suffering for workers in the 1990. The phrase workplace bullying was first used during an analysis of 600 cases of labor consultations conducted by the Tokyo Metropolitan Government, Bureau of Labor and Economic Affairs (1999). According to this analysis, in addition to bullying which sought to impose the dismissal or retirement of the targeted individual, there were many cases of pure bullying for which the victim could see no reason and of sexually-motivated bullying of women (occurring before regulations associated with sexual harassment were established in the Equal Opportunity Employment Law). Bullying methods including not providing work, conversely, compelling the target to work, ignoring of the individual by groups or other individuals, and hinted threats or insults. In some cases, bullying was accompanied by violence. The bullying was conducted by business owners or superiors (more than 50%) or coworkers (less than 20%). In other words, workplace bullying has become so universal and serious that anyone could be the victim.

Even workers who escaped dismissal could not perform their duties with peace of mind. The workplace environment was ruled by excessive efficiency and competition. There were cases of suicide by workers who were severely scolded or bullied for reasons such as failure to realize results or slowing down the team with mistakes. This phenomenon attracted attention under the name of power harassment.

Towards safeguarding the personal rights of workers

Although my discussion has taken a slight detour, I would like to finish by addressing the characteristics and spread of personal rights of workers. Obviously, even today, the core of personal rights is composed by the fundamental and primitive personal values of life, personal body, health and freedom. However, among methods of workplace bullying, actions which seek to isolate an individual through ignoring by groups or other individuals are considered to be illegal. To quote the Supreme Court, "in addition to unfairly infringing upon the freedom to form free human relationships, such actions damage the reputation of the targeted individual." (Kansai Electric Case; Supreme Court, Third Petty Bend; September 5th, 1995) Furthermore, workplace discrimination such as the humiliation of workers or the abuse of a worker to serve as an example for others is considered as a violation of personal rights. This is because work is viewed as being a method of expressing personal value for workers themselves. Such concepts show that the protection of personal rights has expanded to included emotional personal values.

The concept of spreading the target for personal rights is not limited to specific areas of protection. Rather, it is comprehensive and has originated from the idea of mother rights (Muttersrecht). As seen in restrictions established by the Private Information Protection Law, the scope and form of protection for personal rights continues to spread together with advances in information technology and expansions of fields in which that technology is applied.

In March of this year, I will reach the mandatory retirement age of 70 and will resign from my position. Forty individuals consisting of mainly researchers in labor law have published "Research on Personal Rights of Workers: 1st and 2nd Volumes" (The 70th Birthday Commemorative Edition, Shinzansha Publishing), a work which deals with themes that I researched. These volumes contain an exhaustive description regarding the spread of personal rights of workers and related current legal theory.

Kunishige Sumida
Professor of Labor Law, Faculty of Law, Chuo University
Born in Amakusa, Kumamoto Prefecture in 1941. Graduated from the Chuo University Faculty of Law in 1965. Passed the National Bar Examination while he was studying in university in 1963. After completing a two year legal apprenticeship, became a Research Associate in the Chuo University Faculty of Law. Afterwards, for 44 years until March of this year, he was involved in research and education regarding labor law at the Faculty of Law. Has served as Dean at the Faculty of Law and as President of Chuo University. His area of expertise is labor law. Has served as Director and Representative Director of the Japan Labor Law Association, and as Director and Chairperson of the Japan-German Labor Law Society.
Has published numerous books and essays focusing on themes such as the right to labor union activities and the personal rights of workers. Readily available works include "Introduction to New Modern Labor Law" (Horitsu Bunkasha), "New Dissection of Labor Law" (Horitsu Bunkasha), and "Research on Personal Rights of Workers: 1st and 2nd Volumes" (Shinzansha), a collection of essays published to commemorate his 70th birthday.