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Unwritten perks can trump work rules, contracts, even laws

by Hifumi Okunuki

At a certain company, workers take their lunch break every day from 12 to 1 p.m. But just 10 minutes before noon, a small contingent of workers get up and leave the room. A few minutes later the fragrance of miso soup wafts in from the kitchen. Employees take turns making the soup for the benefit of those employees who bring a bentō lunch box for their midday meal. When the clock strikes 12, those eating out get up and leave, while the lunch box bunch march off to the kitchen to enjoy their bentō and hot, freshly made soup.

This was a custom at this company for over three decades, making it a textbook case of rōshi kankō, or a workplace practice established not by law, rules or contracts but rather out of a tacit understanding between management and labor. Officially, the workers are still on duty yet they are engaged in tasks that don’t count as work. Since this custom lasted over 30 years without any particular complaint from management, it is natural to see it as a tacit understanding.

On Jan. 26, 1968, the Tokyo High Court recognized an established workplace practice at Japan Railways that had gone on for about 13 years. Workers there bathed in the company bath at 4 p.m. and left work at 4:30.

These practices can trump contracts, rules and the law itself when — and only when — it is beneficial to the worker. So, if your employer has always paid you 30 percent more than what is written in your contract, she cannot unilaterally stop doing so. If, on the other hand, you’ve always been shortchanged, then you are still owed the difference and management cannot claim established practice.

But a practice does not necessarily have to have taken place for over a decade for it to be considered established practice. So what are the criteria for determining if a practice can rightfully be called “established”? Legally there are three, all of which must be fulfilled:

1) The workplace custom has to have been repeated over a long period of time.

2) Neither management nor labor has clearly rejected following the practice.

3) The practice is supported by the normative consciousness of both management and labor.

Normative consciousness is a phrase far more common in Japanese (kihan ishiki) than in English. It means a sense that one must follow a rule or custom.

If management has traditionally gone along with the practice then that practice must be continued even if it contradicts labor-management agreements, contracts or shūgyō kisoku work rules — but again, only when it favors the worker. For the courts to accept the legal validity of established practice, it must be clear that management had a normative consciousness about it.

One rare example of a court accepting the validity of established workplace practice is the Nihon University case. The plaintiff was a professor at the university’s law department. The school had different work rules for each department, and the law department’s regulations stated, “Teachers and staff retire on the day they turn 65.” The rules also allowed for board-approved deferments if the teacher’s birthday fell in the middle of a semester or term of appointment, or in the event of necessity.

The department’s board of professors approved the plaintiff’s retirement deferment until age 70, yet the board of directors later voted unanimously to deny the deferment. The plaintiff claimed that the decision by the board of professors to defer retirement age to 70 had as a practice been sufficient to ensure that these deferments took place in all past cases. In other words, the involvement of the board of directors went against established practice.

Tokyo District Court ruled on Dec. 25, 2002, that “if a custom takes on the nature of being part of the labor contract between employer and employed, then it holds legal binding force regardless of whether it violates the work rules.” The court noted that at least since 1981, law professors had never been refused deferred retirement and that the practice had been repeated over a long period. What’s more, neither employer nor employee had ever rejected the practice of granting such deferments and both sides had a normative consciousness (there’s that term again) supporting the practice.

Not all activities carry the force of law; only those that meet the above three criteria. Such practices can apply to a single individual or to the whole workforce. The point is that your boss cannot easily and unilaterally destroy such practices. If they want to cease the practice, management must first explain and negotiate with workers and labor unions in good faith. If stopping the practice disadvantages the worker, then management must offer other improvements to working conditions or devise alternative compensation.

It is important that workers make demands of management at this point.

Many of these practices are established one by one and a little at a time, forged out of understanding between labor and management, often as a way of making work that wee bit more pleasant for employees. We should not fall into the trap of dismissing these perks as being “merely custom,” since they may carry the force of law.

Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the third Tuesday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Send your comments and story ideas to community@japantimes.co.jp.