Issues | LABOR PAINS

'Zero Overtime Bill' is the thin end of the wedge for workers' rights

by Hifumi Okunuki

Takuboku Ishikawa died in 1910 at the tender age of 26. But before he left this world, he penned the following famous tanka:

Hatarakedo hatarakedo
waga kurashi raku ni narazari
jitto te wo miru

Staring at my hands
I toil and toil
yet my life gets no easier

Bewildered by his predicament, Takuboku found himself staring at the hands that connected him both physically and spiritually to his work.

This literature prodigy went unrecognized during his short life, so he had to try his hand at a variety of jobs just to get by, including work as a substitute teacher and copy editor. He also apparently borrowed money from those around him and died in debt. Since he never had to do manual labor, however, we can imagine the hands he stared at were a delicate white with neither chafing nor a hangnail to speak of.

Have you, dear reader, ever felt like Takuboku did when he wrote that tanka over a century ago? Today in Japan, we have what has been called the kansei shuntō, or “bureaucrat-led spring offensive,” meaning that, perversely, it’s the national government rather than the big unions that are pushing hardest for wage hikes. Prime Minister Shinzo Abe even crafted his own haiku on the subject:

Chinage no hana ga
maichiru
haru no kaze

The blossoms of wage hikes
scatter in the spring wind

The verse was greeted with near-universal scorn, not only because just a small number of workers at large firms are enjoying the warm spring wind of wage hikes, but also because the haiku is unintentionally spot-on, in that any hopes for better wages have indeed scattered.

 

The Cabinet decided on an amendment to the Labor Standards Act (Rodo Kijun Ho) on April 3 and submitted it to the Diet. But will the bill bring the wage hikes promised by Abe’s warm wind haiku? Or, instead, will it be more of a cold wintry blast? The “spring faction” — those who support the bill — claim the system will reward performance. They call it the Kodo Purofesshonaru Seido (High-Level Professional System). Those of us in the “winter faction,” who oppose the bill, believe it will foster karōshi, or death from overwork. We call it the Zangyodai Zero Seido (Zero Overtime Pay System). Why are there two such disparate views of the same bill?

The basis of this amendment is a white-collar exemption, borrowed from the U.S. What it means is that work-hour rules for office workers meeting certain conditions will be eliminated.

Article 32 of Japan’s Labor Standards Act sets eight hours a day and 40 hours a week as the maximum possible contractual work hours. Anything beyond that must be paid at a higher rate (see chart): so-called overtime pay (zangyōdai).

Some workers are denied overtime pay rights even under the current system. Article 41.2 excludes those in managerial positions from overtime pay, as well as rights to breaks and holidays. For them there is no such thing as overtime or overtime pay (except for late-night work) and they are not covered by ordinary labor laws. However, courts have taken a hard line against employers trying to treat their regular workers as managers. The Tokyo District Court handed down a ruling against McDonald’s in 2008 rejecting the burger joint’s claim that its restaurant managers were not due overtime pay.

The current bill doing the rounds in the Diet attempts to expand the scope of those workers not covered by work-hour regulations in Article 41.2. The amendment states that “those highly skilled individuals who are developing financial products, management consultants, and those involved in R&D and the like who make ¥10.75 million a year or more are not covered by bonus pay, late pay, holidays, breaks and other work-hour regulations as stipulated in the Labor Standards Act.” They will even lose late-night pay, something managers presently enjoy.

 

Current labor law fundamentally stipulates pay according to hours worked. It is based on the assumption that there is a direct relation between length of toil and results. Let’s say you can assemble a car in five hours. That would mean you could assemble two in 10 hours, three in 15 hours, and so on.

But the results and performance of office (white-collar) labor may not be so easy to calculate in terms of work hours. If you are designing a product, you cannot be sure that eight hours slaving away at your desk will produce one design. One day you may need just an hour, while on another occasion it might take three days. This is the background thinking behind this bill.

As professor Shinya Ohuchi of Kobe University Graduate School, a great fan of this bill, put it in the Asahi Shimbun in February: “Some people contribute to corporations by making use of their intellectual creativity rather than loyally obeying orders. Those people don’t need work-hour regulations.

“Work-hour rules are superfluous, particularly for workers who prefer to be rewarded with more base pay, bonuses and promotions based on producing better results rather than longer hours,” he added. “Current labor law is overprotective and treats workers as weak.”

In the opposition corner is attorney Ichiro Natsume, who in addition to working on the McDonald’s case was also involved in the victory Berlitz General Union Tokyo won against Berlitz Japan after it was sued by the company for what the firm argued was an illegal strike.

“Some claim that paying wages based on performance will lead to reductions in overtime and that workers will be able to go home early,” he wrote in the same newspaper on the same day. “That is not going to happen. The biggest cause of overtime is excessive work orders and quotas. Eliminating work hours depends on the amount of work. It will depend on whether the worker can control the amount of work independently.

“The new system is a dangerous one that threatens the health and life of workers in Japan. This is a Bill to Promote Death from Overwork (Karoshi Suishin Ho).”

I wonder if my readers agree with Ohuchi or Natsume.

 

Let’s go back to basics. The principle of eight hours of work a day is to “enable humans to live a sustainable life of mental and physical health worthy of human dignity.” This is based on the idea that one-third of the 24 hours in a day is the limit for such a life.

This eight-hour limit was not bestowed upon workers from heaven. Workers who toiled like slaves mustered the courage to overcome crushing domination and oppression from management and fought for it. The struggle began in earnest with a victorious strike centered around Chicago on May 1, 1886, by the Federation of Organized Trades and Labor Unions of the United States and Canada.

We stand on the shoulders of workers who shed blood, sweat and tears to win the eight-hour day. A year after Takuboku wrote the above tanka, in 1911, Japan passed its first labor law. It had no limit on work hours except for women and children, who could work no more than 12 hours per day.

Although Japan has a bad reputation for working its workers to death, the government is coming out with this massive deregulation of work hours. But why?

The supporters of this bill answer something like this: “No, it is the current system that encourages overwork. The more overtime hours you put in hanging around the office, the more money you make, so workers use the current system and end up working long hours. Changing from pay for hours to pay for results will eliminate overwork immediately.”

I think it’s a rare worker who “hangs around the office” to rack up overtime hours. In the vast majority of cases, it is excessive workloads that prevent workers from going home at a reasonable hour. Since the right of employers to give work orders is so strong, workers themselves cannot freely set their own targets or decide their own work duties. Just because a worker makes over ¥10.75 million a year does not mean he or she has total control over the work.

If the government sincerely wants to reduce karōshi, they should first have the Labor Standards Office (LSO) crack down on violators of the law as it exists today. That means LSO inspectors need to use their police powers to arrest the criminals who fail to pay overtime properly. I have serious doubts about any government that pushes forward a bill that will deregulate the very work hours that threaten workers’ health without even trying to enforce the laws as they stand now.

Few today use Marxist jargon such as “working class,” but those who laugh at such terms are, in my opinion, simply afraid of the power workers have when they act in solidarity. History has shown that when workers come together in solidarity, they are unstoppable. By setting the income minimum at ¥10.75 million a year, the government, at the behest of management, is trying to divide workers. This amendment will affect only a small portion of the workforce, so management hopes other workers will feel that it has nothing to do with them or — even better — that such high-income workers don’t deserve overtime anyway.

Workers must avoid such a trap. If we start thinking this bill has nothing to do with us, the net will be cast wider and before we know it we will be caught up in it. This is how the Worker Dispatch Law worked. At first, it was only to be used in exceptional cases and in a highly regulated manner. Step by step, that domain has grown, dragging in more and more workers.

So what can we do to avoid this fate? Remember, a worker alone is weak but workers combined are strong. Only by recognizing the inherent weak position of individual workers can we properly understand the intentions behind this new bill.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. Each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Starting in April, Labor Pains will appear in print on the fourth Monday Community Page of the month. Your comments and ideas: community@japantimes.co.jp