Issues | LABOR PAINS

Dodgy data spared Japan’s workers from a labor system that’s ripe for abuse, for now

by Hifumi Okunuki

At the time of writing, the Diet is again embroiled in the scandal surrounding the scuttled plan to open an ultra-nationalist elementary school in Osaka. Opposition leaders suspect that Prime Minister Shinzo Abe and his wife gave a nod and a wink to the authorities involved so that school operator Moritomo Gakuen would get a bargain-basement deal on land it bought from the government for the proposed school. Abe has denied any involvement.

Last July, Yasunori Kagoike, director of the school, and his wife were arrested for allegedly swindling the central government out of construction costs through fraudulent documentation. They have been detained ever since, despite Japan’s recognition of the legal principle of presumed innocence.

Just when we thought the scandal had petered out, a scoop in the Asahi Shimbun breathed new life into the sleazy affair. The newspaper found that documents related to the final decision on the sale of public land to Moritomo Gakuen had been falsified. Abe and his trusty finance minister, Taro Aso, doubled down on their denials of any knowledge of the affair, although Aso did finally admit that the falsification had taken place at his ministry.

The ruling Liberal Democratic Party went into damage control mode, shifting blame onto bureaucrats at the Finance Ministry, with no culpability whatsoever assigned to Abe and his crew. Meanwhile, citizens took the street outside the Diet building. I was there one night, in the rain, with crowds chanting “Abe yamero! Aso yamero!,” calling on Abe and Aso to step down to take responsibility for these alleged crimes.

Not to be outdone, the right wing showed up in their sound trucks, calling out “Abe ganbatte!” (“Abe, hang in there!”) and encouraging him to weather the “attacks by the anti-Japan left wing.”

At whose ‘discretion’?

But let’s not forget what the top story was before all this political chaos erupted: It was another scandal of sorts, this one concerning the discretionary labor (sairyō rōdō) system.

The idea behind the discretionary labor system is that workers get paid for the work they do rather than the hours they do it. But in practice, it means employers can demand as much work as they like without paying overtime for it. Hours are objective, measurable units. Preparing a presentation or creating a document is not. The time that work takes depends on ability, commitment and many other subjective factors.

The ruling coalition argues that the sairyō rōdō system allows workers to create their own schedules, at their own discretion, unshackled from the dictates of their company. Employees can work around personal circumstances such as the need for child care or nursing care for elderly relatives, the argument goes. At first glance, this flexible work system looks like a dream come true in terms of work-life balance. On closer inspection, though, it has the potential to be a worker’s nightmare.

Employees are at the beck and call of their employers, and the discretionary system would not change this dynamic. The system would not affect the right of a boss to order the employee to do a certain task, although it may influence the time it takes to perform it. Naturally, a boss expects a great many tasks to be completed in a timely manner, and the worker has no freedom to decide how much work is asked of them under either system.

With that in mind, picture the following exchange:

Worker: I’ve finished my work, so I’ll be leaving now. O-tsukare-sama!

Employer: You’ve finished already? That was faster than I expected. Well … here, do this too.

Worker: Whaaat? But I finished the work you asked for. I’m on the discretionary labor system.

Employer: Oh yeah? So, you’re refusing a work order? You’ve got a lot of nerve!

Worker (having rushed through his work because he has a date in the evening, he thinks “What the hell?” but says): OK, OK. I’ll do it.

The system is a dream come true, but for the employer, not the worker. The former would be able to decide in advance how many overtime hours the work should take and pay accordingly. An unscrupulous boss could easily devise ways to make a worker clock 100 or 200 hours of overtime a month while paying for the equivalent of 20.

Naturally, Keidanren (the Japan Business Federation) has been nudging the government to move forward with this system. Abe has close ties to Keidanren, so it’s natural he would be on board for a system that will further squeeze the worker, whose life and health are already treated with scant regard.

Under the discretionary labor system, a worker can be made to toil for crazy hours that would be illegal under normal conditions — all based on the conceit that any work is done at the worker’s discretion. This system is already enshrined in law, but currently it can only be applied under certain conditions and with certain types of work, as per Article 38.3 and 38.4 of the Labor Standards Act. But Abe wants to deregulate and open this up to everyone.

Right now, the system can be applied to 19 types of specialist jobs as well as corporate project planning work. The 19 fields cover jobs including computer analyst, copy writer, fashion designer, system consultant, lawyer and my profession, university teacher. I work under the discretionary labor system myself. My classes have set hours, but it is up to me to decide when and how I do the rest of my work. My job writing this column is also discretionary.

Normally, university teacher or columnist might seem to be jobs that fit perfectly with the discretionary system, but for someone like me who lacks time-management skills, believe me, it’s not so great. I am burning the midnight oil as we speak. But imagine this system being applied to regular corporate and administrative jobs. That is what Abe wants to see happen.

Recently, Nomura Real Estate Development Co. was found to have illegally applied the discretionary labor system to some 600 employees. One of those, a man in his 50s, killed himself to escape overwork, a phenomenon known as karō jisatsu (overwork suicide), a companion term to simple “death from overwork,” or karōshi. In one month, the man had worked 180 hours of overtime.

Abe has long called for hatarakikata kaikaku — a revolution in how we work. His reform plan has four pillars: expanding discretionary labor, a cap on overtime hours, equal pay for equal work and overtime exemption for high-level specialists. Naturally, these all sound like wonderful things that will help workers, but it reality the reforms are for management’s benefit, as I discussed in a previous column (“Overtime deal marks total capitation by labor,” March 26, 2017). In fact, it would be better to call it a hatarakasekata kaikaku, a “revolution in how we make you work.”

Saved by 233 problems

In a sense, the discretionary labor issue foreshadowed the Moritomo scandal. On Jan. 29, Abe testified before the Lower House budget committee that “data indicate that those who work on the discretionary labor system work fewer hours than ordinary workers.” But he was comparing apple juice and orange groves. The comparison cited was in fact between the average day’s work hours under the discretionary system versus the longest day of overtime hours during a given month under the regular system. Abe retracted the false claim but laid all the blame at the door of the Ministry of Health, Labor and Welfare.

Further inquiry revealed 233 questionable points in the ministry’s investigation into the discretionary labor system. It was all a perfect illustration of how Abe treats his subordinate bureaucrats as tools to achieve his political goals, as echoed by the Moritomo fiasco. It also showed how desperate he is to push through the discretionary system on behalf of his corporate masters.

Thanks to relentless and effective pressure by opposition parties, the LDP was forced to remove the discretionary labor pillar from its reform plan, but workers cannot let their guard down now, lest discretionary labor rises again like a zombie to haunt our workplaces.

This “revolution in how we make you work” benefits only employers, not employees. There have already been far too many well-publicized cases of employees having been worked to death in Japan. To reforms that damage their dignity and livelihoods, workers have no choice but to stand firm and say no.

Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union. She can be reached at tozen.okunuki@gmail.com. Labor Pains appears in print on the last Monday of the month.

Paternity harassment suit plaintiff is fired

On March 9, Mitsubishi UFJ Morgan Stanley Securities gave one month’s notice to equity sales manager Glen Wood, according to a press release by the Tokyo Law Office. Labor Pains covered litigation initiated by Wood in the January column “Court cases shine a light on Japan’s problem with paternity leave” (by James McCrostie, Jan. 28).

The brokerage cited four reasons for the dismissal, effective April 8: 1) a false harassment claim was disclosed to the media; 2) management’s reputation was damaged; 3) proprietary information was submitted to the courts; and 4) there was a breakdown of communication upon Wood’s return from paternity leave.

The law firm calls the dismissal a wrongful termination and says it is further evidence of a culture of harassment at the company. The case continues at the Tokyo District Court on April 2.

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