The Language Teacher
01 - 2001
Working Papers Column Special Feature Article
Language Educators and Labor Law
Michael H. Fox
Hyogo College
Note: With this expanded Working Papers column, I will be passing the torch. The new editor of this column will be John McLaughlin, who is based in Tokyo. I feel confident that he will be able to bring in a wider range of issues here than I have been able to do.
The Working Papers column was initiated a year and a half ago when then TLT Editor Bill Lee asked me to edit a column on labor developments and issues that might have an impact on JALT members. It was hoped that we could discuss issues that affected the whole spectrum of JALT members. Though this article analyzes the case of Gwen Gallagher v. Asahikawa Daigaku, I strongly feel that the discussion of the pertinent labor laws is something that all JALT members working under contract should be aware of.
Joe Tomei
Introduction
When Japan's postwar constitution was formulated, an article was included which, at first glance, appears puzzling: "All people have the right and the responsibility to work" (Article 27). In a country where death by overwork (karoushi) is common enough to be listed as a category in the statistics of the Labor Ministry, what purpose could such a principle hold? Of course, the use of the word responsibility is directed towards the elimination of the imperial system. But "right," especially in the context of the constitution, clearly denotes enfranchisement for the common people. This right is at the heart of discussions of the rights of language educators and the purpose of this article is to detail what prescriptions and safeguards Japanese labor law affords contracted language educators. It will begin by outlining the current laws and discuss their actual implementation by examining a specific court case, one which may have far reaching implications for contracted foreign language educators.
Limited Term Contracts and the Labor Law
Japanese labor law recognizes two different varieties of contracts: those for a fixed or so called "limited term" and those without any specific time limitation. A limited term contract is one which specifies a date of termination. Until 1997, the longest legal term for such a contract, in regard to educators, was one year.1 Contracts can be legally concluded for shorter periods-one week or one month, etc. And though some employers offered contracts for longer periods -- two or three years -- these fell outside the legally enforceable scope of labor law. This one-year limit was established in order to prevent indentured servitude. One-year contracts could, of course, be renewed indefinitely, and there are many language educators, mostly foreigners, who have spent much of their lives employed at the same institution on renewed contracts. As long as the employer and the employee remain on favorable terms, it makes good sense to continue the working relationship.
But what happens if the relationship sours and conflicts arise? The employee is always free to leave, but what if the employer wishes to lay off the employee because the contract is over, but the employee, wishes to continue work? At this juncture, Japanese law favors the employee. The law does not permit the dismissal of an employee whose contract has been repeatedly renewed on the simple premise that the term of employment has concluded. Japanese law has long recognized that "After such a contract has been repeatedly renewed, it will resemble a contract without a fixed period" (Sugeno, p. 389). This in turn means that the employee who is contracted on a fixed term is granted many of the same rights as the tenured one, particularly the freedom from arbitrary dismissal.
It is important to note that this law applies uniformly to all workers employed by private concerns, from eikaiwa schools to private high schools and universities. Furthermore, Article 3 of the Labor Standards Law prohibits any kind of discrimination according to nationality. The crux of the matter, according to the law, is how many times a contract has been renewed.
This brings us to the crucial question: exactly how many times must a contract be renewed before the employee gains a measure of protection? Unfortunately, this all-important point is vague and the target of contentious and heated debate (Fujimoto 1990; Mawatari 1990; Furunishi 1996). Most of the focus of this debate is not upon one-year contracts, the norm for ESL jobs, but for short-term manual labor contracts of two to six months length. Though courts at various levels have handed down many decisions, a good deal of ambiguity exists. In most cases, four or five renewals bind the employer to continue the contract. In order for this reasoning to take effect, there should not be any stipulation that the contract will not be renewed beyond a certain period.2
Why is it important to decide how many renewals constitute an implicit acknowledgement that the employer has an obligation to continue employing the worker? Because with that acknowledgement, the employer is then bound by the specific sections of labor law which clearly spell out the fair and legal reasons for dismissal. Specifically, the law states that there must be "an objective and logical reason based upon social convention."3 Dismissing someone because they are no longer young and attractive, to create an opening for the president's niece, or because one's opinions or political stances differ from the agreed reality -- these all fall outside the scope of the law and are illegal.
But being protected by legal rights does not guarantee that employers will behave fairly. Even if a company or school tyrannically dismisses employees without fair reason, knowingly and in complete disregard of the law, it will not be punished automatically by the police, Monbusho, or any other governmental authority. The only way to remedy such conduct is through union action or through the courts. If left unchecked, abuse and malevolence, no matter how egregious, will not be corrected. The responsibility to ameliorate such behavior rests entirely upon the shoulders of the employee.
This brings our discussion to a current and significant legal case: the Asahikawa University case. After twelve years of employment, Gwendolyn Gallagher, an American full time lecturer at the college was abruptly discharged. According to labor law, as mentioned above, the school must have and present the employee with a "an applicable and logical reason based upon social convention." When Gallagher sought a reason for her termination, the university offered none and argued that none was necessary. (Fox, et al. TLT 23:8) Gallagher on legal advice soon brought suit against the college seeking full reinstatement.
When the court ruled that a reason for the dismissal must be presented, the university argued that Gallagher implicitly agreed that her final five-year contract was terminal. In response, the judge informed the university that Labor Law does not recognize five-year contracts, nor for that matter, any contract over one year. In an attempt to persuade the court, the university insisted that Gallagher had "become too Japanese" and declared "a need for fresh gaijin."4 The presiding judge found these arguments had no bearing on the case, and issued a provisional ruling which retroactively restored Gallagher's salary to the full. The university offered a settlement and Gallagher, hoping to demonstrate her good faith, accepted a one-year contract (the only one recognized as legal by Labor Standards Law) and waived any damages or court costs. In accepting the one-year contract, Gallagher and her lawyers were confident that the law would be upheld in regards to Gallaghers right as a repeatedly renewed employee, laws which had been applied in a number of previous cases for Japanese nationals.
At the end of the one-year contract, the university once again dismissed Gallagher, and she was forced to return to court. The court tried to negotiate a settlement but the university offered only temporary remedies such as limited part time work which clearly represented inferior conditions to Gallagher's previous situation. Thus, the court was called on to issue a binding decision.
On February 1, 2000, the chief judge announced that Gwendolyn Gallagher had lost her case.
To answer the pressing question of why, we must review the court's written decision. The following is a partial translation in which the court discusses the university's plan for language education reform in order to justify the dismissal with "an objective and logical reason according to social convention."
Translation of the Decision
(The following translation commences with Section
Two on p 58.)
Section (2) The University's concrete plans for language
education reform. (Hikoku daigaku ni okeru gogaku kyouiku
kaikaku no gutaiteki naiyou)
The university's present language education problems are:
1) Uniform courses for all students despite the large differences
in English ability among them.
2) A necessity for connecting and integrating specialized
Economic courses (Current Events English, English for Commerce,
Comparative Cultures, etc) to fit the character of a college
with a single department.
3) The necessity of preparing an educational system extending
to students with a fervor for language, and raising English conversation
levels by enthusiastically promoting activities like overseas
travel and professorial exchange, etc.
4) The necessity of expanding the breadth of language education
choices for students by altering the excessive importance attached
to English, and creating courses in Chinese, Korean, Russian,
Spanish, etc.
In order to accomplish this, the college will divide language
education into three levels: Level I will consist of the four
language skills (reading, hearing, writing and speaking) aiming
at the opening of new courses in various languages (Korean, Russian
and Ainu) without an excessive importance attached to English;
Level II is intended to unify the language education tied to
Economics specialty courses (Current Events English, English
for Commerce, Comparative Cultures, etc) and enliven the specialty
of a university with only a single Economics department; Level
III courses will tune the language system to aid occupational
language (translation, tour conductors etc.), overseas study
and advancement to graduate school, and promote the abilities
of students who will contribute to society through language.
Section (3) Aptitude of faculty for each level under reformed
language education.
In regard to Level II, those faculty with specialized knowledge
and an affinity for Economics will be appropriate. For Level
III, the ability to introduce foreign culture firsthand can be
appropriated to foreign exchange professors from associated universities
and guest staff with high degrees of knowledge. And in addition,
there will be a necessity for faculty to aid with other designated
plans and environmental factors of all levels within the complete
program. To this extent, full time faculty who will be perpetual
staff members will be most suitable.
On the other hand, in regard to level I, the necessity for
various language faculty is confirmed in regard to the diversification
of foreign language classes and the reconstruction of small group
classes to raise the efficacy of acquisition of the four language
skills. In addition, as the college has only a single department,
in which Level I classes have a relatively low correlation to
Economics, the credits necessary for graduation in English have
been decreased from four classes constituting eight credits to
the new 1998 level of two classes constituting four credits,
all corresponding to the aforementioned changes in 1991 of the
University Standards Law (daigaku secchi kijun). Thus,
the need for a full time lecturer with the obligation of attending
kyoujukai and participation in perpetual duties is insignificant.
Moreover, the university has shown a deficit of 223,000,000 yen
for 1997, and with deficit predictions of 660,000,000 yen for
1998 and 228,000,000 yen for 1999. In these severe circumstances,
assigning level one classes to a full time lecturer or tokunin
lecturer whose expensive salary is three times that of a part
time lecturer is problematical. So hiring part time lecturers
is justifiable. And in light of this examination, the college
abolished its rules regarding the employment of foreign language
faculty.
Section (4) what the plaintiff (Gallagher) has been told
about language education reform.
In regard to the aforementioned plan for language education
reform as explained by the defendant (Asahikawa University) in
the previous law suit, and during the previous settlement, the
defendant explained and gave materials regarding language education
reform to the plaintiff. The plaintiff could anticipate that
language education reform would be carried out from April 1998,
before the expiration of the limit of employment agreed to in
the previous settlement.
Section (5) the difficulty in re-employing the plaintiff
under language education reform.
In light of the aforementioned policy of language education
reform, the plaintiff who is not a full time lecturer could not
be assigned to Level II or all Level designated classes. As the
plaintiff has been living in Japan for about 14 years and is
also married to a Japanese, she lacks the ability to introduce
firsthand foreign culture found overseas, as is required of a
teacher of level 3 [classes].
Moreover, in regard to the remaining Level I classes, the
plaintiff makes three times the salary of part time lecturers
and so assignment to these classes is problematical.
|
Irrational Jurisprudence?
There are a number of reasons one can argue against the university's reasoning. The first is to ask how the dismissal of one foreign teacher, with no other reorganization of other teaching faculty at the university will allow the implementation of a curriculum whose breadth rivals a national gaikokugo university, even though Asahikawa University has only one department, that of economics. And how can the university's claims of serious deficits and declining enrollments jibe with the ability to implement a curriculum that includes Chinese, Korean, Russian, Spanish, and Ainu(!) among other languages? Also, how is it that Gallagher's lack of freshness is problematic when it is not a problem for Japanese staff, who continue to be employed?
All of these contradictions are substantial and substantive, and if we were to argue that the court's decision was based simply on this line of reasoning, then the ruling would be incomprehensible. However, there are several external factors that help us to understand why the ruling was made.
The first explanation lies in the character of the Japanese
judiciary itself. Japanese judges eschew having to make decisions.
They view their work primarily as mediators of brokered settlements
(wakai). Throughout the trial, the
court constantly tried to broker a settlement between Gallagher
and the college. The key to Japanese law, as can be seen in many
hanging scrolls in courtrooms across the country, is 
(ishou
kyuuwa) which means: "Bringing Suit, Seeking Wa."
Wa of course refers to harmony or reconciliation. The underlying
tenet in this legal milieu is that one should not go to court
to seek victory, but conciliation. The term for conciliation or
settlement in Japanese is wakai, literally, a division
of wa. In theory, both sides make concessions and arrive
at a mutually agreeable solution.
Thus, to seek justice in a Japanese court is a precarious undertaking. Worthington writes,
Japanese Courts are notoriously reluctant to make any ruling that disturbs the status quo or challenges administrative power structures, and they are hostile to individual's assertions of their rights to protection under law. District courts in particular do not like to interpret the law and will use any shred of evidence to make a factual finding denying coverage of protection (1999, p.5).
And why are district court judges so averse to adjudicating according to conscience? Mostly out of fear for their own futures. OBrien notes, "The lower courts are understaffed by judges who are closely monitored and whose careers are carefully manipulated"(1996, p. 65).5
Gallagher's lawyers affirm this explanation. They suggest that the judges are concerned less with the facts of the case then they are with the present mood of the Supreme Court regarding labor matters. The Supreme Court, like the rest of this country in the post bubble era, has become very conservative, and is now taking an almost reactionary approach to the rights of the individual. In the 1960s and 70s, it chose to protect such rights; it is now the received view that lifetime employment is not a right but a privilege.
And in the hierarchical world of the Japanese judiciary, lower courts are following the lead of the Supreme Court and we find lower courts in this country steadily working to erode the rights of laborers that have been in place since the post-war constitution.
The Next Step
What happens next? Gallagher has appealed the decision to the Sapporo High Court. If we were to simply examine the facts of the case, we would assume that the court would side with Gallagher and reverse the decision. However, it remains possible that the court will carve out an exception and argue that foreigners, unlike their Japanese counterparts, are hired to be attractive decorations to lure new students, and therefore must be regularly recycled. Thus, those people who have chosen to make Japan their home are under the greatest threat. It is appalling to think that the university's argument about freshness might actually find favor with the court. Even more frightening is the possibility that the court could exclude foreigners from the protections of Japanese Labor Law and give credence and set legal precedent to what is an irrational and discriminatory educational policy. All professional language educators should direct their attention to this case and hope that, for the future of the profession, the high court will ameliorate the lower courts error.
Michael H. Fox, Hyogo College <thefox@humans-kc.hyogo-dai.ac.jp>
Notes
1) Labor Standards Law, Article 14. This system changed in 1997 with the passage of the Sentaku Ninkisei Hou which permits longer limited term contracts. See Fox et al.,TLT 23:8.
2) This is the primary reason why many positions stress one year contracts with permanent termination after four years -- to avoid the possibility of legal repercussions.
3) "shakai tsuunen jou, soutou to sareru kyakkan teki gouriteki riyuu" is a common citing in labor law cases.
www.voicenet.co.jp/~davald/asahikawaafficavit1.jpg)
5) During legal training, aspiring lawyers learn that judges who write decisions of "not guilty" do not receive promotions. Personal communication, criminal attorney, Ohta Junichi.
References
Worthington, C. (1999) Combating Discrimination at a Japanese University. Working Paper No. 58 (p.5). Japan Policy Research Institute. Cardiff, CA.
Fox, M. , Shiozawa, T., & Aldwinckle, D. (1999) . A New system of university tenure: remedy or disease. The Language Teacher 23 (8), 13-15, 18.
Sugeno, K. (1992) Japanese Labor Law. Seattle: University of Washington Press.
OBrien, D. (1996) To Dream of Dreams: Religious Freedom and Constitutional Politics in Postwar Japan. Honolulu: University of Hawaii Press.
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