Labour Contract Law Amendments: Recruitment Indicative of Change?

The issues surrounding limited-term contracts within the domain of foreign language education have been under scrutiny from various commentators within the sociocultural context of Japan for many years. The issues are multidimensional, inherently complex, and cannot be extensively documented within the limitations of this particular section. However, the most pertinent concerns for many educatorsrevolve around employment instability and the anxiety generated from perpetual cycles of employment change, as well as the psychological, physical and monetary hardships of periodically moving the family unit. Even for those without family connections, the nomadic lifestyle that limited-term contracts tend to promote often inhibits the formation of sustainable collegial relationships, restricts workplace involvement in long-term initiatives, denies emotional attachment to a specific place (i.e. developing a sense of home or belonging), and undermines sincere dedication to one’s institution. Such are the demands of an almost obsessive-like quest to continually search for improved working conditions.

Recent developments in government legislation have reignited familiar concerns with the extensive use of limited-term contracts across all domains of employment-- consequently the future of contracted workers is again under review. This article draws attention to the change in legislation and considers how it is intended to better protect limited-term contracted workers. It also shows a number of recent foreign language education teacher recruitment advertisements posted on the JREC-IN website; with these we examine whether current advertisements are indicative of changes for the better, for the worse, or simply a continuation of a status quo mentality characterized by ambiguity and ambivalence.

The original “Labour Contract Act” promulgated on December 5^th 2007 (Act No. 128) asserts in Article 17(2) that with regard to fixed-term labour contracts “an employer shall give consideration to not renewing such labor contract repeatedly as a result of prescribing a term that is shorter than necessary in light of the purpose of employing the worker based on such labor contract” (Translation provided by the Japan Institute for Labour Policy and Training, 2008). While the English language version is somewhat open to interpretation, the underlying meaning seems to be that employers should consider refraining from repeatedly renewing term-limited contracts when there exists an employment position that purports a more long-term appointment. As many foreign language teachers are aware, it is certainly common practice to see teachers on limited-term contracts periodically rotated out of the workplace, only to be replaced by another teacher charged with performing the exact same role under the exact same conditions (i.e. the role continues to exist but the individual employee is deemed surplus after a certain period of time).

On March 23^rd 2012 the government submitted the “Bill for Partial Amendment of Labour Contract Act” to the Diet with the intention of having it written into legislation during the immediate session. Indeed, Tokyo-based law firm Anderson Mōri and Tomotsune (2012: 1) confirm in a recent bulletin that the proposed amendments “came into force as of the date of promulgation (August 10^th 2012)”. The amendments are officially intended to better address “the proper execution and renewal of fixed-term employment contract[s]…for the purpose of stabilization of the employment of fixed-term employees”. Although the amendments are now written into legislation, of significance to the current discussion is the fact that:

 [t]he amendments to the conversion of fixed-term employment contracts to employment contracts without definite periods and prohibition of imposing unreasonable employment conditions due to existence of a fixed-term will come into force as of the date specified by a subsequent cabinet order which will be within 1 year of the amendment's date of promulgation. (Anderson Mōri and Tomotsune, 2012: 1)

For many foreign language teachers employed on limited-term contracts it is this observation which should be of immediate concern, especially considering that for decades so-called “native-speaker” teachers have been predominantly, although not exclusively, consigned to employment categories and institutional roles which are largely marked as being peripheral in their positioning and temporal in their existence (see Houghton & Rivers, 2013). Anderson Mōri and Tomotsune (2012: 1) further detail how:

 [t]he amended law allows fixed-term contract employees with contract periods of over 5 years in total to convert their employment contract to an employment contract without a definite period by requesting to their employers. The contract period calculation for the conversion shall not include any fixed-term contract periods which commenced before the date of enforcement. In addition, if there is a period of inactivity exceeding 6 months during which no employment contract was executed, any fixed-term employment contract periods lapsing before such blank period will be excluded from the calculation of the total contract period. The employee's request must be made before the expiration of the current term of his or her fixed-term employment contract with a total contract period exceeding 5 years.

Of utmost significance within the suggested revisions are the proposed amendments dealing with repeated renewals for employees on limited-term contracts. They stipulate that after being contracted for a single or combined period of 5-years (starting from ‘some point’ during fiscal 2013, although one can assume that this will be April  1st), the contracting organization has an obligation to then make the employee permanent (i.e. contracted without a fixed term-limit) if the employee requests that such action be taken.

Although this sounds promising, the outline above also reveals a potential exit-strategy for employers to avoid term-limited contract workers demanding to have the term-limit removed after a period of 5-years, namely the ‘6-month non-contracted cooling off period.’ For example, an employee could technically be employed for a duration of exactly 5-years before being told to ”go away and come back in 6-months” for another term-limited period of 5-years. It is not hard to imagine that certain institutions of higher education will become creative with this 6-month non-contract cooling off period by giving legally un-contracted employees an ‘extended vacation’ or ‘personal research period’, thus allowing the employer to reset the clock on the 5-year term-limit. However, the most obvious concern is that employers will instead simply move to restrict employees to a period of employment spanning no more than 5-years before continuing the current trend of replacing them with what is often a less experienced candidate. Although not stabilizing the working conditions of limited-term contract workers in higher education, this would mean that common limited-term contract structures and configurations such as the 3-year renewable once (total of 6-years) structure, the 2-year renewable three times (total of 6-years) structure, and the 5-year renewable once (total of 10-years) structure would cease to be utilized, thus ultimately reducing, rather than extending, the potential period of term-limited employment.

As Okawa Kazuo, Chairperson of the Osaka Lawyers’ Union for Labour, wrote on June 15^th 2012 [in a statement on behalf of the organization translated and made available by the General Union <://enews.generalunion.org/LabourContractLaw.pdf>], while the amendments are intended to “achieve a society where limited-term contract workers will be able to continue working without worrying about their jobs…there is a danger that it might make the position of limited-term contract workers even less stable by legislation” (The General Union, 2012). Intrigued by the paradoxical nature of this position, during a fixed period of 1-month between October-November 2012 all full-time contracted foreign language (English) teacher recruitment advertisements posted on the JREC-IN website were profiled in order to reveal potential evidence that the amendments designed to better protect term-limited contract workers might actually contribute to increased vulnerability within the workplace. It should be made explicit that the information presented in Table 1 is not intended to represent data in any experimental, controlled or research-based sense, but rather it represents a general summary of observations made throughout the month concerning the use of limited-term contracts:

Table 1. Summary of Foreign Language (English) Teacher Recruitment Advertisements Posted on the JREC-IN website between October 11^th and November 12^th 2012.

Although not providing reliable grounds for comprehensive conclusions, the information in Table 1 appears to reveal that higher education institutions are actively aware of the potential implications should an employee be allowed to surpass 5-years of combined employment. In all of the above cases, future employees are limited to terms never extending beyond 5-years, thus making them ineligible for the move from a term-limited to an open-term contract scheme. It should also be noted that the apparent favouring of a 4-year limited-term of employment is significant. This can be attributed to the fact that the legal amendments concerning the shift from temporal to indefinite entity were only stated to come into force within an unspecified period starting 1-year from the date of promulgation (August 10^th 2012). Therefore, and despite assumptions that this date will be April 1^st 2013, the 4-year limited-term of employment ensures an extra layer of protection for institutions from the possibility that term-limited contracted workers will: a)be able to reach to 5-years of combined employment, or b)have any legal recourse concerning the non-renewal of a limited-term contract after a period of only 4-years.

To repeat, the issues surrounding term-limited contracts are multidimensional and inherently complex. In contributing this article, my intention is simple – to increase awareness among fellow teachers concerning the questionable ways in which term limited-contracts and the legal legislation surrounding them is currently changing. With access to such information it is hoped that teachers currently searching for new positions, attending interviews, and pondering over employment offers starting in 2013 will be better placed to understand the primary reasons why their contracts are structured in a particular manner, be  aware of the legal grounding behind such contracting practices, and understand the options available to them once their contracts expire or once they have been employed for a combined period of 5-years. As a note, once the 5-year period of employment expires in fiscal 2018, it will be interesting to see how contracted workers across all sectors of employment react, and whether the “Bill for Partial Amendment of Labour Contract Act” actually serves its stated purpose to better protect them. This is of course based upon the optimistic premise that term-limited workers (especially foreign language teachers) will actually be allowed to reach the milestone of 5-years combined employment.

References

Anderson Mōri and Tomotsune Law Firm (2012, September). Labor and Employment Law Bulletin, 30. Anderson Mōri and Tomotsune Law. Retrieved from <www.amt-law.com/en/pdf/bulletins7_pdf/LELB30.pdf>.

Houghton, S.A. and Rivers, D.J. (Eds.) (2013). Native-Speakerism in Japan: Intergroup Dynamics in Foreign Language Education. Clevedon: Multilingual Matters.

Japan Institute for Labour Policy and Training (2008). Labor Contract Act (Act No. 128 of December 5, 2007). The Japan Institute for Labour Policy and Training: Tokyo.

The General Union (2012). Statement Regarding the Labour Contract Law Revision Bill Concerning Limited-Term Labour Contracts. Retrieved from http://enews.generalunion.org/LabourContractLaw.pdf.