They also claimed that the “unreasonability” of disparities in working conditions should be judged with reference to the “Proposed Guidelines on Equal Pay for Equal Work” released by the government on December 20th, 2016.
The plaintiffs sought correction of ten individual disparities.
Of these, the court decision recognized four of these as indeed being unreasonable, while saying that the other six disparities “are not unreasonable”.
Regarding the “Proposed Guidelines on Equal Pay for Equal Work”, the court decided there was no need to consult on this issue “because it is not yet law”.
Both the plaintiffs and the defendants have appealed this decision, so the case will be heard at the Tokyo High Court in the near future.
Lawsuits aiming to correct disparities between regular and irregular workers, based on Labor Contract Act Article 20, have gone to court before.
The results thus far have all either been that the court decided only partially in favor of the plaintiffs, or that their claims were rejected completely.
It must be said that there are serious barriers to having Article 20 of the Labor Contract Act fully enforced in court.
In concrete terms, the court refused to recognize some basic disparities, made fine distinctions on others, but did recognize that “it is illegal not to provide any year-end and New Year holiday work allowances, housing allowances, or summer and winter vacations. Also, it is illegal that sick leave is unpaid.”
As for the reason for why these things were illegal, the court stated that “the existence of a disparity cannot be said to be automatically unreasonable; but, to be not provided at all, completely unpaid, to irregular employees is unreasonable”.
This is something that can seized upon by various unions pursuing realization of demands for these things from companies, and can also be an opportunity for unions facing similar issues to be more active in making such demands.
We are calling for irregular workers and unions to use the points of this ruling in making demands all at once to every company, taking a big step towards getting rid of disparities.
For those who may not know, here’s what Article 20 of the Labor Contract Act says:
If the labor conditions of a fixed-term labor contract for a Worker are different from the counterpart labor conditions of another labor contract without a fixed term for another Worker with the same Employer due to the existence of a fixed term, they must not be such as would be found unreasonable, considering the content of the duties of the Workers and the extent of responsibility accompanying the said duties (hereinafter referred to as the “content of duties” in this Article), the extent of changes in the content of duties and work locations, and other circumstances.”
The Ministry of Health, Welfare, and Labor (MHWL) has also made the following statement regarding the purpose of enacting this provision:
As one can see, it has not yet been clearly indicated what the criteria may be for deciding if a disparity is reasonable or not, or even what thinking such criteria might be based on.
The text of the law only says that “the extent of changes in the content of duties and work locations, and other circumstances”.
The Ministry’s words do not describe the shape of any ideal to be aimed for, such as “equal pay for equal work”.
These facts suggest to us that the activities of unions in companies and workplaces, aiming to eliminate disparities between regular and irregular employees, are absolutely essential.
When the notion of parity, through action in the workplace, becomes an agreement between labor and capital at work, and when such workplaces grow in number, the opinion that “equality is a matter of course” will become more commonly held.
In turn, this public opinion will have an influence even in court.
It is a fact that the results of a court case have an influence on the movement.
However, fundamentally, long term movements — and the public opinion they create — can have an influence on the courts as well.
Suffice to say, our “Let’s Parity” fight continues.
This is why, even though this decision was not in favor of the plaintiff on all counts (and so failed to make a clean break with decisions that went before it), it can still doubtlessly be counted as a precious first step towards breaking down the barriers that we face in the courts.