OF UNION MEMBERS AND NON-UNION MEMBERS
Basically, this seems to be one of those instances in which those who are members of a labor union have more of a “right” to discuss salary (and other working conditions) than employees who are not members of a union.
Trade Union Law protects union members in this area, as union members need to be able to discuss salary and working conditions in order to negotiate with their union and company.
Therefore, it seems evident that Trade Union Law supersedes any contractual stipulation or regulations (as, in Japan, contracts always defer to laws).
In regards to non-union employees of a company, the case may (and we have to stress: “may”) be different.
The problem is that, beyond Trade Union Law, there is no legislation that cover the right (or lack therefore) for employees to discuss salary with other employees at their place of work.
If an employee wanted to contest such a contract clause, it would more than likely be something that would have to go to court to be decided on – and such a decision would be a landmark case, as our lawyer could find no cases that have previously dealt with such a problem.
However, as disheartening as that opinion may sound, it’s not all doom-and-gloom for non-union employees.
SIGNING A CONTRACT DOESN’T MAKE YOU A SLAVE TO THE CONTRACT
On one hand, prohibiting discussions about salary may not be illegal PROVIDING employees truly agree with such an injunction.
However, just because something is written into a contract that you signed doesn’t mean that you, as an employee, agree with it (as we’ve mentioned before).
For example: your “agreement” may not have been an informed decision.
If an employer fails to explain the reasoning behind such a ban on salary discussion, then there is a case to be made that you weren’t aware of the conditions or the justifications for such a ban at the time of signing the contract.
In addition, an employer has no right to ban an employee from doing something (or not doing something) against their will.
To uphold such a ban on salary discussion, an employer would have to prove that the ban was influence by other factors, such as relating it to a non-disclosure agreement, with the justification being that salary is confidential information that could (somehow) cause damage to the business should a business rival learn about it.
This brings us back to the original question: can an employer actually prohibit you from talking about salary with other employees?
If you are a member of a union (any union), then you are – at least in theory – protected by Trade Union Law.
If you’re not a union member, then the answer becomes more of a “yes and no” kind of situation.
They can write it into a contract and/or work regulations, but enforcement of such a rule would be difficult and highly questionable.
If the company did try to enforce it, you could protest it – but you would likely have to take the matter to court to get a binding verdict on the issue.
Of course, while it might be taboo to talk about salary at your place of employment, there is little that an employer can do to prevent you from discussing it in your free time outside of work.
As with many things, discretion is the better part of valor.
However, this certainly does seem to be one of those instances where being a union member is much more advantageous than not being one.