Five Disparities in Treatment Found to be Unreasonable - Supreme Court Decision on Japan Post Case

 

A total of 14 hourly contract workers at Japan Post appealed the disparity between them and full-time employees regarding benefits and leave systems, and the Supreme Court ruled on October 15 that five treatment differences, including alimony, were unreasonable in three court cases.

-The gist of the Supreme Court's decision-

While it is respected as a business decision to provide alimony or paid sick leave to ensure continuous service for full-time employees, it is an unreasonable disparity within the meaning of Article 20 of the Labor Contract Act not to provide it to contract employees who are expected to work a reasonable amount of continuous service.

It is an unreasonable disparity that contract employees are not paid holiday pay at the beginning and end of the year, which is compensation for their work during the busiest season.

It is an unreasonable disparity to deny summer and winter leave to contract employees who are not on a short-term assignment for the busy season only.

Disparities in bonus and retirement benefits for non-regular workers are legal - Supreme Court ruling

 

On October 13, the Supreme Court ruled that the disparity was legal in two cases that challenged whether the disparity in bonuses and retirement benefits between regular and non-regular workers violated Article 20 of the former Labor Contract Act (prohibition of unreasonable working conditions for a fixed period of time).

The court ruled that it was not unreasonable to not provide any bonus or retirement benefits to non-regular workers at all due to differences in the nature of the job and the scope of the change in assignment.

The decisions were made in the Osaka Medical and Pharmaceutical University case and the Metro Commerce case. 

In the Osaka Medical College case, the High Court ordered the payment of 60% of the bonus for newly graduated full-time employees, and in the Metro Commerce case, the High Court ordered the payment of 25% of retirement benefits calculated on a full-time employee basis.

Case referred to prosecutors by the Labor Standards Inspection Office

 

The cases referred to prosecutors by the Labor Standards Inspection Office are generally divided into the following seven types

(1) Those for which no health and safety measures have been taken in relation to work-related injuries.

(2) Covering up Workers' compensation

(3) Long hours of work

(4) Unpaid wages (minimum wage)

(5) Overtime for non-payment of wages

(6) Violations of the law pertaining to technical interns

(7) Others (e.g., failure to give notice of working conditions, failure to give notice of termination, failure to prepare wage ledgers, false reports, etc.)

 

In the first case, there were cases where no risk prevention measures were taken, work was carried out by unqualified personnel, and work was not authorized by the government authorities. Just like the police, the Labor Standards Inspection Office appears to be dealing strictly with cases where accidents (industrial accidents) have occurred and no measures have been taken to protect human lives. There were several cases of work-related accidents that were not reported to administrative authorities (i.e., cases of failure to submit reports of worker injuries and illnesses = (2)), indicating the importance of reporting accidents.

 

On the other hand, in relation to working conditions, the majority of cases were related to (3) long working hours, (4) failure to pay wages (minimum wage), and (5) overtime for non-payment of wages. In light of the content of the public announcements, it can be assumed that the government considers whether or not a case can be filed, taking into account the key issues of the labor standards administration at the time, repeated violations and the extent of damage. Although not made public in principle, it is believed that there are a considerable number of cases involving criminal complaints and accusations made by employees, given the recent social focus on labor problems and the growing awareness of employee rights.

 

In summary, the following matters appear to have been taken into account by the Labor Standards Inspection Office when referring the case as a judicial case. Companies would need to anticipate and address the risks based on these considerations.

・Repeated violations of the law

・Number of people affected (number of people, duration and amount of damage)

・Key administrative issues and matters of high social concern

・Industrial accidents (serious accidents) and violations of the law (have a causal connection)

・Covering up Workers' compensation

・Charges and accusations

Corona disaster and dismissal for reorganization

 

◆You can't be too sure

Discussions are likely to proceed in the direction of removing the new corona infection from the list of designated infectious diseases. However, there are many companies that have already been hit hard since the state of emergency was declared, and the future economic recovery is not expected to improve rapidly, and a wave of bankruptcies and dismissal is expected to arrive with a time lag. 

As we head into winter, there may be an increase in the number of people infected with the new corona virus, an increase in the infectivity of the virus due to its mutation, and outbreaks of infectious diseases caused by other viruses.

Even if a company is managing to hold its own for now, depending on the strength of the company and the future situation, it may have no choice but to consider the elimination of full-time employees due to the downturn in performance caused by the corona disaster.

No matter how much you say, "Because it's Corona. Even if we say "it's an emergency," in court cases, a decline in performance due to Corona will most likely be treated as a dismissal for management reasons, not as a natural disaster or other unavoidable reason. As you know, the dismissal of a permanent employee is judged based on strict requirements (factors) (the four elements of dismissal).

◆Avoid dismissal whenever possible

One of these four elements is "implementation of the obligation to make efforts to avoid dismissal". When implementing the dismissal process, you should seek and prepare for measures that can be taken to secure employment as much as possible (and reduce the burden on the worker as much as possible, even if you have no choice but to dismiss them).

There are many possible strategies, such as

*Transfer due to transfer or secondment, etc.

*Ordered to stay home by paying absence allowance (furloughs, outplacement leave, etc.)

*Payment of a lump-sum severance payment equivalent to absence allowance and termination of the employment contract by agreement

*Recommendation to resign by proposing additional severance packages, etc., in consideration of the risk of litigation.

◆Check the work rules and regulations

In addition, it is important that the treatment of wages at the time of furloughs (a provision to reduce the amount of absence allowance) and the possibility of dismissal in the event of corona and other situations should be clearly stated in the employment regulations and individual labor contracts as a precondition for taking such measures.

You should also prepare briefing materials and materials to persuade employees to dismiss the employee in advance in case of a dismissal due to Corona or other reasons.

A more detailed FAQ that can be used by human resources and general affairs personnel to respond to questions from employees about the handling of human resources and labor issues in the event of a corona or disaster, etc., will enable the company to respond in a consistent manner and reduce the burden on the personnel in charge.

Workers' compensation insurance benefits for multi-employer workers began in September

The purpose of the amendment
Until now, workers working for more than one company have been challenged by the fact that insurance benefits are not based on the amount of wages paid by all the companies they work for, and that the work load (e.g., hours worked, stress, etc.) of all the companies is not evaluated together to determine workers' compensation.

For this reason, the Workers' Accident Compensation Insurance Act has been amended in light of changes in the circumstances surrounding side jobs and dual employment, such as the increasing number of part-time workers and those who choose to work in a variety of ways or are working in multiple jobs, from the perspective of creating an environment in which workers in multiple businesses can work safely.

Who is subject to the amendment?
The subject of this revised system is "multi-employer workers". A "multi-employer worker" refers to a worker who has labor contracts with multiple workplaces that are not under the same employer at the time of the disaster (injury, illness, or death due to work or commuting).

Even if you are not in a labor contractual relationship with more than one company at the time of the disaster, if you were in a labor contractual relationship with more than one company at the time of the event that caused or contributed to the disaster, you are covered by the revised system as a "person similar to a multiple business worker". In addition, those with special enrollment in workers' compensation insurance are also subject to the revised system.

Amendments
(1) Insurance benefits for multi-employer workers will now be based on the wages of all companies in which they work. Until now, insurance benefits have only been based on the wages paid at the workplace where the disaster occurred. 

(2) Injury, illness, disability, or death caused by multiple occupational factors are also covered by workers' compensation insurance. This new injury or illness that is the cause of payment is referred to as "multiple factor injury". Injury, illness, etc., such as brain and heart diseases and mental disorders are covered.

If the work load (working hours, stress, etc.) of a single workplace does not qualify as an occupational injury, a comprehensive evaluation of the work load of multiple workplaces, etc. is conducted to determine whether or not it can be recognized as a work-related injury. If a worker's accident is recognized as a result of this evaluation, various insurance benefits will be paid based on the above "multiple factor injury".

If a worker's accident certification can be determined based on the evaluation of the workload of only one workplace, it is still considered an "occupational injury" and various insurance benefits related to the occupational injury will be paid. Even in this case, the insurance benefits will be based on the total amount of wages of all the workplaces.

www.labor-consultant.com

How is the childcare leave system used? ～The 2019 Basic Survey on Equal Employment Status by the Ministry of Health, Labour and Welfare

 

◆The percentage of women in managerial positions and the percentage of women taking childcare leave

The Ministry of Health, Labour and Welfare released the results of the 2019 Equal Employment Opportunity Survey on July 31st. The survey is designed to ascertain the actual status of employment management with regard to equal treatment of men and women and balancing work and family life. In 2019, the percentage of women in managerial positions and the use of childcare and family care leave systems were surveyed at companies and business establishments nationwide (as of October 1, 2019).

◆Percentage of employees who took childcare leave

In this survey, we would like to draw attention to the results of the survey on the use of the childcare leave system (6,209 workplaces (3,460 workplaces with valid responses, 55.7% response rate)). Of the women who gave birth during the year from October 1, 2017 to September 30, 2018, the percentage of women (and in the case of men, men whose spouses gave birth to children) who began childcare leave by October 1, 2019 (including those who had applied for childcare leave) was 83.0% for women (82.2% in fiscal year 2018) and 7.48% for men. (6.16% in fiscal year 2018).

◆Acquisition rate of workers with fixed-term contracts

The percentage of women with fixed-term contracts who gave birth during the same period was 77.5%, up 7.9 percentage points from the previous survey (69.6%), while the percentage of men with fixed-term contracts whose spouses gave birth during the same period was 3.07%, 4.47 points lower than the previous survey (7.54%). The take-up rate for male fixed-term workers was lower than in the previous survey, indicating that the rate has not grown as fast as for female workers.

◆Promotion of male employees' maternity leave

The Japanese government has long been working to encourage men to take childcare leave. Although the childcare leave quota has increased for seven consecutive years, the rate of increase has remained modest, and we are nowhere near achieving the government's goal of 13% in 2020. In response to this situation, the Ministry of Health, Labour and Welfare is considering establishing a new leave of absence system for fathers, focusing on the period immediately after the birth of their children. The proposal is to allow fathers to take a leave of absence for four weeks after the birth of their children with a simple procedure and increase the benefits.
Amidst a change in social awareness of the way people work due to the impact of COVID-19, companies may need to consider how to accommodate male employees taking the childcare leave.

Overcome adversity and hardship! Resilience is the hot topic right now

 

◆The ability to overcome adversity and difficulties

Do you know what "resilience" is?　This concept represents the ability to overcome adversity and difficulties, and in the field of mental health, the term is used to describe the "strength of mind and spirit that does not give way in the face of adversity.

The definition varies from person to person and group to group, but the American Psychological Association defines it as "a process of successfully adapting to the stresses derived from adversity, trauma, tragedy, threats, or even family and relationship problems and serious health issues in the face of them. "

◆Increasing interest in the business sector

In a rapidly changing economic environment and intensifying competition between companies, there is a strong demand for people who can perform well in the face of adversity and difficulties. In addition, in order to deal with issues such as leave of absence due to mental health problems, it has been pointed out that it is important to increase the mental toughness of individuals as a primary preventive measure to prevent such problems in advance.

Against this backdrop, interest and attention to resilience has increased in recent years, and more and more companies are training their staff in resilience.

◆Resilience as a response to the new coronavirus is also in the spotlight

People who are resilient can be expected to thrive in a variety of situations. Specifically, resilience is believed to help people develop flexible thinking and resilience to trials, as well as the ability to respond appropriately to problems, mistakes, and high levels of responsibility at work. 

Resilience as a response to the stress of the new corona and telecommuting is currently receiving a lot of attention, especially as a response to the stress of the new corona and telecommuting.

The American Psychological Association describes resilience as "not an aptitude that a person has or does not have, but one that includes behaviors, thoughts, and actions that signify recovery from difficult experiences and can be learned and developed by anyone.

It's something that anyone can acquire, so why not include it as part of your employee development? 

Dismissing or disadvantaging a worker who has consulted on power harassment in the workplace or stated the facts in cooperation of an employment management action is prohibited by law.