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FOCUS December 2013 Volume Volume 74

Human Rights in Japanese Companies*

Jefferson R. Plantilla

Considering the current initiatives, the business community seems to recognize the significance of incorporating human rights standards in the operations of companies.
While the basic motive in this case is business, such involvement in human rights opens the companies to a process of adhering to international standards that United Nations (UN) member-states have adopted.
Similar to the situation of UN member-states, full adherence to international human right standards by companies is a major challenge.
There are Japanese companies that have been reporting on their human rights-related activities. And a number of them are participating in the international initiatives on business and human rights.
The Japanese corporate responsibility of upholding the companies’ commitment to human rights has to be seen in the context of the problems covering a variety of issues arising from company operations.

Subscription to Human Rights Standards

The UN Global Compact has on record two hundred twenty-one “participants” from Japan as of January 2014. This number includes two hundred eleven “business” participants (companies, small and medium enterprises, and one state- owned company), and ten inactive “business” participants (those that failed to submit a Communication on Progress by scheduled deadline).1 Japanese companies are likewise involved, or have adopted, several relevant international initiatives and systems:

  • a. 2008 CEO Statement - 60th Anniversary of the Universal Declaration of Human Rights (sponsored by the UN Global Compact)
  • b. 2010 Women' s Empowerment Principles (sponsored by the UN Global Compact)
  • c. ISO 26000 (guidance on how businesses and organizations can operate in a socially responsible way; acting in an ethical and transparent way that contributes to the health and welfare of society) 2
  • d. 1976 Guidelines for Multinational Enterprises of the Organisation of Economic Co-operation and Development (OECD)3
  • e. Sustainability Reporting Framework of the Global Reporting Initiative (use of sustainability reporting as a way for organizations to become more sustainable and contribute to sustainable development) 4
  • f. Equator Principles (credit risk management framework for determining, assessing and managing environmental and social risk in project finance transactions).5

The Japanese companies domestically implement their international commitment to human rights through several measures:

  • a. Membership in the Global Compact - Japan Network (GC-JN);
  • b. Participation in the work of the Japan Business Federation (Nippon Keidanren) on human rights such as subscription to the 2005 Keidanren “Matrix of Elements of Corporate Social Responsibility – Human Rights;”
  • c. Using available guides such as ISO 26000, GRI and Equator Principles in preparing corporate reports;
  • d. Adopting principles and establishing programs and structures within the companies to deal with human rights issues.

Issues

During the 2008-2011 period, the government reported a decreasing number of collective labor disputes: 657 (2008), 780 (2009), 682 (2010), and 612 (2011). The annual total number of labor disputes in the past was much higher with 1,487 (1950), 2,222 (1960), 4,511 (1970), 4,376 (1980), and 2,071 (1990) respectively.6
However, the number of reported cases on workplace bullying has been increasing in recent years with 51,670 (2012), 45,939 (2011), 39,405 (2010), and 35,759 (2009).7 Surveys on workplace bullying based on gender show a general higher number of cases involving female workers,8 who suffer different types of harassment (from so-called “pregnancy harassment” to sexual harassment).9 
There seems to be no accurate data on cases of karoshi (death from overwork) and karojisatsu (suicide or death due to overwork and stressful working conditions). The National Police Agency reports the increasing number of suicides “prompted by problems in the workplace” and yet only an estimated 20 percent of the cases have been covered by claims for compensation with the Labor Standards Bureau.10
The November 2013 survey data show an increasing number of people who cannot find regular jobs and thus work as part-time workers, 18.1 percent; arbeit (temporary workers), 8.0 percent; dispatched workers from temporary labor agency, 2.2 percent; contract employees, 5.3 percent; entrusted employees, 2.1 percent; and others, 1.5 percent.11 They total to 37.2 percent of the total labor force. Non-regular workers are disadvantaged by their contractual status (fixed or short term), lower wages than regular workers, and exclusion from the welfare and pension programs provided for regular workers.12
Japanese labor is experiencing decreasing membership in labor unions, while another form of unionism is taking place in the sense that the “mainstream unionism at major firms and industries [is] replaced by enterprise unions that [are] willing to cooperate with management for increas[ed] productivity.”13 As of 2012, the number of workers who are members of labor unions had gone below ten million, equivalent to less than 20 percent of the total labor force.
Non-Japanese workers also face labor problems as acknowledged by the Japanese Business Federation (Nippon Keidanren) way back in 2003. The Nippon Keidanren declared that “[D]ouble standards in employment - i.e., when non-Japanese workers are subjected to worse labor conditions than Japanese workers or when only non-Japanese workers can be dismissed without reasonable cause, must not be allowed.”14 The Nippon Keidanren recognized the need to get non-Japanese workers to enter the local workforce as a “viable option for filling [the] gap” caused by “ageing society and lower birth rate...”15 There are also foreign trainees and interns under the government Technical Intern Training Program. However, there were companies that participated in the program to avail of low-wage labor and made them do work that did not provide the trainees the opportunity to learn new skills. Again, the Nippon Keidenren expressed concern that “[T]his situation clearly stray[ed] from the programs' original intent of transferring technologies to developing countries, and [was] the most serious problem associated with these programs.”16
The Ministry of Justice has started the review of the “state-assisted job training program for foreigners ... in early November [2013] to prevent irregularities such as unpaid and low wages for trainees.”17
Overseas operations of Japanese companies, largely concentrated in Asia and the Pacific, face a number of cases relating to low wages, use of labor outsourcing systems, union busting, and adverse impact on the environment.18
At the international level, the United Nations Committee on Economic, Social and Cultural Rights noted with concern several issues related to19

  1. 1. Lack of comprehensive law prohibiting acts of discrimination with appropriate penalty for violation
  2. 2. Discrimination against persons with disability
  3. 3. Discrimination against women workers
  4. 4. Abuse of fixed-term contracts
  5. 5. Lack of legislation on sexual harassment, as well as all forms of harassment in the workplace.

In terms of impact of company activities on communities where they operate, industry-related problems have occurred. Pollution and health-related cases included cadmium poisoning from mining pollution (Itai-itai disease) in Toyama prefecture; mercury poisoning from industrial wastewater (Minamata disease) in Kumamoto and Niigata prefectures; asthma and bronchitis from industrial air pollution (Yokkaichi asthma) in the cities of Yokkaichi (Mie prefecture), Kawasaki (Kanagawa prefecture), and Amagasaki (Hyogo prefecture); illnesses due to pollution from public roads and highways in Osaka city (Nishiyodogawa), southern part of Nagoya city (Aichi prefecture) and Tokyo; Morinaga Arsenic Dry Milk Poisoning; Kanemi Oil Poisoning; the adverse effects of Clioquinol SMON (subacute myelooptic neuropathy) and Thalidomide, and the asbestos-related diseases.20 The recent nuclear plant meltdown in Fukushima prefecture displaced many communities surrounding the plant and required the continuing monitoring of the health condition of the people in these communities for possible radiation-related diseases.

Access to Justice

Japan has established legal mechanisms to resolve labor and other disputes involving companies. Individual labor disputes can be resolved through any of the three options:21

  1. 1. Labor Administration Offices – they resolve disputes through “adjustment or conciliation or mediation.” They also provide counseling service.
  2. 2. Regular courts – they resolve disputes filed as civil complaints
  3. 3. Labor Tribunal Committees (court-appointed bodies) – they mediate/arbitrate to resolve the disputes, and also issue judgment.

For unfair labor practices (particularly rights of association and adjustments of labor relations),22 the Labor Relations Commission system consisting of the Central Labour Relations Commission (CLRC), and the Prefectural Labour Relations Commissions (PLRCs) have primary jurisdiction.23
There are also Prefectural Labor Bureaus (established as the prefectural branches of the Ministry of Health, Labour and Welfare) that “offer advices and/ or give guidance upon request, to one or both parties of a specific labor dispute.”24
The Ministry of Justice has established the Human Rights Conciliator System to assist people resolve issues including labor problems.
Labor disputes filed in court are referred to the three-member Labor Tribunal Committee (composed of a judge, one representative of the workers and another from employers who have great knowledge and experience on labor disputes) which not only mediates but also issues judgment,25 employs “non-contentious” procedures,26 and tries to resolve the issues promptly in three sessions as much as possible. In case mediation fails, the committee makes a judgment that determines the rights of the parties involved. This judgment resolves the issues involved, as well as other related matters. It can include an order to make payments.
The Labor Tribunal Committee judgment has the same nature as amicable judicial settlement. However, once disputed by any of the parties involved, the judgment loses effect and the district court automatically assumes jurisdiction over the case as if an appeal has been made.
For issues not related to labor, complaints against companies are filed in court mainly as tort cases. Victims can file cases against companies as well as the national and prefectural governments to seek remedy for the injury sustained.27
In addition to the administrative and judicial remedies, Japan has established the National Contact Point (NCP) which implements the OECD Guidelines for Multinational Enterprises and thus acts as “a framework for exchanging information on a regular basis (four times per year in principle) with relevant business communities and labour organisations.”28 It provides “a place for discussion and ... support[s] the resolution of specific instances with the implementation of efficient and timely measures by the parties involved, in compliance with any applicable laws.”29 Complaints regarding operations of Japanese companies outside Japan can be filed with the Japanese NCP.
The Japanese NCP reviews each complaint in accordance with the OECD Guidelines and its own Procedural Guidelines.

Problems Affecting Access to Justice

As in many other countries, the Japanese tend to avoid resorting to judicial remedies due to the financial costs, as well as the effort and time needed to pursue complaints to completion. There can be a social stigma involved as in the cases of pollution-related diseases.30 Affected people might not pursue claims for fear of being identified as having such diseases and suffer discrimination as a result. There is the lack of lawyers, and legal assistance system, in many areas outside the major cities to help people pursue cases in court. Finally, formalities of court procedures discourage people from going to court.
The major pollution cases in Japan would not have been pursued in court without the support of volunteer lawyers and legal organizations, alongside medical doctors and scientists.31 Many other cases likely did not reach the court due to absence of such support.
Efforts to obtain remedies from the government, on the other hand, is hindered by the strict and limited standards being used to determine the existence of problems – from karoshi and karojisatsu to diseases caused by industrial pollution or commercial products. The claims of victims have either been rejected or not filed at all.32 In the cases of Minamata and Itai-itai diseases, the court had ruled that the standards used by the government were too strict and limited to be able to provide support to victims.
The reform of the administrative and judicial remedies on labor issues during the last two decades was undertaken to address the rising number of individual labor disputes. The court-appointed Labor Tribunal Committee seems to be working. The establishment of the Japanese NCP as a concrete response to the need to address overseas operations of Japanese companies based on international human rights and labor standards is an important development. However, there are many issues raised on how the Japanese NCP has been responding to the cases brought before it.33

Concluding Note

There is considerable improvement in the recognition of human rights as matter of concern in the operations of Japanese companies. But there is still a need to evaluate the practical measures being undertaken by the companies in terms of access to justice. The existing issues affecting workers, surrounding communities, and other people affected by company operations justify the necessity of reviewing the dispute resolution measures in order to serve justice to affected people.

Jefferson R. Plantilla is the Chief Researcher of HURIGHTS OSAKA.

For further information, please contact HURIGHTS OSAKA.

Endnotes

* This article largely draws from HURIGHTS OSAKA’s report, “Human Rights and Japanese Companies,” that will appear in the forthcoming publication, Bridging Human Rights Principles and Business Realities in Northeast Asia (tentative title), 2014.
 
1. The UN Global Compact participants include academic institutions, non- governmental organizations, foundations and local governments. For Japanese “business” participants visit: www.unglobalcompact.org/participants/search?business_type=2&commit=Search&cop_status=all&country []=95&joined_after=&joined_before=&keyword=&listing_status_id=all&organization_type_id=&page=1&sector_id=all&utf8=%E2%9C%93.
2. International Organization for Standardization (ISO), www.iso.org/iso/home/about.htm
3. OECD Guidelines for Multinational Enterprises, www. oecd. org/ . . . /0,3343,de_2649_34889_2397532_1_1_1_1,00.html.
4. Global Reporting Initiative, www.globalreporting.org/Information/about-gri/Pages/default.aspx.
5. Equator Principles, www. equator-principles.com/
6. See www.jil.go.jp/english/jwl/2012-2013/07/p.75_7-60.pdf.
7. 平成24年度個別労働紛争解決制度施行状況 Dispute-settlement-system-for-individual-labor-issues enforcement situation in 2012 fiscal year) www.mhlw.go.jp/stf/houdou/2r985200000339uj.html.
8. Shino Naito, “Workplace Bullying in Japan, ”Workplace Bullying and Harassment  2013 JILPT Seminar on Workplace Bullying and Harassment, JILPT REPORT No. 12 2013, page 114.
9. “25% of pregnant workers experienced harassment,” The Japan News, 31 July 2013.
10. Hiroshi Fujita, “Karoshi is sharply increasing -- A look at the background,” Rodo Soken Journal, No. 52, July 2013, www.yuiyuidori.net/soken/jour/2013/j_52.html.
11. Table 17, Employee excluding executive of company or corporation by type of employment, Summary of the November 2013 Survey Results, Labor Force Survey, Ministry of Internal Affairs and Communications, www.stat.go.jp/english/data/roudou/results/month/index.htm.
12. Masato Shikata, “Is Temporary Work “Dead End” in Japan?: Labor Market Regulation and Transition to Regular Employment,” Japan Institute for Labor Policy and Training, www.jil.go.jp/english/JLR/documents/2012/JLR35_shikata.pdf
13. See Kazuo Sugeno, “Judicial Reform and the Reform of the Labor Dispute Resolution System,” Japan Labor Review No. 1, 2006, page 5, available at www.jil.go.jp/english/JLR/documents/2006/JLR09_Sugeno.pdf. See also John Benson, “The Development and Structure of Japanese Enterprise Unions,” The Asia-Pacific Journal - Japan Focus, www.japanfocus.org/-John-benson/2938.
14. Nippon Keidanren, Interim Recommendations on Accepting Non-Japanese Workers - Bring Dynamism of Diversity into Japan by Opening Doors to Transnational Human Resources, 14 November 2003, www.keidanren.or.jp/english/policy/2003/108.html.
15. Nippon Keidanren, Recommendations on Accepting Non-Japanese Workers, 14 April 2004, www.keidanren.or.jp/english/policy/2004/029.html.
16. Nippon Keidanren, Interim Recommendations, op. cit.
17. “Foreign trainee programs to be reviewed,” The Japan News, 27 October 2013, page 1.
18. See Karolien Bais, Pauline Overeem, and Bent Gehrt, “Labour issues in the Thai electronics industry,” On the Spot, April 2012, report avai l abl e at Good Electronics, http://goodelectronics.org/news-en/labour-issues-in-the-thai-electronics-industry; Rieka Rahadiana and Matthew Bigg, “Strike-hit Indonesia to improve labor conditions,” www.reuters.com/article/2012/10/04/us-indonesia-labour-idUSBRE8930MV20121004; Junichi Onuma, Result of Water Analysis, February 2013, www.foejapan.org/en/aid/jbic02/rt/2013Apr.html.
19. Concluding observations on the third periodic report of Japan, adopted by the Committee on Economic, Social and Cultural Rights at its fiftieth session (29 April-17 May 2013), E/C.12/JPN/CO/3, 17 May 2013.
20. Eri Osaka, “Reevaluating the Tort Liability System in Japan,” Arizona Journal of International & Comparative Law, Vol. 26, No. 2, 2009, pages 409-420; Amagasaki Group for Protection of life and health from Asbestos, www.asbestos-ama.net/?p=891#more-891 (in Japanese) (as of 29 November 2013).
21. Ronal d C. Brown, “Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China, and the United States: Lessons From Asia?,” St. John' s Law Review, 86:543-577, page 553.
22. The Ministry of Health, Labour and Welfare lists the following acts as unfair labor practices:
- Dismissal or other disadvantageous treatment by reason of being a union member
- Rejection of collective bargaining without due cause
- Control and intervention in union activities and financial assistance to unions
- Disadvantageous treatment by reason of filing of complaints in the LRC.
See Flowchart of procedures for handling unfair labour practice cases, www.mhlw.go.jp/english/org/policy/central-labour1.html.
23. See Ministry of Health, Labour and Welfare for more details on the procedures regarding cases of unfair labour practice, ibid.
24. NEWS & INSIGHTS, Sidley, www.sidley.com/Labor-Disputes-In-Japan-Overview-Of-Substantive-Law-And-Dispute-Settlement-Procedures-08-31-2011/.
25. Katsutoshi Kezuka, “Significance and Tasks Involved in the Establishment of the Labor Tribunal System,” Japan Labor Review vol. 3, no. 1, 2006, pages 16-17.
26. Ibid., page 17.
27. See Osaka, op. cit.
28. Procedural Guidelines for the Japanese National Contact Point (NCP) under the OECD Guidelines for Multinational Enterprises (MNEs) (Provisional Translation) 25 November 2011, www.mofa.go.jp/mofaj/gaiko/csr/pdfs/ncp_jm_e.pdf.
29. Ibid., pages 1-2.
30. See Minamata Disease Municipal Museum, www.minamata195651.jp/list_en.html.
31. See for example Masanori Kaji, “Role of experts and public participation in pollution control: the case of Itai-itai disease in Japan,” Ethics in Science and Environmental Politics, 12, 99-111, 6 July 2012.
32. Hiroshi Fujita, “Karoshi is sharply increasing -- A look at the background,” Rodo Soken Journal, No. 52, July 2013, www.yuiyuidori.net/soken/jour/2013/j_52.html.
33. See Cases for Japanese NCP, Trade Union Cases, TUAC-OECD MNE Guidelines, www.tuacoecdmneguidelines . or g/ Cas es . as p?organisationid=22752&NCP=Y.


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