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High-level professional worker system feared beyond labor inspectors' control

Holding pictures of their family members who died from overwork, Emiko Teranishi, second from left in the front row, Yukimi Takahashi, third from left, and others listen to deliberations over work-style reform bills during a House of Councillors plenary session on June 29, 2018. (Mainichi)

TOKYO -- The so-called high-level professional workers' system incorporated into the work-style reform law enacted on June 29 legally removes a cap on working hours for the first time in Japan. While the system applies to highly skilled, high-income workers, there remain strong concerns that it could lead to long work hours rather than promoting free work styles, as touted by the government. Further discussion is crucial to avoid driving workers into disadvantageous positions under the new system.

Inspectors at labor standards inspection offices have sounded the alarm over the system for highly paid professionals, saying that they "will not be able to protect workers" under such a scheme. "No matter how long workers are compelled to work, there may be cases where we cannot point out a violation of the Labor Standards Act," fumed an inspector with a labor standards office in the Kanto region.

The Labor Standards Act stipulates that employers, as a general rule, must not have employees work more than eight hours per day or more than 40 hours per week, and that they must pay increased wages for overtime work. However, due to deregulation in the 1980s and 1990s, exceptional labor practices emerged, such as the flexible work hour system. Under such measures -- billed as enabling "flexible work styles" -- workers often ended up losing out when it came to wages and other working conditions.

The epitome of such labor practices is the so-called discretionary labor system, in which employees are paid based on fixed work hours rather than actual hours spent on the job. Under the system, even if workers are forced to work overtime well beyond the deemed labor hours agreed upon between labor and management, it is difficult to accuse employers of legal violations because the overtime was based on a labor-management agreement. The system for highly paid professionals could lead to even longer work hours as employers are not bound by regulations such as extra pay for late-night and holiday work.

Furthermore, the system for highly paid professionals, which is cynically dubbed a "super-discretionary labor system," entails only vague legal definitions. During a Diet session focusing on labor issues, an opposition lawmaker grilled the labor ministry over the overwork-induced suicide of a male employee at Nomura Real Estate Development Co., asking, "If it weren't for the employee's overwork-induced death, the illegal application of the discretionary labor system wouldn't have been detected, would it?"

The discretionary labor system for planning-related work that had been applied to the Nomura worker has been illegally applied at many other companies through stretched interpretations of legal provisions. "It is often impossible to understand from legal provisions the scope of jobs covered by the law. If companies insist that they are properly applying the law, it is difficult to prove that what they are doing is inappropriate," the labor standards inspector lamented.

Similar issues are expected to emerge with the high-level professional workers system, as the legal provisions for the system are even vaguer than those for the discretionary labor system for planning-related jobs.

The labor ministry plans an ordinance that would make worker "discretion" over issues such as when and where they will work a prerequisite for introducing the high-level professional worker system. However, the labor standards inspector pointed out, "If the prerequisites become complicated, it will be difficult to judge whether the law is being applied illegally."

There are far fewer labor standards inspectors in Japan than in other countries. While there are 1.89 labor standards inspectors per 10,000 workers in Germany, 0.93 in Britain and 0.74 in France, the corresponding figure stands at just 0.57 in Japan.

Regular inspections by labor standards offices cover only about 3 percent of all business establishments in Japan. In an attempt to address manpower shortages, the government's Regulatory Reform Promotion Council issued a recommendation last year that such inspections be commissioned to the private sector. Minister of Health, Labor and Welfare Katsunobu Kato suggested that thorough supervision and instruction be given to companies that adopt the system for highly paid professionals.

Another labor inspector, however, denounced the government's move, saying, "It is contradictory to say that supervision and instruction for companies will be enhanced while allowing loopholes in the Labor Standards Act, which should inherently be designed to protect workers, by removing work hour regulations."

The inspector continued, "We inspectors out in the field are struggling. Still, it is sometimes inevitable for us to tell workers, 'You need to protect yourselves.'" The inspector recommended that workers avoid signing agreements with employers that could work to their disadvantage and said they should not consent to labor contract changes that are unilaterally made by companies.

"You should keep records of when you arrive at and leave your workplace, and the details of your superiors' instructions. If you find anything strange, you should file a claim with the labor standards office," the inspector said.

Even if one case or incident is not immediately found to be illegal, an accumulation of workers' voices will amount to great strength.

(Japanese original by Akiyo Ichikawa, City News Department)

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