By Louis Carlet for the Japan Times
My colleague Gaetan and I recently presented a seminar on the “five-year rule” to a group of Francophones at an event hosted by the Francais du Monde — Association Democratique des Francais a l’Etranger (French of the World — Democratic Association of French Abroad).
Gaetan had prepared an organized lecture, with charts and translations projected onto the wall behind him. We worked to convince the attendees that next year they could use the so-called five-year rule to become permanent employees if they had served more than five years in fixed-term contracts. Many of them were university teachers.
I fielded most of the questions in the Q&A just to save time, even though we had a lawyer present who was an expert on the five-year rule. Gaetan gave our lawyer the last word. At this point, I think many of the attendees were excited by our lecture and were thinking they would soon become permanent at their various universities, where they taught French or other subjects.
Our lawyer, Shoichi Ibuski, concluded the event by noting there was an exception to the rule: “The five-year rule becomes a 10-year rule for university teachers.”
The remark fell like a bomb into the crowd. Since so many were university teachers themselves, they felt that the previous two hours of seminar had been pointless and misleading. At one moment, I was worried about our physical safety.
Gaetan and I rushed to assure them that it was complicated and that we believed only researchers were affected, but our lawyer rained on that parade too. He showed us a directive from the Ministry of Health, Labor and Welfare apparently indicating that hijōkin kōshi (part-time instructors) are also covered by the 10-year exception.
The seminar concluded with cognitive chaos, including on the part of Gaetan and me. Ibuski continued to study the law as attendees waited in the conference hall. The final judgment was that teachers are eligible only for the 10-year rule, not the five-year one. But are they?
Let’s examine what’s really going on. Let’s take a comprehensive look at the five-year rule and its many disappointments.
The Labor Contract Law was amended in 2012 and the tweaked version went into effect in April 2013, with three new articles: 18, 19 and 20. The purported purpose of the change was to increase job security in response to a growing percentage of workers hired on fixed-term or temporary contracts.
Those on one-year contracts, for example, must face uncertainty each year as they wonder whether they will be renewed or tossed aside. Many employers abuse temporary contracts by using them for nontemporary jobs, simply renewing them year after year after year. In my union work, I see this all the time.
Article 18 was supposed to limit that abuse. The idea was to give employees the chance to make themselves permanent after five years on fixed-term contracts.
When the law came out, it was obvious to me what would happen instead. I figured employers would simply make sure to “non-renew” (i.e., fire) workers before they reached the five-year mark. This is in fact happening at many companies and universities. (See Hifumi Okunuki’s “Tohoku college massacre” Labor Pains column at bit.ly/tohokumassacre.)
I speculate that the government’s purpose was in fact to encourage such firings to increase what is called “worker mobility” (i.e., unemployment). This fits with the fact that the law ensures the five-year rule clock starts on the first day of the first contract you sign on or after April 1, 2013.
Pause a moment to take that in. First, the law was not grandfathered back to enable employees to jump on the rule right away in 2013. Instead they have had to wait all these years, giving ample time to their bosses to cut them completely or at least cut their conditions. You see, the conditions that are made permanent if you hang on more than five years are the ones you have on the contract that takes you over the five-year threshold. So if management cuts your pay in half in the sixth contract then yes, you can make yourself permanent, but only with the new lousy conditions.
Let’s be clear: If you are on a temporary contract then your employer needs no reason, in principle, to refuse your contract renewal. When your contract is up so are you, unless both sides agree to renew. That means management basically has all the power.
There are important exceptions that Hifumi has covered in past editions of Labor Pains, including “No legal cure-all for fixed-term job insecurity” (bit.ly/jtlpfixedcontracts) back in 2012, before the new law took effect. The jurisprudence described in that piece gives at least some hope to those who are unceremoniously nonrenewed after the contract finishes. Everyone ought to be familiar with the Toshiba Yanagimachi case outlined in the aforementioned article and the Hitachi Medico case, which established that even temporary contracts can become effectively permanent if the renewal process has become nothing but a formality or if there is reason to expect renewal. In such cases, employers cannot easily refuse renewal. The new five-year rule gives some tentative hope to those stuck on fixed-term contracts that just roll over and over.
So, to repeat: The five-year clock starts on the first day of the first contract that began for you on or after April 1, 2013. To be eligible for the switch to permanence you must have begun a contract that takes you beyond five years. Five years in all is not enough — you need five years plus one day or plus one second. Then you can apply for permanence (preferably in writing). Management need not respond because the moment you apply, the law recognizes you as permanent.
For example, if you have a contract that begins each year on Oct. 1 and ends Sept. 31 going back several years, then your five-year-rule clock began ticking on Oct. 1, 2013. That means as soon as you are in a contract that takes you to Oct. 1, 2018, then you can make yourself permanent.
Being permanent means management cannot fire you without a damn good reason — that is, a gōriteki (reasonable, rational) reason according to shakai tsūnen (social norms). Even then it must be sōtō, meaning a pretty big deal. So tenure gives you much more protection against arbitrary, casual firing.
So what about attorney Ibuski’s bombshell? Does Article 18 apply to part-time university instructors? Must they wait a full decade to nail down a full-time position? Let’s take a look-see.
The mess is caused by the 10-year exception rule stipulated in a separate law — the Ninki Ho. The full name in English is the Act on Term of Office of University Teachers (Act No. 82 of 1997). The law itself has yet to be translated so let me take a crack at it.
The offending article is No. 7:
In Article 18.1 of the Labor Contract Law, in reference to a labor contract concluded by a teacher or employee in a similar profession, in which the term of office is stipulated as per Article 5.1 of this act …, then read “10 years” where it says “five years.”
OK, so let’s look at Article 5.1 of the Ninki Ho:
Regarding teachers at universities …, the university or school corporate may stipulate a fixed period of appointment in office in the labor contract if any of the paragraphs in Section 1 of the previous article applies.
We now must step back again, to Article 4.
The appointing authority — at a university where rules related to appointment terms of a teacher under Section 1 of the previous article are stipulated, and when appointing that teacher according to the rules stipulated in Article 10, Section 1 of the Special Rules for the Public Educational Personnel and Staff Act — can stipulate a fixed period of appointment if and when any of the following paragraphs apply:
• Paragraph I: If it is cutting-edge, interdisciplinary or comprehensive educational research, and if — in light of the peculiar nature of the field or methodology of the educational research conducted at the corresponding educational research organization — the secured job at the educational research organization is one for which a broad range of personnel are in particular called for.
• Paragraph II: If the teacher secures a job as assistant professor.
• Paragraph III: If the teacher secures a job to undertake educational research with a term stipulated based on a specific plan in which the university participates or which is stipulated by the university.
So what we see here is that if none of the above three paragraphs apply, then Ninki Ho Article 7 (the 10-year exception to the Labor Contract Law, Article 18) does not apply. It’s unclear what “assistant professor” means here, but I and III clearly involve some kind of research project, apparently of a fixed duration.
It seems to me that ordinary hijōkin kōshi (part-time instructors) that teach specific courses at a university do not fall under the above three paragraphs and therefore are eligible for the ordinary five-year rule under Labor Contract Law Article 18, not the 10-year exception of Ninki Ho Article 7.
Is my interpretation correct? Some scholars and lawyers have cited an explanatory page on the website of the labor ministry (bit.ly/mhlw10yrrule) as cause for concern about the 10-year exception. They worry that regular nonresearch teachers will be affected. The page states that as far as the law is concerned, kyōin (teacher) includes professors, associate professors, assistant professors, instructors (full-time and part-time) and teaching assistants.
In the very same section, however, it reiterates the three paragraphs of Article 4 of the Ninki Ho, which restrict who can be considered to have signed a contract in accordance with that law. It seems to me that the ministry is simply saying that if you are engaged in a specific time-fixed research project — regardless of your title — then the 10-year rule applies. So the 10-year rule really does apply to part-time instructors — but if and only if they also fall under one of the above three paragraphs.
Naturally, universities want the 10-year rule to apply rather than the five-year rule, but my interpretation is that regular instructors not engaged in specific fixed-term research projects are governed by the five-year rule. The debate is not yet settled and it may have to be taken to the courts, but it seems to me that the simplest reading of the above laws says that ordinary instructors can make the most of the five-year rule.