SNA (Tokyo) — Japan’s labor laws have made several several distinct steps forward since the Meiji Restoration of 1868, with workers gradually gaining a degree of protection from the exploitation of business owners and managers. However, the era of Shinzo Abe has been characterized not only by a failure to progress further, but by a distinct step backwards.

The Meiji Era witnessed the first clear step forward. The traditional hierarchy, which had separated society into the four estates of samurai, farmer, artisan, and merchant was abolished, putting all workers onto a more level playing field. However, the late 19th century governments proposed labor laws aiming to control rather than protect workers, regulating relations between master and apprentice, as well as between employer and employee.

As with other industrializing countries, Japan faced severe worker shortages and a general unwillingness of people to submit to control by employers. Coming to and leaving work at fixed times seemed foreign to most Meiji Japanese, especially to those without clocks and watches. In Japan, as in the United States, it was hard to draw youth away from family farms, teach them to follow orders, come and leave work on time, and toil in a systematic, counter-intuitive manner.

A string of Factory Acts enacted between 1898 and 1911 gave workers no “rights” per se. The Employer-Employee Relations Act, the Master-Apprentice Relations Act, and similar laws conferred compassion and regulatory discipline rather than recognizing rights. They recall a series of similar laws passed throughout the 19th century in the United Kingdom, which established the ten-hour workday and several safety rules.

Worker rights advanced further in the aftermath of the Pacific War. Occupying US forces undertook a massive project of liberalization and restructuring. A new constitution demystified the Emperor and established fundamental human rights, including for workers. But despite the General Headquarters of the Supreme Commander for the Allied Powers (GHQ) possessing unquestionable authority during this period of massive transformation, the labor laws themselves were still written by Japanese bureaucrats.

The Labor Standards Act took labor law to a new level in 1947, restricting the workday to 8 hours and stipulating a broad range of minimum standards for wages, work hours, breaks, and paid holidays. Kosaku Teramoto, labor policy chief and former member of the wartime secret police, spearheaded the writing of the law. GHQ’s Labor Division chief Theodore Cohen greenlit it. Article 1 declares: “Working conditions shall be those which should meet the needs of workers who live lives worthy of human beings.”

This and subsequent labor laws recognized that workers are socially and economically weaker than their employers. This conflicts with the legal fiction that contracts are concluded by two equal and free parties.

Previously, the Izutaro Suehiro commission had drafted the Trade Union Act of 1945, guaranteeing the rights of workers to organize, form unions, negotiate collectively, and take collective action.

Before and during the Pacific War, leftist labor unions were considered illegal organizations, suffering horrific repression by authorities. Communist leader Kenji Miyamoto was hailed as a hero after the war for having refused to talk under torture. Meanwhile, pro-authority unions merged with management to form industrial reward-the-nation committees (sangyo hokokukai). These committees devoted their energies to help win the war by forging steel, making bombs, and holding rallies under the slogan “Let’s Die Joyously for the Emperor!”

The Trade Union Act mirrors the US National Labor Relations Act and fleshes out the three labor rights enshrined in Article 28 of Japan’s Constitution: solidarity; collective bargaining; and collective action, including strikes.

Still, the powerful protections for combative unions tend to go to waste in today’s Japan. Union density barely breaks 17%, as workers have been indoctrinated to fear labor unions and associate strikes with violence and extremism.

Japan’s labor laws do diverge in some respects from the United States, where the First Amendment right to free speech trumps the right to union and business activity. Employers are free to campaign against unions, a freedom enjoyed, for example, by retail giant Target with its dorky anti-union propaganda videos. In Japan, union and business rights trump free speech. Employers can neither badmouth unions nor even discourage workers from going on strike. Such discouraging speech constitutes illegal interference.

In a similar vein, boycotts are legal in the United States; while Japanese authorities consider them an illegal, possibly criminal, obstruction of business. Even criticizing a company’s product or service can be deemed illegal defamation.

The right to strike is sacrosanct in Japan. Unlike in the United States, courts issue no injunctions for strikers to go back to work. Unions in Japan can select particular members to strike for short periods of time, even for an hour. Such surgical strikes can reach surprising sophistication, as with the Berlitz Japan strike of 2007-2008, which I was personally involved in.

The Berlitz General Union Tokyo (Begunto) gave notice just minutes before each strike, hindering management efforts to find teachers to cover classes. As a countermeasure, the language school posted strikebreakers at schools where strikes were thought likely. Seeing scabs waiting in the wings, the Begunto would hold, reserving strikes for unscabbable times. In response, management started hiding the scabs at a nearby café, perhaps to lure the union into scabbable strikes. Begunto then sent spies to stake out the café to see if scabs were on standby. Union members sometimes mustered in the school lobby as if about to walk out, only to teach class as normal. This confused the strikebreakers. Over one hundred Berlitz teachers struck over 3,500 classes during the year-long dispute.

In 2008, Berlitz Japan sued Begunto and its executives for ¥110 million (about US$1 million), claiming that the union’s robust, short-notice tactics made the strikes illegal. The Tokyo District Court threw out the claims in 2012, ruling that the strike was legitimate, including the surgical strikes, thus upholding the fundamental right to strike.

The government makes other employers respect workers’ right to strike, but it exempts itself. All workers have the right to strike except civil servants. Some scholars believe this violates Article 28. Bureaucrats adopt appropriate nomenclature to skirt the Constitution: central and local governments do not “employ” (saiyo suru) civil servants; they appoint (ninyo suru) them. Rules and standards for civil servants are stipulated in special laws designed just for them.

Lest this seem a tale of slow but clear progress over time, the latest chapter, that of Prime Minister Shinzo Abe, demonstrates that Japanese labor rights can also move backwards.

Abe recently pushed through a series of so-called labor law reforms, selling them as worker-friendly attempts to alleviate the crisis of long work hours. His workplace reforms (hatarakikata kaikaku) established the first-ever limit on the number of overtime hours that an employer can demand a worker do each month.

The Labor Standards Act limits the workday to eight hours and the work week to 40 hours. Making staff work more is illegal. Unless, that is, management signs a special agreement (roshi kyotei) with a democratically-elected majority employee representative. Unfortunately, this kind of Article 36 agreement has become the norm rather than the exception at many companies. Employers see the agreement as a routine procedure, asking an employee to become the representative and then sign the agreement. In fact, rarely do employees get the chance to actually elect their own representative democratically, and rarely can that representative refuse to sign the agreement.

As a result of the routine use of this legal loophole, Japan has become infamous for its many cases of death-by-overwork (karoshi).

Studies have shown that the risk of death-by-overwork rises when overtime work exceeds 60 hours a month, particularly for older workers. Other studies indicate 80 hours or 100 hours may be the risk line for death-by-overwork or overwork-related suicide (karojisatsu).

How many countries have a term for suicide caused by working too much? The Ministry of Health, Labor and Welfare now sets 100 hours of overtime in a single month, or over 80 hours for two to six months, when considering workplace compensation claims.

The most famous recent case of death-by-overwork was that of Matsuri Takahashi, a 24-year-old who worked at advertising giant Dentsu. She leaped from the balcony of her third-floor apartment on Christmas Day 2015, unable to endure working over 100 hours a month. Her mother had pled with her to quit, but she chose death instead, perhaps feeling ashamed of what she perceived as a failure.

Societal outrage at her death impelled the government to do something to address the overtime crisis, but the Japan Business Federation (Keidanren) resisted any restriction on its corporate members. The feeble condition of Japan’s contemporary union movement meant that there was no effective opposition to the Abe government’s sky-high overtime limits.

Before these recent workplace “reforms” kicked in, non-binding guidelines of 45 overtime hours per month had existed, but many companies kept workers on the clock (or even off the clock) far longer. The revision turned the 45-hour target into a legally binding limit, but also created exceptions of 80 hours during special “busy” periods. One month a year, an employer can even order staffers to work up to 100 hours of overtime. The new cap on overtime takes us right up to, or even beyond, the threshold for risking death-by-overwork.

This was an Abe government gift to management, one of its key political supporters. It was also a step toward making the lives of Japanese workers more precarious.

Hifumi Okunuki contributed to this article.

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