General Union vs Gov’t of Japan health and pension insurance ruling set for 20 March

A decision in a case filed against the Japanese government in 2012 in the Tokyo District Court, regarding the state’s failure to properly monitor enrollment in the health and pension scheme, will be out on 20 March.

While the above link will tell you the story of the suit against the government, many don’t know about the union’s long history battling for health and pension rights for foreigners, part time, and irregular workers.

 

In October 2004 the union’s General Meeting passed a policy resolution outlining the union’s policy on shakai hoken:

  • To raise demands to all language schools regarding shakai hoken.
  • To campaign to raise awareness, especially amongst foreign workers, about the benefits of shakai hoken.
  • To raise demands to the ministry to ease restrictions so that part time workers can also join shakai hoken.
  • To demand that the government make a larger portion of the pension refundable to foreign workers when they leave Japan.

In short; compliance with the law while campaigning for a better health and pension scheme.

And the union’s follow through on this project was tremendous. Within weeks the union had submitted demands to the main language schools and started negotiations, these talks coupled with discussions with the ministry led to a massive probe of language schools starting in February 2005.

While the union wasn't able to win complete enrollment, pressure at the negotiation table and on the streets, along with government probe affected thousands of language school teachers especially at the large schools. And we didn't stop there. 

From our talks with government officials we were able to smash a myth about shakai hoken enrollment and how it affects part timers or those working under 30 hours per week.

It was almost accepted as gospel truth that workers had to be working three-quarters of the hours of a full timer, i.e., thirty hours, to be enrolled in shakai hoken. Then the union started studying the law with a group of lawyers and found that there is no such stipulation in the law. So where was it?

We learned about an internal guidance that set the three-quarter rule in place. Not a law, not even a regulation, but basically an internal memo that was over ruling the law. Firstly, the law about enrollment in Shakai Hoken Health Insurance and Shakai Hoken Pension Insurance (they are actually two separate insurances with two separate laws) doesn't talk about who CAN be enrolled, but who CANNOT be enrolled.

These people cannot be enrolled:

  • sailors 
  • those employed for a total less than two months 
  • those employed at workplaces without fixed addresses 
  • seasonal workers 
  • see more here

Anyone else, and not based on hours, MUST be enrolled.

In July 2009 officials from the General Union, Fukuoka General Union, and Tokyo Nambu met with the Ministry of Health, Welfare, and Labour, and the Social Insurance Agency (SIA) and learned some very important points when we asked point blank about this three-quarter rule.

  • The SIA representative admitted that the three-quarter rule is NOT a condition of enrollment, but rather an internal administrative guideline. It’s not even in the law.
  • Companies are NEVER advised not to enrol if the worker is under three quarters of a full timer. In fact, a company can enrol anyone they wish and the social insurance agency will NOT refuse application from employers.
  • Companies are NEVER advised to disenroll workers who fall below the three quarters threshold.

They confirmed everything that the union both knew and thought about enrollment.

We knew that people could be enrolled regardless of the threshold as we had already been able to win enrollment at some workplaces with works hours of about ten hours. Some companies had tried to tell us that since the members did not teach thirty hours, they COULDN'T enroll. Also, other workplaces were telling us that they were being advised to disenroll if the worker fell below the threshold. Now everything was clear.

Soon afterwards the union was involved in a number of “kakunin seikyu” (an individual request to the shakai hoken office to have your eligibility checked) for workers with 29.5 hours contracts (how convenient for the company). We were turned down on both the application and appeal and finally had our test case for court.

The union filed a case against the government in regards to a union member (the union member is the legal entity which is suing but the union is fighting the case) working as a dispatched AET working 29.5 hours whose kakunin seikyu was turned down. The goal in this court case was not to argue that the worker was actually working over 29.5 hours and therefore eligible (even though this was clearly the case), but that REGARDLESS of the contract hours, the member was eligible for enrollment under the law since there is no requirement for a certain number of working hours and that the three-quarters rule is null.

After submitting all the documents and making some of the arguments in front of the judge, the union lawyer told the court that we were done and NOT calling a witness as we didn't want to concentrate on the member's actual working hours since this was not pertinent to our case. The judge repeatedly requested that the member testify and in the end, we had to give in to the judge's will and call the member to the stand.

Our concern in this case is that we could end up winning and losing at the same time; the member is deemed eligible based on the fact that his actual working hours qualified him for enrollment, but not that the three-quarters rule is null. We wouldn't even be able to appeal such a ruling.

Regardless of this, we have put employers and the government on notice that we are not willing to give up our fight for enrollment based on the law based solely that employment equals enrollment with no further conditions. Also, a ruling like this will also let employers know that they're 29.5 hour bluff may not hold up in court and we can use this to increase enrollment in the industry.

See you on the 20th.

 


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