Whether you’re set to establish your business in a Japanese market, are engaged in a dispute surrounding the consequences of overtime work with an employee, or have to lay off several workers in a company minimisation process, being up to date with the latest regulations, and treading lightly among the country’s network of labour legislation can be a difficult but vital feat.
To this end, Lawyer Monthly here speaks with Masako Banno, an international lawyer at Okuno & Partners in Japan, who talks us through the latest legislative developments in the company in the employment segment, and details some of the challenges both employees and employers face in this complex field.
What are currently the hottest employment law based topics being discussed in Japan?
“Karoshi” and “karo-jisatsu”. Recently, Labour Standards Supervision Office (“LSSO”) of Japan found the suicide of an employee of Dentsu Inc. was “karo-jisatsu”, which means the suicide was caused by mental disorder due to long-time overwork. LSSO also conducted a criminal investigation to examine the situation of the rampant long overtime work in the company. The scandal of the largest advertising company in Japan has spread awareness of the risks of overtime work and importance of worktime control of their employees among corporate executives. Some companies are now implementing ‘regular interval systems’, where employees are required to take between seven to eleven hour rests between their shifts, to prevent overwork.
Are there any new progressions within employment-related law that businesses and workplaces are struggling to adapt to? Are there challenges ahead in terms of legislative implementation?
Companies in Japan are trying to prepare for the ‘Year 2018 Problem’, where fixed-term employment that has been extended for more than five years will start being converted by employees into indefinite-term employment. The amendment is based on the policy to secure the status of employees. So far, employers often adjusted their work force through non-regular employees. From now on, they are forced to prepare for redundancy in a more long-term strategy. Also, the amended Act on Protection of Personal Information will be implemented next spring. It contains an extra-territorial application rule and has an influence on transfer of employees’ personal information from Japan to foreign countries.
Why do you handle employment law while you are also focusing on international corporate and M&A?
In Japan, employment law is troublesome burden on companies, which affects their decisions in corporate transactions, such as the legal structure of acquisition or how to function the new company. It is not a separated marginal legal area, as opposed to in some other jurisdictions. That is why I support our international clients with one-stop service including employment law in corporate transactions. When it comes to detailed procedure or salary calculation, I often work with another employment lawyer of our firm focusing on domestic labour dispute resolution. Still, giving my clients’ outline of employment issues at the initial stage makes the process much faster and compact, for the benefit of clients.
As a Thought Leader in the international legal field, what is the biggest challenge you face and how do you overcome it?
The challenge is how to support our international clients understanding the laws and legal practice in Japan. Some legal systems and the ways of doing business are unique to Japan or Asia, but you might miss the big picture if you are always caught up in ‘Japan’s uniqueness’ context. Interacting with my foreign lawyer friends through lawyers’ international networks such as IBA, I get some insights about the most effective way of communicating with our foreign clients. A Swiss lawyer of our firm helps me quite a bit in this respect, too, for our European clients.
How do you manage your team and share your expertise to ensure your team and company offer consistency to your clients?
At the very beginning of case handling, after listening to the clients’ requests, I try to quickly grasp the whole process, including the possible legal issues, timeframe, the best and worst scenarios, and the most practical way for the best possible solution. Then I share it with our team members and clients. When clients and our lawyers can share the same overview, all of us can work together efficiently.
Also, many of our firm’s young lawyers are motivated and help me very well by doing initial drafting and research work. Aside from carefully reviewing and editing their products, I try to share with them my practical knowledge and experience without hesitation, so that they can learn something through working with me and can do an even better job next time. As they meet my requirements in helping me and our firm expand the field, I like to meet my responsibilities to them, too.
What is the biggest challenge in terms of Japanese labour law for foreign companies entering Japanese market?
Laying off employees is extremely difficult under Japanese labour law, which always surprises our clients and foreign lawyers from western countries. Not only the requirements written in the statutes but also case-handling and final decisions made by courts are also employee-friendly. Unlike many other Asian countries, employees are easily able to access a fair and functional judicial court, which increases practical risks of employers’ violation of labour law. Of course, there is always the way to downsize your business even in Japan. It is just a matter of timeframe and costs. My role is to analyse such risk and suggest to clients the best way to minimize it.
As a deputy secretary-general of Committee on Lawyers' Gender Equality of Tokyo Bar Association, how do you describe the progression of equality in the workplace in Japan? How would you compare it to other countries?
The ratio of woman managers in workplace in Japan remains around 11%, the lowest among the developed countries. Japanese immigration policy does not accept foreign unskilled labourers who may support Japanese working mothers as a nanny or a house keeper, as opposed to some other developed countries. This is not only a stereotyped gender role, but this immigration policy also causes this situation, alongside the general long-workhours. The circumstance is being improved led by legislation. In April 2016, ‘The Act on Promotion of Women’s Participation and Advancement in the Workplace’ was implemented, which requires companies with more than 301 employees to establish a plan to enhance women employees’ status. Still, it takes a while to see how it practically supports women workers’ advancement.
What keeps you passionate about international employment law?
Employment issues are inevitable for any foreign companies either when they are newly getting into the Japanese market or withdrawing from that. When skilled and experienced lawyers are representing employers, the labour issues are settled smoothly, because such lawyers can foresee the outcome, and can suggest the most reasonable solution to the client, toughly negotiating with their employees. I enjoy working with our foreign corporate clients, offering predictability to them, and ensuring them focusing on their primary business, in a stress-free environment.
What has been your biggest achievement in the past 12 months?
When the President of American Bar Association, Ms. Linda Klein, visited Tokyo and made a speech in a luncheon event about Japanese business women’s empowerment, I moderated its Q&A session. It was a good opportunity for our American and Japanese Bar colleagues to get together and exchange ideas and it was in particular encouraging for our young colleagues.
Do you have a mantra or motto you live by when it comes to helping your clients?
Speed, accuracy, communication and honesty. I would like to be a team member of our client companies, and one that shares any concern with them. When lawyers provide the best benefits for their clients, not for themselves or for their law firm, they will be in a long-term relationship with their clients. Ultimately it will bring success to their law firm.
