Converting to a non-fixed term contract

[primarymay]

One of my workplaces has a rule that says employees can convert to a non-fixed term contract after 5 years but (hijokin Koshi/adjunct instructors) can only do so after 10 years.

This provision is also in the contract.

Thank you @revstockton, @hark, and @phillev

It would seem that the answer is they are "probably not" on the right side of the law.

In 2-3 years, I will seriously consider filing under the 5-year rule. (I would have 7 years there at that point).

At that point, I will be able to "survive" losing the koma, and can weather the storm.

(Also, should I join the University Teachers Union (大学教員組合 – Daigaku Kyouin Kumiai) or the Union of Part-Time Lecturers (非常勤講師組合 – Hijoukin Koushi Kumiai)?

 

[revstockton]

@primarymay There is some debate as to whether instructors qualify under the 5 or 10 year rule. Many universities settled on 5, some choose 10. I don't think there has been any major precedent but a lot of the opinions I have read lean towards the 5 year i interpretation being correct.

 

[primarymay]

@revstockton I've seen a few court cases that support 5 years. But I don't think I have the stomach to wade through the court system, as opposed to waiting another 5 years to convert.

 

[hark]

@primarymay it's tell me "unable to create comment" so I'm having to cut things down.

The labor contracts act article 18 specifies the terms for permanent conversion (https://www.japaneselawtranslation.go.jp/en/laws/view/3744/en)

BUT the employers you're talking about are universities presumably.

Ostensibly because this completely screws with tenure-track, MHLW and MEXT came up with an exception (https://www.mext.go.jp/a\_menu/koutou/shinkou/1410626.htm) that applies to universities and certain research institutions. so "researchersなど" and people with jobs under the tenure track system.

Some universities decided language teachers don't fit; others decided they do. @nicoleb07 for instance was at Tohoku university which decided they do. Conversely where I work full-time, I used the law at five years under the advice of a lawyer who said they wouldn't be able to convincingly show that I was a researcher.

Thus, the discrepancy on the employer side.

Moving to the legal side, a case in Tokyo [東京地判令和3年12月16日（第1審）労働判例1259号41頁] involving Sensyuu daigaku and a part-time language teacher resolved that they had the right to permanent conversion at 5 (https://note.com/mizonobeyuki/n/nbf11a1d0a059). The most relevant part of the holding: そのため、研究を行わず教育のみを担当する講師についてはここでいう「研究者」に該当しない。 (For that reason, someone who is employed only for education and not research does not fall under the definition of "researcher")

Conversely there are older examples of people being told to pound sand and wait 10 years by courts (https://www.tis.amano.co.jp/hr\_news/3194/)

on a slightly different note, here's a lawyer explaining a tohoku university accusing the university of article 19 雇い止め as not violating article 19 (https://hk-plazalaw.com/column/hanrei024). Similar outcomes for Article 19 abound (doesn't rise to the level of being rational). Conversely, a Belgian managed to sue Nagasaki University and get permanent employment even though he signed a 3-year and then 2-year contract (https://mainichi.jp/english/articles/20230915/p2a/00m/0na/038000c).

switching to part-timers, I've asked lots of the people here and none of them really want to rock the boat on this. My sense is that it's easier to still find a way to not find a class for a part-timer if they converted and the university was angry.

Conversely, no one here full-time is motivated to lose the part-timers we already have and wind up with a system where we have to get rid of them or gap them for more than 6 months.

all of that to say, it's a bit of a mess and if you are really concerned talk to a lawyer.

My interpretation (not a lawyer) is that they're on weak ground applying the same 10-year exception to language teachers precisely for the reason's spelled out in the senshuu university judgment. But the only way to figure out the outcome is to give them the permanent conversion document after 5 years and see what they do.

Merely writing "the 10-year exception applies" does not make it so because contract terms can't give you worse terms than the law or constitution or employment rules.

 

[hark]

to add to the senshuu case information, the university's perverse argument was:

1. X does research
2. We hired X to only be a teacher here
3. Therefore the 10-year exception applies to X

Which the court rejected sharply. The court maintained that you have to be hired to do research (and not merely as a veneer) for the ten year exception to apply.

 

[nicoleb07]

@hark Ah, should have sued

 

[primarymay]

@nicoleb07 It probably would have been the right thing to do for your colleagues.

 

[nicoleb07]

@primarymay I don't know, they seem pretty happy now in their new jobs.

Going the legal route to keep a job I no longer enjoyed with an employer that didn't want me didn't seem worth it for me (or ultimately for them either).

I applaud those that go through with legal challenges, but it wasn't the right choice for me at that time.

 

[primarymay]

@nicoleb07 That is fair. I was being a little self-righteous. Caulk it up to frustration, apologies.

 

[nicoleb07]

@primarymay Thanks for the clarification! Appreciated. Good luck with your situation.

 

[hark]

@nicoleb07 I respect the quit.

I too had "a job I no longer enjoyed with an employer that didn't want me"

I was in a situation (still not PR no home) where keeping a job was vitally important and had nothing else on the title. I also felt that if I could wait out the guy who made my job unpleasant, work would get better.

 

[kristhuy]

@hark Outstanding comment. There's now a link to it in the wiki.

it's tell me "unable to create comment" so I'm having to cut things down.

FWIW I was encountering this a lot until I realized that the comment length restriction for markdown-formatted comments is much less than the comment length restriction for non-markdown comments. So if you write your comment in markdown and then change the formatting to non-markdown prior to submission, you can submit longer comments.

 

[phillev]

@primarymay You said “one of my workplaces”, but that’s not correct. This is a standard law applicable to all Japanese companies.

You can look up 無期転換 for the 5 year rule, and 10年ルールの特例 for the 10 year one.

 

[patric]

@phillev What’s the 10 year rule? I know the 5 year one intimately. Heh.
Was the 10 year rule added later?

 

[hark]

@patric exception for universities and research institutions to the 5-year rule.

 

[primarymay]

@phillev This is not the case.

One of my workplaces allows adjuncts to convert at 5 years, it is a public institution.

The other, is claiming 10 years, as I stated.

 

[phillev]

@primarymay Without knowing the details of your job, it’s difficult to speculate, but there must be something different about the institutions which means that one is subject to the 10 year special provision whereas the other is not. For example, one is a university or research institution which uses highly skilled professionals who are categorized as researchers for a limited period project whereas the other is not.

 

[primarymay]

@phillev There are no research responsibilities, no contract provision for such, and zero funding or guidance for research at any of these institutions. Yet, the distinction remains.

Fairly Standard academic English courses.

 

[faithfound]

@primarymay Are both contracts for 非常勤講師 positions?

 

[primarymay]

@faithfound

非常勤講師

Yes