A Starting Point for Improving Working Conditions for Subcontracted Workers at Nuclear Power Plants – Tokyo Labor Relations Commission Orders Takenaka Corp. to Comply with Collective Bargaining Rules
By Kawamoto Hiroyuki, Vice Chair, Union of Nuclear and Radiation-Exposed Workers
On January 29 this year, regarding the lack of a response from Takenaka Corp., a primary contractor for work at the Fukushima Daiichi Nuclear Power Station (below, the Fukushima Daiichi NPS), to a request for collective bargaining by the Union of Nuclear and Radiation-Exposed Workers (below, “the Union”), the trade union to which the subcontracted worker using the nickname of “Arakabu” belongs, the Tokyo Labor Relations Commission (TLRC) ordered Takenaka Corp. to respond, saying their inaction constituted unfair labour practices prohibited by the Labor Union Act. The timeline and significance of this case are discussed below.
(Under Japan’s Labor Union Act, an industry-specific or regional joint labour organization has the right to collective bargaining even if only one person at a workplace joins the organization. This applies even after the worker’s retirement, as long as there are unresolved issues such as wages, employment or workers’ injuries.)
Factors Leading Arakabu to Seek Damages in Court
Mr. Arakabu is a worker living in Kitakyushu who was involved in recovery work at the Fukushima Daiichi NPS. At the time of the accident in March 2011, he had a stable job at a major shipyard, and had no need at all to go work at a nuclear power plant (NPP). However, each time he saw the conditions in the Tohoku region and in Fukushima, as reported repeatedly in the media, he says he felt ashamed that the only thing he could do to help was to put his spare change in donation boxes at convenience stores. Just then, he was offered a job in the work for the recovery from the accident at the Fukushima Daiichi NPS, so he decided to go to work there from November 2011, overcoming opposition from his family and gathering allies in any way he could. Takenaka Corp. was engaged as a primary contractor for covering work at Fukushima Daiichi Unit 4 from October 2012 to March 2013.
In December 2013, angered to discover that the so-called hazard allowance differed from one subcontractor to another, ruining the sense of trust among colleagues working together under hazardous conditions, Arakabu decided to resign.
After he returned to his hometown, Arakabu was diagnosed with acute myeloid leukemia in January 2014. With his doctor’s recommendation and the cooperation of the primary contracting company, he made a work injury claim. He succeeded in getting it certified as a work injury on October 20, 2015. He also developed a mental illness as a result of his struggle with leukemia, and in 2016, that too was certified as a work injury.
Tokyo Electric Power Co. (TEPCO), on the other hand, claimed not to be in any position to comment regarding Arakabu’s work-related injuries. From a commonsense point of view, if there has been an accident and a worker involved in the recovery work develops an occupational disease as a result, a word of sympathy is in order. Thus, in November 2016, Arakabu filed a lawsuit against TEPCO in the hope that the working conditions of his colleagues at the NPP, who were being treated as disposable, could be improved. In the case of occupational disease due to radiation exposure at NPPs, the electric power company that owns the NPP is required to provide compensation according to the Act on Compensation for Nuclear Damage (Nuclear Compensation Act). The objective of Arakabu’s work injury trial was not simply to obtain money, but also to improve the working conditions and the environment on-site.
The Union Requests Collective Bargaining from TEPCO, Settlement through Central Labour Relations Commission
Under the Nuclear Compensation Act, if causality between radiation exposure and an occupational disease is recognized, compensation obligations arise. In Arakabu’s case, in the end it is the “nuclear power operator,” meaning TEPCO, that is required to compensate him. Therefore, if TEPCO complies with the government’s recognition of the occupational disease (determination of legal causation) and fulfills its compensation obligations, the problem will be resolved immediately. TEPCO, however, was in full contention that causation had not been scientifically recognized. They said that Arakabu needed to verify the kind of work he was engaged in and how much exposure he had been subjected to, resulting in leukemia. This required that the trial be extended.
In July 2017, Arakabu joined the Union and demanded collective bargaining from TEPCO. Under the Labor Union Act, employers are obliged to accept collective bargaining with trade unions representing workers. Failure to respond is prohibited as an unfair labour practice. The Union offered to undertake collective bargaining, saying that it had been TEPCO who had overseen the exposed workers, including Arakabu. TEPCO thereupon refused to cooperate on the grounds that it was “not the employer, but just a party placing an order.” The Union applied for relief from the TLRC, but they determined that the party ordering the work was not the employer. When they filed for re-examination with the Central Labour Relations Commission (CLRC), they were strongly advised to settle.
Arakabu expressed his views at the CLRC on January 6, 2023 for about ten minutes with a legal representative from TEPCO also in attendance. TEPCO expressed its own views as follows and reached a settlement on the incident.
“We have just heard the statement of opinion from the relevant union member regarding the reasons for his petition and related matters. On this basis the case was concluded today, with the union withdrawing its petition for re-examination. We would like to express our gratitude to this union member for his efforts in the work toward recovery from the accident at TEPCO’s Fukushima Daiichi Nuclear Power Station. In addition, we express our appreciation of the efforts of the Central Labour Relations Committee and Secretariat members in charge of the case, and declare that TEPCO will comply with labour-related laws and regulations as we proceed appropriately with work to decommission the Fukushima Daiichi Nuclear Power Station.”
The Union Requests Collective Bargaining from Takenaka Corp., Wins Order for Relief over Unfair Labour Practices
Note here that discussions with TEPCO in the court were possible, but since the principal contractor was not a party to the lawsuit, exchanges with the principal contractor could not occur as part of court procedures. In particular, the labour management conducted by Takenaka Corp., one of the primary contractors, was sloppy compared to that of other contractors.
In October 2022, the Union requested Takenaka Corp. to undertake collective bargaining regarding matters such as hazard allowance, opinions for the recognition of work-related injuries and the actual state of radiation control. Takenaka Corp., however, made no effort to look into these matters and refused to engage in collective bargaining, citing three reasons: that it was a past issue, that they were not the employer, and that it should be conducted in court. It is not uncommon for collective bargaining to be employed in parallel with court proceedings when dealing with past issues.
Takenaka Corp. is clearly not Arakabu’s direct employer that signed the employment contract, but as an employer that actually used Arakabu, a subcontracted worker, it is obliged to accept collective bargaining. The judicial precedent set by the Supreme Court of Japan states, “An employer is an ‘employer’ to the extent that it is in a position to control and make determinations substantially in reality, albeit only partially, and can be seen to be the same as an employer.” A primary contractor like Takenaka Corp. is an employer who is “in a position to control and make determinations substantially in reality” regarding Arakabu’s exposure on the job.
On 7 April 2023, the Union filed a complaint with the TLRC for unfair labour practices. In the course of its investigation, the TLRC recommended that Takenaka Corp. engage in some form of dialog regarding matters such as providing data, and to work toward a settlement. At the time, the Union thought it would be possible to settle if Takenaka Corp. would provide Arakabu with the data necessary for his trial and if they could communicate with each other regarding those data, but Takenaka Corp. consistently refused to settle.
An examination (witness inquiry) was held in February 2024, during which the on-site office manager testified on behalf of Takenaka Corp. and Arakabu and his colleagues testified on behalf of the Union. The office manager said he usually worked at the office near the JR Iwaki station and rarely went to the NPP site. Arakabu and his colleagues, on the other hand, described their relationship with the Takenaka Crop. managers onsite. As a result, the TLRC said that Takenaka Corp. must accommodate collective bargaining, as it was “recognized as an employer under the Labor Union Act because of its management of the work, including radiation exposure on the job.”
This was a truly landmark order, opening a way for subcontracted workers who have joined a trade union to engage in collective bargaining with their primary contractor, who has played a role as their employer in real terms. At the very least, this is the first case of a trade union with subcontracted workers at an NPP being granted collective bargaining rights with their primary contractor, who is not their direct employer.
Takenaka Corp. Files Lawsuit Seeking to Annul TLRC’s Order
Takenaka Corp. has filed a lawsuit with the Tokyo District Court, seeking to have the TLRC order annulled, and has not complied with the order. The defendant is the Tokyo Metropolis. The Union is continuing to ask Takenaka Corp. to participate as an auxiliary intervener in the lawsuit and to undertake collective bargaining as soon as possible. We appreciate everyone’s attention and support for this.
