Publié le par NaG@8133

Un projet de loi non dissuasive contre le harcèlement au travail

Le 08 mars, le gouvernement ABE a dévoilé le contenu du projet de loi contre le harcèlement moral dans les entreprises qui sera soumis à la Diète où il sera débattu.

Le projet de loi ne pénalise pas les entreprises qui cautionnent le harcèlement mais obligent celles-ci à mettre en place un service d’écoute et de soutiens aux salariés victimes d’abus de la part de leur hiérarchie. C’est un texte de compromis qui vise à faire cesser la fuite des jeunes talents démotivés à la suite des dégradations de leur condition de travail, et qui obligent les entreprises à trouver une solution avec les victimes en premier lieu avant que celle-ci ne saisissent la justice.

Des obligations incitatives à la prévention

Inclus dans un ensemble de mesures sur la réforme du travail (« propositions sur la réforme générale du travail » 労働施策総合推進法　Rodo seisaku sogo suishinho ) , le projet de loi anti-harcèlement prévoit 6 cas de figures de harcèlement au travail contre lesquels les employeurs seront obligées de faire de la prévention. Le harcèlement moral est pratiqué en grande majorité à l’encontre des subordonnés par les supérieurs hiérarchiques qui abusent de leur autorité.

La nouvelle loi définit le harcèlement comme un ensemble de faits et gestes violents pratiqués par des responsables hiérarchiques envers leurs subordonnés et qui n’ont aucun rapport avec la nécessité du service ou de l’activité de l’entreprise.  Si la loi est votée à la Diète, les entreprises seront obligées de mettre en place un service d’aide aux victimes tout en respectant leur anonymat et de prévoir dans le règlement intérieur les mesures disciplinaires à l’encontre de l’auteur en cas de fautes avérées.  Les entreprises devront par conséquent travailler pour se mettre régulièrement en conformité avec la loi.

Les cas de harcèlement définis par le projet de loi

Violences physiques :

Frapper, gifler, donner des coups de pieds, taper sur la tête d’un collaborateur avec un poster enroulé

Violences psychologiques :

Humilier quotidiennement un employé devant ses collègues par des moqueries comme « idiot », « fainéant » ou des propos blessants comme « on n’a pas besoin de toi ici, démissionnes »

Isoler un collaborateur :

Isoler un employé en déplaçant son bureau dans une pièce à part. Le forcer à travailler à distance

Donner une charge excessive de travail :

Donner l’ordre de boucler en une nuit une quantité de travail insurmontable.

Donner l’ordre d’accomplir les tâches des autres collaborateurs à un nouveau recrut sans le former et quitter le bureau avant celui-ci. 

Affectation à des tâches sous-qualifiées :

Forcer un chauffeur à désherber le parking des véhicules

Affecter un employé administratif au travail dans un entrepôt.

Immixion à la vie privée du collaborateur :

Poser des questions indiscrètes à ses subordonné(e)s sur leurs relations personnelles. Médire les conjoint(e)s des subordonnés.

Parmi les cas de violences physiques et psychologiques la loi ne considère pas les actes de coups et blessures, de menaces, d’insultes, d’exclusion et d’indifférence comme nécessaires à l’activité d’une entreprise. La jurisprudence a reconnu plusieurs cas concrets de propos blessants comme « tu coûtes trop cher à la boîte » , « même les idiots savent mieux que toi » ou le fait qu’un supérieur hiérarchique ignore exprès son subordonné alors que celui-ci le salue, comme de la violence psychologique.

Il est par ailleurs moins aisé de juger l’atteinte à la dignité de la personne, l’affectation à des tâches sous-qualifiées ou le fait de faire exécuter une charge trop importante de travail. Si par le passé les tribunaux ont reconnu comme harcèlement le cas d’un employé ayant délégué une charge excessive de travail à exécuter en une nuit à un collègue ayant moins d’ancienneté que lui, ou celui d’un conducteur d’autobus condamné par son supérieur à désherber le parking en plein été et pour une durée indéterminée en guise de punition à la suite d’un accident, le patronat a toujours fait pression au gouvernement pour étendre le moins possible la définition du harcèlement. En effet le puissant Keidanren (l’équivalent du Medef) craint qu’une loi dissuasive empêcherait les employeurs à employer des méthodes « directives » pour corriger certains de leurs collaborateurs lorsque c’est nécessaire.

Toutefois, les tribunaux reçoivent non seulement les plaintes visant les auteurs du harcèlement mais aussi celles à l’encontre des entreprises coupables d’avoir laissé dégrader les conditions de travail. Par ailleurs le bureau de l’inspection du travail a reçu plus de 72 000 signalements de cas de brimades ou de harcèlements en 2017. Autant de signes qui ne donnent plus le choix aux entreprises que de réagir au plus vite si elles veulent redorer leur image ternie à la suite des scandales à répétition de ces dernières années et révélés par les médias.

La liberté donnée aux entreprises et des solutions disparates

Selon le ministère du travail et de la santé, actuellement plus de 70% d’entreprises ont déjà mis en place un service d’écoute et de soutiens aux victimes de harcèlement, mais dans bon nombre de cas ceci reste purement formel.  Ce sont surtout les grandes entreprises qui prennent le devant pour mettre en place des initiatives diverses.

Calsonic Kansei (équipement automobile) : mise en place de services de surveillance au sein de toutes les filiales dans le monde. Organisation de concours, et attribution de prix aux collaborateurs ayant trouvé des solutions innovantes au problème de harcèlement.

Dentsu (communication) : ouverture d’une Hot Line dédiée aux victimes de harcèlement et à leur famille.

Kashima (construction) : élaboration de programme d’éducation et formation des tous les collaborateurs.  

Mitsubishi Heavy industries (industrie lourde) :  organisation annuelle de stage de sensibilisation à destination des cadres et des nouveaux recrus. Diffusion de manuels à l’ensemble des salariés.

Suntory Holdings (spiritueux) : généralisation de formation en ligne pour la sensibilisation

Bizreach (ressources humaines) :  installation d’un service de messagerie instantané pour signaler les cas de harcèlement, possibilité d’organiser des entretiens si nécessaire.

  80% ses cadres moyens âgés de 35 ans et plus interrogés par l’entreprise de conseil en ressources humaine En-Japan, ont répondu avoir subi le harcèlement de la part de leur hiérarchie. Parmi eux, 35% ont affirmé avoir démissionné selon la même enquête réalisée en février. M.Shinya TEZUKA, le rédacteur en chef du site internet d’informations « jinji no mikata » (l’aide au RH) géré par l’entreprise ayant mené l’enquête, de conclure : « Tant que les cas de harcèlement signalés à ce jour ne constituent que le sommet de l’Iceberg, on ne résoudra pas le fond du problème. Il faudrait plus de mesures qui visent à identifier les victimes suffisamment tôt et à éduquer les cadres pour éviter qu’ils deviennent les bourreaux de demain ».

   (Source NIKKEI 08/03/2019 暴言・無視・過大ノルマNG　企業にパワハラ防止義務)

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