National Labour Law Profile: Japan
Contributed by Liliane Jung.
General Legal Framework
Japan's
constitution founded on democratic principles was promulgated on 3 November 1946
and came into force 3 May 1947. It is considered the supreme law of the nation and the Emperor as well as the
legislative, executive and judicialpowers must respect and uphold it (Art. 99 of the Constitution). According
to this constitution, the Emperor has only a sybolic and formal function. The constitution also establishes the separation of
powers and the fundamental human rights.
The legislative power is vested in the Diet (KOKKAI), which consists of two houses, the
House of Councillors (Sangiin) and the House of Representatives (Shugiin). As a general rule,
a bill becomes a law merely by passing both houses. If a bill has passed the House of
Representatives but is defeated in the House of Councillors, it can become law if passed a second time in the House of Representives with two-thirds of all members present. With 480 representatives, the House of Representatives has also the larger number of
members compared to the House of Councillors (252). However, both houses are popularly
elected. As Japan is divided into prefectures, the membership is largely based on proportional
representation from prefectural districts. Only half of the members who belong to the House of
Councillor are elected from the nation at large. The members of both houses also have limited
terms of office. Members of the House of Councillors are elected to six year terms, and members of the House of
Representatives serve four year terms. The House of
Representatives may also be dissolved at any time by the government.
The executive power is made up of the Cabinet, which is headed by the Prime Minister. It
submits bills to the Diet and exercises control over administrative branches. The Prime
Minister is designated by the Diet and must, like the majority of the appointed Ministers, be
from among the Diet's ranks. The Cabinet's members do not have constitutionally limited
terms of office but must resign at the request of the Diet.
The Supreme Court (Saiko Saibansho) and a number of inferior courts are vested with the
judicial power. All judges are granted complete independence in decision making. The
Supreme Court has the rule making power and is considered court of last resort, that
determines the constitutionality of any law, order and regulation. It is made up of 14 judges
who are designated by the Cabinet and a Chief Judge. The latter is appointed by the Emperor
who must follow the Cabinet's designation. Each of the inferior courts are under the control of
the Supreme Court which nominates as well the candidates for the post of judge.
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Labour Law
Fundamental labour standards are granted in the Constitution. Those are:
- the right and the obligation to work (Art. 27 para.1)
- a ban on child labour (Art. 27 para. 3) and
- the freedom of workers' association - the worker's right to organize, to bargain and to act
collectively (Art. 28).
Concerning individual labour law, it is stipulated that wages, hours, rest and other working
conditions be fixed by law (Art. 27 para. 2).
Japanese labour law is established within this constitutional framework. It is elaborated by
acts, ordinances, collective agreements and work rules. The Civil Code adopted on 27 April
1896 gives a basic definition of employment contracts. Labour laws must additionally meet
constitutional demands by setting minimum labour standards. There are three major labour
laws, namely:
- the Labour Standards Law (LSL),
- the Trade Union Law (TUL) and
- the Labour Relations Adjustment Law (LRAL).
The LSL regulates firstly working conditions and secondly the workplace safety and hygene.
The TUL guarantees the worker's right to organize and to bargain collectively,
whereas labour management adjustments and means of dispute settlement are specified in the
LRAL. The LSL was adopted on 7 April 1947 and last amended 30 September 1998. The
TUL was adopted on 1 June 1949 and last amended 12 November 1993. The LRAL was
adopted on 27 September 1946 and last amended 14 June 1988.
The acts apply to Japanese employees of the private sector, with the exception of seafarers,
and may also include foreign workers possessing a visa with a work permit. Concerning those
employees who work in public owned enterprises, only the LSL is applicable. Labour relations
of public employees are governed mainly by special provisions according to the relevant
category. Labour legislation is often supplemented by ordinances, which are issued by the
Ministry of Health, Labour and Welfare (prior to 6 January 2001, this role had been fulfilled
by the Ministry of Labour) and the appropriate Labour Relations Commission. The latter body
consists of representatives coming equally from the workers' and employers' ranks as well as
from the general public. Labour legislation also tends to be rather abstract and therefore often
needs to be interpreted by ordinary courts, since there are no special labour courts in Japan,
and by the Labour Relations Commission.
The second strongest legal norm is the collective agreement, which, in practice,
part is, for the most, enterprise based, because it is mainly the enterprise trade union and the respective
employer who draw up agreements. Collective agreements affect primarily those workers of
the firm who are trade union members. According to custom, they tend to be put in writing
only as far as is legally required. Further provisions of the agreement, which must of course be in line
with the law, are often simply agreed to verbally. The written part of the agreements
might therefore be simple or vague.
This fact gives more importance to work rules, which stipulate common working conditions at
the enterprise level. Any employer with more than 10 employees must draw them up in
consultation with the trade union. Work rules must not infringe upon the applying collective
agreement. Then, they fix the elements of the labour contracts within the company,
independently of whether the individual worker is trade union member or not. According to the
amended Art. 15 of the LSL and its Enforcement Ordinance, contractual matters like wages,
working hours and working conditions must be put in writing, when the labour contract is
concluded. In practice, vague contract provisions are nevertheless preferred by the parties so as to
have the contract always in line with the work rules and the collective agreement.
The texts (in English) of the Labour Standards Law (including amendments until 1995),Trade Union Law and Labour Relations Adjustment Law are available from NATLEX, the database of national labour, social security and related human rights legislation maintained by the ILO's International Labour Standards Department
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Contract of employment
Permanent and fixed term contracts of employment
Japanese employment practice is traditionally founded on lifetime employment. The employee
usually remains with one company for his/her entire working life. The employment period is
thus not stipulated and the post is assured until mandatory retirement age, which is usually
somewhere between 55 and 60 years. Such a regular employee normally does not have special
skills when he/she enters but tends to be trained within the company by being rotated between
different jobs and departments.
However, this tradition does not meet the needs of all employers and employees. In the year
2000, the regular staff was 74% of all employees and the number is decreasing (Source:
Ministry of Public Management, Home Affairs, Posts and Telecommunication; Report on the
Special Survey of the Labour Force Survey). Specially skilled workers are often additionally
needed or small and medium sized enterprises may, for economic reasons, not entirely ensure
lifetime employment. Elderly employees often have the necessity to work after their retirement
age, because firstly they are not entitled to receive pension before reaching a certain age and secondly
the amount of the pension is often not enough to live on. Other workers also may prefer not to
stay with one company.
Fixed term contracts are therefore permitted under the restriction of Art. 14 of the LSL. No
objective reason for the limitation is necessary, but the legal period of validity must not be
extended. In general, labour contracts of a fixed term must not be longer than one year. In
some exceptional cases, the maximum period is three years. Such cases are labour contracts
with highly skilled or experienced workers who are necessary for either the development of
new products or temporary need of the business. The employment of workers who are at
least 60 years can also be limited up to three years.
Equal treatment of fixed term and permanent contractors is not legally mandated.
Nevertheless, Art. 2 of the LSL provides for a determination of working conditions by
workers and employers on an equal basis. De facto, such determination is strongly
influenced by trade unions through collective agreements and work rules, but most of the fixed
term contractors are not trade union members and therefore not necessarily covered. Thus, also
the unlawful prolongation of the fixed term contract by repeated renewals does not establish
an indefinite-term contract as of a regular employee.
Probation
Any labour contract may specify a probation period at the beginning of the employment
contract. The probation time is not legally limited. Its renewal is also not prohibited by law. A
protection against dismissal is nevertheless assured. After the first 14 days of the probation
time, the employer is legally forced to consider the normal notice period of 30 days when
giving notice (Art. 21 of the LSL). According to court rulings, the employer's freedom to
dismiss is also only merely extended during the probation time.
Special contracts of employment
Temporary work (dispatched work) is governed by the Worker Dispatching Law (WDL)
adopted 5 July 1985 and last amended 30 June 1999. In this employment situation, the worker
has an employment contract with a worker dispatching agency but works under the direction
of a client company which has concluded a dispatching contract with the dispatching agency.
The agency may hire the dispatch worker on a permanent basis. However, most workers are
only registered at the agency and then employed for a period according to the request of a
client company. This latter type of business requires permission from the Ministry of
Health, Labour and Welfare.
Dispatched work is prohibited mainly in port transport, construction and guard services (Art. 4
para. 1). In all other cases, the worker can be dispatched but in principle only up to one year
(Arts. 35.2 and 40.2 para. 1). Exceeding the one year limitation the client company will be
recommended but not forced by the government to hire the temporary worker as its own
employee.
The one year limitation does not apply to the following three cases (Art. 40 para. 1 No. 1-3):
- the dispatched worker has one of the 26 types of listed special skills
- the worker is needed for additional business of a limitted duration, or
- an employee taking maternity or child care leave needs to be replaced.
Administrative guidance nevertheless advises against but does not prohibits the dispatching of a
worker to the same post for longer than three years.
A dispatched worker can report any violation of the WDL to the Ministry of Health, Labour
and Welfare (Art. 49). However, his/her legal protection is comparatively weak. For example,
there is no obligation to enroll the worker in a social and labour insurance program. Privacy is
nonetheless secured considerably in the WDL (Arts. 24-26).
Part-time work is governed by the Part Time Work Law (PTWL) which came into force 18
June 1993. In the year 2000, 14.7% of all employees worked part-time. Most of them
(91.8%) were women. The number is increasing (Source: Ministry of Public Management,
Home Affairs, Posts and Telecommunication).Part-time workers are defined as workers whose
scheduled working hours per week are shorter than those of regular employees in the same
workplace (Art. 2). De facto, also quasi part-time workers exist. They are part-time workers
only in name and in law but work long hours. Part-time workers are considered to be non
regular workers, like the fixed term contractors. Regular pay hikes, bonus payment and
retirement allowances thus actually do not apply to them. However, a protection of part-time
workers is intended by the PTWL. Part-time workers' abilities, for example, should be used
effectively and working conditions should be balanced with those of regular employees (Art. 3
para.1). This is after all no obligation to the employer who is asked only to endeavour. The
only obligation laid down in the PTWL applies to the state, e.g. the promotion of the part-timers' welfare by the Ministry of Health, Labour and Welfare (Art. 5).
Vocational training contracts concluded by employers and young employees do not exist in
Japan. Instead, young employees are hired on the basis of a normal labour contract and then
trained on the job.
Suspension
Many enterprise based collective agreements and work rules establish suspension periods. A
suspension period is a period, during which the labour contract continues to be in force, but
the worker has no duty to work and the employer is partly or even completely released from
paying wages.
A worker may be suspended firstly as a form of punishment and secondly while a punishment
is decided upon, provided that the worker is prosecuted for a severe crime and the court has
not yet decided. In any case, each suspension with a possible wage decrease or even cut needs
to be appropriate to the situation. Suspension also often occurs, if the employee is on sick
leave, becomes a full-time union official or attends full-time training. The amount of wages to
be paid in these cases is determined at the enterprise level with no minimum set by law.
However, if the suspension is for reasons attributed to the employer (e.g. temporary lay off),
the employer must pay an allowance equal to at least 60% of the worker's average wage (Art.
26 of the LSL).
Termination of employment
Termination of a labour contract at the worker's and the employer's initiative is governed by
Art. 627 of the Civil Code, under which they are free to terminate the contract. In order to
meet the demand of Art. 27 of the Constitution to promote job security as a public matter, the
employer's dismissal is limited predominantly by the LSL, court rulings and collective
agreements. This restriction applies to unlimited labour contracts as well as to those contracts
of a definite period which have continued for longer than the period prescribed by law.
Notice must be given at least 30 days in advance before the dismissal takes effect (Art. 20 of
the LSL ). The number of days can be reduced, if the employer pays the average wage for
each day by which the period is shortened. It is recommended by court rulings but not legally
required to give notice in writing. Legal precedent further established the rule, that the
dismissal must be based on a reasonable cause. Without reasonable cause any dismissal is
regarded as an abuse of the right to dismiss and thus considered null and void. For example, a
dismissal for business reasons is allowed, if it satisfies all of the four requirements set by court:
- A personnel reduction is based on business necessity.
- Every possible measure to avoid layoffs is tried.
- The selection of employees to be dismissed is made on an objective and reasonable
basis.
- The employer consults faithfully with unions or employees.
On the contrary, dismissals on the following grounds or during the following periods are
regarded as null and void:
- reason of marriage, pregnancy or childbirth (Art. 11 para. 3 of the Act on Equal
Opportunity and Treatment between Men and Women in Employment)
- requesting child care leave (Art. 7 of the Act Concerning the Welfare of Workers who
take Care of Children or Other Family Members)
- trade union activities guaranteed by Art. 28 Constitution (Art. 7 of the TUL)
- the sex of the worker (Art. 8 para. 1 of the Act on Equal Opportunity and Treatment between Men and Women in Employment)
- during the absence of an employee because of work related illness and 30 days
thereafter (Art. 19 of the LSL)
- during an employee's maternity leave and 30 days thereafter (Art. 19 of the LSL)
Giving notice in advance when dismissing an employee is not obligatory in two exceptional
cases laid down in Art. 20 of the LSL:
- The continuance of the enterprise has been made impossible by a natural disaster or an
equivalent inevitable reason.
- The dismissal is for reasons attributable to the worker.
On the employee's request, the employer shall deliver a certificate stating reasons for dismissal
without delay (Art. 22 of the LSL). In case of an illegal dismissal, the court orders the
continuance of the labour contract and the employee is reinstated. The employee also may
claim damages instead. For further details please refer to Termination of Employment Digest.
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Hours of work
The average working time as stipulated in Article 32 of the LSL is 40 hours per week and 8
hours per day. These limits may be relaxed for a definite period, which is defined by agreement
of the employer and the enterprise trade union or, if such union does not exist, a worker
representing a majority of workers. There may be different forms of a flexible working time,
which are confined by ordinances. In any case, the average working time during the agreed
period must not exceed 40 hours per week (Art. 32-4 of the LSL). The employer must also
provide at least one rest day per week as well as rest periods during working hours, at least 45
minutes after 6 working hours and one hour after 8 working hours (Arts. 34 and 35 of the
LSL). Night work against increased wages is legally permitted but cannot be ordered to those
workers who are raising a child and request to be excepted.
Overtime work may also be stipulated by agreement of the employer and the trade union.
Increased wages must then be paid within a range of no less than 25% and no more than 50%
over the normal wage per working hour (Art. 37 of the LSL). On the numbers of hours
worked overtime, there is no statutory limit, except for female workers responsible for the
care of children and senior workers who must receive special protection. The Ministry of
Labour, however, is entitled to set a standard limit, by which employers and trade unions shall
endeavour to abide. In fact, the number of hours worked overtime is decreasing. In 1998, it
decreased to 134 per average worker (source: Labour Situation in Japan 2000, The Japan
Institute of Labour).
The exceptional case of a discretionary work scheme applies to legally specified professionals
including highly qualified white collar workers. For the application of this scheme, means of
accomplishment and allocation of time must be left largely to the discretion of the employee
(Art. 38- 4 of the LSL). No overtime premium is paid and the number of working hours is
stipulated by the above mentioned agreement regardless of any legal limitation.
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Paid leave
Annual leave with pay of the average wages is granted in Art. 39 of the LSL. The worker can
claim it, only if he/she reported for work on at least 80% of the total working days. The
number of annual leave days is related to the time the worker has already been employed in the
enterprise counting only those years, in which the worker reported sufficiently for work. Upwards of
6 months of continuous employment, the worker can claim 10 days of annual leave. In the
following two years, one day per year is added. Being employed for at least two and a half
years the worker is guaranteed two days added for each additional year of continuous service.
However, the total number of annual leave days does not become more than 20 days. Provided
that the vacations do not prevent business from operating adequately, they can be taken
whenever the employee decides to do so. In Japan, there are also 14 national holidays a year,
which are not legally binding for the private sector.
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Maternity protection and maternity leave
Maternity protection is regulated by the LSL. During pregnancy and up to one year after
childbirth, a ban is put on heavy physical work and on work with dangerous materials (Art.
64-5). Upon request, the expectant or nursing mother has the right to refuse overtime or night
time work and may ask for light work as well.
Maternity leave is secured by Art. 65 of the LSL, which does not include any payments during
this period. Upon request, a woman is excused from work within 6 weeks up to
childbirth and in case of a multiple birth, within 14 weeks up to giving birth. Within 8
weeks after childbirth, there is in principle a ban on work, but the mother may return to work
after 6 weeks, if upon her request and a doctor's approval.
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Other leave entitlements
The Child Care Leave Act provides for child care leave, which a female as well as a male
worker may take in order to care for her/his child who is less than one year old. This right
does however not apply to fixed term contractors (Art. 2 No.1). A child care leave benefit is
payed according to the Employment Insurance Law (Arts. 61-4 and 61-5). The employee
receives a child care leave basic benefit and a re-engagement benefit from employment
insurance. Social security premiums for health insurance and welfare pension insurance can be
exempted on the worker's request.
The employee is also entitled to leave in order to care for a family member according to the
Child Care and Family Care Leave Act. The family member, who might be the spouse, the
child, the parents or even the grand-parents, needs to be in a condition requiring continous
care (Art. 2). Such leave must not exceed three months and can, except for certain
circumstances, be exercised only once per person (Arts. 15 and 11). The employee does not
get any payment during this period.
Sick leave as described under Suspension is not ruled by law. It may be established by work
rules (Art. 89 par.1 of the LSL). Work rules can also stipulate assistance for injury or illness
(Art. 89 para. 8 of the LSL). However, the employee must be given time off to carry out
official duties (Art. 7 of the LSL). During menstrual periods, female employees can also
request days off (Art. 68 of the LSL).
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Minimum age and protection of young workers
The Constitution puts a ban on child labour (Art. 27 para.3). This is elaborated in the LSL.
Children under 15 full years must not be employed, except for those working for motion
picture production and theatrical performances (Art. 56). Children under age 18
may be employed outside of school hours in light labour that is not be dangerous or
harmful. Underground work is also forbidden.
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Equality
Discrimination on the basis of race, creed, gender, social status or family origin is banned
already by Constitution (Art. 14). This prohibition is elaborated in the LSL
(Arts. 3 and 4) and in view of gender also by the Equal Employment Opportunity Act
(EEOA). Female and male employees are subject to the same regulations in terms of overtime,
night work and rest days. With respect to wages, gender discrimination is prohibited by the
LSL (Art. 4). Discriminatory recruitment, hiring, assignment and promotion are inhibited on
the basis of the EEOA (Arts. 5 and 6). Any violation may be publicized by the Ministry of
Health, Labour and Welfare (Art. 26 of the EEOA). The EEOA also prohibits sexual
harassment and its observance must be supervised by the employer (Art. 21 para.1).
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Pay issues
The Japanese wage system is highly dependent on the number of years served with the same
company, the employee's level of education and the age also being taken into consideration.
Wages are defined as any payment to the worker from the employer, including salaries,
allowances and bonuses (Art. 11 of the LSL). In fact, the employee's economic situation is
often not only determined by the basic wage but also by added allowances, which may be paid
according to particular work rules, e.g. housing allowance or retirement allowance (Art. 89
paras. 3 and 4 of the LSL). In 1998, the average length of service was 11.6 years and the
average monthly contractual basic earning came to 324,700 Yen. The average added annual
amount of bonuses and allowances was 1,102,300 Yen. (Source: Ministry of Health, Labour
and Welfare "Basic Survey on Wage Structure").
However, a minimum wage is guaranteed to any employee, as stipulated in Art. 28 LSL and
the Minimum Wage Act. The minimum amount is not specified in legislation but set and
frequently adjusted by the Ministry of Health, Labour and Welfare in consultation with the
Minimum Wage Deliberation Commission. This commission has a national and a local level
and is composed of three delegations from among workers, employers and the public.
The payment of wages is additionally safeguarded, in the case of bankruptcy, with priority
being given to wage claims in the paying off of debts.
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Trade union and employers´ association regulation
Trade unions
The freedom of workers' associations is granted in Art. 28 of the Constitution. Trade unions
are ruled in the Trade Union Law (TUL) and defined as those organisations, which are formed
autonomously and composed mainly of workers for the main purposes of maintaining and
improving working conditions and raising the economic status of workers (Art. 2). Legally
covered are all workers, except for those either with a supervisory position or working for
welfare or political and social movements (Art. 2 paras. 1, 3 and 4). De facto, non-regular
workers - temporary and part-time employees - are also mostly not unionized.
The trade union's constitution must inter alia include the members' right to participate in all
affairs and prohibit the disqualification for union membership on the basis of race, religion,
gender, social status or family origin (Art. 5 - 2).Trade unions meeting all conditions are
registered by the Labour Relations Commission and then they gain a legal personality as well
as legal protection. This covers protection against unfair labour practices (Art. 7). Any
discrimination because of trade union activities is forbidden, and the employer must not have
any influence on the trade union's management. The employer is also not entitled to refuse to
bargain collectively without proper reason.
In 1999, 1,1700,000 workers of the private sector were unionized. The unionization rate has
been declining during the last 50 years. In 1997, it was at 22.6 % (Source: The Japan Institute
of Labour, The Labour Situation in Japan 2000). Over 90% of the unions are formed within
the limits of one company. These enterprise unions engage in activities and issues related to
their members within the enterprise. However, most of the enterprise unions in the same
industry are affiliated to industry federations such as the Confederation of Japan Automobile
Workers and the Japanese Electronic and Information Union. Industry federations are
generally constituents of the nation-wide Japanese Trade Union Confederation (Rengo).
Rengo, which was founded in 1989, absorbed rival national organisations and embraces now
unions of the private as well as from the public sector. Its competitor of much smaller size and
politically more to the left is the National Confederation of Trade Unions (Zenroren). The
industry federations and also the nation-wide confederation are in charge with the discussion
and the advice on general policies like wages or working conditions.
Employers' Association
Employers' organisations are not covered by the TUL, even though there are a number which
impact on the role of employers. The Japanese Federation of Employers' Associations
(Nikkeiren) plays a main role on behalf of employers in industrial relations. It has no direct part
in collective bargaining but sets guidelines to employers and thus actually influences labour
issues. It is also the official voice of Japanese employers in the International Labour
Organisation (ILO).
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Collective Bargaining and Agreements
According to Art. 14 of the TUL, parties to collective bargaining must be, on one side, a trade
union and, on the other, either the employer or an employers' association. In practice,
collective bargaining is mostly enterprise based. The employer must bargain with the
appropriate trade union in good faith (Art. 7 para. 2 of the TUL). According to the Supreme
Court's decision, this applies also in favour of a trade union representing dispatched workers,
if it wants to bargain with the client company regarding dispatched work related working
conditions (668 Rodo Hanrei 11; Sup.Ct. Feb. 28, 1995).
Further regulation of the collective bargaining process may be found in respective enterprise
based collective agreements, which often oblige employers to consult the trade union. In
Japan, consultation is regarded as a peaceful attempt to reach convergence, whereas collective
bargaining is recognized as a confrontation. Often, collective bargaining can barely be
distinguished from strike actions. Joint consultation may take place prior to collective
bargaining or may replace it in management policies that do not provide for the possibility of
bargaining. In some cases, even formal consultative committees are set up.
Wages are traditionally discussed each year in spring during the so called spring offensive.
Enterprise unions submit claims for pay increases under coordination from Rengo and
Zenroren as well as from the industrial federations. The employers respond under the
guidance of Nikkeiren. As soon as the major enterprises of influential industries come to an
agreement, a pattern is set for medium- and small-sized enterprises. However, circumstances
of individual firms are always taken into consideration, because it is the enterprise union's own
interest not to damage their own firm.
Written and signed collective agreements may have different terms of validity, but must not
exceed three years (Art. 15 of the TUL). Only those agreements in which no term of validity is
provided for can be terminated at either party's initiative at any time (Art. 15-3 of the TUL). A
collective agreement, which had ended, is basically no longer effective, but the parties may
agree that it should remain in force until a new collective agreement is concluded.
All collective agreements apply primarily to those employees who are trade union members. If
in one workplace, three-fourths of comparable workers fall under a collective agreement, this
agreement applies to all workers of the same kind within the workplace (Art. 17 of the TUL).
A collective agreement may have general binding power even in a whole locality, which is
actually an exception (Art. 18 of the TUL). This requires that the agreement applies to a
particular locality, not only to a firm, and a majority of comparable workers is bound. Further,
the Ministry of Health, Labour and Welfare must upon request of either party and pursuant to
a resolution of the Labour Relations Commission declare the agreement as binding to
all workers of the same kind.
Collective agreements have a normative effect on work rules and labour contracts. Work rules
must not infringe upon the collective agreement (Art. 92 of the LSL) and any labour contract's
provision that contravenes the standards set by the agreement is null and void (Art. 16 of the
TUL). A majority interprets these rules not as the setting of minimum standards but as the
establishment of a pattern, which should be followed in every respect.
Collective agreements additionally establish duties and rights to the contractual parties- mostly
the employer and the enterprise trade union. The employer has always the obligation of
executing what is to be understood as an obligation to provide conditions according to the
collective agreement. In many cases, further duties are imposed like the employer's obligation
to consult the trade union.
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Workers' representation in the enterprise
Within the enterprise, workers are usually represented by an enterprise trade union organized
by a majority of the workers. Its members are elected out of the own workers' ranks. The
election as well as the term of office is ruled in the trade union's constitution. If such a trade
union does not exist, the interest of the workers' majority must be represented by a single
worker.
Workers' representation is of considerable importance in the drawing up of work rules, which
the employer is obliged to do as soon as 10 or more workers are continuously employed (Art. 89 of
the LSL). Before drawing up work rules the employer has to consult the trade union or the
representing employee (Art. 90-1 of the LSL) . The given statement then needs to be attached,
when the employer submits the work rules to the Labour Standards Inspection Office (Art. 90-2 of the LSL).
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Strikes and lock outs
Labour disputes
Article 28 of the Constitution guarantees the workers' right to act collectively, which includes
labour disputes. Labour disputes are defined in the Labour Relations Adjustment Law (LRAL)
as "a disagreement over claims regarding labour relations arising between the parties
concerned with labour relations resulting in either the occurrence of acts of dispute or the
danger of such occurrence" (Art. 6). For labour disputes, the trade union and its members are
liable neither under civil law nor under penal law, as long as they act properly (Arts. 8 and 1
para. 2 of the TUL). This requires firstly that it is a legally registered trade union that acts and secondly that no violence
is used (Art.1 para. 2 of the TUL). Legally recognized are the acts of dispute mentioned in
Art. 7 of the LRAL, such as strikes, slowdowns and other acts hampering the normal course
of work, like the order to all workers to take holiday on the same day or the posting of posters on the establishments premises. Also shutting down the flow of traffic through the gates is a legal form of labour
dispute, as long as it is peaceful. All acts must additionally be for a lawful purpose, which is
surely the achievement of better working conditions. The workers are paid no wages while
striking.
Lock outs
The employer's right to lock out employees is not constitutionally and legally established.
However, it is recognized as a right of defence by a majority, but the employer needs to gain
first an injunction from the court.
Dispute settlement
Labour disputes can be settled upon request of one or both parties by conciliation, mediation
or arbitration. Each form of settlement is strongly influenced by the Labour Relations
Commission, a body representing equally workers, employers and the public.
The Labour Relations Commission exists on a prefectural and on a second, national level. On
this second level, the Central Labour Relations Commission reviews dispositions of the
prefectural commissions but also assumes exclusive jurisdiction in cases of national enterprises
(Art. 25 paras. 2 and 3 of the TUL). Members of the prefectural level are appointed as
recommended by trade unions and employers' organisations, whereas members of the central
commission are appointed by the Ministry of Health, Labour and Welfare.
The most feeble form of settlement is the conciliation by one or more conciliators nominated
by the Labour Relations Commission. A conciliator must be a person with experience in the
settlement of labour disputes (Art. 11 of the LRAL). He/She acts as an intermediaries between
the parties (Art. 13 of the LRAL). In the event of not being able to effect a settlement, the
conciliator must withdraw and then report the confidential facts of the case to the Labour Relations
Commission (Art. 14 of the LRAL).
Stronger than the conciliation is the mediation, which is carried out by a mediation committee
representing workers, employers and the public in equal number. The committee, which is nominated
by the Labour Relations Commission's chairperson, has the power to draft a proposal of the
settlement (Art. 26 of the LRAL). It can also put pressure on the acceptance of the proposal
with the help of the press.
Arbitration is the strongest and actually most rarely chosen form of labour dispute settlement.
An arbitration committee from among the members of the Labour Relations Commission is
nominated by the commission's chairperson. The arbitration committee meets and listens to
other members of the Labour Relations Commission representing employers and workers (Art.
31-5 of the LRAL). It finally takes a decision in writing - known as an arbitration award - which has the
same effect as a collective agreement (Art. 34 of the LRAL).
Settlement of individual labour disputes
Labour disputes are settled as labour related civil cases. Settlements are regulated by the Civil
Procedure Code from 1890, which was reformed in 1996, effective 1 January 1998, in order to
shorten procedures.
The employee files a complaint with the District Court as a court of first instance. Each
District Court has jurisdiction over a region which in general corresponds to the given
prefecture. Cases at the District Court are presided over by a single judge but may be heard by
a panel of three equal judges, if it decides that the gravity of the case warrants it. The losing
party in the first instance may appeal (Koso) the judgement of the District Court to a High
Court. There are 8 High Courts in Japan, each with an own territorial jurisdiction. The court
of appeal inquires into the fact and law once more and decides in a panel of three judges. The
party dissatisfied with the High Court's judgement may appeal (Jokoku) to the Supreme Court
as the court of last resort but needs to succeed the procedure of admission first, since the
Supreme Court can refuse the appeal in view of a lack of importance. In the Supreme Court,
the case is usually heard by the Petty Bench consisting of 5 judges.
A more detailed description of the court procedures is published on-line by
the Supreme Court of Japan.
If the employee complains about unfair labour practices, the Labour Relations Commission has
jurisdiction (Art. 27 of the TUL). The decision of the Prefectural Labour Relations
Commission is upon request reviewed by the Central Labour Relations Commission. Either
party then may file an appeal to the court. The reader may refer to the Termination of
Employment Digest.
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Official Gazette
Japan's
Official Gazette named Kanpo reports government actions as well as new legislation. Only the index information in Japanese is available on the Internet.
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Links
General Information
Constitutional Information
Labour Law Texts
Government and other relevant organizations
ILO
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Selected Publications
Publications in English
- The Japan Institute of Labour, Japanese Working Life Profile: Labour Statistics 2000(Tokyo,
2000).
- Ministry of Labour, White Paper on Labour 2000,
(Tokyo, 2000)
- Highlights in Japanese Labor Issues, Volume IV,
The Japan Institute of Labour, (Tokyo, 2000)
- Japanese
Economy & Labour Series:
- Kazutoshi Koshiro ed., Volume 6: Fifty Year History of Industry and Labor in Postwar Japan (Tokyo,
2000).
- Taishiro Shirai ed., Volume 5: Japanese Industrial Relations,
(Tokyo, 2000).
- Akira Takanashi ed., Volume 4: Japanese Employment Practice,
(Tokyo, 1999).
- Akira Takanashi ed., Volume 3: Employment Insurance Law, (Tokyo,
1998).
- Kazuo Koike ed., Volume 2: Human Resource Management, (Tokyo,
1997)
- Akira Takanashi ed., Volume 1: Shunto Wage Offensive (Tokyo,
1996)
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