View
215
Download
0
Category
Preview:
Citation preview
LABOR AND SOCIAL SECURITY LEGISLATION
HEIJI NOMURA AKIO SATO
CONTENTS Source of Law. . . . . . . . . . . . . . . . . .
Legal Provisions concern,ing Right to Organize and to
Bargain and Act Collectively under Article 28 ........ 2 of the Constitution . . . . . . . . . . . . . . . . . . . . .
Legal Provisions concerning Right to Work and Labor Standards under Article 27 of the Constitution 9
Legal Provisions concerning Social Security under Article 25 of the Constitution . . . . .
~ Characteristics of the Japanese Labor Legislation before the End of World War 11 . . . . . . . .
Post-war Labor Legislation and its Development . . . 22
Outline of the Legal System . . . . .
Right to Organize . . . . . . . . . . . . . . . . . . . . . . . .
Right to Bargain Collectively . . . . . . . . . .
Right to Dispute . . . . . . . . . . . . . . . . . . . . . .
Labor Relations Adjustment . . . . . . . . . . . . . . .
Labor Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...... 34 Social Sesurity System . . . . . . . . . . . . .
Statistics
I. Source of Law
In understanding the existing law, it is not sufficient to regard
only the statutes as its source. Customary law and judicial precedents
must also be studied. This is also true in case of the labor law.
In addition, by-1aws and rulings of trade unions, various agreements
between workers and employers, and workshop rules provided by
employers must be studied as sources of law governing relationship
between workers and employers. However, in this paper, these
cannot be discussed because of lack of space, so that only major
-1-
~~ J-l~
SHistory
~i ~1
written laws and ordinances will be explained.
The primary source of the labor law, including tl~Le social
security system, are the three provisions, Articles 25, 27 and 28 of
the Constitution of Japan to guarantee the fundamental labor rights.
The provision to guarantee the right to live provided in Article 25
directly accompanies the laws and ordinances related to the social
security system. Guarantees of the right to work provided in Article
27 and of the right to organize and _to bargain and act collectively
provided in Article 28 constitutes the indispensable means of realizing
the right to live provided in Article 25.
In connection with Article 27, there are the Employment Security
Law, the Labor Standards Law and other laws and ordinances, and
in connection with Article 28, the Trade Union Law, the Labor
Relations Adjustment Law and other laws and ordinances. However,
there are many provisions in the law_ s and ordinances in connection
with Article 28 which restrict or prohibit the fundamental labor
rights, and the unconstitutionality of these provisions is being
discussed.
The major laws and ordinances concerned will be explained in
the following order : concerning Article 28, Article 27 and Article 25.
1. Legal Provisions concern-ing Right to Organize and to
Bargain and Act Collectively under Article 28 of the
Constitution
(1) Trade Union Law (Law No. 174 of 1949)
Article 28 of the Constitution guarantees "the right of workers to
organize and to bargain and act collectively" as a fundamental legal
principle concerning movement of trade unions. In accordance with
this provision, the Trade Union Law was devised to protect
organization of workers and to assist their collective bargaining-
Article 1, para. 1.
The present law amended completely the Trade Union Law of
1945, which provided fpr all workers to come under its jurisdiction.
~2-
Since 1948, two million and several hundred thousands of laborers,
about one third of the organized laborers, have been exempt from
the effect of the Trade Union Law by the enforcement of special
laws such as the Public Corporations and National Enterprises Labor
Relations Law, the Local Public Enterprises Labor Relations Law, the
National Public Service Law and the Local Public Service Law.
According to the present Trade Union Law, the trade union is
an organization or federation thereof formed autonomously by the
workers for the main purpose of maintaining and improving working
conditions and for raising the economic status of the workers-
Article 2. The so-called GOYO KUMIAI*-an organization which is
more or less controlled by management-is not a trade union. The
present law defines such organizations as follows : They are ones
which admit membership to those who represent the interests of the
employer and which receive the employer's financial support in
defraying the organization's operational expenditures-Article 2, paras.
1 and 2. Any trade union which has a by-law in compliance with
the fixed conditions (Article 5) can acquire the status of a juridical
person by registering-Article 11. A union also must have such a by
law to participate in the formal procedures provided in this law for
remedies for an unfair labor practice and for the recommendation of
members of the Labor Relations Boards-Article 5.
The Trade Union Law provides that collective bargaining, acts
of dispute and other acts of trade unions which are fair and appropri-
ate do not become the object of punishment and indemnity for
damages-Article 1, para. 2 and Article 8. Furthermore, it prohibits
unfavorable treatment of workers for their having perfomed proper
trade union acts, the refusal to do collective bargaining and control
of and interference with trade union, as unifair labor practices
(Article 7), and provides the system of the labor relations board as
an organ for administrative remedies for unfair labor practices and
for adjustment of labor disputes.
*, It may be called company union.
-3-
~~ ~IT
~~1
The law nullifies any provision of an individual labor contract
contravening the standards concerning working conditions and other
treatment of workers provided in a collective agreement, and stipu-
lates that the provisions of the standards must be followed-Article
16. It also provides the general binding power and regional binding
power which extend the compulsory application of the collective
agreement to other workers of the same kind when it fulfills the
necessary conditions-Article 17 and 18.
As attached ordinances, there are the Enforcement Order of the
Trade Union Law (Cabinet Order No. 231 of 1949) and the regulations
of the Central Labor Relations Board set forth by the said board as
procedures for central and local labor relations boards.
(2) Labor Relations Adjustment Law (Law No. 25 of 1946)
The Labor Relations Adjustment Law is the general law relating
to the adjustment of the labor dispute. As in the case of the Trade
Union Law, however, there are many cases which are excluded from
the application of the Labor Relations Adjustment Law.
This law provides for conciliation, mediation and arbitration by
the Labor Relations Board and emergency adjustment decided by the
Prime Minister. In addition to this, it also provides for the restric-
tion of labor disputes.
When the parties concerned in public utilities resort to any act
of dispute, they must notify it to the Labor Relations Board and the
Minister of Labor or the prefectural governor at least 10 days prior
to the day on which the act of dispute is to be commenced-Article
37. When an emergency adjustment has been declared, the parties
concerned mu~*t not resort to any act of dispute for 50 days from
the day of its declaration-Article 38. In case there is a contra-
vention, those who are responsible for such contravention are
subjected to a fine-Article 39 and 40. Moreover, no act which
hampers or causes the stoppage of maintenace or normal operation
of safety precautions at factories and other places of employment
can be resorted to as an act of dispute-Article 36. Any contraven-
-4-
tion shall lead to the lessening of the protection provided by Article
1, para. 2 and Article 8 of the Trade Union Law.
(3) PLiblic Corporations and National Enterprises Labor Relations
Law (Law No. 257 of 1948)
The Public Corporations and National Enterprises Labor Relations
Law of 1948 provided, as a special law of the Trade Union Law and
the Labor Relations Adjustment Law, Iabor relations for the
employees of the Japanese National Railways and Japan Monopoly
Corporation, which became public corporations in 1948. By the
amendment of 1952, the Japan Telegraph and Telephone Public
Corporation and public enterprises undertaking the postal services,
administration of national forests, the printing of bank note for the
Bank of Japan, postage stamps, official gazettes etc., coinage and
services belonging to th_e alchohol monopoly were included in this
law. Those are called Three Corporations and Five Enterprises.
Unlike the Trade Union Law, this law restricts the fundamental ,
labor rights.
Subsequently, this law was amended to a considerable extent
upon the ratification of ILO Convention No. 87. But enforcement of
certain parts of this law was suspended as a result of a compromise
made at the Diet with the opposition party, which insisted that
such an amendment was unreasonable. Thus an advisory committee
was established in the Prime Minister's Office in order to "investigate
and discuss basic problems of labor relations of national and local
public service employees and employees of public corporations. The
provisions the enforcement of which was postponed are expected to
be subject to further amendment, and therefore are not discussed
here .
The same is true with respect to (4) the Local Public Enterprises
Labor Relations Law as well as (5) the National Public Service Law,
and the Local Public Service Law.
With regard to the right to or*"anize trade unions and the right
to join in such unions are recognized. - But the system of open shop
-5-
~i
~
is provided, under which employees may refrain from joining in
trade unions. In addition, the right to determine the scope of
employees who are in positions to represent the interest of employers
to be excluded from union membership, is not vested in the union
concerned, but the power to determine and to give notice of the
matter is given to the Public Corporations and National Enterprises
Labor Relations Board-Article 4, paras. I and 2.
This law guarantees the right to bargain collectively and the
right to conclude a collective agreement, but matters affecting the
management and operation of the public corporations and enterprises
are excluded from collective bargaining-Article 8.
Acts of dispute are prohibited under this law and any employee
engaged in conduct of violation is subjected to dismissal-Article 17
and 18. This law establishes the Public Corporations and National
Enterprises Labor Relations Board which undertakes conciliation,
mediation and arbitration with respect to a dispute between the
public corporation and the employees thereof. An award of the
Aabitration Commission is final and binding upon both parties, but
when it involves the expenditure of funds not available from the
appropriate corporation budget nor corporation funds, it must be
approved by the Diet-Article 35. If the award is not approved by '
the Diet, it will not be binding upon the Government.
(4) Local Public Enterprises Labor Relations Law (Law No. 289
of 1952)
This law provides labor relations for employees of the enterprises
which undertake the local railway services, tramway services, auto-
mobile transportation services, electricity services, gas services and
water supply services and so on which are operated by the local
public entity. Contents of the law are almost the same as those of
the Public Corporations and National Enterprises Labor Relations Law.
(5) Provisions concerning Labor Relations under the National
Public Service Law (Law No. 5 of 1947) and the Local Public
Service Law (Law, No. 261 of 1950)
-6-
The national public service employees were separated from the
general workers and their fundamental labor right were severely
restricted by the amendment of the National Public Service Law in
1948.
Regarding the right to organize, the National Public Service Law
provides for the open shop system-Article 98, para. 2. Moreover~,
no organization is allowed for employees of the police, fire services,
the Maritime Safety Agency, or prisons, and any employee engaged
in conduct of violation is subjected to punishment-Article 98, para.
4 and Article 110. This is also true in case of the employees of the
Defence Agency-the Self-Defence Forces Law, Article 64, para. 1
and Article 119.
Unions of the employees may bergain with the authorities in
conformity with the procedures established by the National Personnel
Authority, but cannot conclude any collective agreement with the
Government-Article 98, para. 2.
Acts of disputes are prohibited-Article 98, para 5. Any
employee engaged in conduct of violation is subjected to less than
three years' imprison ment with hard labor or a fine of less than
100,000 yen-Article 110. No employee engaged in conduct of
violation can stand against the State with the rights of appointment
or employment which he possesses according to laws and ordinances
-Article 98, para. 6.
Basic matters concerned to wages, working hours and other
working conditions can be changed, in order to meet with the social
conditions in general, by the Diet. The National Personnel Authority
must not neglect to recommend changes should they seelrL necessary.
At least once a year this authority must report to the National Diet
and the Cabinet simultaneously whether or not the list of wages
is appropriate. When the National Personnel Authority finds it
necessary to increase or decrease the amount of wages listed in the
list of wages by 5 per cent or more due to a change of conditions
upon which the amount of wages is^ decided, it must give proper
-7-
~ o
~
advice to the Diet and the 'Cabinet-Article 28. However, there are
no provisions to guarantee what kind of report or advice the National
Personnel Authority shonld give, or what to do when the National
Diet and the Cabinet reject the advice.
Unfair discriminatory treatment to an employee is remedied
through investigations of the National Personnel Authority-Article
89 to Article 92-2.
There are many National Personnel Authority regulations such
as attached ordinances which provide procedures for bargaining and
other matters.
Regarding the local public service employees, the Local Public
Service Law contains provisions similar to those of the National
Public Service Law. Major differences consist in that unions of
employees can conclude a written agreement with a local public
entity unless it violates the laws, ordinances, and regulations
of the local public entity and rules established by organizations
of the local public entity (Article 55, para. 2), and that a Personnel
Affairs Committee or an Impartiality Committee are organized in
each local public entity instead of the National Personnel Authority.
(6) Law concerning Control of Methods of Acts of Dispute in
Electric Enterprises and the Coal Mining Industry (Law
No. 171 of 1953)
This is an independent legislation which prohibits acts of dispute
in private industries to which the Trade Union Law applies.
Those who are employed in the electric enterprises shall not
perform, as an act of dispute, an act of suspending the normal
supply of electricity or any other acts of interrupting directly the
nomal supply of electricty-Article 2.
Those who are employed in the coal minin_g industry shall not
perform, as an act of dispute, such act of suspending the normal
operation of mine safety maintenance activities, provided for in the
Mine Safety Law, which might endanger human lives in mines,
inflict iuinous or serious damage on mineral resources, destroy vital
-8-
facilities in mines, or cause damage by mining-Article 3.
2. Legal Provisions concerning Right to Work and Labor
Standards under Article 27 of the Constitution
Article 27 of the Constitution of Japan provides the basic legal
priciple of protection of workers. Para. I of Article 27 provides all
people shall have the right and the'obligation to work. However, as
detailed .statutes to guarantee the right toiwork, only the Employment
Security Law and the Unemploymet Insurance Law provide, to
a limited extent, the people with opportunities to get suitable jobs
and work and grant benefits to the insured person when he is
unemployed. From the basic legal principle of the standards for
working conditions provided in para. 2 of Article 27, the Labor
Standards Law and other related statutes have been derived.
(1) Employment Security Law (Law No. 141 of 1947)
This law provides for employment exchanges and hiring arran*"e-
ments, Iabor recruitment and vocational guidance. (a) Employment
exchanges and hiring arrangements are performed as a rule by a state
or*~an which has the Public Employment Security Ofiices as its
branches. (b) Private employment exchanges and hiring arrangements
are recognized exceptionally under conditions which are laid down.
A fee-charging employment exchange service can only be recognized
when fee-charging agencies are licensed by the Minister of Labor
and provides services- for artists, musicians, entertainers, and other
highly specialized vocations. However, in any case, no agency
can recommend applicants for jobs at any place of employment
where there is a strike or lock-out. (c) Commissioning of labor
recruitment requires permission of the Minister of Labor. (d) No
one is allowed to conduct a labor supply project except that a trade
union may conduct such a project , for which no compensation is
made, provided it obtains permission of the Minister of Labor.
<e) Vocational guidance is also performed by the Public Employment
Security Office.
.- 9 -
~~i
l¥
~J
~
Other laws which fall under this system are the Emergency
Unernployment Countermeasures Law (Law No. 89 of 1949). Law
concerning Temporary Measures for Unemployed Coalmine Workers
(Law No. 199 of 1959), Law of Employment Promotion for Disabled
Persons (Law No. 123 of 1960), Vocational Training Law (Law No.
133 Gf 1958), Law concerning Special Corporation for the Promotion
of Employment (Law No. 116 of 1961), Seamen's Employment Security
Law (Law No. 130 of 1948) and Law concerning Harbor Workers
(Law No. 120 of 1965).
(2) Unemployment Insurance Law (Law No. 146 of 1947)
The purpose of this law is to grant an unemployment insurance
benefit to a worker by the Government as the insurer when he is
out of a job. It is applied compulsorily to enterprises which employ
five or more workers, voluntarily in case of less than five workers.
(a) In case an insured person is unemployed after he has been
insured for more than six months in total during the one year
preceeding the date of separation, and has received the recognition
of unemployment made by the Public Employment Security Office,
he is eligible to receive the daily amount of unemployment insurance
benefit of 60 per cent of his daily amount of wages. The payment
of the unemployment insurance benefit is limited to 180 days as
a rule and minimum 90 days and maximum 270 days according to the
period which a qualified recipient has been insured. (b) The National
Treasury bears a maximum one-third of the amount of the expenses
necessary for insurance benefits, one-fourth as a rule. The monthly
premium rate is 1.4 per cent of the total wages of the insured person,
and the amount of premiums is shared equally by the insured person
and the employer. (c) Special measures are provided for day
workers-Chapter V.
(3) Labor Standards Law (Law No. 49 of 1947)
Article 27, paras. 2 and 3 of the Constitution provides that
"standards for wages, hour;s, rest and other working conditions shall
be fixed by law. Children not be exploited. " The Labor Standards
- _10 -
Law is in a central position among labor laws which have been
derived from this Article, and provides the minimum standards of
working conditions.
(a) In its general provisions, prohibition of discrimination by
reason of nationality, creed or social status, equal wages for men
and women, pro:hibition of forced labor and of intermediate exploita-
tion, and guarantee for the exercise of civil rights are provided.
(b) Regarding labor contracts, any contract violating this law is
invalid, all contracts must clarify working conditions. The following
are forbidden ; contracts of indemnity ; deductions for advanced
payments ; compulsory deposits ; the dismissal of workers injured or
taken ill on duty and of women before and after childbirth ; black
lists. Dismissal notices or advanced notice allowances (more than
30 days average wages) must be provided. (c) Wages must be paid
in cash and in full directly to the workers at least once a month at
a definite date, the Minimum Wages Law provides the method and
procedure of determining minimum wages. (d) Working hours are
principally 8 hours a day and 48 hours a week with one day of rest
a week, and an annual vacation with pay from 6 to 20 days must be
granted. (e) Detailed provisions for safety and hygiene are provided
in the Ordinance on Industrial Safety ahd Hygiene. As for silicosis,
there is the Silicosis Law (Law No. 30 of 1960). With regard to
industrial safety and hygiene, the Law concerning Organizations for
the Prevention of Work Accidents (Law No. 118 of 1964) was enacted.
(f) As for protection of women and minors, restriction of employment
of minors under 15 years of age and a ban on night labor are
provided. (g) Regarding injury, illness and death in the course of
employment, the employer is liable for compensation thereof. Com-
pensation in given for medical treatment, sick leave, permanent
physical injury, an injury or illness that has caused incapacitation.
In connection with these matters, there is a special law called the
Accident Compensation Law for National Public Service Employees (Law No. 191 of 1951). (h) Responsibility for drawing up and sub-
- 11 -
~~I
~ l¥
~
mitting workshop rules, the right of the workers to run their
dormitories, and the establishment of labor standards ins~p ection
offices to supervise labor conditions are provided. The persons who
violate this law can be punished with penal servitude not exceedin*"
10 years or with a fine not exceeding 30,000 yen.
(4) Minimum Wages Law (Law No. 137 of 1959)
This law provides that the labor administrative ofiice may fix
the amount of minimum wages according to the categories of
enterprises or occupations or regions. The amount of the minim~Im
wage is determined by the following four procedures : (a) In the
case of an inter-enterprise agreement concerning the minimum wage
(an agreement among employers or employers' organizations) being
concluded and when an application has been made to the labor office
by mutual consent of all the parties concerned, minimum wages
applicable to the employers concerned and to the workers employed
by them are decided, by the labor ofiice and are based on the
provision of the inter-enterprise agreement-Article 9 ; (b) In the
case of the greater part of workers of the same kind in a specified
region and of employers employing them being covered by the same
or substantially the same minimum wages based on an inter-enterprise
agreement, and when an application has been made by mutual
consent of the gteater part of the employers covered by the minimum
wages, their effect may be extended to all the workers and employers
in the specified region-Article 10; (c) In the case of the greater
part of workers of the same kind employed in establishments in
a specified region and of employers employing them being covered
by one collective agreement containing a provision concerning the
minimum wage or in the case of their being covered by two or ~
more collective agreements containing provisions of which - contents
are substantially the same in respect to the minimum wage,
and when an application has been made by mutual consent of all
the trade unions or employers concerned, regional minimum, wages
are decided, based on these provisions of e~)llective agreements-
- 12_ -
Article 11; (d) The decisions of the amount of the minimum wage
is made, after consultation with the Minimum Wage Council whose
opinion must be respected. This law also provides for minimum
wages for piece-work conducted at workers' homes. Persons who
violated this are liable to a fine not exceeding 10,000 yen.
(5) Seamen's Labor Law (Law No. 100 of 1947)
The provisions of the Labor Standards Law, with the exception
of the general provisions, are not applied to seamen. The Seamen's
Labor Law provides the minimum standards of working conditions
for seamen and is a special law of the Labor Standards Law.
3. Legal Provisions concerning Social Security under Article
25 of the Constitution
Article 25 of the Constitution provides that all the people shall
have the right to maintain a minimum standard of wholesome and
cultured living, and that in all spheres of life, the State shall use
its~ endeavors for the promotion and extension of social welfare and
security, and of public health. Laws concerned with the social
security system are based on the above provision. These are divided
into two groups. One comes under the social insurance la~vs of
which the Health Insurance Law is a branch, and the other group
comes under the other national assistance laws which includes the
Livelihood Protection Law.
(1) Health Insurance Law (Law No. 70 of 1922)
Various insurance laws designed to protect wokers are the most
important among the laws concerning social insurance. The Health
Insurance Law, as one of the labor insurance laws, aims to grant an
insurance benefit to an insured person for injury, illness or death off-
duty, or childbirth and to grant an insurance benefit to his or her
dependents for injury, illness or childbirth-Article 1. The Govern-
ment or health insurance associations become insurers and collect
premiums acoording to the income of the insured (the premium rate
is 6.5 per cent for these under the Government insurance scheme,
- 13 -
ll ~I
Il !i
V!I
and bet・~veen 3 ;~*_nd 8 per cent for the~~e under a health insurance
association scheme ; the cost of the premiums is shared equally by the
insured person and the employer), and when an insured person has an
accider*t, expenses for medical treatment are covered (half the amount
of medical treatment for dependents). The medical treatment and
dispensin*' of medicines have to be performed according to regulations
(these regulations cover the organization for medical treatment of the
insured and those persons in charge of such medical treatment and
for medicines for the insured and those persons in charge of providing
medicines for the insured)-Article 43-6. The law is compulsory
for enterprises which employ five or more workers, and is voluntary
for those which employ less than five workers.
For day workers, there is the Health Insurance Law for Day
Workers (Law No. 207 of 1953).
(2) Workmen's Accident Compensation Insurance Law (Law
No. 50 of 1947)
This is ' a I abor insurance law to provide workers with accident
compensation against injury, disease, incapacitation or death from
employment. For accidents on-duty, the Labor Standards Law
stipulates that the employers are responsible for compensation. On
the oth_er h_and, that law also provides that permiums are collected
from the employers, and that the Government pays compensation
when there occurs an accident which is covered by insurance. In
enterprises in which accidents are likely to occur the payment of
premiums is compulsory, in other enterprises it is voluntary.
(3) Public Welfare and Pension Insurance Law (Law No. 115
of 1954)
The presen+* law is an ov~er-all amendment of the law of 1941.
It is a labor ins'u:rance law to grant a pension and a lump sum to an
insured person when he becomes old, disabled, dead or dismissed.
Payment of old age pensions starts from 60 years of age for men
and 55 for women, as a rule. The amount of the pension is the
amount obtained by multiplying 250 yen by the number of months
- 14 -
for the period the insured person has been insured plus the amount
obtained by multiplyin*' I per cent of the average monthly wage by
the n_umber of months for the period the insured person has been
insured. In the case of an insured person having a dependent
sD. ouse or children (1ess than 18 years of a*"e), 4,800 yen per person
is addecl to the amount of the pension. The Government is the
in*~urer in this law. The enterprises to which this law applies are
the s*-me as those to which the Health Insurance Law applies to.
The monthly amount of pfemium is between 3.9 and 6.7 per cent of
the average monthly wages and is shared equally by the insured
pers_on and the employer.
However, where majority of the insured person in a given
enterprise and a trade union organized by more than one third of the
insured person, where such union exists, give consent, the employer
may establish a welfare pension fund in order to apply it for the
payment of the amount of provision fixed in according to the average
monthly wage of the insured.
(4) Smaller Enterprise Retirement A110wance Mutual Aid Law
(Law No. 160 of 1959)
Regarding unemployment, there is the Unemployment Insurance
Law above mentioned. Besides, this law provides a system of the
retirement allowance mutual aid for the employees of the smaller
enterprises those that (ordinarily employers less than 300 workers),
under which the employ~ers pay the contribution to the Smaller
Enterprise Retirement A110wance Mutual Aid Projects Corporation,
which pays the retirement allowance to the employees in case of
their ~1~etirement.
(5) Seamen's Insurance Law (Law No. 73 of 1939)
This is a special labor insurance law for seamen. It aims to
grant an insurance benefit to an insured person for illness, injury,
childbirth, unemployment, old age, disablement, incapacitation or
death and to grant a_n insurance benefit to the insured person's
dependents for illness, injury, childbirth or death.
- 15 -
~1
pll
(6) People's Health Insurance Law (Law No. 192 of 1958)
The present law is an over-all amendment of the law of 1938.
A11 the previously mentioned social insurance laws are so-called labor
insurance laws for workers, but this law is a social insurance law
for the people. It defines the accidents to be insured as illness,
injury, childbirth or death of the insured person. In this respect, it
corresponds with the Health Insurance Law. The insurers are cities,
towns, and the special wards. The people's health insurance associa-
tion can also become an insurer. *
(7) People's Pension Law (Law No. 141 of 1959)
The purpose of this law is to grant a pension to the people, wh_o
are not guaranteed by the public pension system for workers, wllen
they become old or disabled and to their dependents when they die.
It is compulsory for people of more then 20 years and less tll._an
60 years to be insured. The premiums are 100 yen a month for
persons les-e than 35 years of age and 150 yen a month for persons
of and over 35 years of age. Payment of the old age pension *_tarts
frowL = 65 years of age, and the amounts are 2,000 yen a month for
the insured who have paid premiums for 25 ye"*rs and 3,500 yen
a month for the insured who have paid premiums for 40 years.
(8) Livelihood Protection Law (Law No. 144 of 1950)
The previously mentioned legal system for social insurance
constitutes one phase of the social security system. Another phase
is the legal system concerning allowances by the State which provides
for a fixed standard of living. This law, as its central statute,
provides that the State shall render necessary protection to all people
who are in needy circumstances due to poverty and guarantee tllern
a minimum standard of living, following the principle prescribed
under Article 25 of the Constitution. The ways, by which protection
is given, are : Iiving allowances, educational allowances, housing
allowances, medical treatment allowances, childbirth allowances,
business allowances, and funeral grants. The amount of the allow-
ance is decided by the Minister of Welfare-Article 8. According
- 16 -
to the revised standard of allowances in April 1963, the amount of
the allowance for a family of five persons living in an a_rea, where
co-st of living is at the highest level, is 18,204 yen a month (an
average of the standards for summer and winter and includes living
allowance, housing allowance and educational allowance)-this is
bas-ed on a survey made by the Social Affairs Bureau of the Ministry
of Welfare, p. 138 of the Japan's Social Security Reader edited by
Hitoshl Matsuo.
Besides, there are the Child Welfare Law (Law No. 164 of 1947),
the Mother and Infant Welfare Law (Law No. 129 of 1964), the Old
Age Welfare Law (Law No. 133 of 1963), the Disabled Persons Welfare
Law (Law No. 283 of 1949) and the Mentally Weak Persons Welfare
Law (Law No. 37 of 1960), which provide allowances by the State for
children and other persons requiring assistance. In case of a disaster,
the Accident Relief Law (Law No. 118 of 1947) provides for emergency
relief.
(9) Social Welfare Undertaking Law (Law No. 45 of 1951)
This law provides for the basic regulations in all spheres of social
welfare undertakings and, with the Livelihood Protection Law and
other laws for social welfare, ensures such undertakings are carried
out fairly and properly in order to promote the sound development
of social welfare-Article 1. This Law provides for the Social
Welfare Conucil, welfare ofiices, social welfare superintendents, Iegal
person of social welfare, social welfare conferences, and community
chests.
II. History
It was after the end of World War 11 that the legal system for
labor and social security, imperfect though they are, were completed
in Japan. The development of these systems was due to the
leadership of the A1lied Nations after Japan surrendered in 1945 and
also to the influence such new movements as the Japanese trade
unlo Is. Generally speaking, the orgamzation of these systems can
- 17 -
~
jL
be said to have been on an international level. However, restrictions
on workers' rights have gradually been accumulated as can be seen
in various laws regulating trade unions. Therefore, to get a clear
understanding, the history of the labor law should be divided into
two parts-characteristics of the legal system before the end of World
War 11 and postwar development.
1. Characteristics of the Legal System before the End of
World War II
The following four points stand out :
(1) First of all, Japan had an extremely poor system of legal
protection of workers, which was far below the prewar international
level. Of course, there was the Factory Law enacted in 1911 and
enforced finally in 1916. In addition, there were the provisions of
the Mining Law of 1905 and provisions in the Commercial Law for
seamen of 1899, and the Shop Act of 1938. However their contents
were poor and not sufiicient to regulate workin*' conditions.
For this reason, Japan was famous for its extremely low level
legal protection of workers. The Factory Law provided working
conditions for women and minor workers, - but did not have any
protective provision for adult men. It allowed two rest days a Inonth
and 11 working hours a day for women and minors, while the
international level was an eight hour working day. Furthermore,
the working hours could be extended by two hours when approved
by the government. The minimum wa*'es law in the field of sweating
labor did not exist. Indeed, it could be said that the legal system
in these days was of a colonial grade below the Indian level.
Moreover, th_e Factory Law was applied to only those undertak-
in*"s where more than 10 persons were employed all the time. Petty
undertakings with less than 10 employees, which constituted the
vast majority of the undertakings in Japan,were excluded from the
application of this law. It cannot be forgotten that application of this
law was a result of an amendment after a resolution of the Inter-
- 18 -
national Labor Conference established as a result of World War 1.
It was in 1929 when night labor of women and minors was
banned legally and regulations on industrial safety and hygiene and
for dormitories attached to enterprises were provided. In the field
of mining, it was in 1938 when night labor at, coal selecting places
was abolished, and it was in 1937 when a law to achieve this end
was enacted.
Regarding the accident compensation system, a very small
allowance was provided in the Factory Law and the Regulation for
Coalminers' A110wance of 1916. For employees of the government,
an allowance was provided in the Employees' A110wance Order.
In the engineering and construction industry, an allowance was not
provided until 1931 when the Labor Accident A110wance La~w was
enacted. However, when these protective laws be*'an to shape, even
though they were imperfect, Japan being on the brink of war in
a difficult position. Consequently, an attempt to protect labor forces,
and such an attempt had to be performed rationally in accord-
ance with the capitalistic order, was neglected for a long time, and
soon labor was m_obilized into working round the clock on seven
days a week. Therefore, it may fairly be said that no protective
laws in a substantial sense existed when Japan surrendered.
(2) The second point to be mentioned is tb_at tb_e social security
system was also extremely poor, Iacking its central them_e of an
unemployment insurance system.
In early 1920/s , only the Health Insurance Law of 1924 (also
served as an accident allowance insurance law) had been enacted
as social insurance. During the Sino-Japanese War, impoveris-hment
of farming families caused by panic in rural districts *"nd the res'Jltant
irnpairing of the health of young men came into question, and the
People's Health Insurance Law was legislated in 1938. This was
followed by legislation of the Seamen's Health Insurance Law and
the Employees' Health Insurance Law in 1939. It could be said that
the nature of the social security system in those days became simply
- 19 -
j¥
t
a measure to promote the health of young men who would be needed
for the army.
The accident insurance system for workers of the engineering
and construction industry was established in 1931 with the legislation
of the Accident Allowance Responsible Insurance Law. The Seamen's
Insurance Law was enacted in 1939 and the Public Welfare Pension
Insurance Law which had the nat.ure of insurance for the old and
the disabled was established in 1941.
At this time capitalism in Japan had already entered into its
monopolistic stage and maintained a big industrial reserve force of
labor. For a large number of unemployed workers during the panic,
the Retirement Reserve and A110wance Law was enacted in 1936.
Due to lack of sufficient legal protection, the majority of such
unemployed workers were obliged to seek refuse in the countryside
with their families and were thus protected by the family system that
still prevailed among the poor farmers. However, many of the
unemployed were sent abr02Ld party as soldiers and party as settlers
and others during the war were drafted or mobilized. There was
no machinery to deal with the serious unemployment right after
the end of war.
(3) The third point is that in Japan autnomous organizations
and collective acts of workers were not expressly forbidden ; but,
actually legislation and social structure that existed served to suppress
such activities and to create a tendency to regard such activities
unlawf ul.
Japanese capitalism is said to have been established after the
Sino-Japanese War. Therefore, Iabor disputes and attempts to
organize trade unions also began at that time. For example : The
Association for the Realization of Trade Unions was founded, and
the lronworkers Trade Union was formed in 1897 ; there were strikes
at the Tenma Spinning Company and the Mie Spinning Company in
1894 and after, and a strike of the Nihon Railway Company in
1898. However, these union movements were frastrated by the Peace
- 20 -
Police Law of 1900. Workers were thrown into prison for instignat-
ing a movement for h_igher wages under the charge of violating
Article 17 of the Peace Police Law. This article was repealed in 1926
and the union movements became legal, but the main purpose of this
law was included in the Law for Maintenance of the Public Peace
(1925), the Penal Law for Acts of Violence (1926) and the Labor
Disputes Mediation Law which allowed police mediation. Consequently,
any movements which could be labelled as socialistic and considered
to challenge the right to own private property could be suppressed
without reserve and labor disputes could be settled by police inter-
vention. Active unions movements were kept separate from those
unions who were inactive and cooperative. However, even the
collective bargainings of these mild unions were also suppressed by
the Police Regulations when a union member committed acts in
organizing a strike that were considered as violating such regulations,
such as following his fellow workers about or forcing his employer to
see him. Union organizers could be arrested under the excuse of
detention-for-protection based on the Administrative Execution Law
and could be tormented by being taken from one police station to
another. A draft of a trade union law to foster the harmless and
cooperative unions was considered after World War I. It was submit-
ted to the National Diet in 1926. However, even such bureaucratically
controlled trade union law was not established. Such high-handed
policies toward workers and the idea of creating an industrial family
exploiting the paternalis*tic consciousness of the workers become
intensified after the outbreak of war with China. At last, all labor
dispute were virtually restricted. The administrative authorities
encour*~ged the voluntary dissolution of trade unions and at the same
time reorganized them into industrial patriotic leagues to make them
cooperate in wartime production under the command of the employers.
Consequently, when Japan was defeated, a few veterans of the old
union movements survived and some tendency of sabotage was seen,
but the tradition and experience of union movements had disa~peared.
- 21 =
l¥
~~
Nothing but the idea and the framework of the industrial patriotic
leagues remained within the enterprises. Of course, there was no
legal tradition to promote union movements. The general weakness of
consciousness as workers helped school teachers and public employees
being unaware of their position as workers and strengthened their
feeling as in privileged position. Such tendency prevented them
from organizing trade unions. ,
(4) The fourth point is that the labor market, through public
employment exchange agencies, was poorly developed, and that labor,
similar to hard labor in prisons, was compulsory with labor recruitment
organized on slave-dealer lines. Public employent agencies were not
fully utilized. Workers were recruited on the spot or through
relatives or acquaintances, partly because most of the workers came
from agricultural districts. Not only women workers in the textile
industry and men in the engineering and construction industries, but
also workers in modern factories were employed through their relatives
or acquaintances. Such methods of recruitment brought about profit-
eering in selling jobs and thereby the exploitation of workers, a sy~stem
known as 'Pin Hane'. As a result, the 'octopus rooms' in mines,
prison rooms in the construction industries, and forced labor in the
crabfishing (Kanik6-sen) and textile industries appeard. The Employ-
ment Exchange Law of 1921 and the Fee Charging Employment Exchange Regulation of 1925 were in existence, but their effect ~were
nugatory. Employment agencies were renam_ed labor mobilization
offices during the war, and played an important role in the drafting
and mobilization of labor under the National Mobilization Law.
The , above mentioned chacteristics made the post-war labor
legilsation an epoch-making developmen,.
2. Post-war Labor Legislation and its Development
(1) The 'enforcement of the Trade Union, Law and the enactment
of the Labor Relations Adjustment Law in 1946, and the enactments
of the Labor Standards Law, the Employment Security Law and the
- 22 ~
Unemployment Insurance Law in 1947, together with the provisions
of the Constitution, which guaranteed the right to live, work,
Organize and act collectively, brougnt about a system in conformity
with the recognition of fundamental labor rights.
(2) During this time, however, the orders of the Occupation
Forces, which superseded those of the Constitution, were effective.
Consequently, regulations overriding those of the Constitution, as in
the cases of the prohibition order for the Strike of Feb. 1, 1947,
and the prohibition order for the public service employees strike in
July 1948, were put into force. The initial policy of the Occupation
Forces was to promote union movements, but soon it was changed
to one of suppressing such movements.
Since the prohibition order for the public service employees'
strike (Cabinet Order No. 201) was enforced, th_e labor legislation
has been reformed in confonnity with this order, even in this field
of the national laws under the Constitution. The present National
Public Service Law, Public Corporations and National Enterprises
Labor Relations Law, Lacol Public Service Law, and Local Public En-
terprises Labor Relations Law are concrete results of this reformation.
The_re are two major characters of this legislation. One is that
the application of the Trade Union Law to the public service em-
ployees and public enterprise employees was excluded and that the
application of the Labor Standards Law to the public service
employees was also excluded. The trade union of th_ese employees
was divided and organized according to the aD. plication of these laws.
The other is that these workers' right to strike was denied and the
ri**ht to bargain collectively was ,restricted. This brought an
intensifi**d movement for the ratification of the ,ILO Convention
No. 87, and became the cause of today's labor mov**m~nts to recover
the fundamental labor rights.
(3) Japan was liberated f_rom occupational status- with the
conclusion of the San Francisco Peace Treaty in 1952. In order to
conclude this treaty, efforts were made to convert various cabinet
- 23 -
~~f
orders issued during the occupation days into national laws under the
leader-*,hip of General Ridgeway, supreme commander of the A1lied
Powers. As a part of this step laws and regulations concerning labor
were re-examined and amended in 1952. But, it brought the change
only to the form, Ieaving the substance in fact. The exercise of the
right to organize and act collectively was still restricted to a certa_in
degree .
(4) Since then, the restriction of the right of workers to
organize and to act collectively h8_s been strengthened through the
enactment of the Strike Regulation LavJ and various adrninistrative
controls. In order to cope with this trend, the Japanese trade unions
have actively engaged in movements for demanding legislation to
guarantee the exercise of the fundamental labor rights. It was as
a result of these movements that they presented their case to the
Committee on the Freedom of Association of the International Labor
Organization several times. The ILO Convention No. 87 was ratified
in 1965, but the movement for the attainrnent of fundamental rights
of laborers_ has still been in process.
III Outline of the Legal System
1 . Right to Organize
The right of workers to organize is guaranteed as one of the
fundamental human rights by Article 28 of the Constitution. Therefore,
any la"w~ or order which infringes upon the right to organize is uncon-
stitutional and invalid. There are, in fact, many laws and ordinances
which restrict or prohibit the right of workers to organize, and the
Japanese courts have not declared these laws and ordinances to be
unconstitutional and invalid. However, the Government was warned
by the ILO that some of these laws and ordinances were in conflict
with the main principles of the freedom of association. As a result,
the government has promised to ratify the ILO Convention No. 87
(a convention for the freedom of association and the protection of
- 24 ~
the right to organize, 1948) and to repeal Article 4, para*-raph 3 of
the Public Corporations and National Enterprises Labor Relotions
Law and other provisions which are contrary to the convention.
Ratification delayed several years and was finally accomplished after
the Governing Body of the International Labor Organization estab-
lished a fact-finding and conciliation commission on freedom of
association in order to investigate the situation in Japan and sent
the commission to Japan.
However, as mentioned earlier in the chapter on source of law,
the amendment of various laws made in the *"uise of following the
principles of the ILO Convention No. 87 was not satisfactory to elimi-
nate all of the existing restrictive provisions on right to organize etc.
Instead, further restrictions seem to have been added. After all, the
right to organize in Japan (~s well as the ri**ht to bargain and act
collectively) has a disagreeable character because it is restricted sub-
stantially by various statues disregarding the spirit of the Constitution.
These restrictive provisions are censured for their unconstitutionality.
Under the present labor legislation concerning the right to
organize, workers are divided into the following three principal
groups : (A) workers in private enterprises (the Trade Union Law
and the Labor Relations Adjustment Law) ; (B) employees of public
corporations and national public service personnels of national
enterprises (the Public Corporations and National Enterprises Labor
Relations Law) and local public service personnels employed in local
public enterprises (the Local Public Enterprises Labor Relations Law);
<O and other national and local public service personnels (the National
Public Service Law and the Local Public Service Law). The ri**ht to
organize is much more restricted in the latter two groups (previously
called B and C groups).
(1) Regarding the first group (A group), the closed shop
agreement is recognized by a written provision which state>- that
this shall not prevent an employer from concluding a collective
agreement with a trade union to require, as a condition of employ-
~ 25 -
ment, tlnat the workers must be members of the trade umon n
such trade union represents a majority of the workers in the particular'
plant or working place in which such workers are employed-provisa
to Article 7, item I of the Trade Union Law. Judicial precedents
also admit that the basis of this recognition of compulsory organiza-
tion are for strengthening solidarity and for the guarantee of the
right to organize. H:owever, the open shop system is compulsory in
case of B and C groups.
(2) Proviso to Article 4, paragraph I of the Public Corporations
and National Enterprises Labor Relations Law which prohibited
organization of those holding managerial or supervisory positions and
those employed in a confidential capacity in B group was deleted by
the amendment in 1965.
But the amendment did not give unions the right to determine
the scope of employees who had capacity to represent the interest
of their employers and therefore were to be excluded from union
membership, but it reserved this power for the Labor Relations
Board. In addition, the amendment maintains the scope of employees
holding managerial positions which has been enlarged to a consider-
able extent, as the scope of employees who are in a position to
represent the interest of employers. For this reason, approximately
ten per cent of the entire employees were excluded from union
membership, and employees of police, fire services, the Maritime
Safety Agency, pr~isons and the Defence Agency in C group are
prohibited to organize or affiliate with unions.
(3) Regarding B group, trade unions were compelled to be
organized in individual enterprises under provisions whiob_ provided
that only the employees of public corporations and national enterprises
sh_all be eligible for membership of the employees' unions of the said
public corporations and national enterprises or to b*_ elected as ofiicers
of such unions-Article 4, par~. 3 of the Public Corporations and
National Enterprises Labor Relations Law, etc. (a similar restriction
is imposed upon C group by the registration system based on the
- 26 -
N~~tional Personnel Authority regulations and local government regu-
lation_*). This restriction was criticized by the Governing Body of the
International Labor Organization as has been previously mentioned.
Article 4, paragraph 3 of the National Public Corporations and
National Enterprises Labor Relations Law and Article 5, paragraph 3
of the Local Public Enterprises Labor Relations Law were deleted
by the amendment of 1965. However, with tegard to C group, parts
of the amended law, the enforcement of which was postponed,
established further restriction.
Under these provisions, employees holding managerial andi
supervisory positions (the scope of which are determined by govern-
ment authorities such as the National Personnel Authority, the
Personnel Affairs Cornmittee etc.) and other employees cannot
organize a single union ; union membership is limited to employees,
and discharged employees are only eligible during one year after
their discharge or during the pendency of his case.
Furthermore, the amendment prohibits 'check off agreement of
10cal public service employees, and enlarges the power of the Cab~net
of Ministers over national public service employees by reducing the
power of the National Personnel Authority and establishing a bureau
of personnel in the Ofiice of the Prime Minister.
The part of the amendment, the enforcement of which was postponed, Iimits the employees' holding of full-time union office to
three years for B and C groups and limits the purpose of unions of
C group to the "maintenance and improvement of working conditions",
and thus strengthens the restrictions on employees' ,right to organize.
(4) In the case of the! Iocal public service employees of C group,
a trade union of the employees of a specific local public entity can
federate itself with other trade unions of 'employees engaged in other
10cal public entities, but such federations of the trade unions are not
treate~_ a*~s a trade v_nion under the local public service law (the right
to bargain collectively and acquisition of the juridical person etc.).
Under Article 28 of the Constitution, the right of workers to
- 27 -
o
)L
,organize is guaranteed against infringement by employers. The
unfair labor practices system provided in the Trade Union Law
supports this guarantee. That is, the employer is prohibited from
making the following practiceb* : (1) to discharge or give discrimina-
tory treatment to a worker by reason of his being a member of
a trade union ; for his having tried to join or organize a trade union
or for his having performed the normal union activities, or to make
it a condition of employment that the worker must not join or must
withdraw from a trade union ; (2) to control or interfere with the
formation or management of a trade union by workers or to give
financial support to it in defraying the trade union's operational
expenditure-Article 7, items I and 3. Protection from such unfair
labor practices are given by the Labor Relations Boards as administra-
tive bodies, and the courts.
The Labor Relations Boards have a dual-trial system consisting
of the Central Labor Relations Board and the Local Labor Relations
Boards (in addition to these there are the Mariners' Central Labor
Relations Board and Mariners' Local Labor Relations Boards). These
Boards are set up consisting of persons representing employers,
workers and public interest (the so-called three-party composition).
The workers' members and th_e employers' members can participate
in hearings on matters related to unfair labor practices, but cannot
participate in jud*・ement. Those who are discontented with the order
issued by the Labor Relations Board can file their petition with the
,courts. When the order of the Labor Relations Board becomes
final, those employers who violate the said order are liable to
imprisonment, not exceeding one year or to a fine not exceeding
one hundred thousand yeh (in case all or a part of the said order
has been sustained by the fixed judgement of the court), or to a fine
not exceeding one hundred thousand yen a day for the period of
non-compliance of the said order. In the event of the employer filing
his petition with the court, the court may issue an order requiring
the employer concerned to comply with the order of the Labor
- 28 -
Relations Board pending the final judgement by the court, on appeal
from the said Labor Relations Board. In the case of an employer
violating this court order, he is liable to a fine not exceeding one
hundred thousand yen a day for the period of non-compliance of the
said order.
The above procedures are only applicable to workers of A group.
For employees of public corporations and national enterprises in B
group the Public Corporations and National Enterprises Labor Relations
Board is in charge of the remedy procedure. As for employ~ees ' of
C group, there is a provision which falls under item I of Article 7
of the Trade Union Law, but for remedy for unfair labor practices
the employees must file their petitions on treatment with the National
Personnel Authority or the Personnel Affairs Committee or Impartiality
Committee of the local public entity concerned. There is no
ptovision that corresponds with Article 7, item 3, which prohibits
control of and interference in the trade union.
2. Right to Bargain Collectively
By the constitutional guarantee of the right to bargain collective-
ly, proper collective bargaining does not constitute a criminal offence.
In addition, Article 7, item 2 of the Trade Union Law prohibits an
employer from refusing to bargain collectively with the representative
of the workers employed by the employer concerned without fair and
appropriate reasons. Procedures for ~emedy are the same as the
cases mentioned previously.
However, there are various restrictions to the B and C groups.
For the B group, matters concerned with working conditions may
be subjected to collective bargaining and may be provided for in
a collective agreement, but matters affecting the management and
operation of public corporations and national enterprises are excluded
from collective bargaining. Any agreement (also any award of the
Labor Relations Board), which involves the expenditure of funds,
neither available from the appropriate corporation budget nor from
- 29 ~
l¥
t
corporation funds, does not bind the Government nor local public
entity concerned, and does not become effective, unless it is approved
by the Diet or the assembly of the local public entity.
For C group, the employees' union may bargain collectively
with the authority concerned on matters related to working conditions
and other proper matters, including social and public welfare activi-
ties, but may not conclude any colletive agreement. Only the local
public service employees' union may conclude a written collective
agreement with the authority of the local public entity concerned,
provided that it is not in conflict with the laws, ordinances and
regulations of the said local public entity and rules of the organiza
tions of the said local public entity. The remedial provision for
refusal of collective bargaining is not provided. Moreover, the
amended law, the enforcement of which is postponed allows the
authority easily to find a pretext for refusing collective bargaining
by listing the detailed conditions of collective bargaining such as the
objects, the other party, procedure and method of bargaining which
permit the authority may break off negotiations if the employees'
union fails to meet these conditions.
3. Right to Dispute
The right of wokers to dispute is the key of the right to act
collectively guaranteed by Article 28 of the Constitution. In order
to realize the constitutional guarantee, the Trade Union Law provides
that proper acts of dispute are not subjected to criminal or civil
liability even thou*'h these acts fall under the Criminal Law and
other laws and regulations, and that the employer must not give
discriminatory treatment to a worker by reason of his having
performed proper acts of dispute.
The Supreme Court has expressed its opinion on acts of dispute
declaring that the essence of a strike is the nonfulfilment of the
obligation of workers to offer services imposed upon them by labor
contracts, and regards a sitting-down of union members to stop other
- 30 -
persons from working as a proper act under certain circumstances.
However, there are many laws and regulations which restrict or ban
acts of dispute. As for A group, these include : (1) restriction of
acts of dispute which hamper or cause the stoppage of normal
maintenance or operation of safety precautions ; (2) the notification
of acts of dispute in public utilities ; (3) the prohibition of acts of
dispute for 50 days in case of emergency adjustment (see p. 4 above) ;
(4) Article 30 of the Seamen's Labor Law, a special provision for
seamen, providing that acts of dispute are prohibited while a ship
is in a foreign port or when human lives or a ship are in danger by
th_e said act of dispute ; and (5) the restriction of acts of dispute in
electric enterprises and coal mining industries (see p. 8 above).
As to B and C groups (employees of the public corporations
and national enterprises and public service employees), acts of dispute
including conspiracy and instigation are fully prohibited. However,
the amendrb:ent of the Public Corporations and National Enterprises
Labor Relations Law and Local Public Enterprises Labor Relations
Law extends the prohibition of conspiracy and instigation to "members
and officers of unions" in addition to "employees" Under the gurse
of making necessary improvement and amendment to existing laws
in line with ILO Convention No. 87, restrictions on acts of dispute
were not eliminated. Efforts were made only to lessen the effect of
deleting Article 4, paragraph 3 of the Public Corporations and National
Enterprises Labor Relations Law, etc.
4. Labor Relations Adjustment
Since the right of workers to engage in acts of dispute is
guaranteed, interference of the State in its exercise must be withheld.
Accodingly, the present labor relations adjustment system aims to
adjust disputes between workers and employers through the establish-
ment of agencies for autonomous adjustment-Articles 2 and 4 of
the Labor Relations Adjustment Law. And, the Government is under
an obligation to assist the parties concerned to adjust labor relations
- 31 -
l¥
~i
and thereby prevent the occurrence of acts of dispute-Article 3.
Actually this is carried out by the conciliation, mediation and
arbitration of the Central and Local Labor Relations Boards.
Conciliation is a means of adjusting labor relations. In this case
the conciliator appointed by the chairr~an of the competent Labor
Relations Board endeavors to cont'~6t both parties, ascertains their
respective points of view and assists them in arrhring at a settlement.
Conciliation is begun upon the request of both or one of the parties
or on thairman's own initiative.
Mediation is carried out by a Mediation Committee consisting of
the committeemen representing the employers, workers and public
interest. The Mediation Committee has the power to draft a proposal
for settlement, present it to and recommend the parties concerned
to accept it and to publish the proposal for settlement together wi th
a statement of the reasons. The conditions under which mediation
may be started are stricter than those for conciliation. Mediation
is carried out usually when a request for mediation has been made
to the Labor Relations Board by both parties concerned, or one of
the parties in case where such request is made in accordance with
the collective agreement. However, when in a case involving public
utilities, mediation is carried out upon the request of either one of the
parties concerned, or at the Board's own initiative, or upon the
request for mediation by the Labor Minister or the prefectural
governor. Thi_F~ last condition includes cases that would have a wide
effect or would involve work of a special nature and would seriously
threaten public welfare.
Arbitration is carried out by an Arbitration Committee consisting
of three committeemen designated by the chairman of the Labor
Relations Board rrom among the members or the Special Adjustuent
Committeemen, representing public interest. The arbitration award
has the same effect as a collective agreement and binds both parties
concerned. Therefore, the conditions under which al~bitration may
be resorted to are much more strict than those for mediation.
-32-
Arbitration is carried out only when a request for arbitration has been made by both parties concerned, ¥ or one of the parties when
the request is based on the provisions of the collective agreement.
Meanwhile, when the Prime Minister, deems that because a dispute affects the public utilities, or is of a large scale, or is
related to work of a special nature, and the suspension of operation
of the work, arising from an act of dispute, seriously threatens the
national economy or the daily life of the nation, he may decide on
an emergency adjustment only when there exists such a danger,
after cosulting the Central Labor Relations Board. In this case, the
Central Labor Relations Board may, to settle the dispute concerned,
take the measures for conciliation, mediation and, in c~ses coming
under the conditions mentioned above, arbitration. In addition, the
Board may investigate and publicize fact of the case, and recommend
measures deemed necessary for the settlement of the case. When
the emergency adjustment has been publicized, the parties concerned
are forbidden to resort to any act of dispute for 50 days from the
day of its publ'cation.
The above mentioned are for the general private industries
(A group). In the case of the employees of the public corporations
and national enterprises under the application of the Public Corpora-
tions and National Enterprises Labor Relations Law, conciliation,
mediation and arbitration are undertaken by the Public Corporations
and National Enterprises Labor Relations Board. The conditions
under which conciliation may be started are the same as those for
private industries, and the conditions to start mediation are approxi-
mately the same as those for public utilities. However, as to
arbitration, the so-called compulsory arbitration is authorized in
connection with the prohibition of the acts of dispute. In this case
the application for arbitration of the parties concerned is not neces-
sary. That is, arbitration may be commenced when either of the
parties concerned has applied for arbitration two months after the
conciliation or mediation has been started, when the Board has
- 33 -
~ll
decided that it is necessary to undertake arbitration regarding a case
on which the Board has been undertaking conciliation or mediation,
and when the competent minister has requested the Board to under-
take arbitration. Arbitration is undertaken by the Arbitration
Committee established for the case concerned and composed of the
members of the Board representing public interest and appointed
without the consent of the parties concerned. For the effect of the
arbitration, see p. 6 above. These procedures are also applied to local
public service employees under the application of the Local Public
Enterprises Labor Relations Law, but as in case of private industries,
conciliation, mediation and arbitration are undertaken by the Labor
Relations Board.
In the case of public service employees of C group, the labor
relations adjustment system is not established.
5. Labor Standards
As to labor standards, the Trade Union Law recognizes the binding
force of collective agreements, and makes such agreements binding
upon other laborers of similar kind under certain conditions. The law
aims at maintaining and improving labor standards by the collective
power of laborers. On the other hand, the Labor Standards Law
provides a minimum standard of working conditions under the legal
principle provided by the Constitution. This Law applies to all
industries except for enterprises or offices employing only relatives
living with the employer as family members and domestic employees
in homes. However, only some of the provisions of the Labor
Standards Law are applicable to national public service employees by
analogy, and are partially applicable to local public service employees
and seamen under the Seamen's Labor Law.
The Labor Standards Law declares that working condition*_ must
enable a worker to live a life worthy of a human being. The
provisions concerning minimum standards of working conditions
aim to be the same level as the international minimum standards set
- 34 -
forth by ILO conventions and recommendations, these stipulate eight
working hours a day or 48 hours a week, one rest day per week,
annual vacations with pay. However, these principles are not strictly
enforceable since a number of exceptions are provided, as to working
hour for example, there is a provision which enables the employer
to extend working hour if he is sanctioned to do so by the adminis-
trative ordinance, and there are many enterprises in which 9 or
10 working hour have been authorized. Refer the Enforcement
Ordinance of Labor Standards Law. As to wages, the Minimum
Wages Law was established in 1959, but the amount of the minimum
wage is decided mainly by an inter-enterprise agreement, and the
workers concerned can not participate in the decision on the
minimum wage.
6. Social Security System
The Japanese social security system consists of a series of laws
that vary according to objects. As to social insurance : by the
amendment of the People's Health Insurance Law, cities, towns,
villages and certain city wards have become responsible for the
people's health insurance as the insurers since April 1961, and by
the establishment of the People's Pension Law, collection of the
premiums began in the same month, and thus the univers-al health
insurance and pension system have been established. However,
medical examination and treatment under the health insurance are
restricted in many ways by the Regulations for Medical Examination
and Treatment established by the Minister of Welfare from the
financial standpoint. There is much that can be criticized in this
restricted medical examination and treatment. As to the people's
pensions, an old age pension is only 3,500 yen a month for an insured
person who has paid primums for 40 years.
The Livelihood Protection Law aims to guarantee a minimum
standard of livelihood for perpole who are in needy circumstances, and
provides that the amount of the allowance decided by the Minister
- 35 -
of Welfare must be sufficient to them to maintain a_ minimum
standard of living. However, the standard of protection actually
providecl by the administrative agency is far lower than the legal
standard. For instance, according to a case litigated in court, to
persons who require aid and have been in hospital or an institution
for more than three months, a maximum of 600 yen only a month
was granted for essential articles. This amount was considered to be
ille*aal by the Tokyo District Court on October 19, 1960 because it is
not sufficient to maintain the minimum standards of wholesome and
cultured living. The Government appealed against this decision.
The Tokyo High Court decided that although the standard was
unreasonable, it was not illegal. By further appeal, the case is now
pending at the Supreme Court.
IV. Statistics
Tabl, e I Number of Single Unions and Union Members
(AS of the End of June)
year
1955
1956
1957
l 958
1959
1960
1961
1962
1963
1964
number of single unions
18,013
18 , 935
19 , 297
20 , 132
20 , 725
21 , 957
24 , 237
24 , 899
25 , 844
27 , 141
number of nuion members
6 , 285 , 878
6 , 463 , 1 18
6 , 762 , 601
6 , 984 , 032
7 , 211 , 401
7 , 661 , 568
8 , 359 , 876
8 , 971 , 156
9 , 357 , 179
9 , 799 , 653
number of increase over preceding year
210 , 132
177 , 240
299 , 483
221 , 431
227 , 369
450 , 167
698 , 308
611 , 280
386 , 023
442 , 474
estimated ratio of organization
37 . 8~
35 . 4
35 . 5
34 . 7
33 . 6
33 . 8
36 . 1
36 . 2
36 . 1
36 . 3
(Remarks)
2.
Based on the Report on Basic Survey of Trade Union Compiled by the Ministry of Labor.
Extracted from the Japanese Labor Year Book 1966, p. 202, edited by the Ohara Social Research Institute
of Hosei University.
~ 36 -
Table 2 Number of Trade under Each
Unions and of
Applicable Law Union Members
Laws A p plicable
Total
Trade Union Law
Public Corporations and National Enterprises Labor Relations Law
Local Public Enter-prises Labor Rela-tions Law
National Public Service
Law Local Public Service Law
June 1960
Number of Unions
21 , 957
(100 . O)
17 , 931
(81 . 7)
47 (O . 2)
377 (1 . 7)
281 (1 . 3)
3 , 321
(15 . 1)
Number of Union
Members 7 , 661 , 568
(100 . O)
5 , 061 , 601
(66 . 1)
929 , 666 (12 . 1)
130 , 104 (1 . 7)
278 , 872 (3 . 6)
1 , 261 , 325
(16 . 5)
June 1961
Number of Union
24 , 237
(100 . O)
20 . 043
(82 . 7)
77 (O . 3)
396 (1 . 6)
281 (1 . 2)
3 , 440
(14 . 2)
Number of Union
Members 8 , 359 , 876
(100 . O)
5 , 649 , 018
(67 . 6)
953 , 012 (11 . 4)
154 , 285 (1 . 8)
287 , 748 (3 . 4)
1 , 315 , 813
(15 . 7)
(Remarks) 1. 2.
( ) =per cent Figures obtained from statistics
unions. Labor Year Book 1963, concernmg p. 112
single trade
o
~ 37 -
.速ヨ8q8の8&のもo曇繧の8の』呂窟三一台の8お奉>お輯哨
Φおε一謡一冨℃写oa.の一8℃扇㊤εεεoコoq℃モ2津雲o巽Φq℃壽8&のモ
g窪も三3の8&のモ}oおρg…①曇.お>霞2.①讐一⇔肩ωり幽8お三の田島蛋
,持曳boqも8房婁8Φ曇bo召芒8呂のむ}。の蕊台℃省鼠§8邸ぢqΦ旨窪
㊤駕Qも三ε①お台巽o罵似哨Q肩£唱震の㊤ぢqの5}oのb<台唱①眉a目08<ぢ濱
・のqOの』Oq
ε呂のむ哨o望8台℃①三898。。6ω8aのモ届℃①駕曾⇔嘱椙呂2きの8質8①£
の田翫颪.(のΦ鴛房モさ慧【眉冨駕息9モ8捻£の8慧N眉蕊さも【Oお89①舅
①£}o屈8邸)の8呂ωむ』oρコ三℃88哨Q咽相呂23の8ωおqo£}〇一$8邸①詰
,(。う)ε
㊤℃三。屈ぢqo℃B幽8お三の。葺bo迄.』8』b心眉醸a$員8①牽b幻q月℃寮㊤彊
.の8のおαマ導当ζoのqo妻㊤〉お一三』oのωぢqのむ}○沼8台℃①肩8ヨ08邸
go唱お>o℃①三8のg呂のモ}oおρg…①壱(。う)℃濤、持gbρ三℃8房㊤義8①曇
}oqo昭Φヒ8屈台℃Φ眉銭go8邸の①ぢ量℃旧oおρg毒Φ£(。q)、詩曳
ぢ毯o盈富眉昌鋸8鵠8ぢ量℃もおρ9裏Φ£(H)も貫房邸屈の8&の5
.卜爲.似.OOOH唱自oq卜.q.お〇一老om』8>きρ5
①語8葺bO匡.き琵貞もむ運ε譲①台台①隠貫の8呂の5きρ醸もむ乞お
bo
眉℃8qの㊤員8
℃壽窪O鴇呂額譲Oおき
旧o沼8台℃①肩呂eo8邸
.繧Φお彊曽88三七8℃需
看覇き沼ぢ房ぞ①ε蓄8
ω8&の哨∩}oおρ目5乞名↑
も一88d㊤詩沼Φ湿Q邸おq唄
お℃§㊤おき23の8鴇呂
望o琶曾。石£一go↑当↑
℃①qO郭qΦ一9 の』Oρ口h5q ㊤ρ一
盈冨宕区go8“θ2一β
bの三葺℃qoのおq豆三の①ε
Φεbρ肩葺℃8aのむ
}oおρg5客一$o↑①調↑
一8お辺据あo郵口o℃Φ器q⇒
窟三θ}oのqoごq㊤>お眉唱℃員邸
老三き.詩曳bの三℃8㊤a㊤£
Φの雲呂説①£go唱℃ε8おさ
.寸
oう.N.
H(望お自幽)
oうゆoq
oう
寸N
oo①o“
①寸O.H
可雲
①eq
の』〇一区
,咽o唱邸山
HC“くDOつoうLQの9&
。のδ
の一9ぢOQ
のの㊤εのづm
08、ま①
註N.OHO.一
N①卜、oooうoo
O8、OOト
ゆ①①.O卜卜.一
ト①oう.OOO.H
の』。冨忌§』謂
ゆト①
①N卜
助Ooo
O頃卜
N卜O
Oお
の8&の6
の①bρ80ρお
oo話.oq一
90.①
寸oo①づH
O①①.。D
O卜卜、菖
爲①.oo
の』〇一8
8一〇∈ω山
O寸N寸卜・一寸oつLQooうo一の
Φぢα
,ω昌
の据o図Qo臼
O。o①.。o寸O.H
①NO.H。oH、一
H。o寸.Oお、H
H卜①ドトO.目
oう
守、卜♂
①8.。oNO、H
の』8区哨。毛謡
Ooqo豊、一
。o
OO、一
。う
。o
oq.
H
O。D。う.H
ooゆO、一
〇〇
〇う
Oの8&の囹
8着おの
①①①、。う。うO.H
O巽.Hoo卜、H
①卜①.寸。o。o.一
黛。q、。o雪.㎝
Oお.誌。う.N
卜Ooっ.卜O卜、一
の』8邸αδ∈霞
譜卜、H
H怒.目
O①O.目
。o
き、H
トO卜.H
OOoo
の8&の昌
一88,ρ5の
のぢく盈℃①肩区go8<の85αのお
菖oo.80、寸
O①O.O霞.oq
菖oo.。う苺.H
。o
トゆ.霞卜、oっ
。っ
oq卜.①OO.N
(鋸㊤.O。o①.H)
の§匿δコ』霞
oo
OO
ゆ①ゆ
呂ゆ
ゆOO
頃田
(雲O)
の8&ω昌
のぢく台
℃㊤咽qa目08く
ぢ乞の8呂の哨∩
譜o“.謹①、卜
NooO.寸oっO.①
卜OO.①oq一、卜
。o
NO.oっ寸O.O
自①.認①.O
(①HO、。D甚.。う)
oqoq寸、N
OHO.cq
卜。oN.eq
。う
。o
寸.N
NNN.N
(專。う.目)
ω』.一口。咽.哨一』邸∋のΦ一コαω昌
の8&の5一εo↑
寸O①一
〇う
O雲
NO①H
一〇①一
〇〇〇一
頃頃①H
鵠㊤>
(おさ萄三8℃自瑠葺Q⇔oV9さ負台℃壽詰遺台巽o罵9⇔唱謡℃壽の㊤冒量8も一呂鋸づ寓。う①一意↑
二九
一38
二八
φρ○[一εb幻q渥8の①お3℃q邸図338①室c6Φお30戯タ①の○ε㊤濤℃Φ臥o己霞ΦqP鉛一づ口㊤調↑
①℃邸g器3>①ヒ5ωΦ£図83①台bのヨ峯℃図さ3繧℃㊤b幻邸bo自㊤㊤お琴
8曳o昼日Φき巽β貫①寮台日謡巷蚤タ膚窃三急一お唱5岩巽累きo℃壽88ω慧とo£bゆε葺℃の鵠。ご3
頂匿①お30ρきωo曳OagΦ①ωo台の駕{○タぢぢo』毫雪oqg㊤一Φの2↑ 。Φ鷺霞の。53密>葺ω①饗図㊤Φ3
①憩bρ三葺℃og8三q邸Φ>刷①り田℃臼邸葺o詣Φ8q鎖のgoヨ屈(で㊤℃三り肩の哨のおρgΦg臥唱g謡台08℃
受03)層o琴三℃①bρ邸b幻8ω詩2タ①のo£ω壽Qε毛03屈℃①bo母函”.㊤一q旨巽Φ一〇}、ωの㊤q一唱8①弓.董03
も揖o身』霊a目8①ωo牽℃壽砦03膚唱Φbゆ島8Φの2こo国88㊤遭ωΦ薯もq咽qg三8℃gOa霞国2↑
.8篶一a£8』£旨○ρσ6臼-ぎZ㊤ε岩ののΦ呂田のΦ葺bの唱お詣δ.Φbゆ邸}oの持曳
雲お〉o①お2き℃曳o胤鋸雲コ臥=ξ①超℃壽℃曳o己長①①£も一880ω哨8写≦59山①go国』○琵日聲↑
.卜N.q.8臼図ooooお①>8ρ邸■Φの①q匿説①£鋸o骸℃88お図ω .8田○の㌔8の宕哨暑
o口浪』畠①誤一旧05邸㊤一づq⇒の⇔写ω;邸θのΦコ一』ρ℃①一ago⇔ 』①30山 q邸一≧ 旧o >Φ>』づの 目o 望oq①国 o戯一 qO ℃①の邸m
.寸oう
.N.
H(の漏為g①函)
(
ooO寸
(
Noooq
帆
oooう
目
へ
oう
oう
O。う
鯉.
Hひ聰NNcq
qo咽捻ヨαo餌
①Q一〇山』oρ邸繭,qo乞
寸寸e“一〇cつc“ひqcqc“
q①ヨ03
N-ODO卜.寸eqF岨一Flq①暑
O寸oo卜・卜寸寸寸oo一岱o↑
℃①』o胤簑ΦqP卦宕口
Oゆoo
H寸oo
Ooうoo
Ooうαo
ゆO卜
目一Hr→H
自①go3
菖。o.N
N卜卜N
め。っト、N
卜。oO.N
へ
N一寸N
q①譲
oっ
トO
oう
お寸卜頃
OQお
寸寸寸寸
①⇒.寸
一50↑
℃①>〇一qgω
(
〇一ト
ヘ
oq
8寸お
(
oqOゆ
》寸寸寸
ま一.寸
罵ぢ↑
qo唱お宕αo儀8旨o函旨oρ“一
㎝昏
oooう
①
田卜
oう
8OOO卜・
爲O㎡
寸OOH
ooO①一
NO①H
OO2
0ゆ①一
Φbo<}o
の旨而①>ゆ一』Φ>O
お①>
(OOO.OH”君qP)qo咽罵宕qo戯bのε層03当プ一 寸①一ρ邸↑
39一
Table 5 Number of Enterprises
was carried
where
out .
Labor
(1960)
Standards Ins pection
Periodic Ins pection
135 , 909
Ins pection
u pon Request
18 , 517
Ins pection re peated
30 , 746
Special Saf ety
Ins pection
42 , 575
Other Ins pection
41 , 106
Total
268 , 853
No. of Enter prises
1 , 541 , 769
(Remarks) Extracted f ro m the Japanese Labor Year Book 1963, p. 272.
Table 6 Rate of Violations
Inspection (By the
in Substance discovered by
Size of Enterprises) (1960)
Periodic
1-9 Persons
57 , 1~
10-99 Persons
59 . 1~
More than 100 Persons
48 . 3~
Total
57 . 2~
No. of Violating Entr prises
77 . 795
No. of Enterprises where Inspectionj was carried out:
135 , 909
(Remarks) Extracted f rom the Ja panese Labor Year Book 1963, p. 273 ,
~
- 40 -
Recommended