1. Conclusion of labour-management · – Child care leave and nurse leave – Consultation in the case of corporate spin-off – Scope of the continuously employed after 60 years

2009/9/23Comparative Labour Law 25

• Original task in the LSA– Overtime agreement– Agreement of Wage deduction– Expressing opinions in a case of drawing and altering

work rules• Extension of task through the LSA

– Introducing of Flexitimes, variable working hour– Agreement of planned vacation– Discretionary Work system

• Expansion in other area than the LSA– Child care leave and nurse leave– Consultation in the case of corporate spin-off– Scope of the continuously employed after 60 years old– Hearing in the case of insolvency– Consent in the case of making and altering of the corporate

pension rule2009/9/23Comparative Labour Law 26

1. Conclusion of labour-managementAgreement

ó no normative effect on employment contractó requirement of deviation from mandatory minimum

standards, a veto right to deviation (flexliblisation)

2. Right to hearingl An employer must ask for the opinion of the majority

representative in drawing up and modifying theWorkRules

3. Right to propose members of committeessuch as “the safety and heath committee”


• In an establishment where a majority unionexitsExpansion of non-regular employees Question of legitimacy as the representative of all

workers• In an establishment where a majority

representative worker is selected,–Lack of fair representation–Expansion of tasks

• unreality of performing important task alone



• Task:–Utilising the discretionary work scheme(Art.38-

4)–Taking tasks of a majority representative

• Characteristics:• Plural members, a standing body, ability of

taking various tasks a similar system to the works council


http://www.pdfdesk.com

31Comparative Labour Law2009/9/23Comparative Labour Law 32

• Art.21 Freedom of assembly and association as well as speech,press and all other forms of expression are guaranteed. (right ofassociation)

• Art.25 All people shall have the right to maintain the minimumstandards of wholesome and cultured living.(right of existence)

• (2) In all spheres of life, the state shall use its endeavours for thepromotion and extension of social welfare and security, and of publichealth.

• Art.27 All people shall have the right and the obligation to work.(right to work)

• (2) Standards for wages, hours, rest and other working conditionsshall be fixed by law. (establishment of standard working conditions)

• (3) Children shall not be exploited.• Art.28 The right of workers to organise and to bargain and act

collectively is guaranteed. (collective labour rights)


Right toorganise

Right tobargaincollectively

Right to strike

Public servantYes State Public Servants LawArt.108-2 par.3, DistrictPublic Servants Law Art. 52par.3

Limited State Public Servant LawArt.108-5, District PublicServants Law Art.55

No(State Public Servants LawArt.98 par.2, Art.110-1 par.17, District Public ServantsLaw Art.37 par.1. Art.61No.4

Policeman,Fireman

No State Public Servants LawArt.108-2 par.5, DistrictPublic Servants Law Art. 52par.5

No(ibid.)

No. ibid.

Employee ofStateEnterprise

Yes YesNo(State Enterprise LabourRelations Act Art.17


Legal nature Public and Private Law

Means of Control Administrative and Judicial Control (Remedy and Re-establish)

Related Institutions Labour (relations) Commissions

Related Statutes

Trade Union Act 1949 Labour Relations Adjustment Acts 1946 National Enterprises Labour Relations Act 1948,89 Local Public Corporation Labour Relations Act 1952 National Government Servant Act (1945 Local Government Servant Act(1950)


• Art.7 prohibits three types of unfairlabour practice.

– Discriminative Treatments (Art.7 par.1 par.4)– Refusal of Collective Bargaining(par.2)– Interference with trade union activities

(par.3)



ó Composition of Labour Relations commissions Tripartite body

• with members representing labour, employer and publicinterests.

• Worker members appointed on the recommendation ofunions

• Employer members appointed on the recommendation ofemployer organization

• Public member must be approved by both the worker andemployer members

Two-tier system• Local Labour Commissions and the Central Labour

Commissions– The CLC has 45 members in total (15 members from each

party), who are appointed by the Prime Minister.


• Normative effect (Art.16 TUA)• General binding in an establishment

(Art.17)–Not so important because non-union members

are covered by the Work Rules that theemployer draws up according to the collectiveagreement in the company.

• General binding in a region (Art.18)–There are few cases because most collective

agreements are concluded at the enterpriselevel


Labour Protection Law Labour Contract Law (CaseLaw)

Legal nature Public and Private Law Private Law

Means of Control Administrative Control(Punishment and Inspection)

Judicial Control Denial of LegalBinding

Related Institutions Labour Inspection Office Courts

Related Statutes

Labour Standards Act 1947 Workman’s Accident Compensation Insurance Act 1947 Minimum Wages Act 1959 Industrial Safety and Health Act 1972 Worker Dispatching Undertakings Act 1985 Equal Opportunity and Treatment in Employment Act 1985)Part-time Work Act 1993 Child Care and Family Care Leave Act (1991,95 Labour Contract Act(2007)


• Usually, regular employees do not haveindividual contract agreements.

• Their working conditions are written in thecollective agreements or work rules in thecompany.

• Non-regular employees are handed on thewritten contract, because their workingconditions are limited and worse thanregular employees.


• Originally, Factory Law and LSA required anemployer to draw up work rules in order toprotect employees because the workingconditions will be uncertain as time goes by.

• Specific Features of Work Rules1. An employer must draw up work rules (Art.89)

1. An employer can draw up the work rules one-sidedlybecause the majority representative only can submittheir opinion (Art.90)

2. The content of work rules iscomprehensive(Art.89).

3. The work rules have quasi normativeeffect(Art.93).


• Certainly it is still important in smallestablishments, because they are notcovered by collective agreements.

• However, Today, Work Rules are mostconvenient tools to alter working conditionsunilaterally.



Disputes Resolution System

43Comparative Labour Law2009/9/23Comparative Labour Law 44

InstitutionsSettlementMeasures

C M D

Public

systems

Judicial systemsOrdinal Courts Labour Tribunals

Administrativesystems

Nationalsystems

General Labour Disputes counsellingCentres in Prefectural Labour Offices

Disputes Adjustment Committees Equal Employment Bureau

Localsystems

Labour Relations Commissions Labour Consultation Centres P

rivatesystem

s

Autonomous systems Consultations of labour unionsJoint Consultation Centres

Social systems Arbitration Centres In-hous systems Joints Consultation Committees

Grievance Committees Informal systems Friendship meetings, bosses

C:Consultation M:Mediation D:Decision

• Private systems–Rules and route of disputes resolution are not

clear• Public systems

–Administrative systems did not develop and–judicial systems are not specialised for labour

disputes in the procedure and the organisation –The present public system is the one accessed

only by employees who don’t care cost andtime. 2009/9/23Comparative Labour Law 45

1. The public system is dominant, but othersystems but courts did not develop.

2. In the public system there are no lay membersof representatives of employees and employers

3. Procedurally, there are no adjustmentprocedure before decisive procedure.

4. Autonomous systems are found in companies,but not opened to society.

5. New systems have not been built.



• Increasing of individual disputes–Under 1000 over 2000

• Deregulation–Prior (administrative) regulation posterior

(judicial) regulation• Reform of labour commissions

–LC must seek for new task by decreasedcases

–Increase of de fact individual disputes

ó The law promoting resolution of individual labour disputes(July 2001)1. General labour consultation counters were set up

at nearly 300 locations nationwide to offer one-stop service for use in providing advice andinformation in answer to any consultations onlabour problems.

2. The Directors of Prefectural Labour Bureausoffer advice and guidance to the partiesconcerned, point out the issues concerned andsuggest the direction settlement should take.

3. A dispute coordination committee available in allprefectures identifies the major arguments ofeach disputing party and mediates in an effort toreach an agreement.



Documents

1. Conclusion of labour-management · – Child care leave and nurse leave – Consultation in the case of corporate spin-off – Scope of the continuously employed after 60 years