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Marinaro Reform Without Change 10 February 2017 Reform without Change A Sociological Analysis of Employment Legislation and Dispute Processing in Japan A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2016 Fabiana Marinaro School of Arts, Languages and Cultures Table of Contents Table of Contents .............................................................................................................. 2 List of Figures and Tables ................................................................................................. 5 Abbreviations and Special Terms ..................................................................................... 6 List of Japanese Terms Frequently Used in the Text .................................................... 6 Abstract ............................................................................................................................. 8 Declaration and Copyright Statement ............................................................................... 9 Dedication ....................................................................................................................... 10 Acknowledgments ........................................................................................................... 11 The Author ...................................................................................................................... 13 Introduction ..................................................................................................................... 14 Why employment: research objectives and questions ................................................. 16 Significance of the study ............................................................................................. 21 Thesis structure ............................................................................................................ 24 Chapter 1 Theoretical Framework and Research Methodology ..................................... 27 Introduction ................................................................................................................. 27 1.1. What is law? ..................................................................................................... 29 1.2. What does law do? ........................................................................................... 34 1.3. The consensus vs. the conflict constituency ..................................................... 37 1.4. Law: ideological dimensions ............................................................................ 39 1.5. Research methods ............................................................................................. 44 Conclusion ................................................................................................................... 46 Chapter 2 The Warp and the Woof: The ideological fabric of Japanese employment and legal systems............................................................................................................. 50 Introduction ................................................................................................................. 50 2.1. The Japanese employment system ................................................................... 51 2.1.1. The internal employment system .............................................................. 52 2.1.2. Non-regular employment: an alter-ideology ............................................. 59 2.1.3. The Abe administration employment reforms: a ‘change for the worse’? 64 2.2. The Japanese legal system ................................................................................ 73 2.2.1. General overview ...................................................................................... 74 2.2.2. The ideology of Japanese law ................................................................... 78 Conclusion ................................................................................................................... 84 2 Chapter 3 Compromised Legislation The ideology of Japanese employment law ......... 88 Introduction ................................................................................................................. 88 3.1. Drawing the boundaries of labour .................................................................... 95 3.2. Japanese regulatory approaches to employment relations ............................... 97 3.2.1. Historical development of labour law ....................................................... 97 3.2.2. Regulatory paradigms ............................................................................. 100 3.2.2.1. The public law approach .................................................................. 100 3.2.2.2. The doryoku gimu approach ............................................................ 102 3.2.2.3. The private law approach ................................................................. 106 3.3 Compromised legislation: the case of the EEOL and Part-time Law ............. 111 3.4. Doryoku gimu provisions: rationale and effectiveness ................................... 123 3.5. Behind the scenes: shingikai patterns of policy making ................................ 129 Conclusion ................................................................................................................. 140 Chapter 4 Patterns to Unequal Justice? Employment litigation and employment related ADRs in Japan .............................................................................................................. 148 Introduction ............................................................................................................... 148 4.1. Employment rights: a mine field .................................................................... 156 4.2. Coming out ahead? Judicial creation of norms and its limits in employment litigation ..................................................................................................................... 164 4.2.1. Judicial law-making as a path towards social change? ........................... 165 4.2.2. The Japanese judiciary’s activism and the myth of doctrinal innovation169 4.3. ADRs in employment in Japan ......................................................................... 180 4.3.1. The debate on ADRs ............................................................................... 181 4.3.2. ADRs in Japan and the 2001 employment dispute resolution reforms ... 187 4.3.3. The rōdōkyoku administered system ....................................................... 193 4.3.3.1. Procedure overview ......................................................................... 193 4.3.3.2. Procedure evaluation........................................................................ 197 4.3.4. The rōdō shinpan system ........................................................................ 203 4.3.4.1. Procedure overview ......................................................................... 203 4.3.4.2. Procedure evaluation........................................................................ 208 4.4. The rōdōkyoku and the rōdō shinpan : complementing systems? ................... 218 Conclusion ................................................................................................................. 224 Conclusion .................................................................................................................... 231 Law as an agent of change......................................................................................... 232 Law as a means for processing disputes .................................................................... 235 3 Implications for the study of Japanese law and beyond ............................................ 238 From here to where? .................................................................................................. 240 Bibliography .................................................................................................................. 243 List of legislation, ministerial and judicial guidelines consulted: ............................. 267 Interviews .................................................................................................................. 268 Appendices .................................................................................................................... 270 Appendix 1 The development of interview questions ............................................... 270 Appendix 2 Interview questions templates ............................................................... 273 Word Count: 79,997 4 List of Figures and Tables Figure 1.1 220 Table 1.1 220 Table 1.2 221 5 Abbreviations and Special Terms ADR : Alternative Dispute Resolution. EEOL : Equal Employment Opportunity Law. EWG : Employment Working Group, advisory council established under the Cabinet to advise the Prime Minister about desirable employment reforms. HRM : Human Resource Management. ILO : International Labour Organization. LCL : Labour Contract Law. LSL : Labour Standards Law. MEXT : Ministry of Education, Culture, Sports, Science and Technology. MHLW : Ministry of Health, Labour and Welfare. MIC : Ministry of Internal Affairs and Communications. SME : Small and Medium-sized Enterprises. TUL : Trade Union Law. WWIN : Working Women’s International Network, women’s activist group based in the southern-central region of Japan (Kansai). Note: all names have been abbreviated according to their English-language
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