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Labor and Social Security Legislation Heiji Nomura Akio Sato

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Labor and Social Security Legislation Heiji Nomura Akio Sato 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 of the Constitution . ........ 2 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 . SHistory ~ 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. ~~ J- In addition, by-1aws and rulings of trade unions, various agreements l~ 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- 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 ~i principle concerning movement of trade unions. In accordance with ~1 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 ~IT (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- 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 ~~1 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 . ~i 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- 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.
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