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The Mechanism for Establishing and Changing Terms and Conditions of Employment / the Scope of Labor Law and the Notion of Employees

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The Mechanism for Establishing and Changing Terms and Conditions of Employment / the Scope of Labor Law and the Notion of Employees No. 1 JILPT REPORT 2004 The Mechanism for Establishing and Changing Terms and Conditions of Employment / The Scope of Labor Law and the Notion of Employees — 2004 JILPT Comparative Labor Law Seminar — The Japan Institute for Labour Policy and Training The Mechanism for Establishing and Changing Terms and Conditions of Employment/ The Scope of Labor Law and the Notion of Employees — 2004 JILPT Comparative Labor Law Seminar — JILPT REPORT No. 1 2004 The Japan Institute for Labour Policy and Training Copyright© The Japan Institute for Labour Policy and Training 2004 All rights reserved. Published by The Japan Institute for Labour Policy and Training 2004 8-23, Kamishakujii 4-chome, Nerima-ku, Tokyo, 177-8502 Japan Telephone: 81-3-5903-6326 Facsimile: 81-3-3594-1113 Printed in Japan Foreword The Japan Institute for Labour Policy and Training (JILPT) was established on October 1, 2003, as an independent administrative institution. The Institute’s objective is to contribute to the planning of labor policies and work toward their effective and efficient implementation. In addition, we seek to promote the livelihood of workers and develop the national economy by conducting comprehensive research projects on labor issues and policies, both domestically and internationally, and use the fruits of such research to sponsor training programs for administrative officials. JILPT is successor to the Japan Institute of Labour (JIL) and the Personnel Training Institute of the Ministry of Health, Labour and Welfare. Upon its establishment, the new institute took over the research activities of JIL. Therefore, the comparative labor law seminars initiated by JIL, which have been held bi-annually since 1991, are now organized by JILPT. For the current seminar, we planned cross-national discussion and analysis on two themes: re-demarcating the scope of labor laws given an increasingly diversifying workforce, and reconsidering the mechanism used to regulate working conditions in light of a more diversified and individualized workforce and the decline of the influence of trade unions. These themes are related to two of our nine core research projects, projects which we have just begun to seriously undertake and whose duration will last three years from October 1, 2003. This is the background to the Seventh Comparative Labor Law Seminar held on March 9-10, 2004 in Tokyo. We invited seven scholars from Europe, the United States and Australia to present national papers on the above-mentioned themes. Professor Araki and Professor Ouchi explained the concepts of the themes and presented national papers on Japanese labor legislation as our research projects leaders. This Report is a collection of the papers presented to the seminar. The substance of these papers and the discussion will be contained in our research projects’ final reports. We expect the fruitful discussion at the seminar lead to significant results that can be used for future research projects. We would like to express our sincere gratitude to the guests who submitted excellent national papers and we are deeply grateful to Professor Araki and Professor Ouchi for their work in coordinating the seminar, and also to the Japanese researchers for their participation. April 2004 Akira Ono President The Japan Institute for Labour Policy and Training Table of Contents Foreword Introduction Takashi Araki, Professor, University of Tokyo Senior Research Fellow, JILPT Shinya Ouchi, Professor, Kobe University Senior Research Fellow, JILPT PART I The Mechanism for Establishing and Changing Terms and Conditions of Employment 1. Japan The System of Regulating the Terms and Conditions of Employment in Japan Takashi Araki University of Tokyo …………………………………… 3 2. United States Individual Bargaining, Collective Bargaining and Protective Legislation: Determining the Terms and Conditions of Employment in the Modern American Employment Relationship Kenneth G. Dau-Schmidt (presentator) Indiana University – Bloomington Carmen L. Brun Indiana University – Bloomington ………………… 21 3. Australia The Framework of Australian Labour Law and Recent Trends in ‘Deregulation’ Joo-Cheong Tham La Trobe University ………………………………… 37 4. United Kingdom Reconsidering the Mechanism to Regulate Working Conditions in the Light of Diversified and Individualised Employees and the Declining Labour Unions Catherine Barnard Trinity College, Cambridge ………………………… 51 5. Germany The Mechanism for Establishing and Changing Terms and Conditions of Employment Rolf Wank Ruhr-Universität Bochum …………………………… 59 6. France The Framework of French Labour Law and Recent Trends in Regulation Pascal Lokiec University Paris X-Nanterre ………………………… 73 7. Italy Recent Changes in the Italian Labour Law Michele Tiraboschi University of Modena and Reggio Emilia Maurizio Del Conte (presentator) Bocconi University ………………………………… 85 8. Sweden Mechanisms for Establishing and Changing Terms and Conditions of Employment in Sweden Mia Rönnmar Lund University ……………………………………… 95 PART II The Scope of Labor Law and the Notion of Employees 1. Japan Labor Law Coverage and the Concept of ‘Worker’ Shinya Ouchi Kobe University …………………………………… 111 2. United States The Definition of “Employee” in American Labor and Employment Law Kenneth G. Dau-Schmidt (presentator) Indiana University - Bloomington Michael D. Ray Indiana University - Bloomington ………………… 117 3. Australia The Scope of Australian Labour Law and the Regulatory Challenges Posed by Self and Casual Employment Joo-Cheong Tham La Trobe University ………………………………… 125 4. United Kingdom The Personal Scope of the Employment Relationship Catherine Barnard Trinity College, Cambridge ………………………… 131 5. Germany Diversifying Employment Patterns – the Scope of Labor Law and the Notion of Employees Rolf Wank Ruhr-Universität Bochum ………………………… 137 6. France The Scope of Labour Law and the Notion of Employee: Aspects of French Labour Law Pascal Lokiec University Paris X-Nanterre ……………………… 145 7. Italy Employment Contract: Disputes on Definition in the Changing Italian Labour Law Michele Tiraboschi University of Modena and Reggio Emilia Maurizio Del Conte (presentator) Bocconi University ………………………………… 153 8. Sweden The Personal Scope of Labour Law and the Notion of Employee in Sweden Mia Rönnmar Lund University …………………………………… 159 List of Participants Introduction I. The 7th Comparative Labor Law Seminar (Tokyo Seminar) This report contains papers submitted to the Seventh Comparative Labor Law Seminar (Tokyo Seminar), which dealt with two themes: the mechanism used to establish and change the terms and conditions of employment (1st project), and labor law coverage and the concept of “employee” (2nd project). The seminar was organized by the Japan Institute for Labour Policy and Training (formerly the Japan Institute of Labour) and held on 9 and 10 March in Tokyo, Japan. The two themes which the seminar addressed are currently both the most important and the most controversial regarding labor policy, not only in Japan but also in other countries as well (Australia, France, Germany, Italy, Sweden, United Kingdom and United States). The objective of the seminar was, through concentrated and intensive discussion on specific topics using comparative analysis, to produce something fruitful that can be used in future academic research as well as in developing labor policy. The session on the first day focused on legal framework, actual situations and trends regarding mechanisms used to establish and change the terms and conditions of employment; the second session was devoted to tackling the definition of a “worker” as covered under labor laws. All the invited guests submitted very well prepared papers. Their concise and well-focused presentations paved the way to very fruitful and lively discussions in the seminar. Young Japanese scholars who specialize in labor and social security laws also made excellent comments on the foreign guests’ presentations. There is no doubt these comments helped clarify certain points and raised the quality of discussion. II. Main Issues Covered by the Submitted Papers We asked invited guests to cover the following points in their country papers. 1st project 1. General overview of labor laws and legal means regulating the terms and conditions of employment (1) Basic laws regulating working conditions and industrial relations such as a constitution, labor protective laws, laws regulating individual and collective labor relations, laws concerning worker representation, etc. (2) Legal means that regulate the terms and conditions of employment (collective bargaining agreements, agreements with employee representatives, individual contracts, etc.), and their legal effects of the different legal means. (3) The most important means to regulate actual working conditions. (4) The difference between labor unions and employee representatives. 2. Recent changes in labor protective and labor contract laws regulating individual labor relations and the reasons behind those changes. (1) An explanation of whether or not labor laws have been deregulated and “re-regulated.” A list of the factors which contributed to such changes: structural changes in industry, intensification of global competition, change in corporate governance, diversified and individualized workers, demographic changes, need to balance work with family life, weaker labor unions, etc. Description of the situation in the presentator’s country. (2) Traditional labor laws place greater emphasis on collective bargaining between a trade union and a company to regulate working
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