Law on Promoting the Resolution of Individual Labour Disputes (Law No. 112 of July 11, 2001)

Transcription

1 Law on Promoting the Resolution of Individual Labour Disputes (Law No. 112 of July 11, 2001) (Provisional Translation by the specialist)

2 Amendments: Law No. 54 of May 31, 2002 Law No. 98 of July 31, 2002

3 Law on Promoting the Resolution of Individual Labour Disputes (Law No. 112 of July 11, 2001) CONTENTS Law on Promoting the Resolution of Individual Labour Disputes (Articles 1-22) Excerpt from Supplementary Provisions Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes (Articles 1-15) Excerpt from Supplementary Provisions Form 1-5

4 Law on Promoting the Resolution of Individual Labour Disputes (Purpose) Article 1. This law has the purpose of promoting the prompt and appropriate resolution, adapted to their actual circumstances, of disputes between individual workers and business owners (including disputes between individual job applicants and employers with respect to matters concerning the recruitment and employment of workers; hereinafter referred to as "individual labor dispute") with respect to working conditions and other matters concerning labor relations through the establishment, etc. of a system of conciliation. (Voluntary Resolution of Disputes) Article 2. If an individual labor dispute arises, the parties to said individual labor dispute shall endeavor promptly and in good faith to achieve a voluntary resolution. (Provision of Information, etc. to Workers and Employers) Article 3. In order to prevent individual labor disputes from happening and promote the voluntary resolution of individual labor disputes the Prefectural Labour Director shall provide workers, job applicants and employers with information on matters concerning labor relations and matters concerning the recruitment and employment of workers and give consultations and other assistance. (Advice and Guidance to Parties) Article 4. In a case where the Prefectural Labour Director is requested by one or both parties to an individual labor dispute (except disputes which are labor disputes provided for in Article 6 of the Labor Relations Adjustment Law (Law No. 25 of 1946) and disputes provided for in Article 26, paragraph 1 of the Law Concerning the Labour Relations of Specified Independent Administrative Institutions, etc. (Law No. 257 of 1948)) for assistance in the resolution thereof, the Director may give necessary advice or guidance to the parties to the individual labor dispute concerned. 2. If the Prefectural Labor Director finds it necessary in order to provide the advice or guidance provided for in the preceding paragraph, the Director shall hear the opinions of persons who have broad knowledge of industrial society and have specialized knowledge of labor issues. 3. An employer shall not dismiss or otherwise treat a worker disadvantageously by reason of said worker having requested the assistance provided for in paragraph 1. (Referral to Conciliation) Article 5. In a case where one or both parties (hereinafter, "disputing

5 party") to an individual labor dispute provided for in paragraph 1 of the preceding article (except a dispute with respect to a matters concerning the recruitment and employment of workers) petitions for conciliation with respect to said individual labor dispute, if the Prefectural Labour Director finds it necessary for the resolution of said individual labor dispute, the Director shall have the Dispute Adjustment Commission conduct conciliation. 2. The provisions of paragraph 3 of the preceding article shall apply mutatis mutandis a case where a worker files the petition provided for in the preceding paragraph. (Establishment of Commission) Article 6. The Dispute Adjustment Commission (hereinafter referred to as "Commission") shall be established at the Prefectural Labour Office. 2. The Commission shall be an agency that conducts the conciliation provided for in paragraph 1 of the preceding article. (Structure of Commission) Article 7. The Commission shall be composed of no fewer than three persons and no more than twelve persons. 2. Commission members shall be appointed by the Minister of Health, Labor & Welfare from among persons of learning and experience. 3. A Commission Chair shall be elected from among the Commission members. 4. The Chair shall preside over the work of the Commission. 5. If the Chair is unable, another Commission member elected in advance perform the Chair's function as a substitute. (Term of Office, Etc. of Commission Member) Article 8. The term of office of a Commission member shall be two years; provided, however, that the term of office of a member who fills a vacancy shall be the remainder of the predecessor's term of office. 2. A member may be reappointed to office. 3. A member shall fulfill his duties until his successor is appointed. 4. A member shall serve part-time. (Disqualification of Member) Article 9. A person to whom any of the following items applies may not become a member: (1) a person currently in bankruptcy proceedings; or (2) a person who has been sentenced to punishment of or greater than imprisonment and for whom five years has not passed since either execution of the sentence or cessation of being subject to the execution of the sentence. 2. If a member comes under the application of any of the items of the

6 preceding paragraph, the member shall rightly lose his position. (Dismissal of Member) Article 10. If a member comes under the application of any of the following items, the Minister of Health, Labor & Welfare may dismiss him: (1) the member is found unable to perform his duties due to a mental or physical disorder; or (2) the member is found to have committed a breach of duty or other misconduct unbecoming a member. (Meetings and Resolutions) Article 11. The Chair shall convene meetings of the Commission. 2. The Commission may not hold a meeting and pass a resolution unless the Chair or the person who substitutes for the Chair under the provisions of Article 7, paragraph 5 and the majority of members are present. 3. The items of business shall be decided by the majority of members present; however, in the event of a tie, the Chair shall decide. (Conciliation) Article 12. Conciliation by the Commission shall be conducted by three conciliation members whom the Chair designates from among the members. 2. Conciliation members shall conduct conciliation between the disputing parties, confirm the main points of the claims of both parties and endeavor so that the case is resolved in line with the actual circumstances thereof. Article 13. In addition to hearing the opinions of the disputing parties, the conciliation members may, as necessary, hear the opinions of witnesses, request that these persons submit written opinions, prepare a conciliation plan necessary for the resolution of the case and present it to the disputing parties. 2. The conciliation plan provided for in the preceding paragraph shall be prepared with the unanimous approval of all conciliation members. Article 14. If it is found necessary based on the petition of a disputing party, the conciliation members shall hear the opinions with respect to the case concerned of persons representing concerned workers or persons representing concerned employers who are designated by major labor organizations or employer organizations within the area of jurisdiction of the Prefectural Labour Office where the Commission concerned is established. Article 15. If the conciliation members find that there is no prospect of resolving the dispute concerned through conciliation, they may discontinue conciliation. (Tolling of Limitations Period) Article 16. In a case where conciliation is discontinued under the provisions of the preceding paragraph, if the person who petitioned for the said conciliation files a lawsuit with respect to the claim that was the subject of the

7 conciliation within 30 days of receiving notice of such discontinuation, then for the purposes of tolling the limitations period, the lawsuit shall be deemed filed at the time of the petition for conciliation. (Requests, Etc. for the Provision of Information) Article 17. If the Commission finds it necessary for the resolution of a case pending before it, it may request the provision of information and other necessary cooperation from government ministries and agencies concerned. (Reports on the Status of Conciliation) Article 18. The Commission shall, in accordance with the prescriptions of Ministry of Health, Labor & Welfare Ordinance, report to the Prefectural Labour Director with respect to the status of conciliation. (Authorization of Ministry of Health, Labor & Welfare Ordinances) Article 19. Necessary matters concerning the Commission and conciliation procedures not prescribed in this law shall be prescribed by Ministry of Health, Labor & Welfare Ordinance. (Measures, Etc. by Local Municipal Entities) Article 20. In cooperation with the State's measures, local municipal entities shall, in accordance with the actual circumstances of the concerned area, endeavor to foster the provision of information, consultations, conciliation and other necessary measures to workers, job applicants and employers in order to prevent individual labor disputes from happening and promote the voluntary resolution of individual labor disputes. 2. The State shall provide information and take other necessary measures in order to support the measures provided for in the preceding paragraph that local municipal entities take. 3. In a case where a Local Labour Relations Commission receives the delegation of the prefectural governor based on the provisions of Article of the Local Autonomy Law (Law No. 67 of 1947) and takes the measures provided for in paragraph 1, the Central Labour Relations Commission may give said Local Labour Relations Commission necessary advice and guidance. (Exceptions Concerning Mariners) Article 21. With respect to mariners provided for in Article 6, paragraph 1 of the Mariners Employment Security Law (Law No. 130 of 1948) and persons seeking to become mariners as provided for in the same paragraph, the phrase "Prefectural Labour Director" in Article 3, Article 4, paragraphs 1 and 2 and Article 5, paragraph 1 shall be read as "Local Transport Bureau Director (including Director of Transport Administration)," and the phrase "shall have the Dispute Adjustment Commission conduct conciliation" in the same paragraph shall be read as "shall delegate conciliation to the Local Labour Relations Commission for Seafarers".

8 2. The provisions of Article 6 through Article 19 shall not apply with respect to conciliation that the Local Labour Relations Commission for Seafarers conducts pursuant to the delegation provided for in Article 5, paragraph 1 as read differently under the provisions of the preceding paragraph. 3. The work of the conciliation provided for in the preceding paragraph shall be conducted by three conciliation members whom the Chair of the Local Labour Relations Commission for Seafarers concerned designates for each case from among the public members. In this case, if it is found necessary based on the petition of a disputing party, the said conciliation members shall hear the opinions with respect to the case concerned of members that the Chair of the Local Labour Relations Commission for Seafarers concerned designates from among the employer members and labor members. 4. The provisions of Article 12, paragraph 2, Article 13 and Articles 15 through 19 shall apply mutatis mutandis with respect to the conciliation provided for in paragraph 2. In this case, the phrase "Commission" in Articles 17 and 18 shall be read as "Local Labour Relations Commission for Seafarers"; the phrase "Prefectural Labour Director" in the same article shall be read as "Local Transport Bureau Director (including Director of Transport Administration)"; the phrase "Ministry of Health, Labor & Welfare Ordinance" in the same article and Article 19 shall be read as "the regulations of the Central Labour Relations Commission for Seafarers"; and the phrase "the Commission and conciliation" in the same article shall be read as "conciliation". 5. The authority of the Local Transport Bureau Director (including Director of Transport Administration) provided for in Article 3, Article 4, paragraphs 1 and 2 and Article 5, paragraph 1 as read differently under the provisions of paragraph 1 and Article 18 as read differently and applied mutatis mutandis under the provisions of the preceding paragraph may, in accordance with the prescriptions of Ministry of Land, Infrastructure and Transport Ordinance, be delegated to the Transport Bureau Chief or the director of Local Transport Bureau, Transport Administration, or the Transport Bureau. (Exclusions) Article 22. This law shall not apply with respect to national government employees or local government employees; provided, however, that the foregoing shall not apply with respect to disputes regarding the working conditions of employees provided for in Article 2, item 4 of the Law Concerning the Labor Relations of Specified Independent Administrative Institutions, etc.; enterprise employees provided for in Article 15, paragraph 1 of the Local Public Enterprise Law (Law No. 292 of 1952); and local government employees who belong to the regular government service hired to perform simple tasks as provided for in Article 57 of the Local Government Employee Law (Law No. 261 of 1950) and

9 who are not employees provided for in Article 3, paragraph 2 of the Local Public Enterprise Labor Relations Law (Law No. 289 of 1952). Excerpt from Supplementary Provisions (Enforcement Date) Article 1. This law shall come into force from October 1, 2001.

10 Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes (Ministry of Health, Labour and Welfare Ordinance No. 191 of September 19, 2001)

11 Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes Based on the provisions of Article 18 and Article 19 of the Law on Promoting the Resolution of Individual Labor Disputes (Law Number 112 of 2001), Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes are provided as follows. (Names of Committees) Article 1. Each Dispute Adjustment Committee (hereinafter referred to as Committee ) shall be named for the Prefecture where the Prefectural Labor Bureau overseeing that Committee is located. (Number of Committee Members) Article 2. The number of members in a Committee shall be: 12 persons in the Tokyo Dispute Adjustment Committee; 9 persons in the Aichi Dispute Adjustment Committee as well as the Osaka Dispute Adjustment Committee; 6 persons in the Hokkaido Dispute Adjustment Committee, Chiba Dispute Adjustment Committee, Kanagawa Dispute Adjustment Committee and the Fukuoka Dispute Adjustment Committee; and all other Committees will consist of 3 persons. (General Affairs of the Committee) Article 3. The general affairs of the Committee shall be conducted in the Administration Division of the Prefectural Labor Bureau overseeing that Committee. (Petition for Mediation) Article 4. Those persons intending to petition for the mediation in Article 5, Paragraph 1 of the Law on Promoting the Resolution of Individual Labor Disputes (hereinafter referred to as this Law ), must file a Petition for Mediation (Form 1) with the Chief of the Prefectural Labor Bureau under whose jurisdiction falls the workplace for the employee who is the party concerned (hereinafter referred to as disputing party ) in the individual labor-managment dispute relating to the mediation concerned. (Entrustment of Mediation) Article 5. The Chief of the Prefectural Labor Bureau must, when arranging for the Committee to carry out mediation, notify the head of the Committee to that effect without delay. 2 The Chief of the Prefectural Labor Bureau, upon receiving a Petition for Mediation, shall not arrange for mediation to be carried out by the Committee when recognizing that mediation is not appropriate based on the nature of the case, or finding that the disputing party had petitioned for mediation unnecessarily and

12 with inappropriate objectives. 3 When the decision is made not to have mediation carried out by the Committee, the Chief of the Prefectural Labor Bureau shall, without delay, use Form 2 to notify to that effect the disputing party (hereinafter referred to as petitioner ) who petitioned for mediation. (Commencement of Mediation) Article 6. The head of the Committee, upon receiving the notice in Paragraph 1 of the previous Article, shall appoint three persons from among the committee members to be mediating committee members in charge of the case concerned (hereinafter referred to as mediating committee members ). 2 The head of the Committee shall issue notice, using Form 3 for the petitioner(s) and Form 4 for the other party in the dispute (hereinafter referred to as petitionee ) when a Petition for Mediation was received from only one of the disputing parties, to the effect that mediation will commence, and informing them of the full names of the mediating committee members. (Entrustment of Mediation Procedures Operation) Article 7. The mediating committee members may, when the necessity is recognized, have a part of the mediation procedures carried out by a specific mediating committee member. 2 The mediating committee members may, when it is deemed necessary, have a staff member of the Prefectural Labor Bureau General Affairs Division carry out an investigation into the facts of the case concerned. (Appointed Day, etc. for Mediation) Article 8. The mediating committee members shall stipulate a date for mediation, and inform the disputing party. 2 The disputing party for whom a mediation date has been designated, according to the provisions of the previous Paragraph, may attend accompanied by an assistant, with the permission of the mediating committee members. 3 The disputing party must, if represented by another person for the statement of opinion and such matters on the mediation date, (1) submit to the mediating committee members a letter testifying to the fact that the right to represent has been conferred, attached to a letter stating the proxy s full name, address and occupation; and (2) obtain the permission of the mediating committee members. (Presentation of the Mediation Proposal) Article 9. When the mediating committee members have been requested to present a mediation proposal by both of the disputing parties, they shall draw up a mediation proposal and present this to both disputing parties. 2 When a disputing party has accepted a mediation proposal, that party must prepare a statement to this effect and submit it to the mediating committee

13 members with either the party s seal affixed next to his or her name, or with the party s signature. (Hearing Opinions from Parties Representing Labor and Management Concerned) Article 10. When either of the following items are applicable the mediating committee members shall, based on the provisions of Article 14 of this Law, hear the opinion of either parties representing the employee concerned or parties representing the employer concerned. (1) When there is a statement from both disputing parties. (2) When there is a statement from only one disputing party, and the need is recognized to hear the opinion of either a party representing the employee concerned or a party representing the employer concerned aside from the disputing parties themselves with respect to the actual recent employment conditions and so on in the enterprise of the disputing parties, in the industry of the concerned enterprise, or in the region. (Appointment of Parties to Represent Labor and Management Concerned) Article 11. The mediating committee members shall, when hearing opinions according to the provisions of Article 14 of this Law, assign a time limit and request the principal employee organizations or employer organizations within the territorial jurisdiction of the Prefectural Labor Bureau overseeing the committee concerned to name a party to represent the employee concerned or a party to represent the employer concerned. 2 When the request in the previous paragraph is made, the employee organization or employer organization concerned shall inform the mediating committee members as to the full name and address of the person who will express the opinion on the case concerned. (Discontinuation of Mediation) Article 12. When any of the following items are applicable the mediating committee members may discontinue mediation, based on the provisions of Article 15 of this Law. (1) When the petitionee who received the notice in Article 6, Paragraph 2 announces an intention not to participate in the mediation procedures. (2) When either one or both of the disputing parties do not accept the mediation proposal presented according to the provisions of Article 9, Paragraph 1. (3) When either one or both of the disputing parties propose to discontinue the mediation. (4) When there is understood to be an obstacle to the progress of the mediation procedures, because of a disagreement in opinion between the disputing

14 parties regarding the progress of the hearing of opinions or other mediation procedures based on the provisions of Article 14 of this Law. (5) Aside from the reasons adopted in the previous items, when it is recognized that there is no possibility to settle the dispute through mediation. 2 The mediating committee members shall, having discontinued mediation according to the provisions of the previous Paragraph, notify both of the disputing parties to that effect without delay, using Form 5. (Recording of Mediation) Article 13. The mediating committee members shall have a staff member of the Prefectural Labor Bureau General Affairs Division prepare a record relating to the mediation procedures. However, this rule shall not apply when the mediating committee members consider it to be unnecessary. (Confidentiality of Procedures) Article 14. The mediation procedures carried out by the mediating committee members shall not be open to the public. (Report to the Prefectural Labor Bureau Chief) Article 15. The Committee must, immediately upon bringing a case of mediation to a close, report the matters laid out in the following to the Prefectural Labor Bureau Chief. (1) Full names of the mediating committee members in charge of the case (2) Summary of the case (3) Progress and outcome of the mediation Excerpt from Supplementary Provisions (Effective Date) Article 1. This Ministerial Ordinance is effective from the effective date of this Law (October 1, 2001).

15 Form 1 (Related to Article 4) (Front) Disputing Parties Emp loyee Employer Full name Petition for Mediation Addre ss Telephone ( ) Full name or Corp. Name Telephone ( ) Addre ss Name and location of above employee s workplace Telephone ( ) Ma tters and reason for requesting mediation Pr ogress of the Dispute Ot her matters serving as useful information Year Month Date Full name or Corporate name of Petitioner: (Seal) To: The Honorable, Labor Bureau Chief

16 Form 1 (Related to Article 4) (Back) About the Petition for Mediation (1) After stating the necessary matters on the Petition for Mediation, please submit the mediation petition to the Chief of the Prefectural Labor Bureau under whose jurisdiction falls the workplace for the employee who is the party concerned in the dispute. The submission of the Petition, as a general rule, is preferably accomplished by the petitioner coming to the Bureau in person, but in cases such as petition from a remote location it is possible to submit by mail, etc. (2) The details and matters demanding special attention that should be stated on the petition form are as follows. 1. The employee s full name, address, etc. The full name, address, etc. of the employee who is the party concerned in the dispute should be stated. 2. The employer s full name, address, etc. The full name (or corporate name, in that case), address etc. of the employer who is the party concerned in the dispute should be stated. Further, when the name and location of the workplace for the employee who is the party concerned in the dispute differs from the name and address of the employer, the name and location of the workplace concerned should also be stated inside the ( ). 3. Matters and reason for requesting mediation For the matters and reason for requesting mediation, the matters that became the cause of dispute, and the details of the claim against the responding party for settlement of the dispute, should be stated as fully as possible (when the allotted space is not sufficient to write everything, please use a separate paper, and attach). 4. Progress of the dispute The date on which occurred the matters that became the cause of dispute (and the date on which the conduct last occurred in cases where the matters concerned have continued), opinions of both parties concerned, the state of negotiations to this point, etc. should be stated in detail (when the allotted space is not sufficient to write everything, please use a separate paper, and attach). 5. Other matters serving as useful information Information such as the following should be stated with respect to the dispute: whether or not it is currently affiliated with a lawsuit; whether or

17 not final judgment has been passed; whether or not it is connected with procedures of mediation, etc. at another administrative organ; whether or not a dispute is taking place between the employer and labor union over the matters that became the cause of dispute, or a cause aside from those; and whether or not relief procedures for unfair labor practices are affiliated with a labor relations commission. 6. Petitioner The full name (or corporate name, in that case) of each disputing party for both parties when a petition was filed by both, and for the filing party when a petition was filed by only one should be entered as either a seal affixed, or with a signature in the party s own hand. (3) The employer may not, using the employee s filing a petition for mediation as a reason, dismiss the employee concerned or treat the employee otherwise disadvantageously.

18 Form 2 (Related to Article 5, Paragraph 3) Mr./Mrs./Ms. Number Date Labor Bureau Chief (Seal) In accordance with the provisions of Article 5, Paragraph 3 of the Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes, this letter is to notify you that, with regard to your (year) (month) (date) petition for mediation of a dispute between you and, the Dispute Adjustment Committee will not conduct mediation for the reason stated below. (Reason) Notes

19 Form 3 (Related to Article 6, Paragraph 2) Mr./Mrs./Ms. Number Date Dispute Adjustment Committee Committee Head (Seal) In accordance with the provisions of Article 6, Paragraph 2 of the Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes, this letter is to notify you that, with regard to your (year) (month) (date) petition to Labor Bureau Chief for mediation of a dispute between you and, we have received the entrustment of Labor Bureau Chief based on the provisions of Article 5, Paragraph 1 of the Law on Promoting the Resolution of Individual Labor Disputes, and will commence mediation according to the below. 1 Case number 2 Mediating committee members Notes

20 Form 4 (Related to Article 6, Paragraph 2) Number Date Mr./Mrs./Ms. Dispute Adjustment Committee Committee Head (Seal) In accordance with the provisions of Article 6, Paragraph 2 of the Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes, this letter is to notify you that, with regard to the attached copy of the Petition form of (year) (month) (date) for mediation of a dispute between you and (Petitioner), we have received the entrustment of Labor Bureau Chief based on the provisions of Article 5, Paragraph 1 of the Law on Promoting the Resolution of Individual Labor Disputes, and will commence mediation according to the below. 1 Case number 2 Mediating committee members Notes 3 Matters to take note of (1) Mediation by the Dispute Adjustment Committee shall involve the mediating committee members of this Committee intervening between the disputing parties and promoting settlement through talks between the concerned parties. We will notify you of the day of mediation and other specific procedures at a later date. (2) If you have expressed that you have no intention to participate in the mediation procedures, we will consider there is no possibility to settle this dispute through mediation and will discontinue mediation procedures. Therefore, if you do not desire mediation to be conducted by this Committee, please notify the Committee to that effect no later than (year) (month) (date). Furthermore, participation in mediation procedures is not obligatory, and if you express an intention to non-participate you will not experience disadvantageous treatment.

21 Form 5 (Related to Article 12, Paragraph 2) Mr./Mrs./Ms. Number Date (Seal) Dispute Adjustment Committee Mediating Committee Members (Seal) (Seal) In accordance with the provisions of Article 12, Paragraph 2 of the Enforcement Regulations for the Law on Promoting the Resolution of Individual Labor Disputes, this letter is to notify you that we recognize there is no possibility to settle the dispute of the following case through mediation and, based on the provisions of Article 15 of the Law on Promoting the Resolution of Individual Labor Disputes, we have discontinued mediation. 1 Case number 2 Petitioner 3 Petitionee 4 Date of petition Notes 5 Matters for requesting mediation (when there were changes or additions, those details, and the date the changes or additions were requested) 6 Date of discontinuation 7 Reason for discontinuation