Employment Law in Japan - Essay Example

Employment Law in Japan In general, commercial law refers to the body of law that applies to the relations, conduct, and rights of businesses and persons in merchandising, sales, trade, and commerce. Commercial law covers issues relating to public law and private law (Pitt, 2011). Most countries if not all across the world have adopted legislations, codes, and laws under their constitution that governs commercial and business transactions, as well as conducts, rights, and relations of business and persons in business. Pitt (2011) explains that there are many areas in commercial law which affects business in one way or another. These areas include: contract law, tax law, dispute resolution, banking law, arbitration law, and employment law. This discussion will focus on employment law as an area of commercial law in particular reference to Japan. It will explain how the law was selected adopted into the domestic legislation of Japan; what was origin of employment law, who promoted and/ or objected its adoption, in addition ton explaining whether it has been formal, functional or hybrid convergence. Employment law entails administrative rules, legislation, statutes, and common law rulings that make up the interpretation and practice of employment. It covers issues such as employment compensation, workplace standards and safety, employee benefits, employment discrimination, and pensions and retirement among others. Additionally, it deals with the employee and employer’s rights, responsibilities, and actions, as well as how they relate with one another. Port (2003) notes, employment law in Japan just like in most countries in the world have incorporated the aforementioned aspects of employment. In Japan, employment law is governed under Labor Standards Law, Law No. 49 of 1947 and in other relevant statutes. Most of the day- to- day labor issues in businesses is under the Labor Standards Law. Under the labor and employment law in Japan issues such as sanitation and safety have been covered (Takaya et al, 2009). Besides, the law gives the employer discretion and freedom in hiring, but disallows discrimination against and applicants or employees. Also, it has a provision requiring the employer to terminate employment of an employee on reasonable and objective grounds only. Matanle (2003) argues that it also provides for employment work and contract rules such as place of employment, working hours, and wages among others. Moreover, it has a provision that requires that all employees in Japan should be entitled to join pension insurance schemes and social health insurance, as well as providing for unemployment and accident insurance. So, how was employment law selected and adopted into the legislation of Japan? Labor Standards Law, which is Japan’s main employment legislation was enacted for the first time in 1947 and has been amended several times since then. The basics of this law are established in the Japanese Constitution, which derives most of its provisions from the United States Constitution (Milhaupt et al, 2001). That is why the Japanese employment bears a lot of similarities with the United States’ employment law. Employment law adopted into the legislation of Japan has three major categories, namely; labor relations, trade unions, and labor standards. Article 623 of the Japanese Civil Code recognizes employment contract. In regard to the origin of Japanese employment, it is important to remember that this law derives a lot from the United States Constitution. It is worth to note also that prior to the end Second World War, the Japanese employment law had not sufficiently developed; there were a few laws that regulated labor relations such as determination of number of working hours, minimum safety standards, and protecting minor laborers (Tsuneki and Matsunaka, 2011). The Japanese employment law as it is now can trace its origin after the Second World War where the Allied High Command promoted workers’ social policy and labor union activities were allowed. Seguno (2002) argues that additional developments regarding the law were made in 1945 when Labor Union Law was enacted and subsequently revised in 1949. Individual labor relations in Japan got a major boost in 1946 when the New Constitution established the fundamental right to work, and adequately defined the legislation principles regarding labor conditions. Employment law in Japan was strengthened further in 1947 when the Workers’ Accident Compensation Law and Labor Standards Law were promulgated, raising the country’s labor standards to that of International Labor Organizations. These basic legal frameworks on employment survive even today and are critical in regulation labor relations in Japan (Tsuneki and Matsunaka, 2011). Even though there were several people who were involved in drafting the Japanese employment law, Kosaku Teramoto is credited to be the brain behind this law, particularly the Labor Standards Law (Mitchell, 1993). It is argued that this law was created when Japan was under occupation prompting Teramoto to convince a number politicians, bureaucrats, and industrialists that General Headquarter (GHQ) working conditions required strict controls (Matanle, 2003). Teramoto and a few staff went ahead and drafted the bill which was mostly based on the provisions that had been drafted prior to the war. Also, the bill was based on the International Labor Organization conventions review. Teramoto and his staff kept the bill secret until the time it was handed over to Theodore Cohen who was the head of Labor Division if the General Headquarters (Takaya et al, 2007). Since the adoption of employment law in the legislation of Japan, there has been hybrid convergence; that is, both formal and functional convergence. Functional convergence is defined as that which occurs when organizations or institutions are able to respond to market participants’ demands and formal change of the rules are nor necessary. On the other hand, formal convergence is defined as that which occurs when it is necessary to change laws and rules in order to adopt the best practices. Tsuneki and Matsunaka (2011) argues that subsequent amendments to the Japanese employment laws is a clear indication that indeed there have been formal convergence that is intended to align the country’s labor practices with emerging and best practices around the world. Such a convergence aims at enhancing the competitiveness of Japan in the global labor market and ensures that it acquires and retains the best in the market, hence able to advance its economic and social objectives through human resources. In addition, there has been functional convergence as institutions in Japan have been able to market participants’ demands without necessarily having formal change of rules (Tsuneki and Matsunaka, 2011). References Matanle, P. (2003). Labor and employment law in Japan. Asian Business & Management, 2(1), 177-177 Milhaupt et al. (2001). Japanese Law in Context: Readings in Society, the Economy, and Politics. Harvard University Press. Mitchell, J. (1993). Labor Law & Industrial Relations in Asia. Sydney: Longman Cheshire. Pitt, G. (2011). Employment Law. Sweet & Maxwell. Port, M. (2003). Comparative Law: Law and the Legal Process in Japan. Carolina Academic Press. Seguno, K. (2002). Japanese Employment and Labor Law. Carolina Academic Press. Takaya, C et al. (2007). Labor and employment law in Japan. Asialaw, (10220267), 1-49. Tsuneki, A and Matsunaka, M. (2011). Labor Relations and Labor Law in Japan. Pacific Rim Law & Policy Journal Association. Read More