Many parts of Japanese labour law only work if the employer reaches a written agreement with the employees at each workplace. Overtime needs a 36 Agreement, flextime and some deemed-hours systems need agreements, and work rules must be submitted with the employees' written opinion. If a union represents a majority of employees at the workplace, it is the counterparty. Otherwise the employees choose a majority representative.
The rules on who can serve are in the Ordinance for Enforcement of the Labour Standards Act. The representative must not be a manager in a supervisory position. They must be chosen by a vote, show of hands, discussion or similar procedure, after it has been made clear what the person is being chosen for. Since April 2019 the ordinance also states that they must not be selected according to the employer's wishes. The employer may not treat them unfavourably for serving, and must make an effort to give them what they need to carry out the role.
Representation is by workplace, not by legal entity. A company with offices in Tokyo and Osaka generally needs a representative for each.
What it means for a foreign employer
- An invalid representative can void the agreement. If the "representative" was simply nominated by the country manager, the 36 Agreement may be invalid, and all overtime worked under it unlawful.
- Run and record a real election. Announce the purpose, let employees nominate and vote, and keep the record. It takes an afternoon and removes the risk.
- Do not pick the HR manager. In a small office, the obvious volunteer is often a manager or someone who reports directly to the country head, which is the weakest choice.
- Opinion is not consent. For work rules, the representative's opinion must be attached, but the employer is not bound by it.
Sources
- Labour Standards Act, Articles 36 and 90.
- Ordinance for Enforcement of the Labour Standards Act, Article 6-2, as amended in force April 2019.