Article 28 of the Constitution of Japan guarantees workers three rights: to organise, to bargain collectively and to act collectively, including striking. The Trade Union Act is the statute that makes those rights work. It was one of the first laws of the occupation era, enacted on 22 December 1945, and was rewritten in full in 1949. The current Act dates from that revision.
It does four main things. It defines a union: an organisation formed by workers on their own initiative, mainly to maintain and improve working conditions, and independent of the employer. A union that admits managers who represent the employer's interests, or that takes the employer's money beyond narrow exceptions such as office space, falls outside the definition. It protects union activity: proper union action is immune from criminal liability and from employer claims for damages. It lists the unfair labour practices that employers may not commit, enforced by the Labour Relations Commissions it establishes. And it gives collective agreements legal force, so that a term in an individual contract below the standard in the agreement is void.
Two features surprise foreign employers. There is no majority or certification threshold, so a union with a single member at the company has the same right to demand bargaining as one with a thousand. And there is no requirement to register: a union that meets the definition is protected, although it must show the Labour Relations Commission that it qualifies before using the commission's procedures.
What it means for a foreign employer
- There is no recognition step to contest. Unlike in the US or UK, an employer cannot refuse to deal with a union because it represents few employees.
- The managerial exclusion is narrow. Only staff who genuinely represent the employer's interests, such as those with authority over hiring, discipline or labour relations, are excluded. A manager title alone does not stop someone joining or forming a union. Managers outside the exclusion can also join an outside union or form a managers' union of their own, and some such unions recruit across companies.
- Union activity is protected from retaliation. A performance process launched just after an employee becomes a union officer will be read as retaliation unless it is well documented and started earlier.
- Due diligence should ask about unions. In an acquisition, ask for every collective agreement and any pending Labour Relations Commission case.
Sources
- Constitution of Japan, Article 28.
- Trade Union Act (Act No. 174 of 1949), Articles 1, 2, 5, 7, 8, 14 to 18 and 19 to 27.
- Trade Union Act (Act No. 51 of 1945), enacted 22 December 1945.
- Tokyo Metropolitan Government, Bureau of Industrial and Labour Affairs, labour handbook, section on managers and trade unions.