Relaxation Of Mandatory Rules Through Collective And Individual Agreements In Japanese Labour Law

This article analyses the legal situation in Japan regarding the relaxation of or deviation from mandatory regulations in labour law through collective and individual agreements. Although many statutory labour laws in Japan have a mandatory effect over individual employment contracts, several statutory provisions provide that such mandatory regulations can be relaxed through collective agreements under certain circumstances, as is the case in other industrialised countries. However, Japan’s situation is unique insofar as the relaxation is permissible through collective agreements concluded by non-union (individual) representatives of a majority of employees in the absence of union representatives who have been elected by a majority of employees. Due to the lack of safeguards that ensure the independence of non-union representatives as well as the lack of democratic selection, legislative improvements are needed to the current labour regime. Potential revisions are currently under discussion by a government council. Moreover, Japan’s Supreme Court has held that mandatory regulations can sometimes be relaxed through individual employees’ consent if “strict scrutiny” shows that the agreements are the product of employees’ “free will.” Although such strict scrutiny can be useful in deciding issues within contract law, the relaxation of mandatory labour standards through individual agreements is problematic in itself given the power imbalance between individual employees and employers, and its scope should be very narrowly confined.