Answer ... Female employees are entitled to six weeks’ unpaid maternity leave before giving birth (14 weeks for multiple pregnancies). In principle, employers cannot require a female employee to work for eight weeks after delivery.

Employees are entitled to unpaid leave until their child’s first birthday (or until the child’s second birthday if certain conditions are met), but employees taking such leave can be paid 67% of their salary through labour insurance, subject to certain conditions. An employee with a pre-school aged child or family member who is sick or injured and in need of full-time nursing is entitled to up to five days of unpaid leave (10 days for two or more children or family members). An employee may work reduced hours to care for his or her child under three years old. Employers may introduce limitations on eligibility under a labour management agreement.

An employee with a family member in need of full-time nursing is entitled to up to 93 days of unpaid leave to provide care. Employers may also introduce limitations on eligibility in a labour management agreement. Employees taking family care leave can be paid 67% of their salary through labour insurance subject to certain conditions.

Answer ... Please see question 2.1.

Answer ... Although labour unions are still relatively strong in certain industries, their importance has declined in the last 30 years. Relationships between unions and employers are often peaceful and cooperative. In general, unions are sensitive to employers’ economic circumstances.

Enterprise-based bargaining is more common than industry-based bargaining. A labour union has the authority to enter into enterprise agreements with the employer and to conduct other collective negotiations on behalf of member workers. The employer is obliged to hold collective bargaining sessions. Collective agreements between employers and labour unions regulate matters such as:

• working conditions;
• salary and benefits;
• working hours;
• holidays;
• health and safety;
• dispute resolution procedures;
• redundancies or secondments; and
• the re-employment of elderly employees.

Collective agreements may also regulate the relationship between employers and unions – for example, they may require labour management consultation or prior consent before certain decisions are made (eg, redundancies, closures or business transfers). Labour management agreements are designed to exempt employers from criminal penalties under the Labour Standards Law (eg, the obligation to make and file a so-called ‘Article 36’ agreement to have the right to request overtime from employees) or deal with the special treatment of employees (eg, restrictions on care leave eligibility).

The breakdown of negotiations may sometimes result in labour dispute actions being taken. Provided the action taken is not beyond the pale and within the justified acts of a labour union, it will not give rise to civil or criminal sanctions. Engaging in so-called ‘concerted activities’ is a right guaranteed under the Constitution and the Labour Union Law. Generally speaking, strikes, walkouts, slowdowns (occupation of the workplace) and picketing without the use of physical force are fair labour dispute actions; while physical violence, sabotage or destruction intended to damage facilities or machinery or wilfully cause product defects, and invasion of the privacy of members of management (eg, distributing leaflets or using loudspeakers outside the premises or the residence of management members to damage their reputation) are considered beyond the scope of fair labour dispute actions.

Answer ... The Personal Information Protection Law (PIPL) regulates, among other things, the collection, storage and use of personal information, including employee-related information. The Ministry of Health, Labour and Welfare has issued guidelines on handling employees’ personal data. Infringements of the guidelines can lead to fines, compensation claims from aggrieved employees or regulatory action. Sectoral guidelines have been issued.

The monitoring of employee email, internet and telephone usage and closed-circuit television recording are permissible, provided that they are carried out in accordance with the PIPL and its guidelines. The Personal Information Protection Commission’s guidelines on the PIPL state that employers should:

• specify the purpose of the monitoring and cover such monitoring in internal rules such as the work rules;
• appoint a person responsible for the monitoring; and
• enforce these rules.

No express statutory rules address the protection of social media passwords or employer monitoring of social media accounts.

Under the PIPL, an entity handling personal information which has an employee who handles personal information must exercise proper supervision of the employee to ensure data security. The PIPL requires employers to disclose the personal data they are keeping on an employee at the employee’s request, unless the data falls within one of the exceptions to disclosure (eg, where disclosure may seriously impede the proper execution of the business). Cross-border transfers of personal information are restricted under the PIPL.

Answer ... Independent contractor relationships are not covered by labour law. Depending on the circumstances, an independent contractor may apply to have a contractual relationship requalified as employment in order to get the benefit of employment law protection based on the true nature of the relationship. If the court determines that the individual is in fact an employee, that employee will be afforded employment law protection.

In principle, a representative director of a joint stock company may not be an employee of the company that he or she is heading. As such, a contract for services or an entrustment agreement is generally advisable, to clarify the representative director’s rights and obligations. Directors are regulated by the Companies Act.

The Workers Dispatch Law has become increasingly restrictive over the years. If a temporary agency staff contract with a temporary staffing agency is in breach of the law (eg, if the temporary agency is not licensed, an employee has been dispatched beyond the maximum statutory term or there is a disguised outsourcing arrangement), the employee will be deemed to be directly employed by the host company as a regular employee.