These guidelines have been established in order to promote
the appropriate and effective implementation of the measures to be taken
by employers to facilitate the coexistence of the working lives and family
lives of workers who take care of or are going to take care of children
or other family members, with respect to matters prescribed by the Law
Concerning the Welfare of Workers Who Take Care of Children or Other Family
Members, Including Child Care and Family Care Leave (referred to hereinafter
as “the Law”).
| (1) |
Matters in Determining the Applicability
of the Provisions of Article 2, Numbered Item 1 of the Law Which Refer
to Persons Employed for a Fixed Period
A person whose labour contract indicates that, formally, he or she
is employed for a fixed term is eligible for child care leave and
family care leave if there is essentially no difference between said
contract and a contract with no fixed term. In determining whether
this is the case, it is important to bear in mind the following matters: |
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(a) |
In reaching a decision in a court case contesting the
propriety of termination of employment under a fixed-term labour contract,
the actual state of the contractual relationship is assessed with
particular attention to the following items: |
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i) |
the objective content of the duties in which the worker engages,
e.g., whether they are permanent or temporary in nature, whether they
are the same as those of regular employees, and so on; |
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ii) |
the nature of the worker's contractual status, e.g., whether it
is integral or temporary; |
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iii) |
the subjective aspect of the parties, e.g., any speech or behavior
of the employer that gave rise to expectations of continuing employment; |
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iv) |
the procedure for and record of contract renewals, e.g., whether
the contract has been renewed and, if so, how many times; the strictness
of the renewal procedure, and so on; |
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v) |
the situation of other workers with regard to renewal, e.g., whether
the employment of other workers with a similar status has been terminated. |
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(b) |
In court cases contesting the propriety
of termination of employment under a fixed-term labour contract, it
has often been deemed that no essential difference exists between
said contract and a contract with no fixed term if, in regard to the
items listed in (a), the situation described in i) and ii) below applies: |
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i) |
in regard to (a) i), the duties are permanent in nature, and in
regard to (a) iv), the contract has been renewed; |
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ii) |
in addition to i), at least one of the following applies: |
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(i) |
in regard to (a) iii), speech or behavior of the employer that
gave rise to expectations of continuing employment is recognized; |
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(ii) |
in regard to (a) iv), the renewal procedure has the nature of a
formality; |
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(iii) |
in regard to (a) v), there are almost no previous cases of termination
of employment of workers with a similar status. |
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(c) |
In court cases contesting the propriety
of termination of employment under a fixed-term labour contract, the
fact that, in regard to (a) i), the worker's duties are deemed to
be the same as those of a regular employee, or the fact that, in regard
to (a) ii), the worker's status is deemed to be integral is considered
to have influenced the courts in the direction of recognizing that
no essential difference exists between said contract and a contract
with no fixed term. |
| (2) |
Matters Concerning Application for Child
Care Leave or Family Care Leave by a Worker As Provided for in Article
5 or Article 11 of the Law
With regard to child care leave and family care leave, it is important
that an employer attend to introducing a system and stipulating regulations
in advance. |
| (3) |
Matters in Dealing Appropriately with the
Prohibition of Dismissal or Other Disadvantageous Treatment by Reason
of Applying for or Taking Child Care Leave or Family Care Leave As
Provided in Article 10 or Article 16 of the Law
In the employment management of a worker who has applied for or taken
child care leave or family care leave, it is important to bear in
mind the following matters: |
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(a) |
The dismissal or other disadvantageous
treatment prohibited by Articles 10 and 16 of the Law refers to an
act that is in a relationship of cause and effect with the worker's
having applied for or taken child care leave or family care leave. |
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(b) |
The following are examples of acts that
constitute dismissal or other disadvantageous treatment:
i) dismissal; |
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ii) |
coercion to resign or to change a labour contract
so that a regular employee becomes a part-time worker or other nonregular
employee; |
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iii) |
ordering a worker to remain on standby at home; |
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iv) |
demotion; |
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v) |
reduction of pay or disadvantageous calculation of
a bonus or other payment; |
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vi) |
disadvantageous change of assignment; |
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vii) |
acts detrimental to the working environment. |
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(c) |
The following matters shall be taken into
consideration in determining whether an act constitutes dismissal
or other disadvantageous treatment: |
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i) |
even if the worker's consent has ostensibly been obtained,
in the event that said consent is deemed not to be truly voluntary,
induced resignation or change of a labour contract so that a regular
employee becomes a part-time worker or other nonregular employee constitutes
“coercion to resign or to change a labour contract so that a
regular employee becomes a part-time worker or other nonregular employee”
as referred to in (b) ii); |
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ii) |
an employer's coercion of a worker to remain on leave
beyond the scheduled ending day of leave constitutes “ordering
a worker to remain on standby at home” as referred to in (b)
iii); |
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iii) |
it does not constitute disadvantageous treatment to
treat a worker as not having worked during a leave period, e.g., by
not paying wages during said period, or to exclude said period pro
rata from the period on which calculation of retirement pay, bonus,
or other payment is based in cases where the number of days actually
worked is taken into consideration; however, treating a worker as
not having worked for a period exceeding the leave period constitutes
“disadvantageous calculation” as referred to in (b) v); |
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iv) |
whether a change of assignment constitutes disadvantageous
treatment should be judged on the basis of an overall comparison of
conditions before and after the reassignment, such as wages and other
working conditions, the situation in regard to commuting, and the
effect on the worker's future; for example, causing a worker significant
economic or mental hardship by changing said worker's duties or place
of work in a way that cannot be explained fully by the normal rules
of personnel transfer constitutes “disadvantageous change of
assignment” as referred to in (b) vi); |
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v) |
acts such as not allowing a worker to engage in work
duties, or making a worker engage only in miscellaneous duties, constitute
“acts detrimental to the working environment” as referred
to in (b) vii). |
| (4) |
Matters Concerning Limitation of Extension
of Working Hours As Provided for in Articles 17 and 18 of the Law |
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(a) |
With regard to limitation of extension
of working hours, it is important that an employer attend to introducing
a system and stipulating regulations in advance. |
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(b) |
It is important that the limitation of
extension of working hours be determined in such a way that a worker
is not dismissed or otherwise treated disadvantageously by reason
of having requested or received limitation of extension of working
hours. |
| (5) |
Matters Concerning Limitation of Late-Night
Work As Provided for in Articles 19 and 20 of the Law |
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(a) |
With regard to limitation of late-night
work, it is important that an employer attend to introducing a system
and stipulating regulations in advance. |
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(b) |
It is important to give consideration
in advance to determining matters concerning the treatment of workers
during limitation of late-night work (including whether or not they
will be reassigned to daytime work) and to taking measures to make
these matters widely known to workers. |
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(c) |
It is important to give consideration
to enabling workers to utilize the system flexibly in response to
the varied situations in which said workers take care of children
or other family members, said workers' varied working situations,
and similar circumstances. |
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(d) |
It is important that the limitation of
late-night work be determined in such a way that a worker is not dismissed
or otherwise treated disadvantageously by reason of having requested
or received limitation of late-night work. |
| (6) |
Matters in the Determination and Dissemination
of Items Concerning Child Care Leave and Family Care Leave Provided
for in Article 21, Paragraph 1 of the Law
It is important to give consideration to the desirability of determining
and disseminating a single set of regulations concerning treatment
during child care leave and family care leave, working conditions
(such as wages and assignments) after child care leave and family
care leave, and other necessary matters. |
| (7) |
Matters in Taking Necessary Measures Concerning
the Assignment and Other Employment Management of Workers in Business
Establishments Where Workers Who Take Child Care Leave or Family Care
Leave Are Employed, As Provided for in Article 22 of the Law |
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(a) |
It is important to give consideration so
that, as a general rule, most workers who take child care leave or
family care leave are reinstated thereafter to their original position
or its equivalent. |
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(b) |
It is important to give consideration to
the need to make the point stated in (a) a basic premise of employment
management, such as assignments, of workers other than those who take
child care leave or family care leave. |
| (8) |
Matters in Taking Necessary Measures Concerning
the Development and Improvement of Vocational Skills of Workers Taking
Child Care Leave or Family Care Leave, As Provided for in Article
22 of the Law |
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(a) |
It is important that workers who take child
care leave or family care leave should have a choice as to whether
or not said measures are applied to them. |
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(b) |
In view of the fact that child care leave
or family care leave can extend over a relatively long period, and
the fact that the necessary measures for a smooth return to work after
such leave vary according to the individual worker's situation, including
type of occupation, job status, and professional attitude, it is important
to give consideration to the desirability of taking measures which
are both appropriate to the individual worker's situation and systematic. |
| (9) |
Matters in Taking Measures in Accordance
with a System of Child Care Leave or Measures for Shortening Working
Hours, Etc. As Provided for in Article 23, Paragraph 1 of the Law,
and Measures to Facilitate a Worker's Taking Care of a Subject Family
Member in Need of Care While Working As Provided for in Article 23,
Paragraph 2 of the Law |
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(a) |
It is important that said measures be determined
in such a way that a worker is not dismissed or otherwise treated
disadvantageously by reason of having applied for or received application
of said measures. |
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(b) |
It is important that said measures not
be applicable against the will of a worker for longer than the requested
period. |
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(c) |
With regard to a part-time work system,
it is important to give consideration to the desirability of its contents
being such that they effectively facilitate a worker's taking care
of a child or a Subject Family Member in need of care while working. |
| (10) |
Matters In Taking Necessary Measures in
Accordance with a System of Child Care Leave or Measures for Shortening
Working Hours, Etc. As Provided for in Article 24, Paragraph 1 of
the Law
It is important that workers should have a choice as to whether or
not said measures are applied to them. |
| (11) |
Matters in Taking Necessary Measures Determined
with Consideration to the Term and Frequency with Which Family Care
Is Required, in Accordance with a System of Family Care Leave or the
Measures Provided for in Article 23, Paragraph 2 of the Law, As Prescribed
in Article 24, Paragraph 2 of the Law |
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(a) |
It is important that workers should have
a choice as to whether or not said measures are applied to them. |
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(b) |
It is important to give consideration to
the desirability of taking necessary measures while taking into account
the need to harmonize such measures with the burden on the company
entailed by employment management, etc., and bearing in mind the following
matters: |
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i) |
more than 3 months may elapse between the onset and
stabilization of the condition of a family member of whom said worker
is taking care, or between the onset of said condition and the time
when said worker can utilize care-related services; |
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ii) |
after having ceased to require care, a Subject Family
Member involved in family care leave taken by said worker or in measures
taken by the employer with regard to said worker as provided for in
Article 23, paragraph 2 of the Law may return to a condition requiring
care by said worker; |
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iii) |
in some cases, such as where there are no other close
relatives, there may be a great necessity for said worker to take
care of a family member other than a Subject Family Member; |
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iv) |
even a worker who takes care of a family member who
is not in Need of Care may have difficulty in working as a result
of taking care of said family member; |
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v) |
the said worker may wish to be able to utilize the
system flexibly in response to a varying degree of necessity to take
care of a family member. |
| (12) |
Matters in Taking Measures to Provide Leave
to Take Care of a Sick Child Based on Application by the Worker As
Provided for in Article 25 of the Law
It is important to give consideration to the desirability of taking
measures that take into account the fact that a worker tends to take
not more than five days of leave per year due to said worker's child
being sick. |
| (13) |
Matters in Giving Consideration to a Worker's
Situation with Regard to Taking Care of a Child or Family Member,
As Provided for in Article 26 of the Law, When Seeking to Make a Change
to Said Worker's Assignment Which Involves a Change in Said Worker's
Place of Work
Matters to be considered include, for example, ascertaining said worker's
situation with regard to taking care of the child or family member,
taking said worker's own wishes into consideration, and confirming
whether there are alternative means of taking care of the child or
family member in the event of a change in assignment involving a change
in said worker's place of work. |
