JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
may renew the fixed-term employment for more than the maximum duration. There is no explicit minimum duration for a fixed-term employment contract. However, the LCA provides that an employer must not set a shorter term than is neces - sary (Article 17, paragraph 2 of the LCA). Under the LCA, a fixed-term contract employee who has been, or is expected to be, employed by their employer for more than five years is allowed to con - vert their employment contract to an indefinite-term employment contract upon request to their employer (Article 18 of the LCA). In addition, even if a fixed-term contract employee has not been (or is not expected to be) employed by their employer for more than five years when the employer decides not to renew the fixed-term employee’s contract upon its expiry, the employer must have an “objectively legitimate and socially justifiable cause” (see 4.4 Termination of Employment Contracts ) for such non-renewal if: • the status of the fixed-term employment contract is not substantively different from an employment contract without a definite period (eg, as a result of repeated renewals of the contract); or • the fixed-term contract employee has a reason - able expectation that their fixed-term employment contract will be renewed (Article 19 of the LCA). 4.3 Working Time Basic Working Time Regulations As a general rule, employees’ working hours may not exceed eight hours per day or 40 hours per week (Arti - cle 32 of the LSA). Any work exceeding eight hours per day or 40 hours per week is recognised as statu - tory overtime work. A rest period of at least 45 minutes must be granted during working hours to employees who work for more than six hours per day and a rest period of at least 60 minutes must be granted to employees who work for more than eight hours per day. As a general rule, the employer must grant all of its employees a simultaneous rest period (Article 34 of the LSA).
Employees are also entitled to take at least one day of holiday per week (statutory weekly holiday) (Article 35 of the LSA). Article 36 Agreement In order to have employees perform statutory over - time work or work on a statutory weekly holiday, the employer is required to execute a labour man - agement agreement ( saburoku kyotei , or “Article 36 agreement”) with the majority trade union (or, if such a union does not exist, with the employee representa - tive) and submit it to the Labour Standards Inspection Office prior to having the employees commence any statutory overtime work or work on statutory weekly holidays (Articles 32, 35 and 36 of the LSA). In addi - tion, the employer must refer to the possibility of statutory overtime work and work on statutory weekly holidays in the rules of employment (if any) in advance of requiring the overtime or holiday work. Extra Wages When an employee has performed statutory over - time work or work on a statutory weekly holiday, the employer must pay extra wages for that work calcu - lated at the rate of: • 125% of the normal salary per hour of statutory overtime work for up to 60 hours per month and 150% thereof if the statutory overtime work hours exceed 60 hours per month; or • 135% of the normal salary per hour of work on a statutory weekly holiday (Article 37 of the LSA). In addition to the above-mentioned extra wages, an employee working between 10pm and 5am is entitled to an extra payment in accordance with a late-night work compensation at the rate of at least 25% of the normal salary per late-night working hour (Article 37 of the LSA). Employees in Managerial Positions Employees in managerial positions are entitled to receive an extra wage for late-night work but are not entitled to receive extra wages for statutory overtime work and work on statutory holidays (Article 41 of the LSA). Whether an employee is in a managerial position depends on various factors, such as:
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