Ⅰ. Justification for Industrial Action

A labor union may take industrial action as the means of gaining a strong position at the bargaining table, and shall be exempt from any civil or criminal liability if it is taken in a legitimate manner. The requirements for legitimacy of an industrial action are: it shall be taken by a legitimate labor union; its purpose shall be to maintain or improve working conditions of the employees and promote their social and economic status; and it shall follow the procedures stipulated in law.



An employee can be exempt from penalties only when the industrial actions are legal. Legal requirements for such exemption from penalties shall be the following: Firstly, the subject shall be the person who is subject to collective bargaining. Secondly, the purpose of the action must be to cultivate negotiations between labor and management in order to improve working conditions. Thirdly, industrial actions must be taken only when the employer rejects collective bargaining requests to resolve employee demands for improved working conditions. In these cases, as preceding conditions, the labor union shall engage in a yes/no voting process and report the occurrence of any industrial action unless there is a special reason not to do so. And fourthly, the ways and methods shall be in harmony with the employer’s property rights and shall not involve any violent behavior.137)



1. Substantial requirements

(1) Justification of subjects

The parties engaged in industrial action shall be the parties to collective bargaining. Thus, a legitimate labor union shall represent the employee side. Industrial actions are legitimate only when they are taken by the labor union as a whole. That is, if some union members begin an industrial action, regardless of the position of the union, such industrial action will not be regarded as legitimate. A branch or chapter of a labor union is a lower organization of a labor union and therefore, cannot serve as a counterpart to management in collective bargaining or agreement, or industrial action within the range of authorities commissioned to them by the labor union rules.

1) Those engaged in industrial actions shall be those persons who are capable of conducting collective bargaining and signing collective bargaining agreements.

2) Industrial actions are legal only when they are authorized by an established labor union in accordance with the regulations of the Trade Union Act. However, industrial actions are not legal if they are conducted by a group of employees not yet established as a labor union. Industrial actions are designed to accomplish their claims concerning working conditions by executing collective bargaining agreements. Industrial actions by persons not subject to collective bargaining(e.g., a temporary body for industrial actions) cannot be engaged in order to provide assistance in the settlement of industrial disputes. Accordingly, it is necessary to prevent any irresponsible industrial actions by such groups.

3) Strikes conducted by a small group of labor union members without the labor union’s approval or against the majority of union members, which is designated a wildcat strike, will not be considered legal because the strike was taken by persons not subject to collective bargaining(e.g., a temporary body for industrial actions).

4) An individual employee or a temporary body for industrial actions cannot be a party to the collective agreement. An industrial action is a last resort on which a union can rely in order to ensure favorable working conditions in negotiating a collective agreement. Accordingly, an industrial action is permitted only when it is aimed at a matter that is subject to collective bargaining and is taken by a party to collective bargaining and agreement.

5) It is not justifiable for some union members to begin an industrial action without the approval of the union or against its instructions. At least under the labor laws currently in force, an industrial action is justifiable and its participants immune to criminal liability only when the action is taken by a labor union that is entitled to conduct collective bargaining or reach a collective agreement. If some union members begin an industrial action without the approval of the union or against its instructions, the action is neither justifiable nor immune to criminal liabilities.

(2) Justification of purpose

Industrial actions are behaviors through which the parties involved in the labor relationship intend to accomplish their means(Article 2, subparagraph 6, of the Trade Union Act), concerning employment conditions such as wages, working hours, welfare, dismissal, and other issues(Article 2, subparagraph 5, of the same Act). In general, political strikes or sympathy strikes are not legitimate.

1) The purpose of industrial actions shall be to cultivate autonomous negotiations between labor and management to improve working conditions. That is, the labor union’s demand shall be a matter pertaining to a collective agreement that it expects to accomplish through the industrial actions.

2) Industrial actions shall be undertaken to cultivate autonomous negotiations between labor and management. Industrial actions are actions designed to accomplish a party’s claims when there is disagreement between two parties with respect to working conditions and the claims of parties described here shall include any matters pertaining to individual and collective labor relations. They shall not only include claims described in the collective agreement or labor agreement but will include claims for the establishment of additional rules and/or amendments to those agreements. Accordingly, they shall include all claims with respect to the determination of conditions of employment such as wages, working hours, welfare, dismissal, and other issues, but shall not be limited to wages or improving and maintaining workers’ economic status.

3) If an industrial action is taken for several reasons, some of which are unjustified, the main purpose of the industrial action shall be examined in order to determine whether the action is justified or not. If it is estimated that the labor union would not risk taking industrial action if the unfair demand was absent from its purposes, the entire industrial action cannot be justified.

4) As long as the reason for the industrial action is not justifiable, even though the labor union has engaged in the prescribed mediation process required by the Trade Union Act before the industrial action commenced and/or there have been no legal violations in the ways and methods of the action, the action cannot be considered justifiable actions.

5) It is not justifiable to begin industrial action in protest of dismissals(massive lay-offs) for managerial reasons or integration or abolition of business departments as part of a restructuring process. A decision to dismiss employees for managerial reasons or remove or reduce business departments for restructuring purposes is exclusively up to the employer and, in principle, such decisions are not subject to collective bargaining. Unless the employer intends to carry out the restructuring process for an unfair reason(other than urgent business purposes, etc.), no industrial action taken by the union to protest the restructuring is justifiable, even though the action is aimed at improving working conditions and the status of the employees.

6) When an industrial action is taken to protest dismissal for managerial reasons, such action cannot be justified. A certain industrial action was begun to block a restructuring process, including massive lay-offs to be done for economic reasons. This was a clear infringement on the employer’s prerogatives in business management. There was no evidence that the restructuring was being carried out for unjustifiable reasons. Given this, the industrial action was not justifiable.

7) It is not justifiable to begin industrial action in order to get compensation for something, even when the compensation is not one of the issues subject to collective bargaining. In a certain case, a business transfer was the result of the employer’s decision to change the structure of the business. In addition, as the proceeds from the transfer did not come from business activities, the decisions on use of the proceeds may not be negotiated at a bargaining table. Nevertheless, the union, under the leadership of some union officials, demanded compensation and resorted to industrial actions with a view to having its demand met. When all things were considered, the industrial actions were not justifiable.

(3) Justification of methods

According to Article 4 of the Trade Union Act, a labor union’s collective bargaining or other collective activities are admitted as industrial actions that are exempt from criminal liability, but it also regulates that acts of violence or destruction shall not be construed as justifiable for any reason. Article 42 of the Act also states that industrial actions shall not be conducted with violence or destruction.
Any industrial action which suspends, closes, or hampers normal functioning of safety facilities(emergency rooms and intensive care units of hospitals, gas explosion prevention facilities, etc.) shall be deemed illegitimate. Therefore, a labor union shall ensure that a minimal number of employees required for normal functioning of those safety facilities are at work, even while the union is in the course of industrial action.

1) Industrial actions shall be to partially or totally prevent the provision of labor services by negative methods to damage the employer’s business. Industrial actions shall be implemented fairly through a principle of faith and sincerity, be in harmony with the employer’s property rights regarding the corporate facilities, and shall not be accompanied by violence or destruction.

2) In a certain case, the plaintiff held a labor union meeting during working hours without the employer’s approval and conducted union activities using a high performance megaphone inside company facilities. He led the labor union to collectively refuse to provide labor services, which was characteristic of an industrial action, without appropriate procedures such as holding a union assembly or engaging in an adjustment process for labor disputes. He blocked the entrance gate, which disturbed the company’s normal operations. Furthermore, he used force to occupy the president’s office for a considerable period of time and, in this process, used violence toward managerial employees. He humiliated the company’s labor managers and distributed printed handouts containing defamatory untruths them. Even though the plaintiff insisted that the purpose of the union activities was to ensure the health and safety of the union members, such types of union activities cannot be seen as justifiable union activities or industrial actions and so they were considered illegal.

3) When a dismissed employee occupies a building of the company he once worked for, such action is not justifiable.
A dismissed employee, along with 570 other striking employees, stormed into the main building of the company he had worked for and, in doing so, forcefully pushed away about 400 employees who were trying to stop the striking employees from coming into the building. It does not seem that such an act of occupation was legitimate. Furthermore, the building occupation prevented about 600 employees from engaging in their work, which is not an unavoidable result of the strike. All considered, the dismissed employee committed the offenses of unlawful entry and obstruction of business.

(4) Justification of timing

Industrial actions are designed to make one party yield to the other’s demands. Thus, if such demands are included in the contents of the existing collective agreement, it is not justifiable to make demands during the effective period of that agreement. If the labor union, while the collective agreement is still in effect, attempts industrial action by obstructing the normal operation of business, this violates the duty to maintain peace and shall not be justifiable unless the employer willingly accepts the union’s demand to negotiate at that time.
The peace obligation is inherent in the collective agreement, whether or not it is explicitly included in that agreement. Under the peace obligation, neither party to the collective agreement may demand revision or repeal of the existing provisions in that agreement, or insertion of new provisions, while the agreement remains effective. Considering that the peace obligation is to ensure stability in the labor relationship and maintain the effectiveness of the collective agreement, any industrial actions which a union engages in to invalidate a collective agreement without providing a justifiable reason constitute a violation of the peace obligation and cannot be justified.