JILPT Research Report No.209
Labor Law and Policy in the Fourth Industrial Revolution: Issues of Japanese Law in View of German Legal Developments in Relation to Work 4.0

March 31, 2021

Summary

Research Objective

This analysis focuses on Germany as the origin of the concept of the fourth industrial revolution—or "Industry 4.0" (Industrie 4.0)—and a source of examples of steps toward adapting to such developments in the form of extensive law and policy debate and trends in legislation under the heading "Work 4.0" (Arbeiten 4.0). Comparisons are drawn with legal developments in Japan with the aim of reviewing the current state and identifying the potential future issues of Japanese labor and law policy in relation to the fourth industrial revolution.

Research Method

Literature review, Interview survey

Key Findings

• Since 2015, the German federal government—in particular, the Federal Ministry of Labour and Social Affairs (BMAS)—has been addressing the topic of Work 4.0 by examining the new developments that need to be made in labor law and policy to adapt to the fourth industrial revolution (digitalization). Discussions are being pursued to explore each of the areas in which it is necessary to develop legislative policy—namely, vocational education and training, promoting and protecting flexible work arrangements with regard to time and location, protecting crowdworking and other such work arrangements not involving employment contracts ("employment-like working styles"), employee data protection, and collective labor relations.
• Looking firstly at law and policy on vocational education and training, Germany's Work4.0 dialogue has been oriented toward responding to the potential changes in people's (workers') roles along with the introduction of artificial intelligence (AI) and robotics and other such new technology in workplaces through the development of policy supporting workers to guarantee their employability by obtaining new vocational qualifications through continuing vocational training as part of the unemployment insurance system, under the slogan "from unemployment insurance to employment insurance" ("Weiterentwicklung der Arbeitslosenversicherung zur Arbeitsversicherung"). On this basis, Germany passed the Skills Development Opportunities Act (Qualifizierungschancengesetz) in 2018 and the Work of Tomorrow Act (Arbeit-von-morgen-Gesetz) in 2020, thereby amending Book III of the Social Code（Sozialgesetzbuch）and its prescriptions on the unemployment insurance system in line with said approach, allowing for expansion of the (financial) assistance system for workers (and their employers) for continuing vocational training (Section 82).
• Secondly, let us look at law and policy on flexible work arrangements. Germany has started by pursuing debate on law and policy aimed at promoting such ways of working. Support to ensure flexible working locations in particular has taken the form of the second draft of the proposed "Mobile Working Act" (Mobile Arbeit-Gesetz) published by the BMAS in November 2020, which sets out a proposal to oblige employers to participate in consultations with workers who wish to engage in mobile working (including telework from home). Increasing flexibility in working hours has also been addressed with the December 2018 amendment of the Act on Part-time and Temporary Work (Teilzeit- und Befristungsgesetz), which established workers' rights to request for their working hours to be reduced for a limited term (Article 9a), allowing workers to temporarily switch to part-time work with the guarantee that they will be able to return to full-time employment. At the same time, Germany is also engaging in debate on law and policy to protect the health and safety of workers under the concept of flexible work arrangements. The aforementioned Mobile Working Act draft in particular seeks to guarantee the effectivity of working hour regulations by proposing to oblige employers to ascertain (record) all working hours of workers engaged in mobile working, and for workers who engage in mobile working to have any accidents that they experience while bringing their children to and from childcare facilities in order to work to be covered under the protection of the employment accident insurance system (Social Code, Book VII). On the other hand, the Work 4.0 dialogue has shown a less proactive stance toward across-the-board legal regulations regarding a worker's "right to disconnect" (Recht auf Unerreichbarkeit).
• Next, with regard to law and policy on employment-like working styles, debates in Germany largely focus on the kinds of legal protection that need to be provided for crowdworking (work via digital platforms). More specifically, the proposals set out in several policy documents recently published by the BMAS consist of two key approaches. The first is aimed at preventing "misclassification" (falsche Statuseinschätzung) and proposes measures such as, for instance, shifting the burden of proof regarding crowdworkers' worker status (eligibility to be classed as an employee; German Civil Code [Bürgerliches Gesetzbuch], Section 611a) to platform operators. The other approach addresses legal protection for crowdworkers not recognized as holding worker status, by proposing to partially extend the existing labor law and regulations (or apply equivalent regulations) to scenarios where crowdworkers are recognized as requiring a certain amount of protection.
• Looking also at law and policy for employee data protection, since May 2018 Germany has enforced the European Union's General Data Protection Regulation (GDPR), in addition to domestic law providing regulations focused on employee data protection in employment relationships, under Article 26 of the Federal Data Protection Act (Bundesdatenschutzgesetz). These regulations also apply to cases characteristic of the fourth industrial revolution, where big data on workers may be analyzed by AI, such that they cover both the stage at which data is collected for algorithm development and the stage in which big data analysis is implemented.
• Turning finally to law and policy on collective labor relations, the Work 4.0 dialogue recognizes on the one hand that Germany's traditional "dual" system of industrial relations (trade unions negotiating collective agreements at industry level and works councils providing representation at workplace level) has already played a certain part (and could continue to play a part) in adapting to the changes in employment society prompted by the fourth industrial revolution (digitalization), while on the other hand noting that said system is still growing weaker, and the BMAS is therefore taking the lead in developing various proposals for creating policy legislation to strengthen it.

Policy Implications

It can be suggested that Japan pursue identical or similar directions in policy with the perceptions of the issues as Germany adopted with respect to the policy areas that require new approaches under the fourth industrial revolution, vocational education and training, flexible work arrangements, and employment-like working styles. Japan could learn many aspects from Germany regarding the specific designs of systems for each of the labor laws and policies in said fields. Looking at employee data protection and collective labor relations, while Japan has similar perceptions of the issues to those in Germany, still, no concrete developments have been made in policy legislation as yet. Japan will, however, inevitably need to consider potential approaches for these areas as well, and the debates and system designs in German law will serve as a reference when doing so.

Policy Contribution

This research is anticipated to be used as material for study meetings and conferences at the Ministry of Health, Labour and Welfare and other government organizations.

Contents (available only in Japanese)

JILPT Research Report No.209, full text（PDF:1.8MB）

• Cover –Preface - Author –Contents
• Introduction: Premises and Objectives
• Chapter 1: Law and policy on vocational education and training
• Chapter 2: Law and policy on flexible work arrangements
• Chapter 3: Law and policy on employment-like working styles
• Chapter 4: Law and policy on employee data protection
• Chapter 5: Law and policy on collective labor relations
• Conclusion: Summary of Insights

Research Category

Research on mechanisms for establishing terms and conditions of employment, centering on labor management relations

Subtopic: Research on labor and employment law and policy adapted to changes in employment, work, and society

Research Period

Fiscal 2020 (April 2020 - March 2021)

Author

YAMAMOTO Yota

Vice Senior Researcher, The Japan Institute for Labour Policy and Training

Related Research Results

• Discussion Paper 18-02 "Changes in Work, Employment, and Society in the Fourth Industrial Revolution and the Related Labor Law and Policy Issues: What Does Japan Need to Learn from the German Work 4.0 Dialogue?" (2018)
• Discussion Paper 19-02 "Work 4.0 and German Labor Law: With a Focus on Expert Opinions from Professor Rüdiger Krause" (2019)

JILPT Research Report at a Glance

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