Yukio Hayashi 04 Jul 2019
Q: Some mid-career employees have been working for 10 years without a formal employment contract. I've had no problem without an employment contract, but should I still have a written employment contract? (Male in his 40s working in the HR department of a Japanese company)
A: Employment contracts do not necessarily have to be reduced in writing. Oral employment contracts have legal effect. Even if specific terms of employment contract have not been discussed, there is in principle an employment relationship if an employee actually works for an employer. It goes without saying that wages, working hours, annual leave and superannuation, etc. must meet the minimum labour standards set by law, even if no detailed employment conditions are negotiated.
However, labour standards set by law are complex. Employers may inadvertently violate minimum labour standards if they do not ensure that minimum employment standards are well covered in the employment contract. Fair Work Ombudsman may impose a fine in case of violation of the standards.
Also, even if employees are employed under conditions that exceed the minimum labour standards, it is necessary to confirm and reduce in writing that both parties understand the details of the terms. When an annual salary is presented (as opposed to hourly wages), there could be a disagreement between the parties about what their wage covers. For example, an employer may understand that the salary includes reasonable overtime work, while an employee understood that overtime works are billable separately. In this case, the employer is legally required to notify the employee in writing that the overtime payment is included in the salary.
Another common issue is that in the absence of a contract, an uncertainty arises whether a notice is required to terminate an employment contract. Generally, if an employment contract states that a notice of dismissal should be given before certain weeks (except for unfair and illegal dismissal), an employee must be informed of the termination before that period. However, in the absence of a written agreement, the notice of termination must be a reasonable period. The reasonable period is determined case-by-case.
If you hire a position that involves creativity, you need to make sure who owns the intellectual property that arises as your employees perform their duties. In addition, it will be disadvantageous for employers if an employment contract fails to incorporate confidentiality obligations and non-competition obligations after termination.
Especially for mid-career employees or employees in senior management positions, if above terms are not stipulated in their employment contract, it can lead to major legal issues later. Though it may be difficult to ask an employee to sign an employment contract suddenly, it is recommended that a written employment contract is presented to employees at their promotion.