Requirement of a 36 Agreement (Saburōku Kyōtei) under Japanese Labour Law

A 36 Agreement (三六協定 / Saburōku Kyōtei) is the labour-management agreement required under Article 36 of the Japanese Labour Standards Act (労働基準法) when an employer intends to have employees work beyond statutory working hours or on statutory holidays. The name comes from Article 36. Japanese Ministry of Health, Labour and Welfare guidance confirms that an employer must conclude the agreement with the majority union or an appropriately selected majority representative and submit it to the Labour Standards Inspection Office.

Important: A 36 Agreement does not itself create an unlimited right to order overtime. The employer must also comply with the agreement's scope, statutory overtime limits, applicable employment rules, and the contractual basis for requiring overtime.

1. Statutory Basis

Article 36 provides that an employer may extend statutory working hours or require work on statutory holidays when:

1. a written agreement is concluded with the appropriate labour representative; and
2. the agreement is submitted to the competent administrative authority in accordance with the statute.

The statutory normal working-time framework is generally:

• 8 hours per day; and
• 40 hours per week.

A statutory holiday requirement also generally applies.

Thus, where an employee is required to work beyond these statutory limits, a valid 36 Agreement is ordinarily necessary.

2. Why Is It Called “36 Agreement”?

It is simply named after Article 36 of the Labour Standards Act.

Japanese terminology:

時間外労働・休日労働に関する協定

is commonly shortened to:

36協定（サブロク協定）

It is therefore not an agreement numbered “36” between the employer and each employee. It is a statutory labour-management agreement regulating overtime and statutory-holiday work.

3. Who Must Conclude the Agreement?

The agreement must be concluded at the relevant workplace/establishment level with either:

A. Majority union

If there is a labour union organized by a majority of the workers at the establishment, the employer concludes the agreement with that union.

B. Majority representative

If there is no qualifying majority union, the agreement must be concluded with a person representing a majority of workers.

The distinction is important because an employer cannot simply select any employee and describe that person as the workers' representative.

The Supreme Court has specifically considered the validity of a 36 Agreement where the purported employee representative did not actually qualify as a representative of the majority of workers.

4. Requirement of a Genuine Majority Representative

The majority representative is not merely an administrative signature.

The person must genuinely represent the majority of workers covered by the relevant establishment.

This requirement is particularly important where:

• there is no majority union;
• management selects the representative;
• the representative is effectively a management employee;
• employees were not given a meaningful opportunity to select the representative;
• a company social club or similar body is treated as if it were a labour organization.

A defective selection can undermine the validity of the 36 Agreement.

5. Written Agreement Is Required

The agreement must be in the required written form.

A significant older Japanese labour case held that an oral agreement was insufficient for Article 36 purposes and that a purported oral 36 Agreement could not provide the necessary legal basis for overtime work.

Practical implication

HR should maintain:

• signed agreement;
• applicable workplace identification;
• representative-selection records;
• overtime limits;
• applicable categories of workers;
• agreement period;
• reasons for overtime;
• statutory-holiday arrangements;
• special-clause information where applicable.

6. Filing With the Labour Standards Inspection Office

Conclusion of the agreement is not the end of the process.

The agreement must be submitted/notified to the competent Labour Standards Inspection Office in accordance with Article 36.

MHLW expressly states that overtime or statutory-holiday work may be performed within the scope of the agreement after the agreement has been concluded and submitted.

Therefore:

Signature + proper filing = essential compliance steps.

An employer should not assume that merely having an internally signed document is sufficient.

7. What Does the 36 Agreement Permit?

The agreement provides the statutory basis for working beyond ordinary statutory limits within the agreed framework.

For example:

Normal statutory working time:
8 hours/day

Employee works:
10 hours/day

The additional 2 hours constitute overtime beyond statutory working hours.

If the employer has no valid 36 Agreement covering the relevant work, requiring such overtime can violate the Labour Standards Act.

8. Overtime Limits

The modern Japanese overtime regime imposes significant limits.

As a general rule, overtime under Article 36 is limited to:

• 45 hours per month
• 360 hours per year

unless the statutory requirements for exceptional circumstances and a special clause are satisfied.

Even under a special clause, additional statutory restrictions apply.

MHLW identifies, among other limits:

• 720 hours of overtime per year;
• 100 hours in a single month, including statutory-holiday work;
• average of 80 hours over multiple months, including statutory-holiday work;
• exceeding 45 hours per month is generally limited to six months per year. 

These are not merely matters that an employer can freely negotiate away.

9. Special Clause — 特別条項

A special clause (tokubetsu jōkō) may be used where extraordinary circumstances require overtime beyond the ordinary 45-hour monthly / 360-hour annual framework.

However, the employer must identify appropriate extraordinary circumstances and comply with the statutory maximums.

It cannot simply state:

“The company may require unlimited overtime whenever business requires.”

The statutory framework continues to restrict the employer.

10. 36 Agreement and Overtime Pay

A 36 Agreement does not eliminate the employer's obligation to pay statutory overtime premiums.

The agreement answers the question:

“May the employer lawfully require this overtime within the statutory framework?”

It does not answer:

“Does the employee have to work without additional compensation?”

Those are separate issues.

Where statutory overtime occurs, the employer must comply with the applicable rules on premium wages.

11. 36 Agreement and Individual Overtime Obligation

This is an important distinction.

A 36 Agreement is fundamentally an agreement between:

Employer ↔ Majority Union/Majority Representative

It is not simply:

Employer ↔ Individual Employee

The question of whether a particular employee is contractually required to perform overtime can depend on:

• employment contract;
• collective agreement;
• work rules;
• 36 Agreement;
• nature of the overtime order;
• applicable circumstances.

Japanese case law has recognized that a 36 Agreement alone does not necessarily mean that an individual employee automatically has an unlimited contractual duty to perform overtime.

12. Major Case Law 1 — Hitachi, Ltd. Musashi Works Case

Supreme Court, 1991

This is one of the most important Japanese cases concerning overtime orders and a 36 Agreement.

The employer had:

• a 36 Agreement;
• work rules permitting overtime;
• specified circumstances in which overtime could be ordered.

The employee refused an overtime order and was ultimately dismissed.

The Supreme Court recognized that where a valid 36 Agreement existed and the work rules reasonably incorporated overtime obligations within its framework, the employer could require overtime in circumstances covered by the relevant rules and agreement.

Principle

A properly structured combination of:

36 Agreement + reasonable work rules

can establish an employee's obligation to comply with an overtime order.

HR lesson

The 36 Agreement should not be drafted in isolation. The employer should ensure consistency among:

• employment contracts;
• work rules;
• collective agreements;
• 36 Agreement.

13. Case Law 2 — Tokoro Case

Tokyo High Court, 17 November 1997

Supreme Court, 22 June 2001

The Tokoro case is particularly important concerning the majority representative.

The purported employee representative was essentially selected through a company social organization rather than through a legally appropriate process demonstrating representation of the majority of workers.

The courts concluded that the 36 Agreement was not valid because the person concluding it could not properly be treated as the majority representative.

Consequently, the employer could not rely on the agreement as the basis for the overtime order, and the dismissal based on refusal of overtime was held invalid.

Principle

The identity and legitimacy of the employee representative are substantive requirements, not formalities.

14. Case Law 3 — Nihon Kōkan (Nippon Kokan) Case

Kawasaki Branch of Yokohama District Court, 28 December 1970

The court distinguished between the existence of a 36 Agreement and the existence of an employee's contractual obligation to perform overtime.

It held that a 36 Agreement by itself did not automatically mean that an employer could order every employee to work overtime.

However, where the work rules contained a valid overtime provision and applied to the employee, the employee could have an overtime obligation within the scope of the applicable rules and 36 Agreement.

Principle

A 36 Agreement provides the statutory framework, but the employment relationship must also contain a basis for imposing overtime obligations.

15. Case Law 4 — Oral 36 Agreement Case

Japanese labour court precedent

A court considered a purported 36 Agreement that had been concluded orally.

The court held that Article 36 requires the agreement to be made in writing. Because the purported agreement was only oral, it was ineffective.

Consequently, the employer could not rely upon that agreement as the legal basis for the overtime order.

Principle

Form matters.

The employer should not treat:

• informal discussions;
• emails;
• verbal understandings;
• ordinary management instructions

as substitutes for the statutory agreement.

16. Case Law 5 — Hitachi Seisakusho Employee Status Case

Tokyo District Court, 22 May 1978

The employee had repeatedly refused overtime despite an employer relying on a 36 Agreement and overtime provisions.

The litigation examined whether the employee's refusal justified severe disciplinary action.

The case illustrates an important point:

The existence of a 36 Agreement does not make every disciplinary response to overtime refusal automatically lawful.

The employer still has to establish a valid overtime obligation and comply with disciplinary rules and principles governing dismissal.

17. Case Law 6 — Hitachi Case, Tokyo High Court, 27 March 1986

The Tokyo High Court considered circumstances where:

• the collective agreement/work rules authorized overtime;
• a 36 Agreement existed;
• specified business circumstances justified overtime;
• employees repeatedly refused overtime.

The court recognized that overtime could be ordered where the contractual and regulatory framework properly incorporated the 36 Agreement and the circumstances fell within the agreement.

Principle

The more clearly the agreement and work rules define:

• when overtime can be required;
• how much overtime can be required;
• the relevant business circumstances;

the stronger the employer's legal position.

18. Summary of the Six Cases

19. What Must Be Included in a 36 Agreement?

A compliant agreement generally needs to address matters such as:

1. Applicable workplace

The agreement should identify the relevant establishment.

2. Workers covered

The relevant categories of workers must be specified.

3. Overtime reasons

The circumstances requiring overtime should be identified appropriately.

4. Overtime period

The agreement should specify the relevant period.

5. Maximum overtime

The applicable limits must be established.

6. Statutory holidays

Where statutory-holiday work is contemplated, the agreement should address it.

7. Special clause

Where applicable, the agreement should contain the necessary special-clause provisions.

8. Health and welfare measures

The modern Article 36 framework requires attention to worker health and welfare when extended overtime is contemplated. The MHLW guideline emphasizes that overtime and holiday work should be kept to the minimum necessary and should generally remain within the statutory limits.

20. Consequences of Having No 36 Agreement

If an employer requires overtime beyond statutory working hours without a valid 36 Agreement, the employer can face a violation of the Labour Standards Act.

MHLW specifically states that performing overtime or statutory-holiday work without a 36 Agreement can result in violations of the statutory working-hour/holiday provisions and criminal penalties.

The potential consequences include:

• Labour Standards Inspection Office intervention;
• correction orders;
• criminal liability where statutory requirements are violated;
• wage and overtime disputes;
• administrative scrutiny;
• reputational consequences;
• employee claims concerning unpaid overtime.

21. Expiry and Renewal

A 36 Agreement operates for its specified period.

HR should therefore establish a compliance calendar for:

• expiration;
• negotiation;
• employee-representative selection;
• signature;
• Labour Standards Inspection Office filing;
• implementation.

An employer should not continue relying on an expired agreement merely because the business still needs overtime.

22. Relationship with Work Rules

A useful compliance structure is:

Labour Standards Act
↓
36 Agreement
↓
Work Rules / Collective Agreement
↓
Employment Contract
↓
Individual Overtime Order

Each layer should be consistent.

The Supreme Court's approach in the Hitachi Musashi Works case demonstrates why the work rules and 36 Agreement must work together when the employer intends to establish enforceable overtime obligations.

23. HR Compliance Checklist

Before requiring overtime, a Japanese employer should verify:

•  Statutory working-hour limits have been identified.
•  A valid 36 Agreement exists.
•  It is in the required written form.
•  It was concluded with the proper majority union or majority representative.
•  The representative was legitimately selected.
•  The agreement covers the relevant establishment.
•  The employee's category is covered.
•  The agreement has not expired.
•  The agreement has been properly filed.
•  The proposed overtime falls within the agreed limits.
•  Any special clause satisfies statutory requirements.
•  Monthly and annual overtime limits are monitored.
•  Statutory-holiday work is separately controlled.
•  Overtime premiums are properly paid.
•  Working-hour records are accurate.
•  Health and welfare protections are implemented.
•  Work rules provide an appropriate contractual basis for overtime where necessary.

24. Key Distinction for Japanese HR

The following three concepts should never be confused:

36 Agreement

Provides the statutory framework permitting overtime/holiday work.

Employment Rules/Contract

May establish whether the employee has a contractual duty to perform overtime.

Overtime Pay

Determines the employee's entitlement to statutory premium wages.

Therefore:

A 36 Agreement is necessary for covered statutory overtime, but it is not a blanket authorization for unlimited overtime and does not by itself resolve every contractual question concerning an individual employee.

Conclusion

The 36 Agreement (Saburōku Kyōtei) is a central Japanese labour-law compliance requirement. An employer that wishes to require employees to work beyond statutory working hours or on statutory holidays must ordinarily have a properly concluded and filed Article 36 agreement. The agreement must be made with the appropriate majority union or genuinely selected majority representative, comply with statutory overtime limits, and operate within the applicable work rules and employment framework.

The case law particularly demonstrates four recurring requirements: proper employee representation, written form, proper filing, and a clear contractual/work-rule basis for individual overtime obligations. A company should therefore treat the 36 Agreement as a substantive labour-compliance instrument rather than merely as an annual administrative filing.