Employees’ Rights and Duties of Occupational Safety and Health in Germany, the United States, Japan, and Korea: A Comparative Law Approach Employees’ rights of occupational safety and health can be classified into three distinct domains. As a direct legislative measure, first, occupational safety an...
Employees’ Rights and Duties of Occupational Safety and Health in Germany, the United States, Japan, and Korea: A Comparative Law Approach Employees’ rights of occupational safety and health can be classified into three distinct domains. As a direct legislative measure, first, occupational safety and health law provides employees with participation rights, including rights to participate in the joint decision-making process regarding safety and health issues in the workplace. Second, employees may enjoy rights of occupational safety and health indirectly through the medium of private law. For example, employers’ duties on occupational safety and health become the content of employment contracts and employees’ rights are protected indirectly by private law such as the right to know. Finally, employees’ rights of occupational safety and health are given in the process of regulating employers who violate duties on private law such as the duty of reasonable care of safety. In this case, employees may have the right to claim compensation for damages, demand injunctions, or refuse hazardous work. The purpose of this thesis is to examine how Germany, the United States, and Japan regulate occupational safety and health and how they differ from each other from a comparative law perspective. In Germany, works councils – organizations representing workers in the workplace – have the right to make a joint decision with employers on occupational safety and health issues in the workplace. Through these councils, employees can actively participate in various activities that would prevent industrial accidents. The right to know is granted directly to individual employees and indirectly through works councils. Occupational safety and health regulations, if they become the content of employment contracts, materialize employers’ duty of reasonable care of safety. If employers violate the duty of reasonable care of safety, employees may have a right to claim damages, to demand injunctive relief, and to refuse hazardous work. In the United States, OSH Act as public law creates a number of legislative rights for employees so that they may participate in the inspection and enforcement processes. Yet, employees neither have the right to claim reasonable care of safety and health nor take a legal action against employers to enforce occupational safety and health regulations. However, employees can seek an injunctive relief from state courts with reference to common law regarding employers’ duty of reasonable care of safety. They also claim compensation for damages under certain conditions. Employees’ right to know is not only a passive right created by imposed obligations on employers, but also an active one granted directly to employees by the law. OSH Act provides employees with the right to refuse hazardous work. In addition, it grants employees a wide range of protections against employers’ adverse treatments due to their exercise of statutory rights such as complaints. According to the dominant legal theory and case law in Japan, the enforcement of occupational safety and health law is mediated through private law when employers violate the duty of reasonable care of safety on employment contracts. Both theory and case law in Japan agree on the point that employees may claim compensation for damages when employers violate duty of reasonable care of safety. Right to refuse hazardous work is generally accepted. However, there are competing perspectives on whether employees can exercise right for injunctions. Japan’s occupational safety and health law guarantees employees’ right to complain, to participate in safety committees, and to attend hearing on the proposed safety and health plan. Japan’s law grants further rights on private law, such as right to be notified and educated as part of the right to know. Despite these rights, Japan has a relatively weak legislature in respect of employees’ right to participate in the decision making or enforcement process compared to Germany and the United States. The effectiveness of the prevention of industrial accidents requires the role of not only employers but also employees. Nations above all have regulated duties in the positive law recognizing the importance of the role of employees in preventing industrial accidents even though the rules are different by countries. The duty of employees are roughly divided into two parts: one is a formal duty which is responding to the action of employers and the other is an independent duty which is not related to the employers. Except in the United State, in Germany, Japan and Korea, the duty of employees is stipulated not only as the duty by the positive law but also as the duty by the contracts. Korea has relatively weak legislature in terms of rights of occupational safety and health. Furthermore, employee’s duties don’t include the view about aggressive role of employees. It is needed to redesign the occupational safety and health law so that employees can participate in activities to prevent industrial accidents aggressively.
Employees’ Rights and Duties of Occupational Safety and Health in Germany, the United States, Japan, and Korea: A Comparative Law Approach Employees’ rights of occupational safety and health can be classified into three distinct domains. As a direct legislative measure, first, occupational safety and health law provides employees with participation rights, including rights to participate in the joint decision-making process regarding safety and health issues in the workplace. Second, employees may enjoy rights of occupational safety and health indirectly through the medium of private law. For example, employers’ duties on occupational safety and health become the content of employment contracts and employees’ rights are protected indirectly by private law such as the right to know. Finally, employees’ rights of occupational safety and health are given in the process of regulating employers who violate duties on private law such as the duty of reasonable care of safety. In this case, employees may have the right to claim compensation for damages, demand injunctions, or refuse hazardous work. The purpose of this thesis is to examine how Germany, the United States, and Japan regulate occupational safety and health and how they differ from each other from a comparative law perspective. In Germany, works councils – organizations representing workers in the workplace – have the right to make a joint decision with employers on occupational safety and health issues in the workplace. Through these councils, employees can actively participate in various activities that would prevent industrial accidents. The right to know is granted directly to individual employees and indirectly through works councils. Occupational safety and health regulations, if they become the content of employment contracts, materialize employers’ duty of reasonable care of safety. If employers violate the duty of reasonable care of safety, employees may have a right to claim damages, to demand injunctive relief, and to refuse hazardous work. In the United States, OSH Act as public law creates a number of legislative rights for employees so that they may participate in the inspection and enforcement processes. Yet, employees neither have the right to claim reasonable care of safety and health nor take a legal action against employers to enforce occupational safety and health regulations. However, employees can seek an injunctive relief from state courts with reference to common law regarding employers’ duty of reasonable care of safety. They also claim compensation for damages under certain conditions. Employees’ right to know is not only a passive right created by imposed obligations on employers, but also an active one granted directly to employees by the law. OSH Act provides employees with the right to refuse hazardous work. In addition, it grants employees a wide range of protections against employers’ adverse treatments due to their exercise of statutory rights such as complaints. According to the dominant legal theory and case law in Japan, the enforcement of occupational safety and health law is mediated through private law when employers violate the duty of reasonable care of safety on employment contracts. Both theory and case law in Japan agree on the point that employees may claim compensation for damages when employers violate duty of reasonable care of safety. Right to refuse hazardous work is generally accepted. However, there are competing perspectives on whether employees can exercise right for injunctions. Japan’s occupational safety and health law guarantees employees’ right to complain, to participate in safety committees, and to attend hearing on the proposed safety and health plan. Japan’s law grants further rights on private law, such as right to be notified and educated as part of the right to know. Despite these rights, Japan has a relatively weak legislature in respect of employees’ right to participate in the decision making or enforcement process compared to Germany and the United States. The effectiveness of the prevention of industrial accidents requires the role of not only employers but also employees. Nations above all have regulated duties in the positive law recognizing the importance of the role of employees in preventing industrial accidents even though the rules are different by countries. The duty of employees are roughly divided into two parts: one is a formal duty which is responding to the action of employers and the other is an independent duty which is not related to the employers. Except in the United State, in Germany, Japan and Korea, the duty of employees is stipulated not only as the duty by the positive law but also as the duty by the contracts. Korea has relatively weak legislature in terms of rights of occupational safety and health. Furthermore, employee’s duties don’t include the view about aggressive role of employees. It is needed to redesign the occupational safety and health law so that employees can participate in activities to prevent industrial accidents aggressively.
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