Introduction
When discussing Employer of Record (EOR), secondment (出向), and worker dispatch (派遣), many articles begin with conclusions.
Instead, let’s begin with the Japanese government’s own words.
This article does not advocate for any particular employment structure. It simply examines a 2008 Ministry of Health, Labour and Welfare (MHLW) paper and highlights several questions readers may wish to consider.
Questions to Consider Before Reading Further
Before reviewing the government’s guidance, consider the following:
- Is the employee already employed before the secondment begins?
- What relationship exists between the sending employer and the receiving employer?
- What is the purpose of the secondment?
- Is the arrangement intended to preserve employment?
- Does the receiving employer establish a new employment relationship with the employee?
- What happens when the assignment ends?
- If the receiving company has no legal presence in Japan, how does it establish the new employment relationship described by MHLW?
How Does MHLW Define Secondment?
In a 2008 paper discussing labour supply, worker dispatch, and secondment arrangements, MHLW describes secondment as follows:
「いわゆる出向は、出向元事業主と何らかの関係を保ちながら、出向先事業主との間において新たな雇用契約関係に基づき相当期間継続的に勤務する形態である。」
English Translation (informal):
“Secondment generally refers to a working arrangement in which an employee maintains some form of relationship with the sending employer while continuously working for a substantial period based on a new employment relationship with the receiving employer.”
Key Phrase
「出向先事業主との間において新たな雇用契約関係」
English Translation (informal):
“A new employment relationship with the receiving employer.”
In simple terms, the Ministry describes secondment as involving:
- A sending employer (出向元事業主)
- A receiving employer (出向先事業主)
- A new employment relationship between the worker and the receiving employer
Readers may wish to consider how this requirement is satisfied when the receiving company has no legal presence, employment infrastructure, payroll function, or employment rules in Japan.
Why Does MHLW Distinguish Secondment from Worker Dispatch?
The Ministry further explains:
「在籍型出向については、出向元事業主との間に雇用契約関係があるだけではなく、出向元事業主と出向先事業主との間の出向契約により、出向労働者を出向先事業主に雇用させることを約して行われていることから、労働者派遣には該当しない。」
English Translation (informal):
“In the case of in-employment secondment (zaiseki shukko), not only does an employment relationship continue to exist with the sending employer, but the arrangement is carried out based on a secondment agreement between the sending employer and the receiving employer under which the receiving employer agrees to employ the seconded worker. Therefore, it does not fall under worker dispatch.”
The government’s explanation suggests that traditional in-employment secondment (在籍型出向) is distinguished from worker dispatch because:
- The worker remains employed by the sending employer.
- The worker is also employed by the receiving employer.
- A secondment agreement exists between the two employers.
What Does MHLW Say Is the Purpose of Secondment?
The same paper provides examples of situations where secondment may occur:
① Securing Employment Opportunities
「労働者を離職させるのではなく、関係会社において雇用機会を確保する」
English Translation (informal):
“Securing employment opportunities within related companies rather than allowing employees to lose their jobs.”
② Management and Technical Guidance
「経営指導、技術指導の実施」
English Translation (informal):
“Providing management guidance or technical guidance.”
③ Professional Development
「職業能力開発」
English Translation (informal):
“Professional skills development.”
④ Personnel Exchange Within Corporate Groups
「企業グループ内の人事交流」
English Translation (informal):
“Personnel exchange within a corporate group.”
Readers may wish to consider how these examples relate to the arrangement they are evaluating.
A Particularly Interesting Passage
The Ministry also states:
「しかし、在籍型出向の形態は、労働者供給に該当するので、その在籍型出向が『業として行われる』場合には、職業安定法第44条により禁止される労働者供給事業に該当する。」
English Translation (informal):
“However, the form of in-employment secondment (zaiseki shukko) constitutes a supply of labour. Therefore, where such secondment arrangements are carried out as a business activity, they constitute a labour supply business prohibited under Article 44 of the Employment Security Act.”
Why This Passage Matters
The Ministry is making an important distinction.
On one hand, MHLW explains why traditional secondment arrangements may be treated differently from worker dispatch.
On the other hand, the Ministry also states that in-employment secondment is a form of labour supply and warns that where such arrangements are conducted:
「業として行われる」
English Translation (informal):
“As a business” or “as a commercial enterprise.”
they may fall within the scope of activities prohibited by Article 44 of the Employment Security Act.
This naturally raises an important question:
What distinguishes a traditional personnel-management arrangement from a labour-supply business?
Questions Worth Considering
Based on the government’s own wording, readers may wish to ask:
About the Employee
- Was the worker already employed before the secondment began?
- Is employment being preserved?
- What happens when the assignment ends?
About the Receiving Employer
- How does the receiving employer fulfil its role as a 出向先事業主?
- What responsibilities does the receiving employer assume?
- What rights does the employee obtain against the receiving employer?
- How is the new employment relationship established?
About the Structure
- What distinguishes the arrangement from labour supply?
- What distinguishes the arrangement from worker dispatch?
- How does the arrangement fit within the examples provided by MHLW?
- If the receiving company has no legal presence, employment infrastructure, payroll function, or employment rules in Japan, how are the responsibilities of the receiving employer carried out?
Conclusion
The purpose of this article is not to draw conclusions.
Instead, it is to encourage readers to review the Ministry’s own guidance and ask informed questions based on the source material.
The MHLW’s discussion of secondment remains a useful reference point for understanding how Japanese authorities have historically distinguished:
- Secondment (出向)
- Labour Supply (労働者供給)
- Worker Dispatch (労働者派遣)
This article does not attempt to answer the questions raised above. It simply presents the government’s own language and encourages readers to review the original source document and determine how they believe it applies to modern employment structures.
Source Document
Ministry of Health, Labour and Welfare (厚生労働省)
「労働者供給事業及び労働者派遣事業等の在り方について」
https://www.mhlw.go.jp/shingi/2008/02/dl/s0229-5d.pdf
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Readers should consult qualified legal professionals regarding their specific circumstances.