Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Forced Labour Convention, 1930 (No. 29) - Japan (Ratification: 1932)

Other comments on C029

Observation

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The Committee notes the observations of the Labour Union of Migrant Workers (LUM) received on 24 October 2016 and 26 September 2017. It also notes the joint observations of the Federation of Korean Trade Unions (FKTU) and the Korean Confederation of Trade Unions (KCTU) received on 1 September 2016 and 4 September 2018, as well as the Government’s reply received on 7 November 2018. The Committee further notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report. Lastly, the Committee notes the observations of the All Japan Shipbuilding Trade Union–Kanto Region received on 23 November 2018.

Articles 1(1), 2(1) and 25 of the Convention. 1. Technical Intern Training Programme. In its previous comments, the Committee noted the occurrence of labour rights violations amounting to forced labour within the Technical Intern Training Programme. The Programme, monitored by the Japan International Training Cooperation Organization (JITCO), was established to develop the human and industrial resources of developing countries to ensure the transfer of industrial technology, skills and knowledge, under which foreign nationals could enter Japan as “interns” for one year and remain for another two years as “technical interns”.

The Programme was revised in July 2010 with a view to strengthening the protection of interns and technical interns, particularly by granting them residence for “Technical Intern Training” for a maximum period of three years and the protection afforded by labour laws and regulations. In addition, dispatching organizations and receiving organizations and enterprises were prohibited from collecting deposits and penalty charges and sanctions applicable to organizations found guilty of human rights abuses were strengthened. However, the JTUC–RENGO indicated that 15.9 per cent of interns who have returned to their country reported that they were required to pay a deposit to the employment agency. The LUM indicated that, despite the changes introduced in 2010, dispatching organizations continued to collect payments in the guise of pre training or transport fees, which caused debts for interns and made them vulnerable to dismissal or expulsion, particularly as they are not permitted to change employer. The LUM also stated that the number of deaths among foreign interns was unusually high for persons who were young and healthy. Moreover, according to a study conducted by the Administration Evaluation Bureau (AEB) of the Ministry of Internal Affairs and Communication, of the 846 entities examined, in 157 the number of interns made up half of their staff, and 34 only employed interns. In its reply, the Government indicated that the Immigration Bureau of the Ministry of Justice was working actively to monitor enterprises receiving interns. Any violation reported was notified to the enterprise and, where necessary, the right to receive new interns could be suspended for a period of five years. When serious violations were suspected, the Immigration Bureau worked together with labour standards inspection offices, and the most serious cases were referred to the Public Prosecutor’s Office. In 2013, inspections were carried out and guidance provided to 2,318 workplaces. Violations of labour legislation were found in 1,844 cases, and 12 cases of serious violations were referred to the Public Prosecutor’s Office. The Government also indicated that the Ministry of Health, Labour and Welfare instructed JITCO to conduct guidance visits and refer certain cases to the regional labour standards inspection offices. Moreover, a Bill on technical intern training and the protection of technical interns was submitted to Parliament in March 2015. Noting the above information, the Committee requested the Government to continue taking measures to strengthen the protection of foreign technical interns.

The Committee notes from the observations of the JTUC–RENGO that, both in 2016 and 2017, according to the results of the inspections carried out by the labour standards inspection offices, violations of labour law provisions were found in 70 per cent of the participating organizations in the Technical Intern Training Programme. Moreover, according to section 14 of the Act on Proper Technical Intern Training and Protection of Technical Intern Trainees (hereafter “the Technical Intern Training Act”), which was adopted in November 2016, onsite inspection activities are carried out only once a year for supervising organizations and once in three years for implementing individual enterprises. The JTUC–RENGO also indicates that channels of individual complaints and consultations are limited to phone calls and emails, and that dates and times are set for phone consultation depending on the language in service, which does not meet the needs of some urgent cases where immediate protection is required. The JTUC–RENGO considers that it is necessary to establish a one-stop service, including security shelters, for interns in their native language.

In its observations, the LUM considers that the legislative reform has solved some problems while creating new ones. The Technical Intern Training Act and its implementing ordinances expand the programme on a large scale, allowing the supply of a considerable number of young workers who receive low wages and do not have right to freely quit a job. For enterprises endorsed by the competent authority as excellent, the duration of the programme may be extended from three years to five years. However, the criteria to determine an excellent enterprise do not address essential problems, such as the restriction of overtime work. Moreover, the new framework significantly increases the maximum number of interns that an organization or enterprise is allowed to accept, which impairs the capacity of the receiving entities to provide genuine training to interns. In addition, the threat of deportation and the prohibition of changing employers, which is the most fundamental factor that increases the risk of forced labour, is not addressed by the new Act. The LUM also indicates that the Organization for Technical Intern Training (OTIT), which supervises and monitors the implementation of the Programme under the new Act, covers about 2,000 supervising organizations, 35,000 implementing enterprises and 230,000 technical intern trainees with only 330 staff. The LUM once again points out that a large number of violations were detected by the labour standard inspection agencies, while only about 1 per cent were sent to the Public Prosecutor’s office. Violations identified included long working hours (up to 130 hours of overtime work per month), non-payment or under-payment of wages and those related to occupational safety and health. Additionally, according to the statistical information from the Immigration Bureau, 380 cases of labour rights violations involving interns as victims were detected in 2016, including 121 cases related to payment of wages, 94 cases related to forged or altered identity documents and 51 cases related to “name-lending” of host entities (or contract substitution). In particular, the cases of “name-lending” have been significantly increasing in recent years. The LUM further indicates that industrial accidents and deaths have increased among interns. In 2015, 30 deaths were recorded among interns, including eight caused by cerebral or cardiac diseases and two by suicide. In August 2016, the Labour Standards Inspection Office of the region of Gifu determined the death of a Filipino intern aged 27 as an industrial accident due to extreme fatigue caused by excessive long working hours.

The Committee notes the Government’s information in its report that the Technical Intern Training Act sets out prohibitions of human rights violations against interns and provides for penal sanctions for certain types of violations. According to section 49 of the Act, interns may report violations of the Act by supervising organizations or implementing enterprises to the competent ministers (Minister of Justice and Minister of Health, Labour and Welfare). The OTIT responds to complaints from interns by phone and email in major languages such as Vietnamese and Chinese. The Government also indicates that, the OTIT entered into operation in November 2017. As of 31 May 2018, the statistical information on inspections carried out by the OTIT is not yet available. In 2016, the labour standards inspection offices carried out inspections at and provided guidance to 5,672 training implementing places. 40 cases of serious violations against interns were referred to the Public Prosecutor’s Office. However, there is no statistical information on criminal cases in which interns are involved as victims. Moreover, the Government signed memoranda of cooperation with nine sending countries, including Bangladesh, Cambodia, India, Laos, Mongolia, Myanmar, Philippines, Sri Lanka and Viet Nam.

While taking due note of the adoption of the Technical Intern Training Act and the measures undertaken by the Government, the Committee observes that the supervision and protection measures afforded by the new legal framework do not seem to be sufficient, taking into consideration the large number of interns involved, their increased vulnerability due to the long training period of up to five years and the restrictions that prevent them from changing training sites. The Committee notes with concern the persistence of labour rights’ violations and the continued abusive working conditions of technical training interns that amount to forced labour, such as wage arrears, long working hours, falsified identity documents and contract substitution. The Committee therefore urges the Government to take the necessary measures to ensure that the foreign technical interns are fully protected from abusive practices and working conditions that amount to forced labour, including through effective inspection activities at receiving entities, accessible channels for interns to report the abusive situations to which they are subjected, as well as prompt responses and actions to these reports. The Committee also requests the Government to provide information on the application in practice of the Technical Intern Training Act and its implementing ordinances, including the number and nature of the violations reported, the number of cases that have led to prosecution and convictions, with an indication of the situations that gave rise to these convictions.

2. “Comfort women”. Recalling that it has been examining since 1995 the issues of “comfort women” during the Second World War, the Committee previously noted the Government’s statement that it remained committed to the official position on this matter and had already expressed sincere apologies and remorse to the former “comfort women”. The people and Government of Japan cooperated to establish the Asian Women’s Fund (AWF) in 1995 to extend atonement from the Japanese people to the former “comfort women” and to ensure that their sincere feelings of apologies and remorse would reach the former “comfort women” to the greatest extent possible. The AWF gave atonement money from private sector donations to 285 women. The Government also referred to the letters of apologies and remorse signed by the Prime Minister, which were sent to the “comfort women” who received atonement money. After the completion of the last project in Indonesia, the AWF was dissolved in March 2007, but the Government had continued to implement follow-up activities. As part of this follow-up, the Government reiterated that it entrusted the people who were involved in the AWF to implement visiting care activities and group counselling activities, which took place in 2015. The Government also pointed out that former “comfort women” who received or wanted to receive benefits from the AWF were subject to “harassment” from certain groups in the Republic of Korea (ROK). It was regrettable that not all the former “comfort women” benefited from the activities of the AWF owing to these circumstances. The Government added that it had sincerely dealt with the issues of reparations, property and claims relating to the Second World War, including those related to the issue of “comfort women”, in accordance with its obligations under the San Francisco Peace Treaty. The issues of claims by individuals had been legally settled with the parties to these treaties, in particular the 1965 Agreement on the Settlement of Problems concerning Property and Claims and on Economic Cooperation between Japan and the ROK. While observing the Government’s statement in reply to its earlier request for certain follow-up activities to be undertaken by the AWF to meet the “comfort women”, the Committee noted that no concrete outcome had been achieved, and requested the Government to make efforts to achieve reconciliation with the victims in response to their expectations and claims.

The Committee notes in the joint observations of the FKTU and the KCTU the reference to the Agreement reached between the ROK and Japan on the issue of “comfort women” in 2015 (hereafter “the 2015 Agreement”), which declares that the issue has been resolved “finally and irreversibly”. The FKTU and the KCTU indicate that the agreement does not reflect the demands of the victims. According to it, victims were not fully consulted through the process of the conclusion of the 2015 Agreement. Moreover, the Government of Japan insists that the legal resolution has been completed through the 1965 Treaty with the ROK and that the fund of ¥1 billion (around US$9 million) provided under the 2015 Agreement was not a reparation. The FKTU and the KCTU also refer to the statements of the Government of Japan and its officials on different occasions denying that the “comfort women” were sex slaves. It further indicates that, on 30 August 2016, 12 victims brought a law suit against the Government of the ROK, expressing their opposition to the 2015 Agreement by which the Government of Japan did not acknowledge any legal responsibilities.

The Committee notes the Government’s repeated statement in its report that it has no intention of denying or trivializing the “comfort women” issue. In this regard, Prime Minister Abe is deeply pained to think of the “comfort women” who experienced immeasurable pain and suffering beyond description, as already expressed by previous Prime Ministers. As a result of diplomatic efforts, the Government of Japan and the Government of the ROK reached an Agreement on this issue in December 2015, which declares that the “comfort women” issue is resolved “finally and irreversibly” and that the two Governments will refrain from accusing or criticizing each other regarding this issue in the international community, including at the United Nations. In addition, in accordance with the Agreement, the Reconciliation and Healing Foundation was established by the Government of the ROK, to which the Government of Japan contributed ¥1 billion from its governmental budget. Under this Foundation, several projects have been carried out to recover the honour and dignity of former “comfort women” and to heal their psychological wounds. So far, among the 47 former “comfort women” who were alive at the time of the conclusion of the 2015 Agreement, 36 were in favour of the projects and 34 have received medical and welfare support through the projects. In its response to the joint observations of the FKTU and the KCTU, the Government also indicates that it has conducted a full-scale fact finding study on the “comfort women” issue since early 1990’s, and that the “forceful taking away” of “comfort women” by the military and government authorities could not be confirmed in any of the documents that the Government was able to identify in the abovementioned study.

The Committee notes from the “Report on the Review of the Korea–Japan Agreement of 28 December of 2015 on the Issue of ʻComfort Women Victimsʼ”, published by the Ministry of Foreign Affairs of the ROK, that the victim-centred approach was not sufficiently incorporated in the course of the “comfort women” consultation process, and that as long as a resolution is not accepted by the victims as was the case with the 2015 Agreement, the “comfort women” issue will continue to be raised as an unresolved issue, even if the two Governments declare that it is “finally and irreversibly resolved”. This point of view is shared by the UN Committee on the Elimination of Discrimination against Women (CEDAW, CEDAW/C/JPN/Q/7-8/Add.1, paragraph 51) in its concluding observations of 2016, and the UN Committee on the Elimination of Racial Discrimination (CERD, CERD/C/JPN/CO/10-11, paragraph 27) in its concluding observations of 2018.

The Committee also notes that, in its concluding observations of 2016, the CEDAW regretted that there had been an increase in the number of statements from public officials and leaders regarding the Government’s responsibility for violations committed against “comfort women”, which have the effect of re traumatizing victims. Similarly, in its concluding observations of 2018, the CERD expressed its concern at statements by some public officials, minimizing the responsibility of the Government with respect to “comfort women”, and their potential negative impact on survivors.

The Committee takes due note of efforts made by the Government to resolve the issue of “comfort women”, especially the recent Agreement reached with the ROK in 2015. The Committee also welcomes the concrete outcomes achieved in this regard, noting that 34 out of 47 victims who were then alive, have received medical and welfare support through the implementation of the 2015 Agreement. However, the Committee observes that more than ten victims have refused to accept the arrangements under the 2015 Agreement and that some statements made by some governmental officials have not been conducive to reaching a reconciliation. The Committee expresses the firm hope that, given the long-standing nature of the case, the Government will make every effort to achieve reconciliation with the remaining victims who have refused to accept the 2015 Agreement, and that adequate measures will be taken, without further delay, to achieve resolution of their claims.

The Committee is raising other matters in a request addressed directly to the Government.