Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Equal Remuneration Convention, 1951 (No. 100) - Japan (Ratification: 1967)

Other comments on C100

Observation

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The Committee notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report. It further notes the observations of the Japan Business Federation (NIPPON KEIDANREN) received on 29 August 2019.

Articles 1 and 2 of the Convention. Work of equal value. Legislation. The Committee recalls that the tripartite committee set up by the Governing Body to examine the representation alleging non-observance of the Convention by the Government of Japan concluded that further measures were needed, in cooperation with workers’ and employers’ organizations, to promote and ensure equal remuneration for men and women for work of equal value in law and practice in accordance with Article 2 of the Convention. Thus, in its previous comments, the Committee, while welcoming the adoption of the new Law on the Promotion of Women’s Participation and Advancement in the Workplace (Law No. 64 of 2015) which entered into force on 1 April 2016, urged the Government: (1) to take immediate and concrete action to ensure the existence of a legislative framework clearly establishing the right to equal remuneration for men and women for work of equal value; and (2) to consider requiring additional data on “the ratio of women’s pay to men’s pay” to be collected under Law No. 64 of 2015 on the Promotion of Women’s Participation and Advancement in the Workplace.

As regards the legislative framework, the Committee notes once again the Government’s reference in its report to section 4 of the Labour Standards Act, which provides that “an employer shall not engage in discriminatory treatment of a woman as compared to a man with respect to wages by reason of the worker being a woman” and section 119 which provides for penalties in case of violations. Discriminatory treatment with respect to wages is therefore prohibited when it is based solely on the worker being a woman and also on the general assumption that women’s average length of continuous employment is shorter than that of men. According to the Government, as long as the payroll system does not allow discrimination in wages between men and women based only on the sex of the worker, it meets the requirements of the Convention. The Government states in addition that this interpretation has been retained since the ratification of the Convention by Japan in 1967. Once again, the Government refers to the following laws: (1) the Equal Employment Opportunity Law No.113 of 1972 (EEOL), as last amended by Law No. 92 of June 1997, which prohibits discrimination on the basis of sex in terms of the assignment, promotion, and training of workers, loans for housing and other such fringe benefits, change in job type and employment status of workers, mandatory retirement age, dismissal and renewal of the labour contract (sections 6, 7 and 8); and (2) Law No. 64 of 2015 on the Promotion of Women’s Participation and Advancement in the Workplace under which employers with 301 or more employees have the obligation, among others, to collect and analyse data on the ratio of women and men within the enterprise in areas such as new hires, hours worked, years of service and classification levels. Following the 2019 amendments, Law No. 64 expanded the obligation to employers with over 101 or more employees. The Government further indicates that, as of the end of December 2018, 99.3 per cent of employers with 301 or more full-time employees have developed action plans to foster the full participation of women in the workplace. The Government provides statistics indicating that the ratio of female employees who occupy management positions above the chief class in private enterprises was 8.7 per cent in 2015 and increased to 9.9 per cent in 2018. According to the Government, the wage disparity between men and women has also been narrowing steadily. The ratio of wages of female workers compared to those of men was 73.6 per cent in 2015 and 74.7 per cent in 2017.

The Committee notes that in its observations the NIPPON KEIDANREN indicates that the difference of remuneration between men and women results mainly from the difference of their rank and their length of service. Therefore, it is important to take into consideration that the number of female managers has increased and the disparity based on the length of service has shortened. The Committee also notes that in its observations, the JTUC–RENGO states that the law provides no response in relation to wage disparities between male and female workers based on career track-related management categories, which is a system that permits a gender-based classification system of employment management in which men are viewed as belonging to a main career track and women to a non-career track. It also fails to provide any remedy when an employer is unable to establish rational grounds for occupational gender segregation after prohibiting discrimination based on gender alone. According to the JTUC-RENGO Survey on Gender Equality in Employment, undertaken in 2017, approximately 40 per cent of both male and female respondents answered that they were doing the same jobs but on different career tracks, and approximately 40 per cent of women working in positions restricted to specific regions indicated that there should be no difference in treatment for the same job despite a different career track. JTUC-RENGO reiterates that, in order to ensure the conformity of the national legislation framework with the core principle of the Convention, section 4 of the Labour Standards Act should clearly state the principle of the Convention.

With regard to the Committee’s request to consider adding "the ratio of women's pay to men's pay" as additional data required to be included in the action plans under Law No. 64, the Government indicates that while employers are not required to examine the status of gender disparities in remuneration, they are obliged to examine the level of active participation of women in the workplace, including the differences between men and women in the ratio of management-level employees and length of service, as these elements are considered to be the principal factors of the wage disparity between men and women. According to the Government, such measures will contribute with time to the elimination of horizontal and vertical occupational gender segregation. Regarding the 2019 amendments of Law No. 64, expanding the obligation to collect and analyse data on the ratio of women and men within the enterprise in areas such as new hires, hours worked, years of service and classification levels to employers with 101 or more employees, the JTUC-RENGO considers that the obligation to report on the ratio of female workers should be expanded to small and medium enterprises (SMEs), given that more than 99 per cent of Japanese companies are SMEs, and that the employees of these companies account for approximately 70 per cent of all Japanese workers.

The Committee is bound once again to repeat that the protection against wage discrimination in section 4 of the Labour Standards Act is too limited because it does not capture fully the principle of the Convention, as it does not refer to the element of equal remuneration between men and women for work of equal value which is crucial for an effective application of the Convention. The Committee also recalls that the Equal Employment Opportunity Act, prohibits discrimination in a number of areas such as recruitment, appointment and promotion, but does not directly deal with equal remuneration between men and women for work of equal value. The Committee wishes to highlight once again that the concept of work of equal value lies at the heart of the Convention. It permits a broad scope of comparison, including but going beyond equal remuneration for “equal”, “the same” or “similar” work, and also encompasses work that is of an entirely different nature which is nevertheless of equal value (see General Survey on fundamental Conventions, 2012, paragraph 673). It follows that the jobs to be compared on the basis of objective factors (such as skills, efforts, responsibilities, conditions of work, etc.) may involve different types of skills, responsibilities or conditions of work that can nevertheless be of equal value in its totality. As such, the principle of the Convention is not equivalent to the principle of non-discrimination as enshrined in section 4 of the Labour Standards Act, which does not encompass the concept of “work of equal value”. The Committee therefore once again urges the Government to take the necessary measures to amend the current legislation with a view to giving full expression to the principle of equal remuneration between men and women for work of equal value enshrined in the Convention. It also reiterates its request to the Government to consider adding the ratio of women’s level of remuneration to men’s as additional data required to be collected by enterprises under the Act on Promotion of Women’s Participation and Advancement in the Workplace, as this information could be used as a warning tool by employers to investigate potential wage discrimination. Please provide detailed information on the activities of the labour inspectorate relating to the promotion and application of the principle of equal pay for men and women, as well as on any court decisions regarding wage discrimination under section 4 of the Labour Standards Act that give effect to the Convention’s principle.

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