Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative recalled that birth rates in his country were declining sharply, which would seriously affect the Japanese economy and society as a whole. The Government had therefore been promoting various measures to help workers harmonize their working and family lives. For instance, provisions for childcare leave for workers in the private sector had been set out in law in 1991, as had provisions for family care leave in 1995, the year in which the Convention had been ratified. The situation of declining birth rates also necessitated additional measures, including various programmes to help families raise their children. These measures should be adopted in close collaboration with the parties concerned, including central and local governments and employers. New draft legislation had been submitted to the current session of the Diet to revise the Childcare and Family Care Leave Act. The draft legislation reflected the outcome of discussions with employers' and workers' representatives and offered possible solutions to several of the problems raised by the Committee of Experts. With reference to the comments of the Committee of Experts, and particularly the fact that the Convention was intended to cover all workers, he emphasized that support plans for workers for the harmonization of their working and family lives were clearly significant for workers in general, although not all workers would necessarily benefit from all the measures. He agreed that such measures needed in general to serve as a basis for the harmonization of working and family lives and that they should be kept constantly under review. He recalled that there were many fixed-term workers in his country who continued to work for the same employer for several years through the repeated renewal of their contracts. With a view to taking this into consideration, the scope of statutory childcare leave and family care leave had been reviewed and, once the new draft legislation had been enacted, fixed-term workers would be entitled to both types of leave. With reference to the comments of the Committee of Experts concerning the issue of personnel transfers to remote workplaces, he indicated that the revision of the Childcare and Family Care Leave Act in 2001 had provided that employers had to give consideration to workers with family responsibilities in the event of the relocation of their jobs to remote workplaces. The Government expected employers and workers to make efforts to apply this system effectively and was providing guidance to employers in cases which gave rise to problems. Turning to the question of short-term childcare leave, he said that the revision of the Childcare and Family Care Leave Act in 2001 also provided that employers had to endeavour to take measures to provide leave to care for a sick child for employees with children who had not yet begun attending elementary school. Furthermore, the draft law revising the Childcare and Family Care Leave Act ensured the right to take leave to care for a sick child. In addition, the Government intended to adopt further measures to help workers harmonize their working and family lives.

The Worker members recalled that, although the Conference Committee had never considered the present case before, the Committee of Experts had made a series of comments and had received a substantial number of communications from Japanese trade unions concerning difficulties in the application of the Convention. According to the Japanese trade unions, the Childcare and Family Care Leave Act did not apply to fixed-term contract workers and the Government remained unwilling to institutionalize childcare and nursing leave for wage-based workers, nor had it taken any measures to ensure the application of the Convention to wage-based workers in state-run hospitals and sanatoriums, who were doing the same work as regular workers, but whose position was unstable. The Committee of Experts had noted the Government's indication that childcare and nursing leave systems were set up for continuous long-term employment and were not therefore applicable to part-time workers or wage-based contract workers. In this respect, the Worker members recalled that the Convention was intended to cover all workers, whether in full-time, part-time, temporary or other forms of employment, and whether in waged or unwaged employment.

With regard to the transfers of personnel to remote workplaces without consultation or an announcement from the employer prior to their transfer, the Worker members noted that workers were being forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risking being dismissed, or simply leaving their job. Transfers to remote workplaces in any case tended to increase the cost of living and dramatically changed the living and working conditions of workers, as well as their family life. In this respect, the Government had stated in its report that decisions on personnel transfers, for example in hospitals and sanatoriums, were based on the needs of the service, the principle of the merit system, the qualifications, abilities and experience of the personnel, as well as the health and family responsibilities of the worker concerned. The Government had added that employees were not allowed to refuse a transfer without a rational reason, but that the system did not discriminate against employees, including those who were nearing retirement. The Worker members noted in this regard the finding by the Committee of Experts that, despite the provisions of the Childcare and Family Care Leave Act and the established guidelines, under which employers had to give consideration to workers with family responsibilities, it appeared that transfers continued to be imposed upon employees unilaterally without prior consultation and without recognition of their objections due to family responsibilities. The Worker members agreed with the conclusions of the Committee of Experts on this point that employers should give the fullest possible consideration to the genuine need of workers to care for members of their families and that efforts to promote the balancing of work and family responsibilities should include the balancing of any advances that the workers might make in their professional lives with their family situation. In this respect, it was vital to emphasize the link between the balancing of work and family responsibilities and gender equality. The Worker members therefore urged the Government to take the necessary action to remove the practice of imposing transfers on workers so that national practice could be brought into greater conformity with the requirements of the Convention. With respect to the comments made by the Japanese trade unions concerning the lack of protection in Japanese legislation against termination of employment due to family responsibilities, the Worker members emphasized the obligation upon employers to provide moral working conditions. They supported the finding of the Committee of Experts that the protection provided under the Civil Code and the Childcare and Family Care Leave Act was both too general, as it did not specify workers with family responsibilities or protection from termination of employment, and narrower than the protection envisaged in Article 8 of the Convention, as it was not directed at family responsibilities in general. They therefore called upon the Government to provide specific protection in law against termination of employment due to family responsibilities. They also called upon the Government to develop new legislation, in consultation with workers' and employers' organizations, with a view to overcoming the shortcomings in national law and practice identified by the Committee of Experts, thereby offering Japanese workers a better quality of life.

The Employer members, following the order of the comments of the Committee of Experts, noted that the Childcare and Family Care Leave Act did not apply to workers on fixed-term contracts as well as to workers paid by the hour. While, according to the Government representative, a Bill to amend the legislation would extend the application of childcare leave to workers who were de facto employed on a permanent basis due to repeated renewals of their contracts, workers paid by the hour would remain excluded from the application of childcare leave. The Government representative had also indicated that the revision of the Act was intended to limit overtime work for workers with family responsibilities. In this respect, the Employer members noted the provisions of Article 2 of the Convention respecting its scope of application. In the view of the Committee of Experts, this meant that the Convention was intended to cover all workers, irrespective of their type of contract. However, the Employer members considered that the wording of Article 2 also allowed for a different interpretation. This belief was strengthened by the provisions of Articles 1 and 3, paragraph 2, of the Convention, referring to Articles 1 and 5 of Convention No. 111, which offered the possibility of differentiation with regard to the application of the Convention. The question therefore remained open as to whether or not the Government was under the obligation to extend the scope of application of the Act. Accordingly, they called upon the Government to indicate in a report the reasons for the exclusion of certain groups of workers from the scope of the above Act. With regard to the issue of company regulations, which often required full-time employees to work overtime and change workplaces, and which as a consequence forced workers with family responsibilities to work part time, the Employer members noted the belief expressed by the Japanese trade unions that both full- and part-time workers with family responsibilities should be exempted from overtime. In this respect, they noted that the Committee of Experts had merely requested the Government to try to ensure that agreements were reached in accordance with the intent and provisions of the Convention. It was the view of the Employer members that the Committee of Experts had adopted the appropriate approach on this issue, since not all the details related to employment relationships needed to be regulated by law. If such details were regulated by law, this would place in jeopardy flexibility and the principle of the freedom to conclude contracts. They could not comment on the draft Bill referred to by the Committee of Experts as they had no knowledge of its content.

With regard to the issue of the transfer of workers to another workplace without prior consultation or recognition of their objections due to family responsibilities, the Employer members considered that no employer would transfer an employee to another workplace without a good reason, as every transfer implied a loss of the experience gained in the former workplace. In most cases, employers transferred workers to avoid dismissals due to the lack of employment opportunities. With regard to a complaint alleging that the promotion of nurses implied a transfer to another workplace, they said that this was quite a normal outcome when promotion was obtained. As Article 4(a) of the Convention did not set out the right to a specific workplace, this matter was not regulated by the Convention and there could therefore be no violation on this point. The Employer members agreed with the Committee of Experts that the proposed legislative changes constituted considerable progress and also with the request for the Government to supply further information on the practical application of the new provisions. With regard to the transfer of hospitals and sanatoriums to a new independent administrative agency and the fact that it remained unclear what would happen to in-house nurseries and the employment of their personnel, the Employer members noted the decision of the Government on this subject, but could not comment further as they had no knowledge of the content of the decision. Nor could they give further comments on the issue of termination of employment on grounds of family responsibilities, as the Committee of Experts had not provided a definitive opinion on a difficult legal situation and the Government had referred to new provisions providing for protection against dismissal. In conclusion, the Employer members welcomed the fact that the legislative changes referred to by the Government had been adopted after consultation with the social partners. They called upon the Government to provide full information on the present case in a report to the Committee of Experts and recalled that the flexibility clauses contained in the Convention needed to be taken into consideration when further reviewing the case.

The Worker member of Japan said that the Japanese Trade Union Confederation (JTUC-RENGO) welcomed the revised Childcare and Family Care Leave Act proposed in the current Diet session. The new draft legislation would improve several problems described in the information submitted to the Committee of Experts in September 2003. The Government had drafted the revision of the Act in full consultation with RENGO and the employers. However, there were several issues that needed improvement in the revised Act. Article 2 of the Convention provided that all workers should be equally included. The revised Act would cover fixed-term workers who had been previously excluded, but it was going to be interpreted too narrowly. He called on the Government to apply the law broadly by eliminating the conditions of application. The law should apply to fixed-term workers who had worked for one year without interruption. The Committee of Experts clearly stated that the Convention applied to all branches of economic activity and all categories of workers. It stated that the Convention was intended to cover all workers "whether in full-time, part-time, temporary or other forms of employment, and whether in waged or unwaged employment". If the application of the law excluded a particular group of workers, it would be contradictory to the principles of the Convention. He asked the Government to revise the relevant laws for irregular workers in the public sector because they were not currently covered. According to statistics from 2003, Japan had a workforce of about 54 million people. About 20 per cent, or 11 million, were irregular workers, 8 million of whom, or 73 per cent, were women. Only once all these women workers, regardless of their employment, were covered by the full application of this legislation, would the law be practical and meaningful. With respect to male workers, he urged the Government to set up special measures to allow men easy access to childcare leave because the ratio of male workers who used it was remarkably low. Under the revised Childcare and Family Care Leave Act, employers were obliged to give consideration to workers with family responsibilities when relocating these workers to remote workplaces. JTUC-RENGO would closely monitor how the Act was being implemented. The speaker urged the employers to relocate workers only with their full consent so that worker relocations were not carried out unilaterally at the employers' convenience. The reduction of annual working time to fewer than 1,800 hours should also be carried out as soon as possible. It was important to realize that people, whether they had family responsibilities or not, should be able to enjoy a balance between their working and private lives. In conclusion, he requested the Government to introduce legislation to regulate overtime work.

The Worker member of Norway acknowledged that the present law had been revised and was in better compliance with the Convention than the previous law. However, there were still some unresolved issues. She supported the request by JTUC-RENGO that the new law should not be applied and interpreted in a narrow manner. To be in compliance with the Convention, all workers should be equally included and should enjoy the same rights to childcare leave and nursing leave. It was important to keep in mind that this Convention concerned the rights of children. Any child, whether he or she had parents who worked on a permanent basis or as wage earners, should have the right to good childcare. It was also important that this right to childcare leave not be restricted to full-time workers. More and more workers, most of them women, were working part time. By way of example, she highlighted certain practices in her country as suggestions on how to secure better social rights for workers with family responsibilities under the Convention. In Norway, part-time workers enjoyed rights to childcare leave and nursing leave according to the hours they worked and there was no discrimination between men and women on this point. There was an attempt, either through collective agreements or legislation, to treat workers in irregular employment in the same way as those who were employed in more traditional work. As for personnel transfers, if a public workplace in Norway was moved to another part of the country, workers could refuse to be transferred. Workers were further given priority to jobs in other public workplaces where they and their families lived, or offered financial compensation. Moreover, the Working Environment Act of Norway established maternity protection and parental leave for families with newborns as well as provisions for paid rights to stay home to take care of sick children. The speaker said that trade unions from her country would do their best to share their views and experiences with the Government of Japan and she hoped that, in the spirit of tripartism, employers and workers would participate as well. Japan was a rich country with an extremely hard-working workforce. The workers and their families deserved their share of the profits earned through well-developed social reforms and the Government had no reason not to bring its legislation on the present issues into compliance with the Convention.

The Government representative thanked the members of the Committee for their comments and made a number of further remarks in order to avoid any misunderstanding. With regard to the coverage of the Childcare and Family Care Leave Act, he indicated that no difference was made between regular workers and part-time workers. Secondly, as indicated by the Worker member of Japan, he emphasized the importance of the new draft legislation before the Diet. Once this draft legislation had been enacted, fixed-term workers, who were not currently covered by the Act, would be entitled to childcare leave and family care leave. Thirdly, with regard to workers in the public sector in this respect, the Government had already started preparing to take appropriate measures so that the public sector would not be left behind. He also recalled that the revised Childcare and Family Care Leave Act called upon employers to give consideration to workers with family responsibilities in the case of job relocation to remote workplaces and that the Government was endeavouring to secure the effective application of this provision. Once the draft legislation had been enacted, the Government would ensure that the new measures were widely known and firmly established. In addition, the Government intended to work together with employers' and workers' representatives to promote further measures to support the harmonization of working and family lives and would keep the ILO informed of all appropriate developments.

The Worker members, after taking careful account of the information provided by the Government representative, called for a thorough assessment by the Committee of Experts of the conformity with the Convention of the new legislative measures, which had been adopted following consultation with the social partners. However, even after the explanations provided by the Government representative, they feared that many types of workers were still not adequately covered, including temporary workers. Moreover, it was still unsure whether action had been taken to prevent the imposition of overtime under threat of the loss of a worker's job. In view of the sharp decline in the birth rate, they believed that the Government should be encouraging workers to have bigger families. They recalled that the need to work long hours meant that workers were not available to fulfil their family responsibilities. In conclusion, the Worker members hoped that social dialogue would be continued with a view to developing measures to cover all the points raised by the Japanese trade unions and that the Government would take inspiration from other countries which were more advanced in this respect with a view to improving the situation of workers with family responsibilities.

The Employer members, referring to the intervention by the Worker member of Norway, called upon the members of the Committee to confine their comments to the individual cases under examination. They added that the definition of the scope of application of the Convention contained in the observation of the Committee of Experts was merely its own interpretation, rather than the textual meaning of the Convention. In view of the lengthy discussion of the case and the legislative changes announced by the Government representative, as well as the measures to be adopted, they called upon the Government to keep the ILO informed of all relevant developments.

The Worker members noted that the conclusions proposed by the Committee did not cover the aspect of workers with family responsibilities being forced to work overtime hours under threat of dismissal if they did not do so. They recalled that it was the primary responsibility of the State to regulate working conditions, including working time issues, and that if workers were forced to work overtime hours they would have less time available to fulfil their family responsibilities. It was an important aspect of decent work that workers should not be subject to unreasonable demands on their working time, particularly in the case of workers with family responsibilities.

The Employer members noted that such detailed prescriptions as those relating to overtime hours could not be inferred from the text of the Convention. These were issues that had to be regulated by national labour legislation. As the Conference Committee was not in possession of the necessary detailed information on the situation of Japanese labour legislation on this point, it was not appropriate to cover this matter in its conclusions.

The Committee noted the statement by the Government representative and the ensuing discussion. It noted the detailed information provided by the Government representative concerning the application of the Convention. It welcomed the efforts made in the public sector to extend childcare and nursing leave and the efforts to support employers in the private sector. It also noted the Government's willingness to harmonize work and family responsibilities and to engage in tripartite consultations on these matters. The Committee noted with concern that despite the legislation and guidelines that were in force, transfers appeared to continue to be imposed on workers without taking into consideration their family responsibilities. It therefore requested the Government to take the necessary measures to review such practices in order to bring them into conformity with the Convention. It should be ensured that appropriate weight was given to the family responsibilities of workers in transfer decisions. With regard to protection against termination of employment due to family responsibilities, the Government should examine whether the current legislation provided an appropriate basis for the prevention of and protection against such discrimination in practice in the light of the comments of the Committee of Experts. The Committee also called upon the Government to endeavour to identify means of ensuring the application of the Convention to all categories of workers, including fixed-term, wage-based and part-time workers. The Government was requested to provide information in its next report on these matters as well as those raised by the Committee of Experts. The Committee hoped that the Government would adopt the draft legislation that was currently under discussion and that it would cover the points raised, including the measures taken for childcare and the right to nursing leave. The Government should continue its dialogue with the social partners on these matters. Finally, the Committee was bound to emphasize the importance of addressing the situation of men and women workers with family responsibilities in order to make further progress in achieving equality of opportunity and treatment in employment.

The Worker members noted that the conclusions proposed by the Committee did not cover the aspect of workers with family responsibilities being forced to work overtime hours under threat of dismissal if they did not do so. They recalled that it was the primary responsibility of the State to regulate working conditions, including working time issues, and that if workers were forced to work overtime hours they would have less time available to fulfil their family responsibilities. It was an important aspect of decent work that workers should not be subject to unreasonable demands on their working time, particularly in the case of workers with family responsibilities.

The Employer members noted that such detailed prescriptions as those relating to overtime hours could not be inferred from the text of the Convention. These were issues that had to be regulated by national labour legislation. As the Conference Committee was not in possession of the necessary detailed information on the situation of Japanese labour legislation on this point, it was not appropriate to cover this matter in its conclusions.

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

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the observations of the All Japan Construction, Traffic and Transportation Workers’ Union Tokyo dated 13 October 2009, concerning the long hours of bus workers, which the union states are incompatible with taking responsibility for the family, and thus violate the Convention. As the Government has not yet had an opportunity to reply to these observations, the Committee invites the Government to provide any information that could be of assistance to the Committee in examining this matter.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes the discussion in the Conference Committee on the Application of Standards in June 2004 and the Conference Committee’s conclusions. It recalls the communications received from the Japan National Hospital Workers Union (JNHWU/ZEN-IRO) dated 4 August 2004, and from the Japanese Trade Union Confederation (JTUC-RENGO) dated 31 August 2004, to which the Government replied in its report. The Government has also replied to the communication of the Telecommunications Workers’ Union (TSUSHINROSO) received in May 2003. Finally, the Committee notes the further communication from JTUC-RENGO dated 20 September 2006, which was attached to the Government’s report.

Article 2 of the Convention. Application to all branches
of economic activity and all categories of workers

2. The Committee notes with interest that the Childcare and Family Care Leave Law was amended by Law No. 160 of 8 December 2004 to enable those employed by the employer on a fixed-term contract for a continuous period of one year and who are likely to continue to be employed after the date on which the child reaches one year of age, to apply for childcare leave (article 5). Fixed-term workers employed for a continuous period of at least one year can apply for family care leave if they are likely to continue to be employed following the 93rd day after the family care leave started (article 11). The Committee also notes the guidelines concerning measures to be taken by employers to facilitate the coexistence of work and family life of workers who care for children or other family members (“2004 Guidelines”) issued by the Ministry of Health, Labour and Welfare on 28 December 2004 which, inter alia, provide guidance as to who qualifies as a fixed-term worker entitled to apply for childcare and family care leave under the Childcare and Family Care Leave Law (Part II, paragraph 1, of the Guidelines). The Committee asks the Government to provide information on the operation of articles 5 and 11, and provide examples of the way in which an employee could show that he or she is likely to continue to be employed under those articles. Please also provide information on the practical application of these provisions and inform the Committee of any studies carried out on the operation of the Childcare and Family Care Leave Law with respect to fixed-term workers, as envisaged under article 2 of the Law’s supplementary provisions.

3. The Committee also notes the statement made by the Government during the Conference discussion emphasizing that measures supporting the harmonization of working and family responsibilities were clearly significant for workers in general, although not all workers would necessarily benefit from all measures. It also notes JTUC-RENGO’s position that the requirements for coverage of fixed-term workers under the Childcare and Family Care Leave Law should be relaxed and that the childcare and family care leave system should also be extended to fixed-term workers in the public sector. Recalling that the Convention applies to all branches of economic activity and all categories of workers, and that the Conference Committee called on the Government to endeavour to identify means of ensuring the application of the Convention to all categories of workers, including fixed-term, wage-based and part-time workers, the Committee requests the Government to indicate in its next report the measures taken in this regard and the progress made in putting in place appropriate measures to support the harmonization of work and family responsibilities for all workers.

Article 3. National policy concerning
workers with family responsibilities

4. The Committee notes the Government’s indication that under the Law on Measures to Support the Development of the Next Generation (Law No. 120 of 2003), undertakings employing more than 300 employees are required to formulate an action plan to facilitate the harmonization of work duties with child rearing (article 12). Smaller enterprises should endeavour to formulate such action plans. Highlighting that only a very small portion of Japanese employers had more than 300 employees, JTUC-RENGO states that the Government should strongly urge all enterprises to adopt such action plans. The Committee asks the Government to provide information on the practical application of the Law on Measures to Support the Development of the Next Generation, including information indicating the extent to which enterprises are adopting such plans and indicating the kind of measures that are contained in these plans.

Article 4. Right to free choice of employment. 
Terms and conditions of employment

5. New measures. The Committee notes with interest that a number of new measures have been introduced benefiting workers with family responsibilities in the private and public sectors. The 2004 amendments to the Childcare and Family Care Leave Law introduced new articles 16-2 and 16-3 which require the employer to grant workers raising a child who has not yet entered elementary school, up to five days of leave per year to care for the child in case of injury or illness. With regard to the public sector, the Committee notes with interest that following a revision of rule 10-11 of the National Personnel Authority Rules, national public employees are able, as of 1 April 2005, to start and finish earlier or later in order to care for children who have not yet reached elementary school age, or for family members in need of nursing care and, as of 1 April 2006, to pick up children attending elementary school. As of 1 January 2005, male employees may request childcare participation leave under rule 15-14 to care for a newborn baby or older children below elementary school age during a period before and after childbirth. As of 1 April 2005, leave to care for a sick child was introduced for certain part-time workers under rule 15-15. The Committee requests the Government to provide information on the practical application of these measures, including indications concerning the number of men and women making use of them.

6. Transfer to remote workplaces. The Conference Committee expressed concerns that despite the legislation and guidelines in force, personnel transfers appeared to continue to be imposed on workers without taking into consideration their family responsibilities, and requested the Government to take the necessary measures to review such practices in order to bring them into conformity with the Convention. In this regard, the Conference Committee emphasized that it was necessary to ensure that appropriate weight is given to the family responsibilities of workers affected by transfers.

7. In its report, the Government generally, and also in relation to the specific situation reported by TSUSHINROSO in 2003, states that employers and workers should engage in discussions and establish appropriate rules. It also acknowledges that when considering a transfer of a worker with family responsibilities, it was desirable to assess the impact of a transfer on the lives of the employee and his or her family, labour conditions, and other factors. The Government states further that measures should be taken to lessen the burden of the employees concerned, e.g. by announcing transfers well in advance. The Committee notes that the 2004 Guidelines provide that when considering changing the workplace of a worker with family responsibilities, the intentions of the workers concerned should be taken into account. It should also be confirmed that alternative means to care for a child or a family member are available in case the reassignment involves a change in his or her place of work (Part II, paragraph 12 of the Guidelines). Regarding employees of the National Hospital Organization, the Government repeats its previous statements to the effect that decisions concerning personnel transfers between hospitals are based on a careful examination of the employees’ health and family situation and that no decisions ignoring the will of affected workers are being made.

8. JTUC-RENGO emphasizes in its latest comments that under article 26 of the Childcare and Family Care Leave Law, the employer must take family responsibilities into account when reassigning workers to such workplaces which would make it difficult for the worker to assume his or her family responsibilities. The union indicates that it called on its affiliates to work with employers to ensure family responsibilities are being given due consideration when employees are being transferred.

9. The Committee notes the information provided by the Government and welcomes the efforts made by JTUC-RENGO to engage in finding practical solutions to problems of workers with family responsibilities relating to transfers to other workplaces. However, the Committee also recalls that in accordance with Article 4 of the Convention, the Government is to ensure that the needs of workers with family responsibilities are taken into consideration in their terms and conditions of employment, which includes transfers to remote workplaces, and that workers enjoy the right to free choice of employment. The Government, as stated in the Conference Committee’s conclusions, should therefore review transfer practices affecting workers with family responsibilities to ensure that they are in conformity with the Convention. The Committee requests the Government to provide statistics on the impact of transfer practices, disaggregated by sex. Please also provide information on the measures taken to monitor and review transfer practices, including information on the measures taken to supervise the application of article 26 of the Childcare and Family Care Leave Law, and on any specific instances where guidance has been given by the competent authorities to resolve related difficulties.

10. Reduction of working hours. The Committee notes JTUC-RENGO’s position that in order to ensure a decent life for all workers, and particularly those with family responsibilities, it was critical to reduce overtime work, and that the actual hours worked should be reduced to 1,800 per year. JTUC-RENGO states that workers were increasingly requested to work long hours, and that workers unable to do so would face unstable forms of employment. Recalling its previous comments on the Government’s efforts to promote the reduction of working time, the Committee notes from the Government’s report that the Law on Special Measures for the Improvement of Working-Time Arrangements entered into force on 1 April 2006 which, inter alia, promotes flexible working-time arrangements. The Government states that it is making efforts to ensure the Law’s application, including by facilitating shorter working hours.

11. The Committee considers that in order to enable men and women with family responsibilities to enter and remain in the labour market, as well as to advance in their professional development, it is important that further progress is made in the overall reduction of working hours. The Government’s attention is drawn to paragraph 18 of the Workers with Family Responsibilities Recommendation, 1981 (No. 165) which states that particular attention should be given to general measures for improving working conditions and the quality of working life, including measures aimed at the progressive reduction of daily working hours and the reduction of overtime. The Committee also notes that special measures concerning working time currently available to workers with family responsibilities tend to be relied upon by women. It is concerned that this hinders progress towards achieving gender equality in employment and occupation, one of the Convention’s objectives. The Committee requests the Government to provide further information on the specific measures taken to promote the reduction of working hours, including the results in achieving the target of 1800 total working hours per year. It also requests the Government to provide information on the implementation of the Law on Special Measures for the Improvement of Working-Time Arrangements.

Article 5. Childcare service and facilities

12. The Committee notes from the Government’s report that significant progress has been made in extending the availability of childcare services and facilities. Municipalities are required under the revised Child Welfare Law to provide nursing care when the child’s parents or guardians cannot care for the child due to work, illness or other reason. A “Child and Childrearing Support Plan” was formulated in December 2004 and a concentrated effort is being made to improve the situation in municipalities where more than 50 children are on waiting lists for child care. In addition, the Law concerning the promotion of comprehensive provision of education, childcare, etc. concerning preschoolers entered into force in October 2006. The law establishes a system of certified childcare centres. The Committee understands that under the General Action Plan to Support the Development of the Next Generation, local authorities and employers are obliged to establish and implement their own action plans to support childcare. The Committee requests the Government to continue to provide information on the application of Article 5 of the Convention, including on the measures taken by local authorities and private and public sector employers to develop childcare services and facilities open to all workers with family responsibilities.

Article 6. Public understanding of the principle
of gender equality and the problems of
workers with family responsibilities

13. The Committee notes the Conference Committee’s conclusion that it is important to address the situation of men and women workers with family responsibilities in order to make progress in achieving equality. JTCU-RENGO states in their 2006 comments that only a small percentage of men request childcare or family care leave, and JTUC-RENGO states that special measures need to be taken to encourage men to take such leave. JTUC-RENGO also regrets that the notion of work-family balance was not incorporated into the Equal Employment Opportunity Law in the context of its 2006 revision. The FY2003 Annual Report on the State of Formation of a Gender-Equal Society published in 2004 indicates that according to a 2002 survey, only 0.33 per cent of male workers took childcare leave in 2002 compared to 64 per cent of female workers. The Government acknowledges that the number of male workers taking childcare leave was still very low. It indicates that the extent to which men are taking such leave was now one of the criteria in the certification of companies under the Law on Measures to Support the Development of the Next Generation. The Government also supports 200 enterprises carrying out a model initiative to promote the participation of men in child-raising. The Second Basic Plan for a Gender-Equal Society approved by Cabinet in December 2005 included support for work-life balance for both sexes as a priority subject.

14. The Committee encourages the Government to intensify its efforts to promote awareness of the need to address work-family issues as a matter of concern to men and women and to promote the sharing of family responsibilities between men and women, as envisaged in Paragraph 11 of Recommendation No. 165. The Committee recommends that further measures be considered targeting men. The Committee requests the Government to provide information on the measures taken to promote awareness of the problems faced by workers with family responsibilities and the need to address them, as well as on the measures taken to ensure that work-life issues are being addressed as a matter of concern to men and women. Please provide statistical information on the extent to which men and women use the various measures available to facilitate reconciliation between work and family responsibilities.

Article 8. Termination of employment

15. In its previous comments the Committee noted that the protection from termination available under article 1(3) of the Civil Code (abuse of rights) and under the Childcare and Family Care Leave Law (prohibition of dismissal due to requesting or taking leave) was both too general, and narrower than that contemplated in Article 8 of the Convention. The Conference Committee concluded with regard to protection against termination of employment due to family responsibilities that the Government should examine whether the current legislation provides for an appropriate basis for the prevention of and protection against such discrimination in practice, in the light of the comments of the Committee of Experts.

16. The Committee notes that the Government in its report, points out that fixed-term workers, to the extent that they are within the scope of the Childcare and Family Care Leave Law, following its amendment in 2004, now benefit from the protection available under articles 10 and 16. In addition, the Committee notes that the protection from dismissal now also applies to leave to care for a sick child (article 16-4). The 2004 Guidelines state that workers should not be dismissed or otherwise disadvantaged for having applied for a limitation of working hours or night work (Part II, paragraphs 4(2) and 5(4)). The Committee also notes that JTUC-RENGO expresses regret that the issue of family responsibilities was not included in the Equal Employment Opportunity Law during its 2006 revision. The Committee requests the Government to indicate in its next report the measure taken to examine, in cooperation with workers’ and employers’ organizations, whether the current legislation provides for an appropriate basis to prevent and protect workers from dismissal due to family responsibilities. Please indicate the outcome of this examination and any measures taken to ensure that the guarantees of Article 8 are fully applied in law and practice. The Committee also requests the Government to continue to provide judicial decisions relating to the above provisions.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the discussion in the Conference Committee on the Application of Standards in June 2004 and the Conference Committee’s request to the Government to provide information in its next report on the matters raised in the discussion, as well as on those matters raised by the Committee of Experts in its observation and direct request made in 2003. The Committee also notes the observations from the Japan National Hospital Workers Union (JNHWU/ZEN-IRO) dated 4 August 2003 and from the Japanese Trade Union Confederation (JTUC-RENGO) dated 31 August 2003, which have been forwarded to the Government. RENGO acknowledges that certain progress has been made with regard to the revision of the Child-Care and Nursing Care Leave Act but raises a number of issues that still need to be addressed. JNHWU/ZEN-IRO states that in the context of the establishment of the National Hospital Organization, where many wage-based workers had obtained regular status employment, some wage-based nurses were only offered part-time status due to their family responsibilities. The Committee will address these comments together with the Government’s response to these comments and to its 2003 observation and direct request.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Further to its observation, the Committee notes the information in the Government’s report and the attached documentation.

1. Article 2 of the Convention. With reference to its previous comments, the Committee notes the Government’s explanation that although the provisions on childcare and nursing care leave in the Child-Care and Family Care Leave Act, No. 107 of 1995 do not apply to fixed-term workers, measures related to overtime and night work do apply to all fixed-term workers, and that there are no differences between full-time and part-time workers. Similarly, it notes that although the provisions on child and nursing care in the Act on Child-Care Leave for Public Employees do apply to part-time employees, the Guidelines of the National Personnel Authority provide that the limitations on overtime and night work apply to part-time workers. The Committee asks the Government to supply information on any other provisions of the abovementioned legislation that apply to fixed-term and part-time workers with family responsibilities.

2. With regard to the exclusion of workers with fixed-term and daily contracts from the application of the Child-Care and Family Care Leave Act, No. 107, the Committee notes the Government’s statement that it is developing a guideline for evaluating whether or not a person can be described as being employed for an undetermined period of time, and that it will be up to the employer to judge the type of contract based on this guideline. It also notes that in the case of doubt, the Government shall make the decision but that the final judgement whether or not an employer was allowed to refuse to grant leave to a worker is entrusted to the courts. The Committee asks the Government to supply a copy of the guideline, once it is adopted, and to provide information on its application in practice, as well as on any court decisions regarding the granting of leave to fixed-term and daily workers.

3. Article 3. Referring to its previous comments on the extension of Act No. 9 of 1992 on temporary measures to promote the reduction of working time for another five years, the Committee notes that the Government has made it a priority to eliminate overtime work and promote annual paid holidays, and that it is continuing its efforts to shorten hours of work. It notes the measures taken by the Government, such as the raising of awareness on a system of flexible working hours, the support measures to employers who provide for a shortening of working hours under the Child-Care and Family Care Leave Act, and a reduction of the maximum of hours of overtime for employees in the public service engaged in child or nursing care from 360 to 150 hours per year. Noting the information contained in the FY2001 and FY2002 annual reports on the state of formation of a gender equal society including the gender disparity in working patterns, the Committee asks the Government to continue to provide information on the measures taken with regard to Act No. 9 and to indicate in its next report how these and other measures taken have helped and encouraged especially male workers to work shorter hours with a view to balancing better their work and family responsibilities.

4. Article 5. The Committee notes that the policy on support measures for balancing of work and child-raising in July 2001 is to be implemented by FY2004. It also notes the Bill to revise the Child Welfare Act, which entered the Diet in March 2003, which will: (1) establish new regulations to promote the implementation of childcare support activities in municipalities that are based on the inclusion of childcare support activities into law; and (2) call for the creation of childcare plans in certain local governments that have children waiting to get into nurseries. The Committee welcomes these measures and asks the Government to keep it informed of the adoption of the Bill and the implementation of the said policy and to continue to supply information on the measures taken or envisaged to promote the application of Article 5(b) of the Convention in regard to childcare services and facilities.

5. Article 6. With reference to its previous comments concerning the creation of family-friendly workplaces and promotion campaigns targeting male workers with family responsibilities, the Committee notes the Government’s reply that the number of men taking childcare leave has not increased. It also notes from the annual report of FY2002 that, according to a survey carried out in 2001-02, 80.2 per cent of working mothers took or would take childcare leave but only 0.7 per cent of the male workers took or would take childcare leave, and that the working environment in Japanese companies prevents male workers from taking childcare leave. Noting that the abovementioned FY2001 annual report states that "… the creation of a work environment that makes it easier for men to take childcare leave [is] indispensable to building a society that can accommodate balancing of work and child raising", the Committee asks the Government to provide information in its next report on specific measures taken or contemplated to increase the effectiveness of the work-family programmes and to improve the environment in Japanese companies with a view to increasing the number of women and especially men taking childcare leave.

6. With reference to its previous comments, the Committee notes that section 33 of the Child-Care and Family Care Leave Act, No. 107, provides that the Government shall undertake necessary publicity activities to increase the understanding of the general public regarding the coexistence of work and family life. It also notes the various initiatives, including seminars and symposia, by the Government to raise awareness on equal opportunity and treatment for men and women workers, including the "proposals for positive action" formulated by the Ministry of Health, Labour and Welfare and employers’ organizations in April 2002, which resulted in the creation of the Positive Action Promotion Council in each of the prefectures. The Committee requests the Government to continue to supply information in this regard, and in particular on the contents of the abovementioned proposals and the activities of the Council with regard to raising public understanding of the problems of men and women workers with family responsibilities.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information in the Government’s report and the attached documentation. It also notes the comments made by the National Hospital Workers’ Union (JNHWU/ZEN-IRO), the Telecommunication Workers’ Union (TSUSHINROSO) and the Japanese Trade Union Confederation (JTUC-RENGO) received in 2002 and 2003, as well as the Government’s response.

1. Article 2 of the Convention. In its communication of 27 August 2003, JTUC-RENGO once again reiterates the point that the Childcare and Family Care Leave Act, No. 107, does not apply to fixed-term contract workers, which is against the spirit of the Convention. In its previous comments of 2000 and 2001, JNHWU/ZEN-IRO also indicated that wage-based workers were excluded from the Childcare and Family Care Leave Act and did not, unlike regular personnel, enjoy paid leave to care for injured, sick or elderly family members. They referred to the draft Bill to be submitted to the 151st Diet session which would modify legislation on childcare and nursing care leave to extend the application of childcare leave to workers who are de facto employed on a permanent basis due to repeated renewals of the employment contract. In its most recent comments of 6 August 2002 and 26 August 2003, JNHWU/ZEN-IRO indicates that the Government remains unwilling to institutionalize childcare leave and nursing leave of wage-based workers, and has still not taken any measures to extend the application of the Convention to wage-based workers in state-run hospitals and sanatoriums. In their view wage employees in national hospitals and sanatoriums, who are doing the same work as regular status workers but whose position is unstable, should at the least be eligible for childcare and nursing leave.

2. The Committee notes the Government’s reply that the childcare and nursing leave systems are set up for continuous long-term employment and therefore not applicable to part-time workers and wage employees who work on a daily basis and whose contract of employment is predetermined. The Government adds that the revisions of the Childcare and Family Care Leave Act only include measures to limit overtime work for workers raising pre-elementary school children, and measures concerning leave for care-giving for pre-elementary school children. Noting that the draft revised law does not extend the right to childcare and nursing leave to additional categories of workers, such as fixed-term and wage-based workers, the Committee is bound to recall that the Convention applies to all branches of economic activity and all categories of workers. It recalls that the Convention is intended to cover all workers "whether in full-time, part-time, temporary or other forms of employment, and whether in waged or unwaged employment". The Committee therefore asks the Government to indicate, in its next report, how it intends to ensure the right to childcare and nursing leave to part-time, fixed-term and wage-based workers.

3. Article 4(a). Personnel transfers to remote workplaces. In its comments of 27 August 2003, JTUC-RENGO continues to express its concern over the fact that company regulations often require full-time employees to work overtime and change workplaces, so that workers with family responsibilities, most of whom are women, are forced to work part time. Instead, full-time and part-time workers with family responsibilities should enjoy the right to be exempted from overtime. In replying to JTUC-RENGO’s comments, the Government states that the Childcare and Family Care Leave Act limits overtime within a specific range and that it is desirable for employers and employees to reach agreements on appropriate working hours management. The Committee urges the Government to try to ensure that such agreements are reached in accordance with the intent and provisions of the Convention.

4. In its previous observation, the Committee also noted the comments of TSUSHINROSO regarding the transfer of workers employed at the Nihon Telephone and Telegraph (NTT) and allied companies, which greatly affected the ability of the employees to manage their work and family responsibilities. Similar concerns were also raised by JNHWU/ZEN-IRO in its comments of 2000 and 2001, in which it presented data of hospital and sanatorium workers who had undergone transfers without consultation or announcement from the employer prior to transfer. According to the JNHWU/ZEN-IRO, workers were being forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risking being dismissed, or simply quitting their job. The Committee notes that concerns regarding the practice of transferring employees to distant workplaces without prior consultation are repeated in recent comments of TSUSHINROSO (dated 7 May 2003) and JNHWU/ZEN-IRO (dated 6 August 2002 and 26 August 2003). According to TSUSHINROSO, no measures were taken to benefit the transferred workers with family responsibilities, referred to in their previous comments, and transfers unilaterally imposed by the employer continued. The Committee notes in this regard the appended list of transferred workers, most of whom are men older than 50 years of age. TSUSHINROSO indicates that long-distance commuting or being away from their families has increased the workers’ cost of living and dramatically changed their living and working conditions, as well as their family life. The Committee notes that the comments of JNHWU/ZEN-IRO also mention the lack of improvement in the manner transfers are unilaterally imposed on the employees of hospitals and sanatoriums, as indicated in the surveys undertaken by the JNHWU Tokai-Hokuriku and Kanto-Shinetsu Regional Councils in May and July 2002. The results also show that the promotion of nurses and nursing teachers, most of whom are women, usually involves a transfer to a new institution. The Committee notes that both the JNHWU/ZEN-IRO and TSUSHINROSO particularly criticize the transferral of workers nearing retirement age without consultation or special consideration to their family life.

5. In replying to the JNHWU/ZEN-IRO’s comments, the Government states that decisions on personnel transfers are based on the needs of the service, the principle of the merit system, the qualifications, abilities and experience of the personnel, as well as the affected employee’s health and family responsibilities. The Government adds that employees are, however, not allowed to refuse a transfer without a rational reason, but that the system does not discriminate against any employees, including those who are up for retirement. It further repeats its previous statements that appropriate rules should be established between employers and employees and that efforts should be made by employers to identify the impact of the transfer on the lives of the employee with family responsibilities. The Government further indicates that the Guidelines of the National Personnel Authority (2001) concerning the enlargement of the recruitment and promotion of female public employees specify that the Office or the Ministry shall take into consideration the family background and family responsibilities of an employee who is being transferred. The Government has not yet responded to the comments made by TSUSHINROSO, dated 13 May 2003.

6. The Committee notes that section 26 of the Childcare and Family Care Leave Act provides that employers must give consideration to workers with family responsibilities in the case of job relocation to remote workplaces. The Committee notes, however, that despite the provisions of the above Act and the established guidelines, it appears that transfers unilaterally imposed by the employers without prior consultation or without recognition of the employee’s objections due to family responsibilities continue to occur. Moreover, affected employees are notified of their new place of employment only three weeks prior to their transfer. The Committee must therefore reiterate its previous comments in which it considered that, in order to take a worker’s family situation into consideration in accordance with Article 4(a) of the Convention, the employer should give the fullest consideration possible to the worker’s genuine need to care for members of his or her family. The worker’s family responsibilities in this regard should be considered and given appropriate significant weight along with the business reasons underlying the transfer proposal. The Committee points out that efforts to promote the ability of workers with family responsibilities to balance their family and work life, include these workers’ ability to balance their family responsibilities with any advances they may make in their professional lives. Therefore, to the extent possible, employer practices should not force workers to choose between retaining their jobs or fulfilling their family responsibilities, in so far as these responsibilities do not impair their ability to perform the job. The Committee urges the Government to take the necessary steps so that the practice of imposing transfers on workers be reviewed and brought into greater conformity with the requirements of the Convention.

7. Article 4(b). With respect to the public sector, the Committee notes with interest the revisions in the relevant laws and regulations covering the public sector expanding full and partial childcare for national and local public employees having a child under 1 year of age to employees having a child under 3 years, and increasing nursing care leave for regular service employees from three to six months. It also notes that section 22(10) of Rule 15-14 of the National Personnel Authority Guidelines establishes a special leave to care for a sick child. With respect to the private sector, the Committee notes that the Childcare and Family Care Leave Act provides (section 25) that employers must endeavour to take measures to provide childcare leave to employees with children who have not yet begun attending elementary school. It also notes the additional support measures for employers that establish childcare systems or appoint a "Work-Family Coexistence Facilitation Officer". JTUC-RENGO points out that the legislation would be more effective if it clearly established childcare and family care leave as a workers’ right and did not just require employers to make efforts to provide for childcare leave. The Committee asks the Government to provide information on the practical application of this section of the Act and to indicate whether it intends to extend the legislative measures concerning childcare to workers who wish to take family care leave.

8. Article 5. In its recent comments, JNHWU/ZEN-IRO states that the Government has not yet implemented any measures to improve in-house nurseries in hospitals and sanatoriums. It further states that in 2004 most of the national hospitals and sanatoriums will be transferred to a new independent administrative agency and that it remains unclear what will happen to the in-house nurseries and the employment of their personnel. While welcoming the Government’s information on the adoption by the Cabinet of the policy on support measures for balancing work and child-raising in July 2001 which provides concrete goals and measures to increase the numbers of children enrolled in nurseries and to increase the number of establishments for after-school activities, the Committee notes that the Government has omitted to provide specific information as regards the comments made by JNHWU/ZEN-IRO. It therefore asks the Government to provide information on the status and future of the in-house nurseries and their personnel in national hospitals and sanatoriums.

9. Article 8. In its previous observations, the Committee noted the comments raised by JTUC-RENGO concerning the lack of protection in Japanese legislation against termination of employment due to family responsibilities. In its reply, the Government referred to section 1(3) of the Civil Code providing for general protection to persons against abuse of their rights, and to sections 10 and 16 of the Childcare and Family Care Leave Act, No. 107, which prohibit dismissal due to requesting or taking childcare or family leave. In this regard, the Committee pointed out that the protection provided under these provisions was both too general (as they do not specify workers with family responsibilities or protection from termination of employment), and narrower than that contemplated in Article 8 of the Convention, as it was not directed to family responsibilities in general. Moreover, Act No. 107 appears to exclude daily labourers and workers on fixed-term contracts from its coverage. The Committee notes that the Government does not provide any reply to its previous comments and is therefore bound to reiterate its request to the Government to indicate whether there are any judicial decisions interpreting the legal provisions referred to, and if so, to provide copies of such decisions. The Government is also asked to provide information in its next report on any measures taken to ensure that the guarantees of Article 8 are applied fully in national law and practice.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Further to its observation, the Committee repeats its previous comments, which read as follows:

The Committee notes the information contained in the Government’s report and attached documentation.

1. Article 2 of the Convention. The Committee notes the Government’s indication that legislative provisions limiting night work and other provisions of the Child Care and Family Leave Act apply to workers on fixed-term contracts. The Committee notes that article 2 of the Law Concerning the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave, Act No. 107 of 9 June 1995, appears to exclude day labourers and workers on fixed-term contracts from entitlement to childcare leave. The Committee requests the Government to supply concrete information indicating those provisions limiting night work, overtime work and provisions of Act No. 107 which are extended to workers on fixed-term contracts, as well as to categories of workers other than full-time salaried employees (part-time workers, wage-based workers, etc.).

2. Referring to its earlier comments concerning whether workers with daily contracts and workers with fixed-term contracts are excluded from the application of the law on childcare and family care leave, the Committee notes the Government’s indication that it is possible that workers on fixed-term contracts be granted childcare and family care leave, but that it is not the employer who decides on this point. The Committee requests the Government to clarify its response on this point, and to indicate under what circumstances this leave may be granted to daily workers and workers on fixed-term contracts, as well as to indicate who in fact decides on this point if not the employer.

3. Article 3. Referring to its previous comments on Law No. 9 of 2 July 1992 respecting temporary measures to promote the reduction of working time, the Committee notes the Government’s statement that, although the law was initially intended to be abolished on 31 March 2001, it was instead extended by five years. The report indicates that the Government is still working on the issue of the reduction of working hours. Noting that the organization of working time, including flexible working arrangements and reduced hours, is essential to help workers balance their work and family responsibilities, the Committee asks the Government to keep it informed on any developments regarding Law No. 9 as well as the measures taken or contemplated by the Government in this regard.

4. Article 4. The Committee notes the Government’s explanation that section 12(6) of the regulations issued under the law respecting minimum working conditions (No. 23 of 1947) also applies to daily workers.

5. Article 6. The Committee notes with interest that studies concerning the impact on employers and workers of promotional campaigns relevant to the Convention show a marked increase in the number of workplaces providing for childcare and family care leave in their enterprise regulations. The Government indicates that the use of family-friendly employment practices is increasing, as is the total amount of childcare and family care leave subsidies provided by the Government to employers assisting their employees in balancing their work and family responsibilities. The Government indicates that the number of women workers taking childcare leave has also increased. The Committee asks the Government to indicate whether there has been a corresponding increase in the number of men taking either childcare or family care leave as a result of the promotional campaigns. The Committee would be grateful if the Government would continue to supply information in this regard.

6. The Committee notes the FY2000 Annual Report on the State of Formation of a Gender-equal Society and Policies to be Implemented in FY2001 to Promote the Formation of a Gender-equal Society ("FY2000 Annual Report") supplied by the Government, which states that very little change was observed in perceptions of fixed-gender roles from 1995 to 2000 and that such perceptions ‘remain as firmly rooted as ever’. Recalling the Preamble to the Convention, which recognizes that ‘a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women’, the Committee requests the Government to indicate the measures taken or envisaged to promote information and education to raise public understanding of the principle of equality of opportunity and treatment for men and women workers and of the problems of workers with family responsibilities, as well as a climate of opinion conducive to overcoming these problems. Please supply a copy of the Annual Report with the Government’s next report.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the comments from the Japan National Hospital Workers’ Union (JNZWU/ZEN-IRO), received on 15 August 2002. The comments have been forwarded to the Government and the Committee will address them together with any comments the Government might have thereon, at its next session. In addition, the Committee repeats its previous observation, which read as follows:

The Committee takes note of the information contained in the Government’s report. It also notes the comments made by the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO), the Telecommunication Workers’ Unions (TSUSHINROUSO) and the Japanese Trade Union Confederation (JTUC-RENGO), as well as the Government’s response.

1. Article 2 of the Convention. JTUC-RENGO indicates that the Convention is not applied in Japan to workers with fixed-term contracts and it recommends that the application of the Convention be extended to this category of workers. In its comments, JNHWU/ZEN-IRO notes that wage-based workers (chingin-shokuin) employed in Japanese hospitals are excluded from the coverage of the Child Care Leave Act. JNHWU/ZEN-IRO indicated in its 17 October 2000 comments that regular personnel in state-run hospitals enjoy paid leave to care for injured, sick or elderly family members, but that this benefit is not extended to wage-based workers. In its communications of 16 August and 22 August 2001, JNHWU/ZEN-IRO states that discriminatory treatment of wage-based workers in Japanese hospitals continues.

2. In its recent comments, JNHWU/ZEN-IRO points out that the Government has introduced a draft bill to the 151st Diet session which would modify the national legislation on childcare and nursing care leave, inter alia, to extend the application of the childcare leave law to those workers who are employed de facto on a permanent basis due to repeated renewals of their employment contracts. In this regard, the Committee notes the FY2000 Annual Report on the State of Formation of a Gender-equal Society and Policies to be Implemented in FY2001 to Promote the Formation of a Gender-equal Society ("FY2000 Annual Report") supplied by the Government. The FY2000 Annual Report indicates that the draft bill submitted in February 2001 would: (1) incorporate welfare provisions for workers raising children and caring for family members; (2) prohibit disadvantageous treatment of workers due to their use of childcare or family care leave; (3) raise the age of children targeted by measures entitling workers to reduce working hours; and (4) provide for nursing leave.

3. With regard to coverage of the Convention, the Committee recalls that Article 2 of the Convention states that it applies to "all branches of economic activity and all categories of workers". As the Committee observed in paragraph 46 of its General Survey of 1993 on workers with family responsibilities, the phrasing of the Convention was intended to cover all workers, "whether in full-time, part-time, temporary or other forms of employment, and whether they are in waged or unwaged employment". Therefore, the Committee welcomes the draft law, noting that its adoption would extend the right to childcare and nursing leave to additional categories of workers. In this regard, the Committee would be grateful if the Government would supply information concerning any measures taken or contemplated to extend application of the provisions of the Convention to part-time workers, workers on fixed-term contracts and wage-based workers. The Committee expresses the hope that the draft bill will be adopted in the near future and requests the Government to supply a copy of the Act once it is adopted.

4. Article 3. The Committee notes initiatives taken by the Government to promote equality of opportunity and treatment for workers with family responsibilities, including the approval in December 2000 of the Basic Plan for Gender Equality, which includes the objective of supporting men’s and women’s efforts to harmonize work with their family and community life. The Committee requests the Government to provide information on the measures taken or envisaged to implement the objectives of the Basic Plan relevant to the Convention.

5. Article 4(a). Personnel transfers to remote workplaces. JTUC-RENGO states that company regulations frequently require full-time workers in Japan to remain available to work overtime hours or to transfer to a different workplace. In its previous observation, the Committee had noted the comments of JTUC-RENGO (dated 29 October 1999), as well as those of TSUSHINROUSO (dated 17 October 2000) regarding the transfer of workers with family responsibilities to remote workplaces. TSUSHINROUSO’s comments concern the transfer of workers employed by the Nihon Telephone and Telegraph (NTT) and allied companies. According to TSUSHINROUSO, the transfers have placed great strains on the employees’ lives, particularly on their ability to manage their family responsibilities and balance those responsibilities with their work lives. Replying to TSUSHINROUSO’s comments, the Government indicates that adequate rules should be negotiated between employers and employees before personnel are transferred to a distant workplace, and that such rules should, to the extent possible, define the areas and conditions of the transfers, taking measures to reduce the burden of the transfer on the worker. The Committee notes that similar concerns were raised in the 17 October 2000 comments of JNHWU/ZEN-IRO, which presented several examples of workers allegedly forced to resign from their jobs as a result of being transferred to distant workplaces without their consent. In all the cases presented, while the Government indicates that the workers’ family responsibilities were considered by the employer, it appears that the workers’ objections were overlooked because the transfers were considered to constitute recognition of the workers’ experience and abilities.

6. The Committee notes that concerns regarding the practice of transferring employees to distant workplaces without prior consultation are also raised in the recent comments of JNHWU/ZEN-IRO (dated 22 August 2001), which refer to the results of a survey on personnel transfers conducted in April 2001 by the Kanto-Shinetsu Regional Council of JNHWU/ZEN-IRO. Out of 89 hospital and sanatorium workers who had undergone transfers, the majority (89 per cent) indicated that there had been no consultation or announcement from the employer prior to transfer. Twenty per cent of those surveyed indicated that the transfers required them to live away from their families. In its previous comments dated 17 October 2000, JNHWU/ZEN-IRO noted that forced transfers to distant workplaces are frequently imposed upon staff, disregarding the will of the employees concerned. According to JNHWU/ZEN-IRO, workers are thereby forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risk being dismissed, or simply quitting the job. The Government has not yet responded to these comments.

7. The Committee recalls that Paragraph 20 of Recommendation No. 165 encourages employers to consider family responsibilities when transferring workers from one locality to another. The Committee notes that the fact that a transfer may represent recognition of a worker’s capabilities or even a promotion is not dispositive of whether the worker is able or willing to accept a transfer, as the worker’s family responsibilities may preclude him or her from moving to a different workplace. The Committee considers that, in order to take a worker’s family situation into consideration in accordance with Article 4(a) of the Convention, the employer should give the fullest consideration possible to the worker’s genuine need to care for members of his or her family. The worker’s family responsibilities in this regard should be considered and given appropriate weight along with the business reasons underlying the transfer proposal. The Committee also points out that a worker’s acceptance of a transfer in the past does not signify that the worker is able or willing to accept a transfer to a distant workplace at another stage of his or her life, as family circumstances can, and frequently do, change. In this context, the Committee points out that one of the objectives of the Convention is to promote the ability of workers with family responsibilities to balance their family and work life. As a necessary corollary, this would include these workers’ ability to balance their family responsibilities with any advances they may make in their professional lives. Therefore, to the extent possible, employer practices should not force workers to choose between retaining their jobs or fulfilling their family responsibilities, in so far as these responsibilities do not impair their ability to perform the job. The Committee expresses the hope that the practice of imposing transfers on workers will be reviewed and brought into greater conformity with the requirements of the Convention.

8. Article 4(b). The Committee notes with interest that childcare and family leave benefits have been raised from 25 per cent of the worker’s wage to 40 per cent as of January 2001. The Committee also notes the measures taken by the Government to facilitate the taking of childcare leave, including assistance to employers replacing employees on childcare leave and placing the employee in the same position after the leave, exemptions from payment of insurance premiums and year-end bonuses paid to employees on childcare leave. JTUC-RENGO points out that the measure providing for exemptions from payment of insurance premiums does not extend to workers on family care leave. The Committee asks the Government to keep it informed of any measures taken or contemplated to extend application of these provisions to workers on family care leave.

9. Article 5. In its comments of 17 October 2000, JNHWU/ZEN-IRO states that in-house nurseries at national hospitals are not adequately staffed as required by the Child Welfare Act. It further states that the Ministry of Health, Labour and Welfare has not allocated sufficient fund for in-house childcare facilities, but has instead commissioned the Mutual Aid Association to administer those services. In reply, the Government states that the management of these facilities, established by the Second Mutual Aid Association of the Ministry of Health, Labour and Welfare, is commissioned to the Childcare Facilities Management Council; that it is taking all measures possible under present conditions; and that these services are not considered as services that the Government is obligated to provide. The Committee notes this information. It recalls that Article 5(b) of the Convention requires the Government to take all measures compatible with national conditions and possibilities to develop or promote ‘community services, public or private, such as childcare and family services and facilities’. The Committee would be grateful if the Government would continue to supply information on the measures taken or envisaged to promote the application of Article 5(b) in regard to childcare services and facilities.

10. Article 8. The Committee refers to its previous observation noting the communication received from JTUC-RENGO on 29 October 1999, which expressed concerns over the lack of protection in Japanese legislation against termination of employment due to family responsibilities. In its communication, JTUC-RENGO had indicated that there was a divergence between the protection provided under Article 8 of the Convention and Japanese law. Responding to the concerns raised by JTUC-RENGO, the Government indicates that protection against dismissal on the basis of family responsibilities is covered by section 1(3) of the Japanese Civil Code. The Government also notes that sections 10 and 16 of the Child Care and Family Leave Act No. 107 of 9 June 1995, prohibit an employer from dismissing an employee because he or she has requested to take or has taken such leave. In this regard, the Committee notes that section 1(3) of the Civil Code appears to provide general protection to persons against abuses of their rights, without specifying either workers with family responsibilities or protection from termination of employment. Moreover, the Committee notes that the protection from dismissal provided by Act No. 107 is narrower than that contemplated by Article 8 of the Convention, as it is directed only at the issue of dismissal due to requesting or taking childcare or family care leave, not to dismissal due to family responsibilities generally. Further, Act No. 107 appears to exclude daily labourers and workers on fixed-term contracts from coverage. The Committee requests the Government to indicate whether there are any judicial decisions interpreting the legal provisions referred to and, if so, to supply copies of any such decisions. In addition, the Committee asks the Government to provide information in its next report on any measures taken to ensure that Article 8 is applied in national law and practice.

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

[The Government is asked to report in detail in 2003.]

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information contained in the Government’s report and attached documentation.

1. Article 2 of the Convention. The Committee notes the Government’s indication that legislative provisions limiting night work and other provisions of the Child Care and Family Leave Act apply to workers on fixed-term contracts. The Committee notes that article 2 of the Law Concerning the Welfare of Workers Who Take Care of Children or Other Family Members Including Child Care and Family Care Leave, Act No. 107 of 9 June 1995, appears to exclude day labourers and workers on fixed-term contracts from entitlement to childcare leave. The Committee requests the Government to supply concrete information indicating those provisions limiting night work, overtime work and provisions of Act No. 107 which are extended to workers on fixed-term contracts, as well as to categories of workers other than full-time salaried employees (part-time workers, wage-based workers, etc.).

2. Referring to its earlier comments concerning whether workers with daily contracts and workers with fixed-term contracts are excluded from the application of the law on childcare and family care leave, the Committee notes the Government’s indication that it is possible that workers on fixed-term contracts be granted childcare and family care leave, but that it is not the employer who decides on this point. The Committee requests the Government to clarify its response on this point, and to indicate under what circumstances this leave may be granted to daily workers and workers on fixed-term contracts, as well as to indicate who in fact decides on this point if not the employer.

3. Article 3. Referring to its previous comments on Law No. 9 of 2 July 1992 respecting temporary measures to promote the reduction of working time, the Committee notes the Government’s statement that, although the law was initially intended to be abolished on 31 March 2001, it was instead extended by five years. The report indicates that the Government is still working on the issue of the reduction of working hours. Noting that the organization of working time, including flexible working arrangements and reduced hours, is essential to help workers balance their work and family responsibilities, the Committee asks the Government to keep it informed on any developments regarding Law No. 9 as well as the measures taken or contemplated by the Government in this regard.

4. Article 4. The Committee notes the Government’s explanation that section 12(6) of the regulations issued under the law respecting minimum working conditions (No. 23 of 1947) also applies to daily workers.

5. Article 6. The Committee notes with interest that studies concerning the impact on employers and workers of promotional campaigns relevant to the Convention show a marked increase in the number of workplaces providing for childcare and family care leave in their enterprise regulations. The Government indicates that the use of family-friendly employment practices is increasing, as is the total amount of childcare and family care leave subsidies provided by the Government to employers assisting their employees in balancing their work and family responsibilities. The Government indicates that the number of women workers taking childcare leave has also increased. The Committee asks the Government to indicate whether there has been a corresponding increase in the number of men taking either childcare or family care leave as a result of the promotional campaigns. The Committee would be grateful if the Government would continue to supply information in this regard.

6. The Committee notes the FY2000 Annual Report on the State of Formation of a Gender-equal Society and Policies to be Implemented in FY2001 to Promote the Formation of a Gender-equal Society ("FY2000 Annual Report") supplied by the Government, which states that very little change was observed in perceptions of fixed-gender roles from 1995 to 2000 and that such perceptions "remain as firmly rooted as ever". Recalling the Preamble to the Convention, which recognizes that "a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women", the Committee requests the Government to indicate the measures taken or envisaged to promote information and education to raise public understanding of the principle of equality of opportunity and treatment for men and women workers and of the problems of workers with family responsibilities, as well as a climate of opinion conducive to overcoming these problems. Please supply a copy of the Annual Report with the Government’s next report.

[The Government is asked to report in detail in 2003.]

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the information contained in the Government’s report. It also notes the comments made by the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO), the Telecommunication Workers’ Unions (TSUSHINROUSO) and the Japanese Trade Union Confederation (JTUC-RENGO), as well as the Government’s response.

1. Article 2 of the Convention. JTUC-RENGO indicates that the Convention is not applied in Japan to workers with fixed-term contracts and it recommends that the application of the Convention be extended to this category of workers. In its comments, JNHWU/ZEN-IRO notes that wage-based workers (chingin-shokuin) employed in Japanese hospitals are excluded from the coverage of the Child Care Leave Act. JNHWU/ZEN-IRO indicated in its 17 October 2000 comments that regular personnel in state-run hospitals enjoy paid leave to care for injured, sick or elderly family members, but that this benefit is not extended to wage-based workers. In its communications of 16 August and 22 August 2001, JNHWU/ZEN-IRO states that discriminatory treatment of wage-based workers in Japanese hospitals continues.

2. In its recent comments, JNHWU/ZEN-IRO points out that the Government has introduced a draft bill to the 151st Diet session which would modify the national legislation on childcare and nursing care leave, inter alia, to extend the application of the childcare leave law to those workers who are employed de facto on a permanent basis due to repeated renewals of their employment contracts. In this regard, the Committee notes the FY2000 Annual Report on the State of Formation of a Gender-equal Society and Policies to be Implemented in FY2001 to Promote the Formation of a Gender-equal Society ("FY2000 Annual Report") supplied by the Government. The FY2000 Annual Report indicates that the draft bill submitted in February 2001 would: (1) incorporate welfare provisions for workers raising children and caring for family members; (2) prohibit disadvantageous treatment of workers due to their use of childcare or family care leave; (3) raise the age of children targeted by measures entitling workers to reduce working hours; and (4) provide for nursing leave.

3. With regard to coverage of the Convention, the Committee recalls that Article 2 of the Convention states that it applies to "all branches of economic activity and all categories of workers". As the Committee observed in paragraph 46 of its General Survey of 1993 on workers with family responsibilities, the phrasing of the Convention was intended to cover all workers, "whether in full-time, part-time, temporary or other forms of employment, and whether they are in waged or unwaged employment". Therefore, the Committee welcomes the draft law, noting that its adoption would extend the right to childcare and nursing leave to additional categories of workers. In this regard, the Committee would be grateful if the Government would supply information concerning any measures taken or contemplated to extend application of the provisions of the Convention to part-time workers, workers on fixed-term contracts and wage-based workers. The Committee expresses the hope that the draft bill will be adopted in the near future and requests the Government to supply a copy of the Act once it is adopted.

4. Article 3. The Committee notes initiatives taken by the Government to promote equality of opportunity and treatment for workers with family responsibilities, including the approval in December 2000 of the Basic Plan for Gender Equality, which includes the objective of supporting men’s and women’s efforts to harmonize work with their family and community life. The Committee requests the Government to provide information on the measures taken or envisaged to implement the objectives of the Basic Plan relevant to the Convention.

5. Article 4(a). Personnel transfers to remote workplaces. JTUC-RENGO states that company regulations frequently require full-time workers in Japan to remain available to work overtime hours or to transfer to a different workplace. In its previous observation, the Committee had noted the comments of JTUC-RENGO (dated 29 October 1999), as well as those of TSUSHINROUSO (dated 17 October 2000) regarding the transfer of workers with family responsibilities to remote workplaces. TSUSHINROUSO’s comments concern the transfer of workers employed by the Nihon Telephone and Telegraph (NTT) and allied companies. According to TSUSHINROUSO, the transfers have placed great strains on the employees’ lives, particularly on their ability to manage their family responsibilities and balance those responsibilities with their work lives. Replying to TSUSHINROUSO’s comments, the Government indicates that adequate rules should be negotiated between employers and employees before personnel are transferred to a distant workplace, and that such rules should, to the extent possible, define the areas and conditions of the transfers, taking measures to reduce the burden of the transfer on the worker. The Committee notes that similar concerns were raised in the 17 October 2000 comments of JNHWU/ZEN-IRO, which presented several examples of workers allegedly forced to resign from their jobs as a result of being transferred to distant workplaces without their consent. In all the cases presented, while the Government indicates that the workers’ family responsibilities were considered by the employer, it appears that the workers’ objections were overlooked because the transfers were considered to constitute recognition of the workers’ experience and abilities.

6. The Committee notes that concerns regarding the practice of transferring employees to distant workplaces without prior consultation are also raised in the recent comments of JNHWU/ZEN-IRO (dated 22 August 2001), which refer to the results of a survey on personnel transfers conducted in April 2001 by the Kanto-Shinetsu Regional Council of JNHWU/ZEN-IRO. Out of 89 hospital and sanatorium workers who had undergone transfers, the majority (89 per cent) indicated that there had been no consultation or announcement from the employer prior to transfer. Twenty per cent of those surveyed indicated that the transfers required them to live away from their families. In its previous comments dated 17 October 2000, JNHWU/ZEN-IRO noted that forced transfers to distant workplaces are frequently imposed upon staff, disregarding the will of the employees concerned. According to JNHWU/ZEN-IRO, workers are thereby forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risk being dismissed, or simply quitting the job. The Government has not yet responded to these comments.

7. The Committee recalls that Paragraph 20 of Recommendation No. 165 encourages employers to consider family responsibilities when transferring workers from one locality to another. The Committee notes that the fact that a transfer may represent recognition of a worker’s capabilities or even a promotion is not dispositive of whether the worker is able or willing to accept a transfer, as the worker’s family responsibilities may preclude him or her from moving to a different workplace. The Committee considers that, in order to take a worker’s family situation into consideration in accordance with Article 4(a) of the Convention, the employer should give the fullest consideration possible to the worker’s genuine need to care for members of his or her family. The worker’s family responsibilities in this regard should be considered and given appropriate weight along with the business reasons underlying the transfer proposal. The Committee also points out that a worker’s acceptance of a transfer in the past does not signify that the worker is able or willing to accept a transfer to a distant workplace at another stage of his or her life, as family circumstances can, and frequently do, change. In this context, the Committee points out that one of the objectives of the Convention is to promote the ability of workers with family responsibilities to balance their family and work life. As a necessary corollary, this would include these workers’ ability to balance their family responsibilities with any advances they may make in their professional lives. Therefore, to the extent possible, employer practices should not force workers to choose between retaining their jobs or fulfilling their family responsibilities, in so far as these responsibilities do not impair their ability to perform the job. The Committee expresses the hope that the practice of imposing transfers on workers will be reviewed and brought into greater conformity with the requirements of the Convention.

8. Article 4(b). The Committee notes with interest that childcare and family leave benefits have been raised from 25 per cent of the worker’s wage to 40 per cent as of January 2001. The Committee also notes the measures taken by the Government to facilitate the taking of childcare leave, including assistance to employers replacing employees on childcare leave and placing the employee in the same position after the leave, exemptions from payment of insurance premiums and year-end bonuses paid to employees on childcare leave. JTUC-RENGO points out that the measure providing for exemptions from payment of insurance premiums does not extend to workers on family care leave. The Committee asks the Government to keep it informed of any measures taken or contemplated to extend application of these provisions to workers on family care leave.

9. Article 5. In its comments of 17 October 2000, JNHWU/ZEN-IRO states that in-house nurseries at national hospitals are not adequately staffed as required by the Child Welfare Act. It further states that the Ministry of Health, Labour and Welfare has not allocated sufficient funds for in-house childcare facilities, but has instead commissioned the Mutual Aid Association to administer those services. In reply, the Government states that the management of these facilities, established by the Second Mutual Aid Association of the Ministry of Health, Labour and Welfare, is commissioned to the Childcare Facilities Management Council; that it is taking all measures possible under present conditions; and that these services are not considered as services that the Government is obligated to provide. The Committee notes this information. It recalls that Article 5(b) of the Convention requires the Government to take all measures compatible with national conditions and possibilities to develop or promote "community services, public or private, such as child-care and family services and facilities". The Committee would be grateful if the Government would continue to supply information on the measures taken or envisaged to promote the application of Article 5(b) in regard to childcare services and facilities.

10. Article 8. The Committee refers to its previous observation noting the communication received from JTUC-RENGO on 29 October 1999, which expressed concerns over the lack of protection in Japanese legislation against termination of employment due to family responsibilities. In its communication, JTUC-RENGO had indicated that there was a divergence between the protection provided under Article 8 of the Convention and Japanese law. Responding to the concerns raised by JTUC-RENGO, the Government indicates that protection against dismissal on the basis of family responsibilities is covered by section 1(3) of the Japanese Civil Code. The Government also notes that sections 10 and 16 of the Child Care and Family Leave Act, No. 107 of 9 June 1995, prohibit an employer from dismissing an employee because he or she has requested to take or has taken such leave. In this regard, the Committee notes that section 1(3) of the Civil Code appears to provide general protection to persons against abuses of their rights, without specifying either workers with family responsibilities or protection from termination of employment. Moreover, the Committee notes that the protection from dismissal provided by Act No. 107 is narrower than that contemplated by Article 8 of the Convention, as it is directed only at the issue of dismissal due to requesting or taking childcare or family care leave, not to dismissal due to family responsibilities generally. Further, Act No. 107 appears to exclude daily labourers and workers on fixed-term contracts from coverage. The Committee requests the Government to indicate whether there are any judicial decisions interpreting the legal provisions referred to and, if so, to supply copies of any such decisions. In addition, the Committee asks the Government to provide information in its next report on any measures taken to ensure that Article 8 is applied in national law and practice.

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

[The Government is asked to report in detail in 2003.]

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1.  Article 2 of the Convention.  With reference to its previous comments, which were based on the observations made in a communication from the Tokyo Union of Community Workers (TUCW), the Committee notes the Government’s statement that workers with daily contracts and workers engaged for a fixed term are excluded from the scope of the law respecting parental leave and family leave, since the nature of their contracts is incompatible with the leave provided, which may be of long duration. The Government repeats its explanation that it is the real nature and not the formal denomination of the contract which determines whether or not the worker benefits from the provisions of the above law. The Committee would be grateful if the Government would indicate whether the decision to grant such leave is left at the discretion of the employer. It also recalls that, in accordance with Article 2, the Convention applies to all branches of economic activity and all categories of workers. It therefore requests the Government to indicate the measures which have been taken or are envisaged to take into account the specific needs of daily workers with regard to their family responsibilities. It would also be grateful to be informed whether these workers benefit from other measures set out in the legislation for the harmonization of working and family life, such as social security, allowances for dependent children, etc. With regard to unorganized workers and workers in small enterprises, the Committee notes that the percentage of enterprises which have established parental and family leave is not lower for enterprises which do not have an organized trade union than for enterprises where there is a trade union. It also notes that workers are entitled to such leave, even where it is not envisaged in their enterprise rules.

2.  The Committee notes the Government’s explanation with regard to section 67 of the law respecting minimum working conditions, which provides for additional hours to care for a child under the age of 1 year.

3.  Article 3.  The Committee notes the Government’s indication that entitlement to parental or family leave is envisaged for men and women without distinction in accordance with the law, as is the right to apply for a reduction in overtime hours. The Government also indicates that it is continuing its efforts to promote the concept of family-friendly enterprises, by introducing various measures designed to harmonize working and family life, such as employment flexibility, etc., for both men and women. The Committee thanks the Government for this information. In its previous direct request, it had noted with interest Law No. 9 of 2 July 1992 respecting temporary measures to promote the reduction of working time. It noted that the objective of this law (harmonizing the reduction of working hours) had resulted in a general improvement in working conditions for all workers even though, as noted by the Government, this was not the actual purpose of the law. The purpose of the Convention is to address the issue of family responsibilities since the burden of these responsibilities on workers could maintain existing inequalities between the sexes, or create new inequalities between them. The preamble to the Workers with Family Responsibilities Recommendation, 1981 (No. 165), states that "a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women". An improvement in the working conditions of all workers is therefore useful for the achievement of the aims of the Convention, since it allows men to increase their sharing of family responsibilities. In this respect, the Committee once again hopes that the Government will provide information in future reports on the application of this law in practice.

4.  Article 4.  The Committee notes the information concerning section 12(6) of the regulations issued under the law respecting minimum working conditions (No. 23 of 1947), under which labour inspectors shall issue the necessary instructions to employers respecting the obligation which has been imposed upon them since 1 April 1999 to take into account the needs of workers with fixed-term contracts to take parental and family leave. With reference to point 1 of this direct request, the Committee requests the Government to indicate whether daily workers are covered by this provision.

5.  The Committee notes the various systems of crèches and of childcare developed and established under the law respecting the welfare of children.

6.  Article 6.  The Committee notes that information and public awareness campaigns are being undertaken for employers and workers. In particular, the Government refers to monthly information campaigns on "equality of opportunity between men and women" and "on the harmonization of work and families". The Committee would be grateful if the Government would provide the results of any surveys or studies which may have been undertaken to evaluate the impact of these campaigns on employers and workers and the effect that they have had on their attitudes.

7.  The Committee notes the recent adoption of the fundamental law to promote a society with the joint participation of men and women, No. 78 of 23 June 1999. It would be grateful if the Government would provide information in future reports on the application of this law in practice and on the activities of the Committee established under the above law. It would also be grateful to be provided in future with copies of the annual report prepared by the above Commission respecting the joint participation of men and women in society.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee recalls its previous observation in which it noted the communication received from the Japanese Trade Union Confederation (JTUC-RENGO) and the Government’s reply stating that it would respond to the concerns raised in its next report. Having indicated that it would examine these issues at this session, the Committee regrets to note that the Government has not supplied a report. In its communication JTUC-RENGO had expressed its concern over the lack of protection in Japanese law against termination of employment because of family responsibilities. According to JTUC-RENGO there is a difference between the protection afforded under Article 8 of the Convention and Japanese law. In addition, JTUC-RENGO has pointed out that the transfer of workers to remote working places is sometimes resisted by the workers concerned because of their family responsibilities. JTUC-RENGO considers it very important to tackle the problems of workers with family responsibilities when they are ordered to be transferred to other working places.

2.  The Committee notes that similar concerns have been raised in a lengthy and quite detailed communication dated 17 October 2000 from the Telecommunications Workers Union (TSUSHINROUSO) which has been forwarded to the Government on 3 November 2000 for any reply it may wish to make. Noting the close relationship between the matters raised by JTUC-RENGO and the recent communications received from TSUSHINROUSO, the Committee has decided to address all the issues raised in both communications at its next session. It hopes the Government will supply information so that its views may be taken into consideration in the Committee’s examination of the matter.

3.  The Committee also notes the communications dated 13 October 2000 from the Japan National Hospitals Workers’ Union concerning in-house childcare facilities at national hospitals, personnel transfers to distant workplaces, and no paid nursing care and childcare leave for wage-based workers. The Committee notes that one of the points concerns the same issue of transfers raised by the other communications set out above. Noting that the communication was sent to the Government for comment on 7 November 2000, the Committee will also examine these points at its next session.

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

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information contained in the Government's report in reply to the matters raised in its previous direct request. It thanks the Government for the information provided in reply to its comments concerning Articles 7 and 11 of the Convention.

1. Article 2 of the Convention. With reference to its previous comments, which were based on the observations made in a communication from the Tokyo Union of Community Workers (TUCW), the Committee notes the Government's statement that workers with daily contracts and workers engaged for a fixed term are excluded from the scope of the law respecting parental leave and family leave, since the nature of their contracts is incompatible with the leave provided, which may be of long duration. The Government repeats its explanation that it is the real nature and not the formal denomination of the contract which determines whether or not the worker benefits from the provisions of the above law. The Committee would be grateful if the Government would indicate whether the decision to grant such leave is left at the discretion of the employer. It also recalls that, in accordance with Article 2, the Convention applies to all branches of economic activity and all categories of workers. It therefore requests the Government to indicate the measures which have been taken or are envisaged to take into account the specific needs of daily workers with regard to their family responsibilities. It would also be grateful to be informed whether these workers benefit from other measures set out in the legislation for the harmonization of working and family life, such as social security, allowances for dependent children, etc. With regard to unorganized workers and workers in small enterprises, the Committee notes that the percentage of enterprises which have established parental and family leave is not lower for enterprises which do not have an organized trade union than for enterprises where there is a trade union. It also notes that workers are entitled to such leave, even where it is not envisaged in their enterprise rules.

2. The Committee notes the Government's explanation with regard to section 67 of the law respecting minimum working conditions, which provides for additional hours to care for a child under the age of 1 year.

3. Article 3. The Committee notes the Government's indication that entitlement to parental or family leave is envisaged for men and women without distinction in accordance with the law, as is the right to apply for a reduction in overtime hours. The Government also indicates that it is continuing its efforts to promote the concept of family-friendly enterprises, by introducing various measures designed to harmonize working and family life, such as employment flexibility, etc., for both men and women. The Committee thanks the Government for this information. In its previous direct request, it had noted with interest Law No. 9 of 2 July 1992 respecting temporary measures to promote the reduction of working time. It noted that the objective of this law (harmonizing the reduction of working hours) had resulted in a general improvement in working conditions for all workers even though, as noted by the Government, this was not the actual purpose of the law. The purpose of the Convention is to address the issue of family responsibilities since the burden of these responsibilities on workers could maintain existing inequalities between the sexes, or create new inequalities between them. The preamble to the Workers with Family Responsibilities Recommendation, 1981 (No. 165), states that "a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women". An improvement in the working conditions of all workers is therefore useful for the achievement of the aims of the Convention, since it allows men to increase their sharing of family responsibilities. In this respect, the Committee once again hopes that the Government will provide information in future reports on the application of this law in practice.

4. Article 4. The Committee notes the information concerning section 12(6) of the regulations issued under the law respecting minimum working conditions (No. 23 of 1947), under which labour inspectors shall issue the necessary instructions to employers respecting the obligation which has been imposed upon them since 1 April 1999 to take into account the needs of workers with fixed-term contracts to take parental and family leave. With reference to point 1 of this direct request, the Committee requests the Government to indicate whether daily workers are covered by this provision.

5. The Committee notes the various systems of crèches and of childcare developed and established under the law respecting the welfare of children.

6. Article 6. The Committee notes that information and public awareness campaigns are being undertaken for employers and workers. In particular, the Government refers to monthly information campaigns on "equality of opportunity between men and women" and "on the harmonization of work and families". The Committee would be grateful if the Government would provide the results of any surveys or studies which may have been undertaken to evaluate the impact of these campaigns on employers and workers and the effect that they have had on their attitudes.

7. The Committee notes the recent adoption of the fundamental law to promote a society with the joint participation of men and women, No. 78 of 23 June 1999. It would be grateful if the Government would provide information in future reports on the application of this law in practice and on the activities of the Committee established under the above law. It would also be grateful to be provided in future with copies of the annual report prepared by the above Commission respecting the joint participation of men and women in society.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the communication dated 29 October 1999 received from the Japanese Trade Union Confederation (JTUC-RENGO) relating in particular to the application of Article 8 of the Convention concerning termination of employment of workers with family responsibilities. It also notes the Government's reply stating that it is currently examining the matters raised in the above communication so that it can respond to them in its next report. The Committee will examine these matters at its next session.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with interest the detailed information provided in the Government's initial report and the attached relevant documentation. It requests the Government to provide, in its next report, additional information on the points set out below.

1. Article 2 of the Convention. In response to the 1996 observation, based on a communication from the Tokyo Union of Community Workers (TUCW) alleging that part-time workers do not enjoy benefits provided for under national legislation, the Government's report indicates that this is due to the nature of the benefits in question, which consist of leaves of absence which may be granted for a relatively long period of time, up to a maximum of 12 months. The Government also indicates that, in this context, the substantive nature of the contract is taken into consideration, rather than its formal denomination, and that a worker with an automatically renewed fixed-term contract enjoys the above-referenced benefits on the same basis as workers with permanent contracts. The Committee requests the Government to indicate the legal framework (based on law or regulation) which guarantees the application of the Convention to all categories of workers. It also requests the Government to provide information concerning the other categories of workers mentioned in the TUCW communication, notably workers employed in small enterprises, non-unionized workers, part-time workers, as well as to indicate the measures envisaged to take the needs of these workers into account with regard to family responsibilities in light of Paragraph 21 of the Recommendation (see also paragraph 143 of the General Survey on workers with family responsibilities, ILO, 1993).

2. The Committee notes that section 67 of the Law on Minimum Conditions of Employment provides women workers, but not men workers, with supplementary rest periods to take care of a child. Considering that equality of opportunity and treatment cannot be fully realized without profound social reforms, in particular a more equitable distribution of family responsibilities (see paragraph 25 of the 1993 General Survey), the Committee requests the Government to indicate whether it contemplates reviewing this provision.

3. Concerning the application of Article 3, the Committee notes the objectives of the national policy and the national legislation to integrate women into society as well as the measures intended to permit workers to harmonize work and family responsibilities. The Committee notes, however, that these measures do not fully meet the Convention's dual objective of creating equality of opportunity and treatment in employment between men and women with family responsibilities, on the one hand, and between men and women with family responsibilities and workers without such responsibilities, on the other. The Convention also deals with the issue of family responsibilities in so far as the burden of these responsibilities borne by workers could create or maintain existing inequalities between the sexes (see 1993 General Survey, paragraph 25). The Committee therefore requests the Government to provide information on any national policy measures envisaged permitting both women and men to balance their work and family responsibilities. In this regard, it notes with interest the adoption of Act No. 9 of 2 July 1992 on temporary measures to promote the reduction of working hours in that it is a measure which improves general conditions for workers, particularly those of workers with family responsibilities. The Committee would be grateful if the Government would provide additional information concerning the application of this Act.

4. The Committee requests the Government to provide further information on the assistance given to employers by the Bureau for the Inspection of Labour Standards, as provided for under section 12-6 of the implementing regulation of the Law on Minimum Conditions of Employment (No. 23 of 1947), and in accordance with Article 4(b) of the Convention.

5. The Committee asks the Government to provide information on the manner in which the proposed amendments establishing a new framework for the placement of children in childcare facilities in accordance with the wishes of the child's caregiver take into account the harmonization between the caregiver's work and family life.

6. Article 6 of the Convention. While noting the existence of informational campaigns to promote equality between men and women and the active participation of women in society, the Committee nonetheless observes that these campaigns still mainly focus on women. The Committee recalls that the initial goal of Convention No. 156 and Recommendation No. 165 is to promote equality of opportunity and treatment in employment for workers of both sexes with family responsibilities. The Committee requests the Government to continue to supply information on these campaigns.

7. With regard to Article 7 of the Convention, the Committee requests the Government to provide, in its next report, information on the practical application of sections 18 and 23 of the Family Leave Act, which provide that the State may grant assistance and support to employers with regard to re-employment, the establishment of childcare services and the provision of financial aid to workers with family responsibilities. It also requests the Government to indicate whether human resources development takes family responsibilities into account.

8. The Committee notes that, in relation to the application of Article 11 of the Convention, a number of committees and councils charged with discussing and developing industrial relations policies, including with regard to workers with family responsibilities, are composed of an equal number of representatives of workers, employers and members of the community. The Government is requested to provide, in its next report, information on the work and discussions undertaken by these committees and councils regarding workers with family responsibilities.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the comments made in a communication received from the Tokyo Union of Community Workers which alleges that the Government has not taken sufficient steps to revise the relevant legislation and to apply the Convention. It states that, in particular, workers employed by small enterprises, unorganized workers and part-time workers are not in a situation to exercise certain rights provided under national legislation and the Convention. The Committee requests the Government to comment on the points raised in its first report on the Convention, which is due in 1997.