Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

1. The Committee notes the information contained in the Government's report in response to the communications from the Japanese National Hospital Workers Union ("JNHWU"), concerning "wage-based" contract staff (chingin-shokuin), who are employed on a daily basis for a maximum of one year at a time in national hospitals and sanatoriums, due to the shortage of permanent employees, and who are allegedly treated in a discriminatory manner in contravention of the Convention. It also notes the decision issued in November 1996 by the National Personnel Authority on this matter, a copy of which is attached to the JNHWU communications, as well as to the Government's reply.

2. The communications from the JNHWU state that there are significant disparities between the treatment of wage-based contract staff and permanent staff employed in the national hospitals and sanatoriums, in addition to the insecurity which is inherent in any event in the temporary nature of the contract. In the communications, the JNHWU alleges that marked differences in pay exist between contract staff and permanent staff and that these pay differentials constitute a violation of the Convention, given that women make up 70 per cent of the pool of contract staff. The JNHWU's communications also refer to a unilateral reduction of contract staff wages in 1993, which accentuated the pay disparity, following the adoption of "management restructuring" measures, aimed at correcting irregularities in the administration of the national hospitals that were found during the course of an investigation into the hospitals and health facilities in the country.

3. The Committee notes the Government's statement that the base salary rates of permanent and contract staff are practically identical for the first five years of employment, during which period most of the contract employees acquire permanent status. The JNHWU's communications further reveal that these contract workers, according to allegations contained in the communications and which are uncontradicted by the Government, appear to work the same number of hours and carry out the same tasks as the permanent staff. Many of them have accumulated many years of service in the same establishment. However, contract staff do not receive certain additional benefits such as paid sick leave or equivalent paid holidays. Nor do they have access to social security programmes which are available to permanent staff. The Government indicates that these differences are justified by the difference in status between permanent and contract staff, a position that is confirmed by the decision of the National Personnel Authority. The Committee notes the Government's indication that the main problem lies in the inadequate utilization of "non-permanent" labour by the national hospitals, a point that is also raised in the November 1996 decision of the National Personnel Authority mentioned above. It also notes that, in its decision, the Authority recommended that the Ministry of Health conduct a study of the work performed by non-permanent staff, in order to re-evaluate its personnel policy and harmonize its employment practices with its personnel needs.

4. The Committee notes that these contract workers are being treated less favourably than permanent staff. It observes that the discrimination alleged in the JNHWU communications is a discriminatory practice based upon the type of contract executed at the time of hire, and that this does not constitute direct sex discrimination within the meaning of the Convention. Nevertheless, the Committee notes that, according to the JNHWU communications, 70 per cent of contract staff are women, thus constituting a category of employees which is predominately female. It appears from the information supplied that most of the contract staff are nurses and assistant nurses. The Government points out that this high percentage of women is also to be found in the pool of permanent staff. Consequently, the Government states that, since women are concentrated equally in both contract and permanent employment, there is therefore no indirect discrimination. The Committee agrees that the allegation of discrimination on the basis of sex as between contract staff and permanent staff in the national hospitals and sanatoriums would appear not to be well-founded.

5. The Committee is concerned, however, that the sector in question, which is predominately female, has such a large percentage of contract staff. It recalls from its previous comments that a significant wage disparity exists generally between men and women in the country, and it is thus compelled to consider the allegations and explanations in the light of these existing salary differentials, and in the general context of equality between men and women in the labour market. The Committee notes that, while the contract staff may not be more female-dominated than the permanent staff, as a whole the sector in question is predominately female. A practice which appears to be gender-neutral because it affects workers of both sexes may constitute indirect discrimination where it disproportionately affects workers of one sex, a situation that may arise with regard to a sector where one sex predominates. The Committee notes that the extensive utilization of temporary labour in a predominately female sector, by maintaining or increasing the number of temporary female workers, has an indirect impact on wage levels in general, inevitably broadening the existing wage gap between men and women. The Committee notes that this practice has existed in the national hospitals since 1968 and that, in this case, as the Government itself has stated, it was managed inadequately. It therefore urges that measures be taken by the Ministry of Health in respect of the hospitals, to enable them to harmonize their employment practices with their personnel needs in the light of their obligations under the Convention to ensure equal remuneration for work of equal value. It requests the Government to keep it informed of progress made in this regard. In addition, it asks the Government to provide information concerning other employment sectors which utilize contract staff, including the types of jobs and occupations undertaken by contract labour, and to further supply information concerning the proportions of women and men in those jobs and occupations, as compared to the proportions of men and women in permanent positions.

6. The Committee also repeats its request that the Government continue to keep it informed concerning the functioning of the dual career-track system and the measures taken to ensure that all tracks are open to women on the same basis as men, in practice as well as in law. It also requests the Government to supply information on the measures taken to secure the cooperation of the social partners in the promotion of equality of remuneration between men and women for work of equal value.

7. Recalling from its previous observations that some companies operate the career-track system in a manner that discriminates against women by hiring only or mainly men for the "fast track", the Committee reiterates the request made in its previous observation that the Government supply information concerning judicial decisions relating to the new Equality Act guaranteeing equality of opportunity and treatment for men and women workers, which was promulgated in June 1997 and entered into force on 1 April 1999 (together with detailed guidelines). It also requests information on the measures taken to promote the Act's implementation, including the reduction of the high wage differential in the average earnings of men and women.