Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (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.