Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s detailed report received in September 2010, including the comments formulated by the Japanese Trade Union Confederation (JTUC–RENGO). The report contains replies to the 2005 direct request formulated by the Committee, as well as to matters raised in the report of the tripartite committee established to examine a representation made under article 24 of the ILO Constitution alleging non-observance by Japan of this Convention, which was approved by the ILO Governing Body at its 304th Session (March 2009).

Follow-up to the recommendations of the Tripartite Committee (representation made under article 24 of the Constitution of the ILO). The Committee recalls that it was entrusted to follow up on the application of the Convention with respect to the questions raised in the representation (document GB.304/14/6, adopted by the Governing Body at its 304th Session in March 2009).

Articles 1(3) and 3 of the Convention. National policy aimed at ensuring appropriate vocational rehabilitation for all categories of persons with disabilities. (a) Criteria used to determine whether a person with disabilities is considered to be able to “work under an employment relationship”. In paragraph 73 of the tripartite committee report, it was noted that the objective of type-A and type-B programmes under the support programme for the continuation of work (SPCW) was to provide persons with difficulties to be employed at ordinary workplaces with opportunities for work as well as training for improving their knowledge and skills to enter the workforce. However, while type-A facilities “employed” persons with disabilities under an employment contract, type-B facilities offered “opportunities for productive activities” without establishing an employment relationship and accordingly, the labour legislation did not apply. As a result of this situation, persons with disabilities involved in type-B programmes were not yet considered as able to work under an employment relationship. Considering the difficulty of ascertaining how in this case, the distinction between work under an employment relationship and other work would operate in practice, the tripartite committee concluded that further information was required on the criteria used to determine whether a person with disabilities is considered to be able to “work under an employment relationship”. The Committee notes the indications provided by the Government in its report pointing out that criteria used to decide whether a person with disabilities is considered to be able to “work under an employment relationship” have been set forth by the “Ministerial Circular concerning the application of Labour Standards Law to persons with disabilities engaging in activities under the support programme for continuation of work provided by SSPDA”, No. 100204 of 2 October 2006 (Ministerial Circular No. 100204). The Committee notes that Ministerial Circular No. 100204 states that persons with disabilities engaging in activities under the SPCW fall into one of three categories: (1) those who work in type-A facilities under an employment contract; (2) those who work in type-A facilities without an employment contract; and (3) those who work in type-B facilities without an employment contract. The municipal authority shall decide under which category a person with disabilities falls, taking into account the level of her/his disability and her/his wishes. In principle, those who fall under category (1) are considered to be workers under the Labour Standards Law and those who fall under categories (2) and (3) are not considered to be workers since they are not subject to subordination and supervision. The Committee invites the Government to specify in its next report how many persons fall under categories that do not allow them to be covered by an employment relationship and the measures taken to ensure that they may also benefit from employment opportunities in the open labour market.

(b) Bringing work performed by persons with disabilities in sheltered workshops within the scope of the labour legislation. In paragraph 75 of the report, it was considered that standards applicable to work performed in sheltered workshops should be in line with the principles of the Convention, including the principle of equality of opportunity and treatment. The Government refers to the “Ministerial Circular concerning the application of article 9 of the Labour Standards Law to persons with disabilities engaging in activities at welfare workshops, small-scale workshops, etc.”, No. 0517002 of 17 May 2007 (Ministerial Circular No. 0517002). The Committee notes that Ministerial Circular No. 0517002 fixes the criteria for which persons with disabilities engaging in activities, especially training, at welfare workshops and small-scale workshops can be considered to be workers. The Committee recalls that from the perspective of the Convention’s objective of the social and economic integration of persons with disabilities into the community and wider society and with a view to the full recognition of the contribution made by persons with disabilities, bringing work performed by such persons in sheltered workshops within the scope of labour legislation, to the extent appropriate, would appear to be crucial. The Committee invites the Government to further clarify the measures taken to ensure that the treatment of persons in sheltered workshops is in line with the principles of the Convention, including the principle of equality of opportunity and treatment (Article 4).

(c) Low pay for persons with disabilities carrying out activities under the type-B programmes under the SPCW. In paragraph 76 of the report, it was noted that recipients of type-B programmes under the SPCW received a particularly low level of pay. The Government was requested to provide information on any progress to bring workshop pay to an adequate level. The Government indicates that, in the framework of the Five-Year Plan to Double Workshop Pay, prefectural governments provide support to service providers in an effort to increase the level of workshop pay through measures which include training programmes for raising management consciousness of service providers and human resources development among their staff. The Committee invites the Government to continue to provide information on measures taken or envisaged in bringing workshop pay to an adequate level in the framework of the Five-Year Plan to Double Workshop Pay.

(d) Service fees for participants in type-B programmes under the SPCW. In paragraphs 77 and 79 of the report, it was noted that persons with disabilities were entitled, free of charge, to vocational rehabilitation and employment services through the Public Employment Security Office. The tripartite committee expressed its concern at the introduction of a fee for participants in type-B programmes under the SPCW for the services received under such programmes, including vocational rehabilitation. The Government indicates that recipients of type-B programmes under the SPCW, while engaging in productive activities also receive welfare support. Therefore, they pay service fees in the same way as recipients of other welfare services. It adds that, in addition to reducing service fees in October and April 2008, the Government abolished service fees for persons with disabilities in low-income households in April 2010. The Committee notes with interest the measures taken by the Government to further reduce service fees for recipients of type-B programmes. The Committee hopes that the Government will pursue its efforts to ensure that persons with disabilities are not discouraged or excluded from becoming involved in such programmes and gaining eventual access to open employment. In this regard, the Committee recalls that Paragraph 22(2) of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), recommends the provision of free vocational rehabilitation services.

Promotion of employment for persons with disabilities. The Committee notes that the “Basic policy on employment measures for persons with disabilities” was adopted by the Ministry of Health, Labour and Welfare in 2009 and was followed by a Cabinet decision of 29 June 2010, regarding the “Basic direction with promoting reform of the system for persons with disabilities”. The Government intends to adopt domestic legislation with the aim of ratifying the United Nations Convention on the Rights of Persons with Disabilities. In this regard, JTUC–RENGO states that it will pay close attention to discussions at meetings held in the framework of the proposed reform as well as to the promotion and implementation by the Government of comprehensive policy measures which include the employment of persons with disabilities. The Committee invites the Government to provide in its next report information on the impact of the measures taken in the framework of the reform of the system for persons with disabilities on promoting employment opportunities for these persons in the open labour market. It asks the Government to continue to provide information on the manner in which the Convention is being applied and to include, for example, statistics and other relevant data disaggregated, as much as possible, by age, sex and the nature of the disability, extracts from reports, studies and inquiries concerning the matters covered by the Convention (Part V of the report form).

Articles 3, 4 and 7. Equality of opportunity between persons with disabilities and workers generally. (a) Implementation of the Five-Year Plan for Implementation of Priority Measures (2008–12). In paragraph 80 of the report, it was noted that the number of persons with disabilities that obtained employment through the Public Employment Security Office increased in recent years. It was further noted that the Government sought to enhance cooperation and coordination between welfare and employment institutions in an effort to bring about an increased transition of persons with disabilities “from welfare to employment”. The Government was requested to provide further and updated statistical information to assess the impact of these measures against the targets set by the Five-Year Plan for Implementation of Priority Measures (2008–12) (Five-Year Plan), adopted in the framework of the Basic Programme for Persons with Disabilities 2003–12, with particular regard to the number of men and women with disabilities who moved from type-B programmes under the SPCW to sheltered work protected under the labour legislation and eventually to open employment. The Committee notes the information provided by the Government which indicates that the Five-Year Plan includes the target to increase the number of recipients of the Support Programme for Transition to Employment (SPTE) and the SPCW to 2,770,000 by 2011. Moreover, this Plan aims to increase the rate of transition from trial to regular employment for persons with disabilities to 80 per cent or more by 2012, the number of “job coaches” to 5,000 by 2011 and the employment rate for persons with disabilities, after the termination of support from job coaches, to 80 per cent or more by 2012. The Government provides comprehensive information, including statistical data, on the concrete measures implemented in the framework of the Five-Year Plan. In 2008, 448,000 persons with disabilities were estimated to be employed. The number of employment and vocational life support centres for persons with disabilities increased by 235 locations (from 36 locations in 2002 to 271 locations in 2010). The number of special subsidiary companies for the employment of persons with disabilities increased to 265 in 2009. These measures contributed to the increased private sector employment for persons with disabilities throughout Japan (197,388 in 2005 to 246,480 in 2009). The Government further indicates that in 2008, transitions from type-B programmes under the SPCW to type-A programmes were 103, from type-B to open employment were 697 and from type-A to open employment were 101. In total, transitions from welfare institutions to open employment were 3,376. The Committee invites the Government to include in its next report updated information on the impact of the Five-Year Plan for Implementation of Priority Measures (2008–12) and to provide relevant data on the transition of persons with disabilities from welfare institutions to open employment.

(b) Quota system for the employment of persons with disabilities. In paragraphs 81–82 of the report, the Government was invited to examine the impact of the quota system’s current limitation to persons with physical and intellectual disabilities on the employment opportunities of persons with other disabilities. Furthermore, while observing that the practice of double-counting of persons with severe disabilities in relation to the quota system did not appear to run counter to the objectives and principles of the Convention, the tripartite committee invited the Government to examine the impact of this practice in order to ascertain its effectiveness. The Government indicates that persons with mental disabilities have been included in employment quota calculations for persons with disabilities since 2006. Since this inclusion, the employment rate of persons with mental disabilities increased significantly more than that of persons with physical or intellectual disabilities, showing that the quota system proved to be effective. The Government further indicates that the number of employed persons with disabilities increased from 113,420 in 1977, when the practice was established, to 238,770 in 2009. Moreover, the number of employed persons with severe disabilities in 1977 was 15,009, compared with 92,420 in 2009. The Government observes that, since the figure also increased for persons who have no severe disabilities, the practice of double counting is not likely to have any effect on preventing the employment of these persons. The Committee invites the Government to also include updated information in this regard.

(c) Reasonable accommodation. In paragraph 83 of the report, it was emphasized that reasonable accommodation is indispensible in promoting and ensuring respect for the principle of equality of opportunity and treatment between workers with disabilities and workers generally. While noting that the Government had provided guidance and financial assistance to employers regarding the management of disability in the workplace, including workplace adaptation, the tripartite committee welcomed the planned study group on the issue of reasonable accommodation and expressed its hope that this initiative would contribute to the strengthening of the Convention’s application. In this regard, it was considered important to clarify employers’ obligations with regard to providing reasonable accommodation. The Committee invites the Government to provide information on this point.

The National Union of Welfare and Childcare Workers supplied new remarks and documents in October 2010, which were forwarded to the Government in November 2010. The Committee invites the Government to provide its own observations on the matters raised therein for the forthcoming session.

[The Government is asked to reply in detail to the present comments in 2011.]