Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 100) sur l'égalité de rémunération, 1951 - Japon (Ratification: 1967)

Autre commentaire sur C100

Observation

Demande directe

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The Committee notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO), dated 29 August 2011 which were annexed to the Government’s report received on 17 October 2011.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution). The Committee notes the report adopted on 11 November 2011 of the tripartite committee established by the Governing Body set up to examine the representation submitted by the Zensekiyu Showa-Shell Labour Union (GB.312/INS/15/3). The tripartite committee noted that the representation raised two main issues: (i) whether section 4 of the Labour Standards Law No. 49 of 1947 and the Equal Employment Opportunities Law (EEOL) No. 45 of 1985 gave effect to the principle of equal remuneration for men and women for work of equal value; and (ii) whether the Labour Standards Law and the EEOL had been implemented in practice so as to give effect to this principle (paragraph 43). The tripartite committee concluded that further measures were needed, in cooperation with workers’ and employers’ organizations, to promote and ensure equal remuneration for men and women for work of equal value, in law and practice, in accordance with Article 2 of the Convention, and to strengthen the implementation and monitoring of the existing legislation and measures, including measures to determine the relative value of jobs (paragraph 57). The tripartite committee entrusted this Committee with following up the matters raised in the report (paragraph 58).

Work of equal value. Legislation. The Committee had previously noted that section 4 of the Labour Standards Law did not reflect fully the principle of the Convention. The Committee recalls that section 4 provides that “an employer shall not engage in discriminatory treatment of a woman, as compared to a man with respect to wages, by reason of the worker being a woman”, and it asked the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value. The Committee notes that the Governing Body tripartite committee concluded that the EEOL, while addressing aspects that might affect wage determination, did not directly deal with equal remuneration between men and women for work of equal value. With respect to section 4 of the Labour Standards Law, the tripartite committee concluded that it did not on its face encompass the concept of “work of equal value” (paragraph 47), and that it did not appear that section 4 was being applied in practice to different job categories, types of jobs, and between employment management categories (paragraph 52). With respect to the interpretation by the courts of the Labour Standards Law, it was found that section 4 had been applied to different tasks and occupations in only a limited number of cases, namely two district court decisions (paragraph 50). The Committee also notes that the JTUC–RENGO calls for the inclusion of a clause prohibiting wage discrimination based on sex in the EEOL, and for “sex” to be added as a ground of discrimination in section 3 of the Labour Standards Law, which prohibits discrimination in wages, working hours and other working conditions by reason of nationality, faith or social status.

The Committee draws the Government’s attention to its General Survey on the Fundamental Conventions, 2012, noting that only prohibiting sex-based wage discrimination generally will not normally be sufficient to give effect to the Convention, because such a prohibition does not capture the concept of “work of equal value” (see General Survey, 2012, paragraph 676). In the General Survey, the Committee also called on countries that retain legal provisions that are narrower than the principle laid down in the Convention, in that they do not give expression to the concept of “work of equal value”, to amend their legislation, noting that more narrowly expressed provisions hinder progress in eradicating gender-based pay discrimination (see General Survey, 2012 paragraph 679). The Committee also recalls the high and persistent gender pay gap in Japan, which, based on the most recent information provided by the Government, is 29.4 per cent. The Committee considers that an important component in addressing such a significant gender pay gap will be the development of a clear legislative framework specifically providing for equal remuneration for men and women for work of equal value and for accessible procedures and remedies. The Committee urges the Government to take concrete measures to ensure that there is a legislative framework clearly establishing the right to equal remuneration for men and women for work of equal value and accessible procedures and remedies. The Committee asks the Government to provide detailed information on the measures taken and progress achieved in this regard.

Assessment of the gender pay gap. The Committee notes the statistical information provided by the Government concerning the evolution between 2008 and 2010 of the disparity in hourly scheduled cash earnings between male and female workers, and concerning the same disparity by industry and by occupational group. The results of the Basic Survey on Wage Structure of 2011 show that, as of 2011, the average scheduled cash earnings (regular salary) of female “general workers” were 70.6 per cent of that of male workers (a pay gap of 29.4 per cent), and that considerable differences remain between industries and occupational groups (a pay gap of 45.5 per cent in the finance and insurance sector, and a pay gap of 36.3 per cent in the manufacturing sector). The Committee also notes that the Government does not provide statistical information concerning the public sector. The Committee asks the Government to continue to provide statistical information on the earnings of men and women and the evolution of the gender pay gap, and to include such information for both the public sector, including local government, and the private sector.

Practical measures. The Committee recalls that Guidelines for reducing the gender pay gap: measures to be taken by workers and employers, were issued by the Ministry of Health, Labour and Welfare (MHLW) in August 2010 (the Guidelines). According to the Guidelines, while sex discrimination is not part of the design of the institutional framework, the employment management system in practice contributes to the gender difference in recruitment and assignment. The Guidelines propose the following measures: (i) review of the wage and employment management system; (ii) review of the operation of the wage and employment management system; and (iii) promotion of positive action. The Committee also notes the “Supporting tools for increasing visibility of the gender pay gap” attached to the Guidelines. The Committee also notes that under the Third basic plan for gender equality adopted in December 2010, securing equal opportunity and equal treatment between men and women in employment constitutes one of the priority areas. In particular, the Third basic plan set out, as one of its main objectives, the promotion of measures to secure equal opportunity and equal treatment in employment between men and women, including measures to resolve the gender pay gap in line with the Convention. Other objectives include facilitating employment for non-regular workers and promoting positive action. The Committee notes that the Government indicates that under the Third basic plan a target is set for increasing the number of enterprises that implement positive action to reach over 40 per cent by 2014, and for increasing the number of women in managerial positions (section chief or higher) in the private sector, which stood at 6.5 per cent in 2009, to approximately 10 per cent by 2015. The Government also refers to other measures being taken to support work–life balance, such as reviewing the current working patterns, including those of men, as well as encouraging men to take part in childcare and family chores. In this connection, the Committee notes the observation of JTUC–RENGO that awareness-raising activities by the Government concerning the Guidelines have not been sufficient. With regard to equal treatment between fixed-term workers and regular workers, the Committee recalls the MHLW’s Guidelines concerning the improvement of the employment management for fixed-term employees of 29 July 2008. The Committee notes from the MHLW Survey on fixed-term contracts that in 2009, female workers constituted 66.8 per cent of all fixed-term workers. The Committee also notes that the Report of the study group on fixed-term employment contracts published in September 2010 proposes measures to ensure stable employment and equal treatment for fixed-term workers, including considering a requirement for employers to establish systems allowing conversion of fixed-term status to regular status. The Committee asks the Government to provide information on the following:

(i) specific measures taken to implement the proposals set out in the Guidelines for reducing the gender pay gap, including the promotion of positive action, and the results achieved;
(ii) concrete steps taken to increase awareness and understanding of the Guidelines;
(iii) progress made in achieving the targets under the Third basic plan on gender equality;
(iv) action taken to follow-up on the recommendations of the Report of the study group on fixed-term employment contracts, and the results achieved; and
(v) any other measures taken to reduce the gender pay gap.

Part-time work. The Committee notes from the Labour Force Survey in 2010 of the Ministry of Internal Affairs and Communication that the rate of part-time workers (those who work less than 35 hours per week) among all the workers was 26.6 per cent. The rate of male part-time workers was 14.6 per cent among male workers, while it was 43 per cent for female workers. Female workers constituted 68.3 per cent of all the part-time workers. The Committee recalls section 8 of the Part-time Workers Law, which prohibits discriminatory treatment concerning the determination of wages only in the case of part-time workers who meet specific criteria: their job descriptions and the level of responsibilities are equal to those of regular workers; they have concluded an employment contract for an indefinite period; and during the contract period, any change in their job description or assignment corresponds to what a regular worker could also expect. The Committee notes that JTUC–RENGO cites statistics indicating that the protection against discriminatory treatment under section 8 of the Part-time Workers Law was applicable to only 0.1 per cent of all part-time workers in 2010, and reiterates the need for an amendment of this Law to extend the protection against discrimination to all part-time workers. The Committee also notes that a report of the Working Group on Employment Equality of the MHLW Council of Labour Policy, dated 21 June 2012, proposes possible amendments to section 8 of the Part-time Workers Law. The Committee recalls the Basic Policy on Measures for Part-time Workers 2008–12 (Public Notice of the MHLW No. 280 of 14 April 2008), which makes reference to promoting conversions to full-time jobs (section 2(3)(3) of the Basic Policy). The Government indicates that 48.6 per cent of business enterprises which employ part-time workers were taking measures to promote conversion of part-time status to regular status according to section 12 of the Part-time Workers Law, and that 39.9 per cent of the enterprises had actually applied such measures from 2007–10. In this connection, JTUC–RENGO indicates that less than 25 per cent of all business enterprises are employing workers who actually converted their status to that of regular workers. The Government also indicates that “balanced treatment and conversion to regular workers promotion planners” have been assigned to equal employment offices, and that in the fiscal year 2010, the planners visited 10,840 workplaces and provided advice regarding this matter. In the same year, the equal employment offices provided administrative guidance concerning conversion of status to regular workers in 7,193 cases, among which corrections or improvements were made in 6,748 cases. The Committee asks the Government to continue to provide information on the implementation of the Part-time Workers Law, including statistical information on the proportion of male and female part-time workers. The Committee also asks the Government to indicate the impact of the Part-time Workers Law in narrowing the gender pay gap, and to indicate any progress made in revising section 8 of the Law to extend its coverage. It also asks the Government to provide information on the results achieved in promoting conversions from part-time status to regular status.

With respect to temporary and part-time officials in local governments, the Committee recalls the high proportion of female temporary and part-time workers, particularly among medical and caretaking staff. The Committee notes the Government’s indication that extending the protection provided to private sector part-time workers to part-time workers in local governments would be difficult because the working conditions of the part-time workers in local governments are determined through a different structure of laws and ordinances, etc. The Government also indicates that in order to implement the notification of the Secretary General of the National Personnel Authority (NPA) (No. 1064 of 26 August 2008) concerning wages of part-time staff, regulated under section 22(2) of the Act on Wages of the General Service Staff, the NPA examined in 2009 the measures taken by respective ministries and agencies. The NPA found that all the ministries and agencies had established provisions on the wages of part-time employees and that the basic wages of part-time employees had reached the level provided in the notification in most of the ministries and agencies. The Committee also notes the Report of the Ministry of Internal Affairs and Communication of 23 January 2009 of the study group on short-time service of local public servants. This Report points out that while wages and reimbursement of expenses are provided for part-time officials, allowances or temporary grants should not be provided for part-time officials without any clear basis in the ordinances, etc. The Committee asks the Government to provide information on the number of temporary and part-time officials in the local authorities, disaggregated by sex, as well as on any follow-up measures to the 2009 Report of the study group on short-time service of local public servants including the results of the studies conducted. It also asks the Government to indicate the complaint mechanism for temporary and part-time officials in the local authorities, as well as the details of such complaints, concerning wages and reimbursement of expenses with a view to ensuring equal remuneration for men and women for work of equal value.

Indirect discrimination. The Committee notes the information provided by the Government concerning the number of queries and complaints made in relation to section 7 of the EEOL providing for measures to be identified that are considered to be indirect discrimination, and relevant court decisions. The Committee recalls that the review of the Enforcement Regulations under the EEOL was to take place in 2012, and notes the Government’s indication that a tripartite advisory council is reviewing the necessity for the revision of the EEOL. The Committee notes the observation by JTUC–RENGO that the requirement of being a “head of a household” in order to qualify for social security benefits should fall under discrimination to be prohibited. In response, the Government indicates that companies adopt wage systems based on the idea that companies guarantee the livelihood of workers. The Committee hopes that the Enforcement Regulations under the EEOL will be reviewed at the earliest opportunity, in consultation with the workers’ and employers’ organizations, with a view to ensuring that there is effective protection against all forms of indirect discrimination regarding remuneration, and it requests information on progress made in this regard. Please also continue to provide information on the application of section 7 of the EEOL and section 2 of its Enforcement Regulations, including any complaints received and relevant court decisions, including those addressing measures beyond the three determined to be indirect discrimination in the Enforcement Regulations. It further asks the Government to indicate whether any consideration is being given to prohibiting indirect discrimination with respect to social security benefits.

Career-tracking systems. The Committee recalls once again the impact of the career-tracking system on the continuing wage disparity between women and men, due to the low representation of women in the main career track. According to the survey by the MHLW, in 2008, the rate of women among those newly recruited for the “main decisive jobs with the possibility of relocation” track was 16.9 per cent, while the rate of women among the recruited for the “routine work without the possibility of relocation” track was 92.8 per cent. The Committee also recalls the “Guidelines on ways for employers to take appropriate measures with regard to items stipulated in the provisions concerning the prohibition of discrimination against workers on the basis of sex, etc.” (Public Notice No. 614 of MHLW of 2006) (EEO Guidelines), which only prohibits discrimination based on sex within each employment category. In this regard, JTUC–RENGO continues to propose that the limitation on the prohibition of discrimination within each employment category under the EEO Guidelines should be abolished. In response, the Government states that under the lifelong employment practice in the country, human resource development and treatment is determined using categories set by job type and employment status rather than job duties at a specific time; the Government asserts that, therefore, it is reasonable to compare the treatment of workers within the same employment category. The Committee also notes the Government’s indication that it encourages enterprises to adopt positive action to increase the proportion of women in the main career track, and that the Equal Employment Offices provided advice to 104 enterprises in the fiscal year 2007 concerning employment management, including advice on conversion of workers to another career track. Given the persistently low representation of women in the main career track, and the consequent impact on the wage disparity between men and women, the Committee urges the Government to step up its efforts to increase the number of women in the main career track, and to provide information in this regard. The Committee also asks the Government to provide information on the type of positive action taken to increase the proportion of women in the main career track, and the results achieved. The Committee reiterates its request for information on the general content of the administrative guidance provided to enterprises utilizing the career-tracking systems and on whether such guidance has resulted in an increase of women in the main career track. Please also provide any information on complaints or cases in this regard, and the outcome thereof, and updated and detailed statistical information on the distribution of men and women in different career tracks.

Objective job evaluation. The Committee notes that the Governing Body tripartite committee concluded that the information provided by the Government had not indicated how the relative value of jobs was determined with a view to determining if jobs were of equal value (paragraph 54). The Committee also notes that the MHLW has developed a manual on implementing job analysis and job evaluation, which states that it contributes to the following: (i) identifying whether a job undertaken by part-time workers and regular workers is the same; (ii) clarifying whether the treatment is based on the job undertaken, and whether there is a balance in treatment between part-time workers and regular workers; and (iii) enhancing understanding of part-time workers by convincing them of the difference between the jobs of part-time workers and regular workers. The Committee notes that according to the manual, the comparison permitted is limited to the same jobs or “substantially the same” jobs. This is more restrictive than the principle of the Convention, and the only factor compared is “level of responsibility” which could disadvantage part-time workers. The Committee also notes that the report of the study group on future measures for part-time work was published in September 2011. This points out that despite the difficulty in adopting job analysis and job evaluation as an obligation of employers, including of small and medium-sized enterprises, discussions concerning equal treatment between part-time workers and regular workers could be promoted by introducing a job evaluation system and sharing the process and results of such a system among workers and employers. The Committee asks the Government to provide detailed information on the practical application of the manual on implementing job analysis and job evaluation, including any follow-up studies or research conducted, with a view to expanding the comparison beyond the same or substantially the same jobs, and increasing the range of factors for the comparison. Please provide information on any other measures taken to promote objective job evaluation methods, and the progress made in applying the objective job evaluation methods in enterprises including any awareness-raising activities. The Committee also asks the Government to provide information on specific steps taken to ensure the use of objective job evaluation in the public sector.

Enforcement. The tripartite committee noted the low number of cases covered by workplace inspections in which the Labour Standards Inspection Authority had provided guidance regarding violation of section 4 of the Labour Standards Law, and the lack of particulars as to the nature of the violations. The Committee notes that the Government reiterates that the Labour Standards Inspection Authority conducted 100,535 regular inspections, six of which were identified as cases of violation of section 4 of the Labour Standards Law. It also notes the information provided concerning nine such cases in 2007, including the nature of the violations and the content of guidance provided. In all nine cases, correctional action was ordered by labour standards inspectors. The Committee further notes the information provided by the Government on the court decisions concerning section 4 of the Labour Standards Law. The Committee asks the Government to continue to provide detailed information on the nature of the violations, the content of the guidance provided and the correctional action ordered by labour standards inspectors in cases of violation of section 4 of the Labour Standards Law. It also asks the Government to provide information on the labour inspection, especially the concrete methodologies and the guidance provided to labour standards inspectors to enable them to identify instances of wage discrimination where men and women are engaged in jobs which are of a different nature, but which are nonetheless of equal value. The Committee also asks the Government to continue to provide information on court decisions with regard to section 4 of the Labour Standards Law.