REPRESENTATION (article 24) - JAPAN - C096 - 1987

Report of the Committee set up to examine the representation made by Japanese trade unions under article 24 of the Ilo Constitution alleging non-observance by Japan of the Fee-charging Employment Agencies Convention (Revised), 1949 (No. 96)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By letter of 20 December 1985, a number of Japanese trade unions, (Endnote 1) referring to article 24 of the Constitution of the International Labour Organisation, made a representation alleging the non-observance by Japan of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96). (Endnote 2)
3. 2. The Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96) was ratified by Japan on 11 June 1956 with a notification that it accepted the provisions of Part III of the Convention, providing for the regulation of fee-charging employment agencies including agencies conducted with a view to profit. The Convention is in force for Japan.
4. 3. The provisions of the Constitution of the International Labour Organisation concerning representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effect of observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980. (Endnote 3)
10. 5. In accordance with articles 1 and 2 of these Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Japan and brought the representation before the Officers of the Governing Body.
11. 6. At its 234th Session (November 1986), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable, and set up a Committee to examine it, composed of Mrs. Lucille Caron (Government member, Chairman), Mr. Johan von Holten (Employer member) and Mr. Heribert Maier (Worker member).
12. 7. The Committee invited the Government of Japan to make a statement on the representation by 31 March 1987. (Endnote 4)
13. 8. It also invited the trade unions concerned to provide any further information by 31 January 1987.(Endnote 5)
14. 9. The Government's statement was received on 16 April 1987. The Committee held a meeting in June and a second meeting in November 1987 to adopt its report.
15. II. Examination of the representation
16. 1. Allegations
17. 10. The unions concerned allege that the Government of Japan, as a result of the enactment of Law No. 88 of 5 July 1985 for securing the proper operation of worker-dispatching undertakings and improved working conditions for dispatched workers (Endnote 6) (hereafter referred to as the "Law"), has failed to observe the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96) and in particular Article 10 which provides for the requirements concerning the running of a fee-charging employment agency as defined in paragraph 1(a) of Article 1.
18. 11. The complainants refer to the definition of the "supply of dispatched workers", under section 2(1) of the Law, as "causing a worker or workers employed by one person to work for another person under the latter's direction, whilst maintaining their employment relationship with the former person, except where the said persons agree that a worker or workers shall be employed by the latter person".
19. 12. They also refer in this connection to the Memorandum sent by the International Labour Office to the Ministry of Health and Social Affairs of Sweden (Official Bulletin, Vol. XLIX, No. 3, July 1966) concerning the application of Convention No. 96 to "ambulatory typewriting agencies". The representation quotes, in particular, paragraphs 9 to 12 of the Memorandum and considers that the general worker-dispatching agencies as defined under section 2(4) of the Law, in particular those termed "registration-type" agencies which perform temporary placement of workers who have registered themselves with the agencies for that purpose, are covered by the Convention because these activities meet the three following conditions mentioned in the Memorandum: (1) the wage is paid only when the worker works for the third party; (2) the nature of the work is determined and (3) its supervision is also conducted by the latter.
20. 13. The unions consequently consider that the requirements under Article 10(b), (c) and (d) of the Convention (Endnote 7) are not met by the Law because it does not require a yearly licence, does not regulate the fees and expenses charged and does not require special permission for the placement and recruitment activities abroad.
21. 14. In their supplementary information supplied in May 1986, the unions allege that the Law is an attempt to authorise illegal temporary work placement businesses, the growth of which has been unchecked, that by the application of the Law the number of low-wage workers would inevitably increase which is bound to entail a decline in the working conditions of workers in general, and that the Law would cause intermediate exploitation to prevail, thereby deteriorating the working conditions of all Japanese workers owing to the sharp increase in the number of workers having no protection of their rights. In a further communication made in October 1986, in which the unions describe the situation after the entry into force of the Law on 1 July 1986, they allege that the Government has further failed to secure the observance of the Convention by not applying the Law to and, therefore, not regulating the number of agencies dealing with "general clerical work" although they constitute fee-charging employment agencies in the sense of the Convention. The unions also refer to various negative effects arising out of the enforcement of the Law. They allege, for instance, the growth of intermediary exploitation due to the absence of regulation on fees. They refer, in this context, to article L.124-4-2 of the French Labour Code which provides that the wage of a temporary worker must not be lower than that of regular workers employed in the enterprise to which the temporary worker is sent.
22. 2. The Government's observations
23. 15. The Government's observations (Endnote 8) concerning the representation can be summarised as follows:
24. 16. By definition a worker-dispatching undertaking cannot be assimilated with a fee-charging employment agency because the person who carries on such an undertaking assumes the sole responsibility, both legal and contractual, as an employer and the person to whom the worker is dispatched does not assume such responsibility. On the other hand, Convention No. 96 defines fee-charging employment agencies as a person or organisation "which acts as an intermediary for the purpose of procuring employment for a worker or supplying a worker for an employer" (Article 1, paragraph (1)(a)).
25. 17. Even by referring to the ILO Memorandum in relation to Sweden in 1965, the worker-dispatching undertaking provided for under the Law does not fall under the category of "fee-charging employment agency" as defined in Convention No. 96, since none of the four conditions (and not three as stated by the unions) mentioned in the Office Memorandum is satisfied. First, the employer of a dispatching undertaking may not only guarantee the qualifications of the workers to be dispatched, but also is in a position to assume the responsibility, both legal and contractual, to cause the dispatched workers to work in accordance with the contents of the worker dispatch contract. Second, when the work of the person at whose disposal the dispatched worker is placed is terminated prematurely during the period of validity of the employment contract with the said worker, the employer of the dispatching undertaking is not exempted from the obligation to pay him the wages for the remaining period of the employment contract. The worker is not free to work for another employer during such remaining period. Third, it is the employer of the dispatching undertaking who is a party to the employment contract that basically determines the working conditions and the contents of the work of the dispatched workers and also supervises their work.
26. 18. Even if it were conceded that the activities regulated by the Law meet the criteria defined in the Swedish case, the provisions of the Law would satisfy, in substance, the requirements set forth under Article 10(b), (c) and (d) of the Convention: (1) the employer of a dispatching undertaking is under the obligation to prepare and submit to the Minister of Labour once every year an operation report and settlement of accounts (section 23(1) of the Law); if inadequacies are found in the operation of the undertaking, necessary corrective guidance will be given so as to fully ensure the protection of dispatched workers and the stability of their employment, and administrative action may in some cases involve the revocation of the licence (section 14(1) of the Law); thus, the position under the Law is not so much different in substance from the system of granting a yearly licence (Article 10(b) of the Convention); (2) the obligation to submit to the Minister of Labour an operation programme or operation report which contains the standard dispatching fee for each kind of designated work in the undertaking is prescribed, so that if any problems are found in the fixing of the dispatching fees, such fees and other expenses are to be subjected to regulation which takes the form of guidance offered, as necessary, to the undertaking for correcting the situation; thus the purport of paragraph (c) of Article 10 of the Convention is given substantive effect; (3) the employer of a dispatching undertaking who intends to dispatch workers abroad is subject to the severe obligations such as the obligation to notify the Minister of Labour, in advance and every time such overseas dispatching is to be conducted, the period of worker dispatching concerned, the name and location of the premises of the client and the contents of the work to be performed by the dispatched workers (sections 23(3) and 26(3) of the Law). If any problems are found, necessary corrective guidance will be given at the time of receiving the notification from the said employer or approval may not be granted to the said employer. Thus, the position under the Law is in substance equivalent to a licence system (Article 10(d)).
27. 19. The Government further refers to many similarities of the worker-dispatching undertaking with the temporary work agencies whose activities have been legally regulated in various countries. Many member States which have enacted legislation on temporary work agencies and which have also ratified Convention No. 96 consider that they fall outside the scope of the Convention. Furthermore, the formulation of new international standards for temporary work agencies is envisaged in the ILO. The Government considers that this is an indication that temporary work agencies are different from the fee-charging employment agencies as provided for under the Convention.
28. 20. The Government's statement includes also various indications as to the detailed provisions under the Law stressing that its purpose is to protect the workers' rights. Apart from the obligation to pay wages, a worker-dispatching undertaking is required to determine the working conditions including working hours, rest periods, holidays, to participate in the social and labour insurance schemes, to pay the employer's share in the insurance contributions and to conduct education and training. Dispatched workers are, just as any other workers in general, guaranteed the right to form a trade union, to carry on collective bargaining with the employer of a dispatching undertaking with a view to improving their working conditions. As to the allegation that the Law does not cover activities engaged in dispatching workers of a general clerical nature, the Government indicates that certain general clerical activities have been designated as those to be covered by the Law (section 2 of the Enforcement Order of the Law, Cabinet Order No. 45 of 3 April 1986) and that other activities which do not fall under any of the ones enumerated in the Cabinet Order are prohibited by section 4(3) of the Law.
29. 3. The Committee's conclusions
30. 21. The Committee notes that the representation poses two questions: (1) the assimilation of worker-dispatching undertakings with fee-charging employment agencies under Convention No. 96; and (2) actual compliance with requirements of Article 10(b), (c) and (d) of the Convention.
31. 22. The Committee notes the two essential arguments presented by the Government of Japan in its observations. First, the Government considers that the "worker-dispatching undertakings" cannot be assimilated with the fee-charging employment agencies under Convention No. 96. Secondly, even if it were conceded that the activities regulated by the Law meet the criteria defined in the ILO Memorandum in relation to Sweden in 1965 and consequently regarded as fee-charging employment service for the purpose of the Convention, the provisions of the Law would satisfy the requirements set forth under Article 10(b), (c) and (d) of the Convention.
32. 23. With regard to the first question raised by the representation, the Committee notes the developments which have taken place since the Office gave its opinion on the specific case of Sweden in the 1965 Memorandum referred to above and in particular the diversity of positions and solutions adopted by countries which have ratified Convention No. 96 as well as the comments made by the Committee of Experts on the Application of Conventions and Recommendations in this regard.
33. 24. Because of the complexity of the first question and in view of the Government's position as stated in paragraph 22 above, the Committee considers that it would be appropriate for it to address directly the second question of actual compliance with requirements of Article 10 of the Convention.
34. 25. The Committee has noted the observations made by the Government regarding compliance with the requirements of Article 10 of the Convention (see paragraph 18 above). With respect to Article 10(b) (the requirement of a yearly licence), the Committee notes that section 23(1) of the Law provides that an employer of a dispatching undertaking "shall prepare and submit to the Minister of Labour an operation report and a settlement of accounts, as prescribed by Ministry of Labour Ordinance" and that section 17 of the Ministry of Labour Ordinance No. 20 of 17 April 1986 provides that the employer "shall submit an operation report and a settlement of accounts to the Minister of Labour within three months after the termination of every business year". The Committee further notes that the Minister of Labour is authorised by section 14(1) of the Law to revoke the licence if violations of various conditions attached to the licence are found. It appears to the Committee that the requirement under Article 10(b) of the Convention is practically met, in substance, through the measures prescribed by the above-mentioned provisions of the Law and of the Ministry of Labour Ordinance.
35. 26. Regarding Article 10(c) of the Convention (approval of fees and expenses), the Committee notes sections 5(3) and (4), as well as section 23(2) of the Law. Under section 5(3) of the Law, an employer applying for a licence has to provide an operation programme in which the amount of the dispatching fee, inter alia, is to be indicated. In the annual report to be submitted to the Minister of Labour pursuant to section 23(2) of the Law, the employer is also required to include indication of the amount of the fee. The Committee notes that sections 48 and 49 of the Law provide for the power of the Minister of Labour respectively to give guidance and advice and to order employers to take corrective measures. Although the Law does not specifically provide for the approval of fees by the competent authority, the above-mentioned provisions of the Law may be considered to put the setting of fees under the supervision of the Minister of Labour. The Committee also notes, in this context, that the Committee of Experts on the Application of Conventions and Recommendations has not insisted on the fixing or approval of fees and expenses in the case of temporary work agencies in its comments under the present Convention.
36. 27. Concerning Article 10(d) of the Convention (permit and condition to place or recruit workers abroad), the Committee notes section 23(3) of the Law which provides that in the case of "overseas dispatching" the employer "shall so notify the Minister of Labour in advance, as prescribed by Ministry of Labour Ordinance" and section 26(3) of the Law which provides for various items to be indicated in a worker dispatch contract concluded between the undertaking and the recipient of the dispatched workers. These provisions, read together with section 24 of the Ministry of Labour Ordinance No. 20 of 7 April 1986 which provides for further details to be included in a contract for an overseas dispatching, appear to the Committee to satisfy the requirements under Article 10(d) of the Convention, taking also into consideration the large regulatory power conferred by the Law upon the Minister of Labour (sections 48 and 49 of the Law).
37. 28. In the light of the above considerations, the Committee reaches the conclusion that the provisions of the Law, read together with the provisions of the corresponding Ministry of Labour Ordinance, appear to satisfy, in substance and through equivalent measures, the requirements set forth under Article 10(b), (c) and (d) of the Convention.
38. 29. In these circumstances, the Committee deems it unnecessary for it to consider the question of assimilation of the "workers-dispatching undertakings" governed by the Law, with the fee-charging employment agencies under Convention No. 96.
39. III. Recommendations of the Committee
40. 30. The Committee recommends the Governing Body:
41. (a) to approve the present report; and
42. (b) to declare the closure of the current procedure initiated following the representation made by the Japanese trade unions concerned respecting the application by Japan of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96).
43. Geneva, 12 November 1987 (signed) L. Caron, Chairman,
44. J. von Holten,
45. H. Maier.
46. Endnote 1
47. All-Japan Dockworkers' Union (ZENKOWAN); All-Japan Automobile Transport Workers' Unions (JIKOHSOUREN); All-Japan Council of Traffic and Transport Workers' Unions (ZENKOUN); All-Japan Printing Craft Union; All-Japan Non-Life Insurance Labour Union (ZENSOSEN); All-Japan Transport and General Workers' Union (UNYUIPPAN); Federation of Cinema and Theatre Workers' Union of Japan (EIENKYOTO); FIO Drivers' Craft Union; Japan Federation of Commercial Broadcast Workers' Union (MINPOROREN); Japan Federation of Computer Workers' Union (DENSANRO); Japanese Federation of CO-OP Labour Unions (SEIKYOROREN); Japanese Conference of CO-OP Part-time Workers; Japan Federation of Publishing Workers' Unions (SYUPPANROREN); Japan Federation of Travel and Air Cargo Agency Workers' Union (KANKOROREN); Japanese Warehouse Transport Union; Japan Senior High-School Teachers' Union (NIKKOKYO); Labour Union of Japan Automobile Drivers; Marine Radio Officers' Union; Musicians' Union of Japan; National Federation of Trade Unions of Agricultural Co-operative Associations in Japan (ZENNOKYOROREN); Nihon National Railway Motive Power Union (DORO) (this union withdrew itself from the representation by its communication of 20 February 1987); Telecommunication Workers' Union; Workers' Union of Denenchofu Nurses and Lady Helps; Tokyo Regional Council of Local Government Workers' Union (TOKYO CHIKORO); Tokyo Metropolitan and Special Ward Government Workers' Union (TOSYOKURO); Labour Union of Tokyo Central Market.
48. By a letter of 16 June 1986, the content of which is almost identical with that of 20 December 1985, two additional unions associated with the above-mentioned unions in the representation: Japan National Railway Locomotive Engineers' Union and Japan Council of Medical Workers' Unions.
49. Endnote 2
50. The text of the representation is reproduced in the Appendix to document GB.234/23/21.
51. Endnote 3
52. See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
53. Endnote 4
54. This time-limit was extended to 15 April 1987 upon the request of the Government of Japan by referring to article 4, paragraph 2 of the Standing Orders.
55. Endnote 5
56. By letters dated 31 May 1986, 24 October 1986 and 22 January 1987, supplementary information was supplied by the unions.
57. Endnote 6
58. The unions in their representation refer to "the Law for adequate running of worker placement business and for the setting of working conditions for placed workers". The Government contests the use of the word "placement" which, in its view, implies the meaning of employment service. The terms "worker dispatching" used by the Government in its statement will be used in the present report.
59. Endnote 7
60. Article 10 of the Convention provides that "Fee-charging employment agencies conducted with a view to profit as defined in paragraph 1(a) of article 1 ...
61. (b) shall be required to be in possession of a yearly licence renewable at the discretion of the competent authority;
62. (c) shall only charge fees and expenses on a scale submitted to and approved by the competent authority or fixed by the said authority;
63. (d) shall only place or recruit workers abroad if permitted so to do by the competent authority and under conditions determined by the laws or regulations in force".
64. Endnote 8
65. Underlining reproduced from the Government's text.