Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the observations by the Japanese Trade Union Confederation (JTUC-RENGO) dated 27 August 2003 and the observations by the Women’s Union Kansai, the Staff Union of Okayama University Medical School, and the Kinki District Council of the Japan National Hospital Workers Union (JNHWU/ZEN-IRO), all dated 3 March 2003, as well as the Government’s replies. The Committee also received further communications dated 26 August 2003 and 4 August 2004 from the JNHWU/ZEN-IRO to which the Government has replied. The Committee also recalls the comments by the International Confederation of Free Trade Unions (ICFTU) of 31 October 2002, the Municipal School Lunch Workers’ Union of Miki, the Union of Part-Time Workers Employed by the Municipality of Amagasaki, and the Osaka Chapter of All Japan Harbour Workers’ Union.

Articles 1 and 2 of the Convention. Measures to promote the application of the principle of equal remuneration for work of equal value. 2. The Committee notes that according to the Basic Survey on Wage Structure 2002 the overall gender wage gap (contractual cash earnings) was, at 35.1 per cent, slightly higher than 34.5 per cent in 2000. According to the November 2002 report of the Study Group on the Issue of Wage Disparity Between Men and Women, gender wage disparities mainly resulted from the fact that men and women occupy different types of positions, as well as from gender differences in relation to length of service and the manner in which family allowances are granted. The study found that wage disparities resulted from the administration of wage and employment management systems including appraisal systems rather than from the systems themselves.

3. The Committee notes with interest that following the Study Group’s report the Government issued in 2003 a Guideline Concerning the Measures for Improving Wage and Employment Management for Eliminating Wage Disparity Between Men and Women. This set of voluntary guidelines recommends that enterprises analyse the incomes of their male and female employees and improve their employment and wage management. To that end, the objectivity and transparency of wage decisions and personnel appraisals should be enhanced, and the family allowances schemes should be reviewed. The guidelines also promote non-discriminatory job allocation and posting; stress the need to review career tracking systems and their implementation; and promote family-friendly workplaces. Positive action is recommended to overcome wage disparity caused by the limited access of women to certain positions and by length of service requirements. The Committee welcomes these guidelines, because they target, albeit in a general manner, some of the issues at the root of remuneration inequalities between men and women in Japan. The Committee asks the Government to provide detailed information on the promotion of the guidelines, their application in practice by enterprises and their effect with regard to reducing the gender wage gap.

4. According to RENGO, the conclusions and recommendations on the causes of gender wage disparities contained in the abovementioned report are meaningful and significant. However, in RENGO’s view enforceable legislative provisions are required to eliminate the factors underlying the gender wage disparities. In this context, the Committee also recalls its previous comments concerning section 4 of the Labour Standards Act which provides that an employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman. In reply, the Government states that this provision satisfies the requirements of the Convention and reiterates its view that the application of the principle of equal remuneration for men and women workers for work of equal value was ensured through administrative supervision and guidance. The Committee maintains that section 4 of the Labour Standards Act does not fully reflect the principle of the Convention, as it does not reflect the notion of equal remuneration for work of equal value. While the Committee understands that in some recent judicial decisions objective criteria related to job content have been used when comparing work performed by men and women, thus indirectly applying the notion of work value, the Committee encourages the Government to consider promoting a better application of the Convention by giving full legislative expression to the principle of equal remuneration for men and women workers for work of equal value. Please also indicate any consideration given to the legislative proposals made by RENGO, such as the introduction of a general prohibition of direct and indirect discrimination in employment against both women and men.

5. The Committee notes that, following the adoption of the "Proposal for Positive Action" in 2002 by the Positive Action Promotion Council, the Government has set up such councils at all Prefectural Labour Bureaus. The councils are supposed to develop activities to promote positive action in favour of women in collaboration with workers’ and employers’ organizations. The Committee also notes that the Proposal for Positive Action explains the nature and benefits of positive action measures to employers, personnel managers, supervisors, workers and public officials. The Committee asks the Government to provide information on the concrete activities of the positive action promotion councils and information on practical examples of how gender wage disparities have been addressed in practice through positive action measures at the enterprise level.

Indirect discrimination. 6. The Committee notes that the observations made by all of the workers’ organizations referred to in paragraph 1 above contain references to situations where part-time, temporary or wage workers employed on a daily basis received less remuneration, including benefits, than regular workers, even when carrying out the same or similar duties as the latter. It is alleged that the lower rates of remuneration paid to non-regular workers constitute indirect sex discrimination because of the high proportion of women employed in these categories. For instance, the Staff Union of Okayama University Medical School states that as of 1 April 2002 the Okayama medical school and university hospital employed 299 part-time workers under multiple wage-based short-term contracts, 94.3 per cent of whom were women. Apparently these part-time workers carried out the same tasks as regular employees, but under less favourable working conditions, including lower pro rata wages and benefits. The Women’s Union Kansai also refers to cases of female part-time workers employed by the former Japan National Railways who received less remuneration than their full-time counterparts. However, insufficient information is given as to the gender structure of the part-time workforce in that establishment. JNHWU’s Kinki District Council provided additional information on the working conditions of wage-based workers in national hospitals and sanatoriums, who are predominately women. JNHWU indicates that after salary reductions in 2002 for both regular and wage-based personnel in these institutions, wage disparities between these categories remained unchanged. The ICFTU and RENGO expressed continuing concern about the use of two-track employment management systems and their discriminatory impact on the wage levels of women.

7. The Committee notes from statistical information provided by the Government that in 2001, among regular employees in national and local government institutions, 31.8 per cent of full-time workers were women, compared to 70.2 per cent of women among part-time workers. In the private sector, only 31.6 per cent of regular full-time workers were women compared to 68.6 per cent among regular employees employed on a part-time basis. The Government indicates that the tripartite Labour Standards Investigative Council adopted a report on future part-time employment policy which recommended that fair treatment should be accorded to part-time workers. The Committee notes that this approach has been subsequently reflected in amendments to the Guidelines under the Part-Time Work Act. The Government is asked to continue to provide information on the measures taken or envisaged to promote wage parity for part-time workers, taking into account the principle of equal remuneration for men and women workers for work of equal value, including the measures taken to promote the abovementioned guidelines and indications as to their effective application. Please also provide detailed statistical information on the proportion and sex composition of part-time workers across the various sectors, as well as the wage levels of male and female part-time workers.

8. With regard to the use of career tracking systems and further to the Committee’s comments, the Government refers to the Guideline Concerning the Measures for Improving Wage and Employment Management for Eliminating Wage Disparity Between Men and Women mentioned above, which provides guidance to enterprises on whether the introduction of two-career tracks is necessary and on the importance of allowing mobility between the two-career tracks. The guidelines also highlight the need to provide appropriate information on the functioning of the career tracking system to the employees concerned. Further, the Government indicates that administrative guidance is still being provided to ensure that enterprises implemented such systems in accordance with the Equal Employment Opportunity Act and the Matters to be Noted in Relation to Employment Management Differentiated by Track. Recalling its previous comments on the use of career tracking systems, the Committee notes these additional efforts to lessen the use of such systems and to minimize their gender discriminatory effect. It asks the Government to provide information on the impact of these measures, including their effects on the wage levels of men and women employed in companies using career tracking systems, recent statistical information on the extent to which such systems are still being used and the distribution of men and women within each track.

9. The Committee notes from the Government’s report that in 2001, out of a total of 177,715 temporary or daily workers in national and local government institutions, 78.9 per cent were women. In the private sector, overall there was a more balanced representation of men and women in the category of temporary and daily employees. The number of wage-based employees employed on a daily basis in national hospitals and sanatoriums decreased by 2,742 between 1996 and 2002, while the number of permanent nurses increased by 1,983 during the same period. The Committee asks the Government to continue to provide information on the sex composition of temporary and daily or wage-based workers across the various sectors and industries. With regard to the continued reliance on such employment in national and local government institutions, the Committee wishes to receive further information on the distribution of temporary and daily workers according to the different institutions, disaggregated by sex. Please also indicate the nature and content of the work carried out by these workers as compared to regular employees.

10. The Committee notes the Government’s view that part-time work, wage-based or temporary employment, as well as two-track career systems, were not discriminatory in themselves and that there was a continuing national debate on what constituted indirect discrimination. The Committee takes this opportunity to emphasize that, in the context of the Convention, the concept of indirect discrimination refers to apparently neutral situations, regulations or practices which result in unequal treatment with regard to remuneration of men and women performing work of equal value. It occurs when the same condition, treatment or criterion is applied equally to men and women, but results in a disproportionately adverse impact on persons of one sex, and is not based on an objective job-related justification. The Committee shares the view that the use of part-time, temporary and wage-based workers, as well as two-track career management systems, may not be discriminatory per se. However, it points out that where workers employed in such categories are paid lower rates of remuneration than regular workers for performing work which is of equal value and where these categories are dominated by one sex (in this case women), the question of indirect sex discrimination does arise and should be examined in the light of the particular circumstances and the reasons given for the differential treatment. Unless there is an objectively justifiable, job-related reason for such differential treatment, then indirect discrimination will be found to occur. The Committee therefore considers it important that the Government, in consultation with workers’ and employers’ organizations, puts in place the necessary legal, institutional and procedural framework under which instances of indirect discrimination in the context of part-time, temporary and wage-based employment, as well as the use of two-track career management systems, can be identified and remedied.

Article 3. Objective appraisal of the job. 11. RENGO states that there was a need to study and develop techniques of job evaluation in order to implement the principle of equal remuneration for work of equal value. In this regard, the Government is asked to provide information on any measures taken or envisaged to promote methods for the objective appraisal of jobs on the basis of the work carried out.

Measures of redress. 12. The Committee notes that labour inspections carried out in 2002 found 12 cases of violations of section 14 of the Labour Standards Act, but that no case was referred to the prosecutor’s office. The Committee reiterates its request to the Government to provide information on any cases brought before the dispute adjustment commissions under the Equal Employment Opportunity Act. Please also continue to provide information on any judicial decisions relevant to the application of the Convention.