Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) - Japan (Ratification: 1992)

Other comments on C159

Observation

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The Committee notes the observations of the National Union of Welfare and Childcare Workers (NUWCW) received on 23 August 2016. It also notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO), which were transmitted together with the Government’s report. The Committee requests the Government to provide its comments in this regard.

Articles 1, 2 and 3 of the Convention. Employment promotion for persons with disabilities. The Committee notes with interest that the Act on the Elimination of Discrimination against Persons with Disabilities entered into force on 1 April 2016. In reply to the Committee’s previous comments, the Committee notes the Government’s indication that 474,374 persons with disabilities were employed in the private sector as of June 2016, representing a 4.7 per cent (21,240 persons) increase over previous years. The Government adds that the employment rate of persons with disabilities has been increasing over the past 13 years, reaching 1.92 per cent in 2016, compared to 1.88 per cent in 2015. The NUWCW indicates, however, that the increased employment rate of persons with disabilities has been accompanied by declining wages, an increase in non-regular employment and deteriorating working conditions. With regard to measures adopted to achieve the statutory employment quota of 2 per cent employment of persons with disabilities in all companies, the Government indicates that guidance is provided to companies that have not achieved the minimum quota, including support in the elaboration of employment plans and recommendations to assist companies in appropriately implementing those plans. If the measures taken do not lead to improvements, the names of the companies are disclosed in accordance with the Act for the Promotion of Employment for Persons with Disabilities (Act No. 123 of 1960). Companies that have not complied with the statutory employment quota are also required to pay a special levy that is used to finance subsidies and awards for companies exceeding the statutory employment quota. The Government indicates that the application of the levy system was extended in April 2015 from companies with more than 200 employees to those with more than 100 employees. The NUWCW is of the view that the levy system is not effective, since it is less costly to pay the fine (¥50,000 per month) than to employ a person with disability. The JTUC–RENGO points out that less than half (48.8 per cent) of companies have met the statutory employment quota. Moreover, of the companies that have not complied with the statutory quota, 58.9 per cent of these have not employed any persons with disabilities. The Committee notes the observations of JTUC–RENGO, indicating that as of April 2018, persons with mental disabilities will be included in the calculation basis for the statutory employment quota, and that quota will be increased to 2.3 per cent for private companies over a five-year period (2018–23). Referring to the Government’s report, the NUWCW states that the statistics provided do not reflect the actual employment situation of persons with disabilities. In this regard, the NUWCW points out that the Government conducts a survey on employment of persons with disabilities every five years, whereas it carries out a Monthly Labour Force Survey on the employment of workers in general. The Committee requests the Government to continue to provide information on the nature and impact of measures taken to achieve the statutory employment quota for persons with disabilities in all companies subject to the quota requirement, including the number and amount of sanctions imposed for non-compliance. It also requests the Government to continue to communicate information on the impact of the measures implemented in terms of increasing the employment opportunities for persons with disabilities in the open labour market, including on the implementation of the 2016 Act on the Promotion of the Elimination of Discrimination against Persons with Disabilities. The Government is further requested to supply updated statistics, disaggregated as much as possible by sex, age and nature of the disability, as well as extracts from reports, studies and inquiries concerning the matters covered by the Convention.

Article 5. Consultations with the social partners. In response to the Committee’s previous comments, the Government reiterates that the Labour Policy Council’s Subcommittee on the Employment of Persons with Disabilities establishes the objectives fixed in employment policies for persons with disabilities, implements the policies and evaluates the outcomes. As an example, the Government refers to the formulation of two sets of guidelines for employers on the prohibition of discrimination against persons with disabilities and on the provision of reasonable accommodation, in which the views of the Subcommittee on the Employment of Persons with Disabilities, as well as organizations of and for persons with disabilities were taken into account. The NUWCW is of the view that the structure of the Labour Policy Council should be modified to guarantee that the opinions of the social partners are effectively taken into account. Referring to the revision of the Comprehensive Support Act for Persons with Disabilities in 2016, the NUWCW notes that organizations of persons with disabilities were excluded from its formulation and evaluation, reiterating that neither the Japan Council on Disability nor its own affiliates were able to participate in discussions in the Labour Policy Council. The Committee requests the Government to continue to provide examples of the manner in which the views and concerns of the social partners and representatives of organizations of and for persons with disabilities are systematically taken into account in the formulation, implementation and evaluation of the policy on vocational rehabilitation and guidance and the employment of persons with disabilities.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

Articles 1(3) and 3. 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” (paragraph 73 of the tripartite committee report, document GB.304/14/6). The Committee recalls the recommendations of the tripartite committee established by the Governing Body to examine a representation alleging non-observance by Japan of the Convention (304th Session, March 2009). The Committee also recalls that it has been entrusted with following up on implementation of the recommendations of the tripartite committee. In this context, the Government has provided updated information in its report on the implementation and results of measures taken to promote employment for persons with disabilities. The Government reports that 31,000 persons with disabilities participate in employment-related activities under the Employment Transfer Support Programme (ETSP). It adds that the number of persons with disabilities transferred to regular employment under the ETSP increased from 2,500 persons in 2006 to 12,000 persons in 2015. In addition, the Government indicates that there are 230,000 persons with disabilities participating in Type-B programmes (designed for those requiring support for continuous employment) under the Support Programme for Continuation of Work (SPCW). In 2016, 2,646 persons participating in the Type-B programmes were transferred to regular employment. With regard to measures taken by public employment service offices, the Government refers to the continued implementation of the “team support” model, which provides support to persons with disabilities from employment through to workplace adaptation. The Government adds that 3,120 Employment Transfer Support Offices and 330 Employment and Vocational Life Support Centres for Persons with Disabilities were established as of March 2017 (the latter representing an increase from 325 Centres in April 2015). Moreover, 810 employment support seminars were held and 957 trainings at workplaces were conducted in 2015 with the aim of promoting the transition of persons with disabilities from welfare into regular employment. The Committee requests the Government to continue to provide detailed updated information on the measures taken or envisaged to increase employment and income-generating opportunities for persons with severe disabilities that have difficulties in entering into an employment relationship and accessing the open labour market. The Committee would also welcome receiving updated information on the number of persons transferring from Type-B programmes under the SPCW to Type-A programmes and into regular employment, as well as on the impact of measures implemented by the Public Employment Security Office to assist persons with disabilities in transitioning from welfare to employment on the open labour market.

(b) Bringing work performed by persons with disabilities in sheltered workshops within the scope of the labour legislation (paragraph 75 of the report). In reply to the Committee’s previous comments, the Government indicates that support measures for jobseeking and workplace adaptation have been provided to persons with disabilities under the Type-B programmes. In its observations, the NUWCW indicates that persons with disabilities participating in the Type-B programmes are not provided with the same legal protections at the workplace as other workers. It adds that employment support services are not provided taking into account the vocational needs of persons with disabilities. The Committee requests the Government to continue to provide information on the nature and impact of the measures taken to ensure that the treatment of persons with disabilities in sheltered workshops is in line with the principles of the Convention, particularly the manner in which the principle of equality of opportunity and treatment is ensured (Article 4).

(c) Low pay for persons with disabilities carrying out activities under the Type-B programmes under the SPCW (paragraph 76 of the report). The Government indicates that, following the implementation of measures adopted in the framework of the Wage Improvement Plans in each prefecture, the pay of workers in the Type-B programmes increased by 23 per cent from 2015 to 2016. In addition, the Government indicates that, under Act No. 50 of 2012 concerning the Promotion of Public Procurement of Goods from Disabled Employment Facilities, ¥15.7 billion of such goods were procured in 2016. In contrast, the NUWCW refers to a study on the actual situation of persons with disabilities, which shows that the ratio of persons with disabilities living on an annual income of less than ¥1,000,000 increased in 2016. The NUWCW indicates that, according to the Basic Survey on Wage Structure, the difference between the average pay of persons with disabilities under the Type-B programmes and the average wage of workers generally was ¥288,500 in 2007 and ¥284,762 in 2014. The JTUC–RENGO reiterates that continued efforts are required to improve the level of wages in the Type-B programmes. The Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure equality of terms and conditions of employment, including in terms of wages for persons with disabilities participating in Type-B programmes.

(d) Service fees for participants in Type-B programmes under the SPCW (paragraphs 77 and 79 of the report). The Government once again indicates that persons with disabilities in low-income households are exempted from payment of disability social service fees. It adds that 93.3 per cent of the users of disability social services, including participants in Type-B programmes, were using these services free of charge as of November 2016. In its observations, the NUWCW states that disability social services are covered by both welfare and labour policies. Services based on labour policies are free of charge, while those based on welfare policies are provided against a fixed payment. The Committee encourages the Government to continue to take positive measures in this regard and to provide information on the impact of the measures taken to ensure that persons with disabilities are encouraged to become involved in such programmes and eventually gain access to the labour market.

Articles 3, 4 and 7. Equality of opportunity between persons with disabilities and workers generally. Quota system for the employment of persons with disabilities (paragraphs 81 and 82 of the report). The Committee notes the Government’s indication that the number of persons with severe disabilities in employment has continued to increase from 106,362 in June 2015 to 109,765 in June 2016. The Government reiterates that the system of double counting persons with severe disabilities (counting one person as two persons) is therefore effective and necessary to promote the employment of persons with severe disabilities. The NUWCW requests that the double-counting system be reconsidered. The Committee requests the Government to continue to provide information on persons with disabilities and persons with severe disabilities employed under the quota system, including on any modifications made or envisaged to the double-counting system.

Reasonable accommodation (paragraph 84 of the report). The Government indicates that the 2016 Act on the Promotion of the Employment of Persons with Disabilities provides for the obligation to provide reasonable accommodation. The Government provides information on the implementation of the practical manuals and guidelines on the prohibition of discrimination against persons with disabilities and on the provision of reasonable accommodation. In this regard, the Government indicates that persons with disabilities provide information on the modifications or adjustments needed to private companies at the time of recruitment, and then both parties discuss the request to reach a decision regarding the possible provision of the workplace accommodation. The Government adds that the obligation to provide reasonable accommodation excludes cases where an “excessive burden” is imposed on the private company. The JTUC–RENGO is of the view that certain aspects of the cited Act remain problematic, including the fact that it only requires private companies to make an effort to reasonably accommodate persons with disabilities and that it does not establish a conflict resolution mechanism. Therefore, the JTUC–RENGO indicates that measures to enhance the efficacy of the Act should be adopted before its re-evaluation, which will take place at the end of the third year after its entry into force. The NUWCW indicates that it will be necessary to monitor the system’s operations in collaboration with the stakeholders. Referring to the information provided by the Government in its previous report with regard to the right to file a complaint and to engage in conflict resolution concerning reasonable accommodation, the NUWCW points out that there is one conflict resolution mechanism established for all workers, and that the mechanism is not binding. It considers that it is necessary to establish a mechanism enabling workers with disabilities to negotiate with their employers to obtain reasonable accommodation. The Committee requests the Government to continue to provide information on the implementation and results of measures taken concerning the provision of reasonable accommodation in the workplace, including information concerning any evaluation carried out regarding the Act on the Employment Promotion of Persons with Disabilities.