Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee takes note of the information contained in the Government’s report. It also notes the comments made by the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO), the Telecommunication Workers’ Unions (TSUSHINROUSO) and the Japanese Trade Union Confederation (JTUC-RENGO), as well as the Government’s response.

1. Article 2 of the Convention. JTUC-RENGO indicates that the Convention is not applied in Japan to workers with fixed-term contracts and it recommends that the application of the Convention be extended to this category of workers. In its comments, JNHWU/ZEN-IRO notes that wage-based workers (chingin-shokuin) employed in Japanese hospitals are excluded from the coverage of the Child Care Leave Act. JNHWU/ZEN-IRO indicated in its 17 October 2000 comments that regular personnel in state-run hospitals enjoy paid leave to care for injured, sick or elderly family members, but that this benefit is not extended to wage-based workers. In its communications of 16 August and 22 August 2001, JNHWU/ZEN-IRO states that discriminatory treatment of wage-based workers in Japanese hospitals continues.

2. In its recent comments, JNHWU/ZEN-IRO points out that the Government has introduced a draft bill to the 151st Diet session which would modify the national legislation on childcare and nursing care leave, inter alia, to extend the application of the childcare leave law to those workers who are employed de facto on a permanent basis due to repeated renewals of their employment contracts. In this regard, the Committee notes the FY2000 Annual Report on the State of Formation of a Gender-equal Society and Policies to be Implemented in FY2001 to Promote the Formation of a Gender-equal Society ("FY2000 Annual Report") supplied by the Government. The FY2000 Annual Report indicates that the draft bill submitted in February 2001 would: (1) incorporate welfare provisions for workers raising children and caring for family members; (2) prohibit disadvantageous treatment of workers due to their use of childcare or family care leave; (3) raise the age of children targeted by measures entitling workers to reduce working hours; and (4) provide for nursing leave.

3. With regard to coverage of the Convention, the Committee recalls that Article 2 of the Convention states that it applies to "all branches of economic activity and all categories of workers". As the Committee observed in paragraph 46 of its General Survey of 1993 on workers with family responsibilities, the phrasing of the Convention was intended to cover all workers, "whether in full-time, part-time, temporary or other forms of employment, and whether they are in waged or unwaged employment". Therefore, the Committee welcomes the draft law, noting that its adoption would extend the right to childcare and nursing leave to additional categories of workers. In this regard, the Committee would be grateful if the Government would supply information concerning any measures taken or contemplated to extend application of the provisions of the Convention to part-time workers, workers on fixed-term contracts and wage-based workers. The Committee expresses the hope that the draft bill will be adopted in the near future and requests the Government to supply a copy of the Act once it is adopted.

4. Article 3. The Committee notes initiatives taken by the Government to promote equality of opportunity and treatment for workers with family responsibilities, including the approval in December 2000 of the Basic Plan for Gender Equality, which includes the objective of supporting men’s and women’s efforts to harmonize work with their family and community life. The Committee requests the Government to provide information on the measures taken or envisaged to implement the objectives of the Basic Plan relevant to the Convention.

5. Article 4(a). Personnel transfers to remote workplaces. JTUC-RENGO states that company regulations frequently require full-time workers in Japan to remain available to work overtime hours or to transfer to a different workplace. In its previous observation, the Committee had noted the comments of JTUC-RENGO (dated 29 October 1999), as well as those of TSUSHINROUSO (dated 17 October 2000) regarding the transfer of workers with family responsibilities to remote workplaces. TSUSHINROUSO’s comments concern the transfer of workers employed by the Nihon Telephone and Telegraph (NTT) and allied companies. According to TSUSHINROUSO, the transfers have placed great strains on the employees’ lives, particularly on their ability to manage their family responsibilities and balance those responsibilities with their work lives. Replying to TSUSHINROUSO’s comments, the Government indicates that adequate rules should be negotiated between employers and employees before personnel are transferred to a distant workplace, and that such rules should, to the extent possible, define the areas and conditions of the transfers, taking measures to reduce the burden of the transfer on the worker. The Committee notes that similar concerns were raised in the 17 October 2000 comments of JNHWU/ZEN-IRO, which presented several examples of workers allegedly forced to resign from their jobs as a result of being transferred to distant workplaces without their consent. In all the cases presented, while the Government indicates that the workers’ family responsibilities were considered by the employer, it appears that the workers’ objections were overlooked because the transfers were considered to constitute recognition of the workers’ experience and abilities.

6. The Committee notes that concerns regarding the practice of transferring employees to distant workplaces without prior consultation are also raised in the recent comments of JNHWU/ZEN-IRO (dated 22 August 2001), which refer to the results of a survey on personnel transfers conducted in April 2001 by the Kanto-Shinetsu Regional Council of JNHWU/ZEN-IRO. Out of 89 hospital and sanatorium workers who had undergone transfers, the majority (89 per cent) indicated that there had been no consultation or announcement from the employer prior to transfer. Twenty per cent of those surveyed indicated that the transfers required them to live away from their families. In its previous comments dated 17 October 2000, JNHWU/ZEN-IRO noted that forced transfers to distant workplaces are frequently imposed upon staff, disregarding the will of the employees concerned. According to JNHWU/ZEN-IRO, workers are thereby forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risk being dismissed, or simply quitting the job. The Government has not yet responded to these comments.

7. The Committee recalls that Paragraph 20 of Recommendation No. 165 encourages employers to consider family responsibilities when transferring workers from one locality to another. The Committee notes that the fact that a transfer may represent recognition of a worker’s capabilities or even a promotion is not dispositive of whether the worker is able or willing to accept a transfer, as the worker’s family responsibilities may preclude him or her from moving to a different workplace. The Committee considers that, in order to take a worker’s family situation into consideration in accordance with Article 4(a) of the Convention, the employer should give the fullest consideration possible to the worker’s genuine need to care for members of his or her family. The worker’s family responsibilities in this regard should be considered and given appropriate weight along with the business reasons underlying the transfer proposal. The Committee also points out that a worker’s acceptance of a transfer in the past does not signify that the worker is able or willing to accept a transfer to a distant workplace at another stage of his or her life, as family circumstances can, and frequently do, change. In this context, the Committee points out that one of the objectives of the Convention is to promote the ability of workers with family responsibilities to balance their family and work life. As a necessary corollary, this would include these workers’ ability to balance their family responsibilities with any advances they may make in their professional lives. Therefore, to the extent possible, employer practices should not force workers to choose between retaining their jobs or fulfilling their family responsibilities, in so far as these responsibilities do not impair their ability to perform the job. The Committee expresses the hope that the practice of imposing transfers on workers will be reviewed and brought into greater conformity with the requirements of the Convention.

8. Article 4(b). The Committee notes with interest that childcare and family leave benefits have been raised from 25 per cent of the worker’s wage to 40 per cent as of January 2001. The Committee also notes the measures taken by the Government to facilitate the taking of childcare leave, including assistance to employers replacing employees on childcare leave and placing the employee in the same position after the leave, exemptions from payment of insurance premiums and year-end bonuses paid to employees on childcare leave. JTUC-RENGO points out that the measure providing for exemptions from payment of insurance premiums does not extend to workers on family care leave. The Committee asks the Government to keep it informed of any measures taken or contemplated to extend application of these provisions to workers on family care leave.

9. Article 5. In its comments of 17 October 2000, JNHWU/ZEN-IRO states that in-house nurseries at national hospitals are not adequately staffed as required by the Child Welfare Act. It further states that the Ministry of Health, Labour and Welfare has not allocated sufficient funds for in-house childcare facilities, but has instead commissioned the Mutual Aid Association to administer those services. In reply, the Government states that the management of these facilities, established by the Second Mutual Aid Association of the Ministry of Health, Labour and Welfare, is commissioned to the Childcare Facilities Management Council; that it is taking all measures possible under present conditions; and that these services are not considered as services that the Government is obligated to provide. The Committee notes this information. It recalls that Article 5(b) of the Convention requires the Government to take all measures compatible with national conditions and possibilities to develop or promote "community services, public or private, such as child-care and family services and facilities". The Committee would be grateful if the Government would continue to supply information on the measures taken or envisaged to promote the application of Article 5(b) in regard to childcare services and facilities.

10. Article 8. The Committee refers to its previous observation noting the communication received from JTUC-RENGO on 29 October 1999, which expressed concerns over the lack of protection in Japanese legislation against termination of employment due to family responsibilities. In its communication, JTUC-RENGO had indicated that there was a divergence between the protection provided under Article 8 of the Convention and Japanese law. Responding to the concerns raised by JTUC-RENGO, the Government indicates that protection against dismissal on the basis of family responsibilities is covered by section 1(3) of the Japanese Civil Code. The Government also notes that sections 10 and 16 of the Child Care and Family Leave Act, No. 107 of 9 June 1995, prohibit an employer from dismissing an employee because he or she has requested to take or has taken such leave. In this regard, the Committee notes that section 1(3) of the Civil Code appears to provide general protection to persons against abuses of their rights, without specifying either workers with family responsibilities or protection from termination of employment. Moreover, the Committee notes that the protection from dismissal provided by Act No. 107 is narrower than that contemplated by Article 8 of the Convention, as it is directed only at the issue of dismissal due to requesting or taking childcare or family care leave, not to dismissal due to family responsibilities generally. Further, Act No. 107 appears to exclude daily labourers and workers on fixed-term contracts from coverage. The Committee requests the Government to indicate whether there are any judicial decisions interpreting the legal provisions referred to and, if so, to supply copies of any such decisions. In addition, the Committee asks the Government to provide information in its next report on any measures taken to ensure that Article 8 is applied in national law and practice.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2003.]