Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the information in the Government’s report and the attached documentation. It also notes the comments made by the National Hospital Workers’ Union (JNHWU/ZEN-IRO), the Telecommunication Workers’ Union (TSUSHINROSO) and the Japanese Trade Union Confederation (JTUC-RENGO) received in 2002 and 2003, as well as the Government’s response.

1. Article 2 of the Convention. In its communication of 27 August 2003, JTUC-RENGO once again reiterates the point that the Childcare and Family Care Leave Act, No. 107, does not apply to fixed-term contract workers, which is against the spirit of the Convention. In its previous comments of 2000 and 2001, JNHWU/ZEN-IRO also indicated that wage-based workers were excluded from the Childcare and Family Care Leave Act and did not, unlike regular personnel, enjoy paid leave to care for injured, sick or elderly family members. They referred to the draft Bill to be submitted to the 151st Diet session which would modify legislation on childcare and nursing care leave to extend the application of childcare leave to workers who are de facto employed on a permanent basis due to repeated renewals of the employment contract. In its most recent comments of 6 August 2002 and 26 August 2003, JNHWU/ZEN-IRO indicates that the Government remains unwilling to institutionalize childcare leave and nursing leave of wage-based workers, and has still not taken any measures to extend the application of the Convention to wage-based workers in state-run hospitals and sanatoriums. In their view wage employees in national hospitals and sanatoriums, who are doing the same work as regular status workers but whose position is unstable, should at the least be eligible for childcare and nursing leave.

2. The Committee notes the Government’s reply that the childcare and nursing leave systems are set up for continuous long-term employment and therefore not applicable to part-time workers and wage employees who work on a daily basis and whose contract of employment is predetermined. The Government adds that the revisions of the Childcare and Family Care Leave Act only include measures to limit overtime work for workers raising pre-elementary school children, and measures concerning leave for care-giving for pre-elementary school children. Noting that the draft revised law does not extend the right to childcare and nursing leave to additional categories of workers, such as fixed-term and wage-based workers, the Committee is bound to recall that the Convention applies to all branches of economic activity and all categories of workers. It recalls that the Convention is intended to cover all workers "whether in full-time, part-time, temporary or other forms of employment, and whether in waged or unwaged employment". The Committee therefore asks the Government to indicate, in its next report, how it intends to ensure the right to childcare and nursing leave to part-time, fixed-term and wage-based workers.

3. Article 4(a). Personnel transfers to remote workplaces. In its comments of 27 August 2003, JTUC-RENGO continues to express its concern over the fact that company regulations often require full-time employees to work overtime and change workplaces, so that workers with family responsibilities, most of whom are women, are forced to work part time. Instead, full-time and part-time workers with family responsibilities should enjoy the right to be exempted from overtime. In replying to JTUC-RENGO’s comments, the Government states that the Childcare and Family Care Leave Act limits overtime within a specific range and that it is desirable for employers and employees to reach agreements on appropriate working hours management. The Committee urges the Government to try to ensure that such agreements are reached in accordance with the intent and provisions of the Convention.

4. In its previous observation, the Committee also noted the comments of TSUSHINROSO regarding the transfer of workers employed at the Nihon Telephone and Telegraph (NTT) and allied companies, which greatly affected the ability of the employees to manage their work and family responsibilities. Similar concerns were also raised by JNHWU/ZEN-IRO in its comments of 2000 and 2001, in which it presented data of hospital and sanatorium workers who had undergone transfers without consultation or announcement from the employer prior to transfer. According to the JNHWU/ZEN-IRO, workers were being forced to choose between accepting the transfer and being separated from their families, refusing the transfer and risking being dismissed, or simply quitting their job. The Committee notes that concerns regarding the practice of transferring employees to distant workplaces without prior consultation are repeated in recent comments of TSUSHINROSO (dated 7 May 2003) and JNHWU/ZEN-IRO (dated 6 August 2002 and 26 August 2003). According to TSUSHINROSO, no measures were taken to benefit the transferred workers with family responsibilities, referred to in their previous comments, and transfers unilaterally imposed by the employer continued. The Committee notes in this regard the appended list of transferred workers, most of whom are men older than 50 years of age. TSUSHINROSO indicates that long-distance commuting or being away from their families has increased the workers’ cost of living and dramatically changed their living and working conditions, as well as their family life. The Committee notes that the comments of JNHWU/ZEN-IRO also mention the lack of improvement in the manner transfers are unilaterally imposed on the employees of hospitals and sanatoriums, as indicated in the surveys undertaken by the JNHWU Tokai-Hokuriku and Kanto-Shinetsu Regional Councils in May and July 2002. The results also show that the promotion of nurses and nursing teachers, most of whom are women, usually involves a transfer to a new institution. The Committee notes that both the JNHWU/ZEN-IRO and TSUSHINROSO particularly criticize the transferral of workers nearing retirement age without consultation or special consideration to their family life.

5. In replying to the JNHWU/ZEN-IRO’s comments, the Government states that decisions on personnel transfers are based on the needs of the service, the principle of the merit system, the qualifications, abilities and experience of the personnel, as well as the affected employee’s health and family responsibilities. The Government adds that employees are, however, not allowed to refuse a transfer without a rational reason, but that the system does not discriminate against any employees, including those who are up for retirement. It further repeats its previous statements that appropriate rules should be established between employers and employees and that efforts should be made by employers to identify the impact of the transfer on the lives of the employee with family responsibilities. The Government further indicates that the Guidelines of the National Personnel Authority (2001) concerning the enlargement of the recruitment and promotion of female public employees specify that the Office or the Ministry shall take into consideration the family background and family responsibilities of an employee who is being transferred. The Government has not yet responded to the comments made by TSUSHINROSO, dated 13 May 2003.

6. The Committee notes that section 26 of the Childcare and Family Care Leave Act provides that employers must give consideration to workers with family responsibilities in the case of job relocation to remote workplaces. The Committee notes, however, that despite the provisions of the above Act and the established guidelines, it appears that transfers unilaterally imposed by the employers without prior consultation or without recognition of the employee’s objections due to family responsibilities continue to occur. Moreover, affected employees are notified of their new place of employment only three weeks prior to their transfer. The Committee must therefore reiterate its previous comments in which it considered 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 significant weight along with the business reasons underlying the transfer proposal. The Committee points out that efforts to promote the ability of workers with family responsibilities to balance their family and work life, 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 urges the Government to take the necessary steps so that the practice of imposing transfers on workers be reviewed and brought into greater conformity with the requirements of the Convention.

7. Article 4(b). With respect to the public sector, the Committee notes with interest the revisions in the relevant laws and regulations covering the public sector expanding full and partial childcare for national and local public employees having a child under 1 year of age to employees having a child under 3 years, and increasing nursing care leave for regular service employees from three to six months. It also notes that section 22(10) of Rule 15-14 of the National Personnel Authority Guidelines establishes a special leave to care for a sick child. With respect to the private sector, the Committee notes that the Childcare and Family Care Leave Act provides (section 25) that employers must endeavour to take measures to provide childcare leave to employees with children who have not yet begun attending elementary school. It also notes the additional support measures for employers that establish childcare systems or appoint a "Work-Family Coexistence Facilitation Officer". JTUC-RENGO points out that the legislation would be more effective if it clearly established childcare and family care leave as a workers’ right and did not just require employers to make efforts to provide for childcare leave. The Committee asks the Government to provide information on the practical application of this section of the Act and to indicate whether it intends to extend the legislative measures concerning childcare to workers who wish to take family care leave.

8. Article 5. In its recent comments, JNHWU/ZEN-IRO states that the Government has not yet implemented any measures to improve in-house nurseries in hospitals and sanatoriums. It further states that in 2004 most of the national hospitals and sanatoriums will be transferred to a new independent administrative agency and that it remains unclear what will happen to the in-house nurseries and the employment of their personnel. While welcoming the Government’s information on the adoption by the Cabinet of the policy on support measures for balancing work and child-raising in July 2001 which provides concrete goals and measures to increase the numbers of children enrolled in nurseries and to increase the number of establishments for after-school activities, the Committee notes that the Government has omitted to provide specific information as regards the comments made by JNHWU/ZEN-IRO. It therefore asks the Government to provide information on the status and future of the in-house nurseries and their personnel in national hospitals and sanatoriums.

9. Article 8. In its previous observations, the Committee noted the comments raised by JTUC-RENGO concerning the lack of protection in Japanese legislation against termination of employment due to family responsibilities. In its reply, the Government referred to section 1(3) of the Civil Code providing for general protection to persons against abuse of their rights, and to sections 10 and 16 of the Childcare and Family Care Leave Act, No. 107, which prohibit dismissal due to requesting or taking childcare or family leave. In this regard, the Committee pointed out that the protection provided under these provisions was both too general (as they do not specify workers with family responsibilities or protection from termination of employment), and narrower than that contemplated in Article 8 of the Convention, as it was not directed to family responsibilities in general. Moreover, Act No. 107 appears to exclude daily labourers and workers on fixed-term contracts from its coverage. The Committee notes that the Government does not provide any reply to its previous comments and is therefore bound to reiterate its request to the Government to indicate whether there are any judicial decisions interpreting the legal provisions referred to, and if so, to provide copies of such decisions. The Government is also asked to provide information in its next report on any measures taken to ensure that the guarantees of Article 8 are applied fully in national law and practice.