Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2007 and the resulting conclusions of the Conference Committee. The Committee notes in particular that the Conference Committee urged the Government to promote more actively equal remuneration for men and women for work of equal value in law and in practice. The Committee notes the Government’s report and the comments concerning the application of the Convention contained in the communication dated 19 October 2007 from the Japanese Trade Union Confederation (JTUC–RENGO) which were annexed to the report. In addition, the Committee notes the communication of 23 May 2007 from the Working Women’s Network, which was also submitted on behalf of the Women’s Union for Workers of Trading Company and the Women’s Union Nagoya. This communication was forwarded to the Government on 13 July 2007.

2. Assessment of the gender pay gap. The Committee notes from the statistical information provided by the Government that the gender pay gap in respect of scheduled cash earnings per hour among full-time workers increased from 31.2 per cent in 2004 to 32.9 per cent in 2006. The gender pay gap is highest in manufacturing (41.4 per cent) and finance and insurance (45.2 per cent), while it is lowest in transport (23.1 per cent) and telecommunications (28.3 per cent). The Committee notes that the gender pay gap remains very high. It is particularly concerned that the hourly earnings gap for full-time workers has increased since 2004. Noting that the Government plans to undertake a detailed analysis of the factors underlying the gender wage gap, the Committee asks the Government to provide the results of this analysis, including indications regarding the impact of discrimination in recruitment and promotion on the gender pay gap, and the action taken to address the underlying factors. The Committee also asks the Government to continue to provide detailed and comparable statistical information on the earnings of men and women.

3. Part-time work. The Committee notes that the Government expects the amendments made to the Part-time Working Law in May 2007 to contribute to the reduction of the gender pay gap. The Committee notes that under the revised Law, certain part-time workers shall be deemed to be equivalent to full-time workers which, inter alia, implies that there shall be no discrimination in respect of wages, education and training, welfare facilities and other conditions. Stressing that discrimination against part-time workers is still in many ways discrimination based on gender, JTUC–RENGO states that the revision was insufficient as only a small portion of part-time workers were covered by these new protections. The Committee asks the Government to provide information on the practical application of the revised Part-time Working Law, including information on the extent to which the revision has contributed to closing the gender pay gap. The Government is also asked to indicate the proportion of part-time workers, disaggregated by sex, that benefit from protection against wage discrimination under the revised Law and to state whether any consideration is being given to extending this protection to the part-time labour force more generally.

4. Work of equal value. The Committee recalls that section 4 of the Labour Standards Law, which provides that in respect of wages an employer shall not engage in discriminatory treatment of a woman, as compared to a man, by reason of the worker being a woman, does not fully reflect the principle of the Convention, because it does not refer to the element of equal remuneration for work of equal value. In its report, the Government reiterates its view that section 4 is sufficient to satisfy the requirements of the Convention and recalls the court case in which wage disparities between men and women performing different work were found to be in violation of section 4 of the Labour Standards Law. The Government also explains that rotating workers from one job to another within the enterprise ensures long-term human resource development and was a common practice in Japan. In such cases, the wages were determined on the basis of “job-performance ability” and not on the basis of job evaluation. The Government therefore is of the view that prohibiting discrimination in job assignment and allocation of duties, as provided for under the Equal Employment Opportunity Law (EEOL), was an effective measure “to prevent detrimental treatment of female workers” in respect of wages.

5. The Committee notes that JTUC–RENGO calls for the revision of section 4 of the Labour Standards Law and the EEOL to ensure that both Laws prohibit gender-based wage discrimination. The Working Women’s Network stated that there was only one final judgement based on section 4 of the Labour Standards Law which held that the female plaintiff’s work was “work of equal value” to that of a male comparator. Highlighting the length of the equal pay proceedings, the Network argues that enforcing the principle of equal remuneration for men and women for work of equal value would be more effective if the principle was stated in the legislation. This was also necessary in the light of the ongoing change from seniority-based to merit-based wage systems.

6. The Committee wishes to emphasize that the principle of equal remuneration for men and women for work of equal value necessarily implies a comparison of the jobs or work performed by men and women on the basis of objective factors such as skills, effort, responsibility, or working conditions. Where such a comparison is not possible it is difficult to see how the principle could be applied. While the Convention takes the job content as a starting point for establishing equal remuneration, it does not prevent factors such as experience, ability and performance being taken into consideration in the determination of remuneration, as long as they are applied in an objective and non-discriminatory manner. The Committee therefore asks the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value. It asks the Government to provide detailed information on any new court decisions regarding wage discrimination under section 4 of the Labour Standards Law that give effect to the Convention’s principle. Recalling the Conference Committee’s request to the Government to examine further the impact of employment management systems and wage systems on the earnings of women, with a view to addressing wage discrimination, the Committee asks the Government to indicate the steps taken in this regard and the results obtained from such an examination.

7. Indirect discrimination. Recalling its previous comments concerning section 7 of the EEOL, which authorizes the Ministry of Health, Labour and Welfare to identify measures that are considered to be indirectly discriminatory, the Committee notes that section 2 of the Enforcement Ordinance under the EEOL, as amended following the 2006 revision of the EEOL, identifies three such measures: (1) criteria relating to the worker’s height, weight or physical strength; (2) criteria, in the context of recruitment and employment of workers under a career tracking system, relating to the worker’s availability for reassignment resulting in the worker having to change his or her place of residence; and (3) criteria for promotion relating to the worker’s experiences obtained through job rotation and reassignment. The Committee also notes the Government’s indication that a general definition of indirect discrimination has been included in the Guidelines to the EEOL (“EEO Guidelines”) and that in cases other than those listed in section 2 of the Enforcement Ordinance indirect discrimination could be considered illegal by the courts. The Government states that it will keep the matter under review and revise section 2 of the Enforcement Ordinance as necessary, taking into account the developing jurisprudence. JTUC–RENGO raised doubts as to the conformity with international standards of the restrictive provisions on indirect discrimination in the EEOL and indicated that it would continue to call for the inclusion of a broad and unlimited definition in the Law. The Working Women’s Network also submits that a broader definition of indirect discrimination should be applied. Recalling that in accordance with the Convention all forms of indirect discrimination in respect of remuneration should be addressed, the Committee asks the Government to provide detailed information on the application of section 7 of the EEOL and section 2 of its Enforcement Ordinance. It asks the Government to continue to consult on the issue of indirect discrimination with workers’ and employers’ organizations, to report on any relevant judicial cases, and to indicate the progress made in ensuring that the definition of indirect discrimination provides effective protection from all forms of indirect discrimination in respect of remuneration.

8. Career tracking systems. The Committee notes from the Government’s report that according to the Basic Survey of Employment Management of Women 2006, the percentage of companies operating a career tracking system is 11.1 per cent, which is 1.6 per cent more than compared to 2003. No new information is available concerning the distribution of men and women in the different tracks. Both JTUC–RENGO and the Working Women’s Network state that career tracking systems continue to be used in practice as gender-based employment management. They also state that the EEO Guidelines issued by the Government created an opening for this, because they restrict the application of the prohibition of gender discrimination to men and women within each “employment management category”, which excludes comparisons between men and women employed in different categories, in contradiction with the principle of equal remuneration for work of equal value. The Committee considers that the application of the Convention’s principle cannot be restricted to men and women within each different employment category established by an enterprise. The Government is asked to supply a copy of the EEO Guidelines for the Committee’s examination and to provide its comments, if any, in reply to the above matter raised by JTUC–RENGO and the Working Women’s Network. The Committee also asks the Government to provide updated statistical information on the extent to which career tracking systems are being used, including, in particular, the number of men and women on the different tracks. The Committee asks the Government to examine further the impact of career tracking systems on the earnings of women, with a view to addressing wage discrimination, as requested by the Conference Committee, and to report on the results of such an examination.

9. Objective job evaluation. Recalling the Conference Committee’s request to the Government to step up its efforts to promote objective job evaluation methods, the Committee notes that the Government has not provided any information on measures taken in this regard. JTUC–RENGO indicates that it had proposed the use of objective job evaluation methods as a means to implement the principle of equal remuneration for work of equal value. The Committee urges the Government to indicate in its next report the measures taken to promote objective job evaluation, in accordance with Article 3 of the Convention, and as requested by the Conference Committee.

10. Labour inspection. The Committee notes from the Government’s report that in 2005, 122,733 inspections were carried out. Ten cases of violations of section 4 of the Labour Standards Law were addressed through administrative guidance, while one case was sent to the prosecutor’s office. The Committee notes the Government’s indication that inspectors confirm whether the wage disparity between men and women at a workplace “depends on the fact that workers are women or the differences in posts, ability, technique, etc.”. The Committee asks the Government to provide information on the specific methodologies used by the labour inspectors to identify instances of wage discrimination where men and women are engaged in different posts but nevertheless perform work of equal value, and to indicate whether any specific training on the principle of equal remuneration for work of equal value is being provided to labour inspectors. The Government is also asked to continue to provide information on the cases of violations of section 4 of the Labour Standards Law, including on the facts of the cases.