Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the Government’s report received in October 2011 including comments by the Japanese Trade Union Confederation (JTUC–RENGO). The Government’s report refers to the 2010 Committee’s observation as well as to the matters raised by the National Union of Welfare and Childcare Workers (NUWCW) in October 2010 and September 2011.

1. Employment promotion for persons with disabilities. In its 2010 observation, the Committee noted that the “Basic Policy on Employment Measures for Persons with Disabilities” was adopted by the Ministry of Health, Labour and Welfare in 2009 and was followed by a Cabinet Decision of 29 June 2010, regarding the Basic Direction with Promoting Reform of the System for Persons with Disabilities. JTUC–RENGO indicates that since the Basic Direction was adopted, there has been no sign of progress in the labour and employment-related policies for persons with disabilities. It also observes that the statutory employment rate, i.e. 1.8 per cent, is yet to be achieved and that less than half of the companies fulfilled their obligations. JTUC–RENGO calls for the promotion of comprehensive policy measures to improve the employment system of persons with disabilities. NUWCW also indicates that the socio-economic environment surrounding workers with disabilities has been increasingly worsening, coupled with the global economic and financial crisis: the number of unemployed persons with disabilities is increasing and decreased demand from private enterprises has seriously affected the Support Programme for Continuation of Work (SPCW). NUWCW stresses that only few of the employable persons with disabilities are employed under the quota system. The Government reports that the number of persons with disabilities employed has been increasing year by year and, as of June 2010, the employment rate was 1.68 per cent, representing the highest ever recorded. However, the Government recognizes that further employment promotion is needed, since this rate remains below the statutory employment rate and the percentage of enterprises that achieved the statutory employment rate was 47 per cent. The Committee notes that guidance will continue to be provided through the Public Employment Security Office (PESO) to enterprises that failed to achieve the statutory employment rate. PESO will also continue to support employment and workplace adaptation of persons with disabilities. The Government indicates that various measures will be implemented to further promote the employment of persons with disabilities, such as increasing the number of Employment and Living Support Centres for Persons with Disabilities. The Committee notes that the Basic Direction envisages reviewing the employment promotion system for persons with disabilities by 2012. The Committee invites the Government to provide in its next report an evaluation of the reform of the employment promotion system for persons with disabilities in terms of increasing the employment opportunities of these persons in the open labour market. It also invites the Government to include in the evaluation process representatives of organizations of and for persons with disabilities as well as the social partners. Please also supply statistics disaggregated as much as possible by sex, age and the nature of the disability, as well as extracts from reports, studies and inquiries concerning the matters covered by the Convention (Part V of the report form).

2. Follow-up to a representation under Article 24 of the ILO Constitution. Articles 1(3) and 3 of the Convention. 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). The Committee recalls that it was entrusted to follow-up on the application of the Convention with regard to the questions raised in the representation under article 24 of the ILO Constitution alleging non-observance by Japan of Convention No. 159. The report of the tripartite committee established to examine the representation was approved by the ILO Governing Body at its 304th Session (March 2009). In the 2010 observation, the Government was requested to provide information on the number of persons falling under the categories that do not allow them to be covered by an employment relationship and measures taken to ensure that they may also benefit from opportunities in the open labour market. In its 2011 report, the Government indicates that as of February 2011, the number of recipients of Type-A programmes under the SPCW was 12,731 but the number of those who were not covered by an employment relationship is not known. The number of recipients of Type-B programmes under the SPCW, i.e. those not working under an employment relationship and not covered by labour legislation, was 100,599. The Government also refers to measures implemented by PESO to ensure to persons with disabilities employment opportunities in the open labour market. The Committee invites the Government to provide further information on the measures taken or envisaged to increase the opportunities for persons with disabilities falling in the categories which do not allow them to be covered by an employment relationship, to have access to the open labour market. In this regard, the Government is requested to supply updated information on the number of transitions from Type-B programmes under the SPCW to Type-A programmes and to open employment, as well as on the impact of measures implemented by the PESO on the transition of persons with disabilities from welfare to open employment.

(b) Bringing work performed by persons with disabilities in sheltered workshops within the scope of the labour legislation (paragraph 75 of the report). In its 2010 observation, the Committee noted the criteria according to which persons with disabilities engaging in activities at welfare workshops and small-scale workshops may be considered to be workers. NUWCW recalls that workshops and welfare factories (Type-B programmes under the SPCW and the Support Programme for Transition to Employment (SPTE)) appear to be the facilities for sheltered employment referred to by the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99). In NUWCW’s view, the application of labour legislation to Type-B programmes under the SPCW is based on a very narrow interpretation contrary to the broad criteria of equal opportunity and treatment enshrined in Article 4 of the Convention. Moreover, the transition to the new system under the Services and Support for Persons with Disabilities Act (SSPDA) was not sufficiently implemented and the sheltered employment system under the new scheme fails to bridge the gap in working conditions with other workers. NUWCW further indicates that several local governments have successfully implemented a social support scheme for the employment of persons with disabilities (sheltered employment system), according to the impact assessment made by the Subcommittee on Comprehensive Welfare for Persons with Disabilities. The Government recalls that an interim period until end of March 2012 is established for the transition to the new system. The Committee invites the Government to continue to report on the 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, including the principle of equality of opportunity and treatment (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). In its 2010 observation, the Committee noted that the Government adopted measures to increase the rates of workshop pay in the framework of the Five-Year Plan to Double Workshop Pay (Five-Year Plan). NUWCW indicates that due to its questionable effectiveness, resources allocated to the Five-Year Plan were decreased by half in the Government’s 2010 budget. NUWCW also points out that the average monthly wage in sheltered workshops is much lower than that of regular workers. The Government indicates that prefectures have continued to provide support for service providers to increase the rates of workshop pay in accordance with the Five-Year Plan. The Committee invites the Government to report on further measures taken or envisaged for raising workshop pay.

(d) Service fees for participants in Type-B programmes under the SPCW (paragraphs 77 and 79 of the report). In its 2010 observation, the Committee noted the measures taken to reduce service fees for recipients of Type-B programmes, such as the abolishing of fees for persons with disabilities from low-income households. NUWCW stresses that participation in programmes such as Type-B under the SPCW should in principle be free of charge. NUWCW further clarifies that the concern expressed for Type-B programmes under the SPCW should be understood to include the SPTE scheme and Type-A programmes under the SPCW. The Government reiterates that recipients of Type B programmes under the SPCW, while engaging in productive activities also receive welfare support and thus pay service fees in the same way as recipients of other welfare services. The Committee notes that the SSPDA will be replaced by legislation comprehensively regulating the welfare of persons with disabilities, which will link payment for using welfare services to income and that discussions are taking place at the Comprehensive Welfare Panel for enforcing the new legislation. The Committee invites the Government to strengthen its efforts to ensure that persons with disabilities are not discouraged or excluded from becoming involved in such programmes and eventually gaining access to the labour market. In this regard, the Committee recalls that Paragraph 22(2) of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), recommends provision of free vocational rehabilitation services.

Articles 3, 4 and 7. Equality of opportunity between persons with disabilities and workers generally. (a) Implementation of the Five-Year Plan for Implementation of Priority Measures (2008–12) (paragraph 80 of the report). The Committee notes the new data provided by the Government on the implementation of the Five-Year Plan for Implementation of Priority Measures (2008–12). The Committee invites the Government to include in its next report an evaluation of the Five-Year Plan for Implementation of Priority Measures (2008–12), including information on the involvement of representatives of organizations of and for persons with disabilities, as well as of the social partners, in the evaluation process.

(b) Quota system for the employment of persons with disabilities (paragraphs 81 and 82 of the report). In the 2010 observation, the Government was requested to provide information on the impact of the quota system, limited to persons with physical and intellectual disabilities, on the employment opportunities of persons with other disabilities. The Government indicates that in 2010, 244,621 persons with disabilities of which 95,347 with severe disabilities were employed under the quota system, marking an increase of 5,851 and 2,927 respectively, compared to 2009. NUWCW indicates that further information on the duration of employment is needed to corroborate the data on the increase in the employment of persons with intellectual disabilities. In view of the overwhelming increase in the number of jobseekers with disabilities, NUWCW questions the double counting practice effectiveness and calls for the adoption of policies focusing on improving the employment of persons with severe disabilities. The Government points out that in the 2009–10 period, dismissals decreased more rapidly among persons with disabilities than for other categories of workers. The Government indicates that the increase in the employment of both persons with severe and non-severe disabilities proves that the double counting system does not prevent the employment of those with non-severe disabilities. It further indicates that various measures have been taken for promoting the employment of persons with severe disabilities, such as fiscal and financial incentives to undertakings which employ persons with particular difficulties in finding employment. The Committee invites the Government to continue to provide relevant information on persons with disabilities employed under the quota system.

(c) Reasonable accommodation (paragraph 84). In its 2010 observation, the Committee noted that a study group was to be formed on the issue of reasonable accommodation. NUWCW indicates that this issue was discussed in 2010 within the Subcommittee for Employment of Persons with Disabilities of the Labour Policy Council. While the Subcommittee agreed on the obligation for employers to provide reasonable accommodation, the issue of whether or not the lack of provision of reasonable accommodation was to be regarded as discrimination was left for further discussion. NUWCW further indicates that the Persons with Disabilities Abuse Prevention Act, approved in June 2011, while prohibiting dismissal and other unfavourable treatment against persons with disabilities, does not clearly stipulate the means to ensure reasonable accommodation at the workplace and the procedure to settle conflicts between workers and the management on such issues. The Government indicates that the Basic Direction established that conclusions on measures to prohibit discrimination with regard to work and employment on the basis of disability and to secure the provision of reasonable accommodation at the workplace will be reached in 2012. It further reports that the issue will continue to be discussed by the Discrimination Prohibition Panel of the Committee for Disability Policy Reform. The Committee invites the Government to include in its next report updated information regarding the ongoing discussion on the matter of reasonable accommodation.

3. Consultation with representative organizations of employers and workers. The Government indicates that the Subcommittee on Employment of Persons with Disabilities was established to discuss at a quadripartite level (Government, social partners and representatives of persons with disabilities) important matters related to the employment of persons with disabilities. NUWCW points out that it is not represented within the Subcommittee and, therefore, is not granted the opportunity to officially express its views. In this regard, it alleges that workers’ opinions are not taken sufficiently into account by the Government. The Government indicates that the Ministry of Health, Labour and Welfare, upon request from trade unions, organizes meetings between ministerial officers and trade unions representatives in which the opinions of the latter may be heard and that the last of such meetings were held in November 2010 and May 2011. The Committee requests the Government to provide other concrete examples of how the views and concerns of representatives of workers’ and employers’ organizations as well as of organizations of and for persons with disabilities, are taken into account in the formulation and implementation of the policy on vocational rehabilitation and employment of persons with disabilities.

[The Government is requested to reply in detail to the present comments in 2013.]