Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Japon (Ratification: 1995)

The Committee recalls the communication of the All Japan Construction, Traffic and Transportation Workers’ Union Tokyo dated 13 October 2009, and notes the communication from the Japanese Trade Union Confederation (JTUC–RENGO) dated 29 August 2011, which was attached to the Government’s report. It also notes the Government’s reply to both of these communications.

Article 3 of the Convention. Legislative developments. The Committee notes with interest the legislative measures to give effect to the provisions of the Convention, in particular the amendments made by Law No. 65 of 1 July 2009 to the Childcare and Family Care Leave Law. The new provisions: (i) require employers to establish a short working hour system or other alternative measures for workers raising children up to the age of 3 (section 23), and to offer exemption from overtime work when requested by a worker raising children up to the age of 3, provided that it does not prevent the normal course of business (section 16 8); (ii) allow a worker to take up to ten days of leave per year to take care of a sick or injured child, if the worker has two or more children of pre school age (sections 16-2 and 16-3); (iii) extend the period during which one year childcare leave may be taken until the child turns 1 year and two months old, if both a father and a mother take childcare leave; (iv) establish family care leave (five days per year for one family member, and ten days per year for two or more family members) (sections 16-5 and 16-6); and (v) establish the dispute resolution assistance system by the “Work-Life Balance Conciliation Conference”, if the Director of the prefectural Labour Bureau finds it necessary (sections 52-4 and 52-5). In addition, the legislation concerning childcare leave and family care leave for national public employees and local public employees was amended (last amended in December 2010) to provide as follows: (i) an employee whose spouse is taking childcare leave shall also be entitled to childcare leave, and an employee whose spouse can take care of their child shall also be entitled to early/late shift work and overtime work exemption; (ii) an employee who is taking care of a child under 3 years of age shall be entitled to an exemption from overtime work, unless it is extremely difficult to take measures to replace the worker; (iii) part-time employees shall be entitled to take childcare leave, if they meet certain requirements concerning working days; (iv) for national public employees, leave for taking care of a sick child is extended to ten days per year, if the employee has two or more children; and (v) part-time employees shall be entitled to take family care leave if they meet certain requirements concerning working days. The Committee asks the Government to provide information on the practical application of the revised Childcare and Family Care Leave Law, as well as the legislation concerning childcare and family care leave for national and local public employees. Please include relevant statistics disaggregated by sex on the number of workers with family responsibilities making use of the entitlements related to working time and leave.

Article 2. Application to all branches of economic activity and all categories of workers. The Committee recalls that sections 5 and 11 of the Childcare and Family Care Leave Law enable fixed-term workers to take childcare leave and family care leave if they meet certain requirements. The Committee notes the guidelines concerning measures to be taken by employers to facilitate the conciliation of work and family life of workers who care for children or other family members (Guidelines No. 509 of 2009) issued by the Ministry of Health, Labour and Welfare, which, inter alia, provide guidance as to who could fulfil the requirements under sections 5 and 11 of the Childcare and Family Care Leave Law, as well as who could be considered to be a “substantially non-fixed-term” worker, and therefore entitled to childcare and family care leave regardless of the requirements under these sections. As to the probability of continuing to be employed after the child turns 1 year of age, which is required under section 5 of the Law, the Committee notes the Government’s indication that an employee could show this probability when an indication is made in writing or orally upon the acceptance of the request for childcare or family care leave. In cases where there is no clear indication as to the probability of renewing the employment contracts, it will be determined based on actual situations, including the words and actions of employers about the prospect of continuous employment, the situation of other workers in a similar position, and the history of renewals of the worker’s previous labour contracts. While noting the Guidelines No. 509 of 2009 and the Government’s explanation regarding the probability of renewing employment contracts, the Committee still considers that fixed-term workers are in a vulnerable position in claiming entitlements pursuant to sections 5 and 11 of the Childcare and Family Care Leave Law. In this context, the Committee notes that the JTUC–RENGO reiterates its observation that requirements to be met by fixed-term workers for the benefits under the Childcare and Family Care Leave Law should be relaxed. It also recalls the JTUC–RENGO’s previous observation that the childcare and family care leave system should be extended to fixed-term workers in the public sector, and notes that the Government has not provided any updated information in relation to this matter. The Committee further notes that, while the Government has published a leaflet on “Promoting the taking of childcare leave by fixed-term employees”, according to research studies conducted in the fiscal year 2009–10 on the use of such leave by fixed-term workers, 40 per cent of them were not aware of the availability of the leave system. The Committee asks the Government to strengthen its efforts to ensure the application of the Convention to fixed-term and part-time workers, including in the public sector, as well as to increase awareness of the availability of childcare and family care leave for fixed term workers. It also asks the Government to provide information on any obstacles encountered by fixed-term workers in order to show the probability of continuing to be employed, and the measures taken to remove such obstacles. Please provide up-to-date statistical information, disaggregated by sex, on the number of requests for childcare and family care leave by fixed-term workers, and the number of cases where these entitlements have actually been granted to them.

Article 4. Transfer to remote workplaces. The Committee recalls that section 26 of the Childcare and Family Care Leave Law requires taking into account family responsibilities when reassigning workers to such workplaces which would make it difficult for the worker to assume his or her family responsibilities. The Committee notes that the Guidelines No. 509 of 2009 provide that considerations under section 26 of the Childcare and Family Care Leave Law include: (i) identifying the worker’s situation of childcare or care for family members; (ii) taking into consideration the intentions of the worker concerned; and (iii) confirming the availability of any alternative means to care for a child or a family member in case the reassignment involves a change in his or her place of work (Part II, paragraph 14). The “Guidelines concerning Enlargement of Recruitment and Promotion of Female National Public Service Employees”, adopted in January 2011, also refers to the consideration to be given in making transfer orders for employees who are taking care of their children or family members. The Committee further notes the Government’s indication that in the fiscal year 2010, 13 applications for resolution of disputes filed with the Directors of the prefectural Labour Bureau, and one application filed at the Work–Life Balance Conciliation Conference, related to transfer. The Government indicates that, according to the Employment Status Survey in the fiscal year 2007, 1.2 per cent of workers who left work did so due to transfer, transfer of family members, or relocation of offices, but no further information has been provided concerning the impact of transfer practices. The Committee asks the Government to continue to provide information on the measures taken to monitor effectively and review transfer practices, including information on the measures taken to supervise the application of section 26 of the Childcare and Family Care Leave Law, and on any specific instances where guidance has been given by the competent authorities to resolve related difficulties. Please also provide statistics on the impact of transfer practices, disaggregated by sex, as well as the results of any survey undertaken in this regard both in the public and private sectors.

Reduction of working hours. The Committee previously noted the importance of the overall reduction of working hours in order to enable men and women with family responsibilities to enter and remain in the labour market, and recalls that paragraph 18 of the Workers with Family Responsibilities Recommendation, 1981 (No. 165), emphasizes the importance of the progressive reduction of daily hours of work and the reduction of overtime. The Committee also recalls the observations of the All Japan Construction, Traffic and Transportation Workers’ Union Tokyo, drawing attention to the excessive working hours of bus drivers which impact on family responsibilities. With regard to the measures taken to promote the reduction of working hours, the Committee notes that the Guidelines concerning improvement of setting working hours (No. 108 of 2008) refer to reconciliation of work and family life. It also notes the Government’s indication that the amendment made to the Labour Standards Law, which became effective on 1 April 2010, and which raised the overtime wage rate, aims at reducing long working hours and realizing a society in which work and family responsibilities are balanced. The legislation concerning working hours of the national and local public employees was also amended effective on 1 April 2010, to raise the overtime wage rate. With regard to the private sector, the Government indicates that the average annual working hours have remained below 1,800 hours since the year 2008 and show a decreasing trend, although the average annual working hours for workers other than part-time workers have remained around 2,000 hours and have not yet been reduced. With regard to the working hours of bus drivers, the Committee notes the Government’s indication that in addition to the “Standards for Improvement of Working hours, etc. for Drivers of Automobiles” which set the limit of working hours, the Labour Standards Inspection Offices have been securing full compliance with working conditions of drivers of automobiles as a major issue, and have been actively identifying problematic bus companies. Judicial action, including possible prosecution of the employers, has been taken in serious or malicious cases of long working hours. The Committee asks the Government to step up its effort to reduce annual working hours, and to provide information on the practical application of the Labour Standards Law and the legislation concerning public employees, with a view to reducing effectively the annual working hours and overtime work of both female and male workers with family responsibilities, including those who engage in the transportation sector. It also asks the Government to provide detailed information on the impact of the Law on Special Measures for the Improvement of Working-Time Arrangements, and the Guidelines No. 108 of 2008 on reconciling work and family responsibilities. Please continue to provide information on the trends in the average number of hours worked by men and women, disaggregated by contractual status, and full-time and part-time workers.

Article 8. Termination of employment. The Committee recalls the conclusions of the Conference Committee on the Application of Standards that the Government should examine whether the current legislation provides an appropriate basis for the prevention of and protection against discrimination on the ground of family responsibilities. The Committee notes that the protection against dismissal or other disadvantageous treatment has been expanded to cover leave for caring for a sick or injured child, family care leave, and persons benefitting from a restriction on overtime work or night work, and from a short working time (sections 16-4, 16-7, 16-9, 18-2, 20-2 and 23-2) and that the Guidelines No. 509 of 2009 further clarify the manner in which these sections of the Childcare and Family Care Leave Law should be interpreted (Part II, paragraph 11). The Committee also notes the observation of the JTUC–RENGO citing the statistics of the Ministry of Health, Labour and Welfare that the number of consultations received by the Ministry concerning dismissals and other disadvantageous treatment for reasons of taking childcare leave was 1,657 in the fiscal year 2009 and 1,543 in the fiscal year 2010. The Committee asks the Government to provide information on the practical application of the relevant sections of the Childcare and Family Care Leave Law prohibiting dismissal or otherwise disadvantaged treatment, including information on administrative consultations and judicial decisions relating to these provisions, and their outcome. It also asks the Government to indicate any other measures taken to ensure that the guarantees of Article 8 of the Convention are fully applied in law and practice.