Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Private Employment Agencies Convention, 1997 (No. 181) - Japan (Ratification: 1999)

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution). Protection ensured by the revision of the Worker Dispatch Law. The Committee notes that, at its 313th Session (March 2012), the Governing Body adopted on 26 March 2012 the recommendations of the tripartite committee established to examine the representation alleging non-observance by Japan of the Private Employment Agencies Convention, 1997 (No. 181), made under article 24 of the ILO Constitution by the Japan Community Union Federation (document GB.313/INS/12/3). These recommendations entrust the Committee with following up the matters raised in the representation with respect to the application of the Convention. The Committee notes the Government’s report received in October 2012, which includes comments formulated by the Japanese Trade Union Confederation (JTUC–RENGO). The report contains replies to the matters raised in the tripartite Committee report. In paragraph 43 of the tripartite Committee report, the Committee expressed its firm hope that the new bill to revise the Worker Dispatch Law would soon be enacted into law in order to ensure “adequate protection” for all workers employed by private employment agencies in accordance with Articles 1, 5 and 11 of the Convention. It also referred to the importance of consulting the social partners on the legislative provisions in question. The Committee notes that Act No. 27 of 2012 for Partial Revision of the Act for Securing the Proper Operation of Worker Dispatching Undertakings and Improved Working Conditions for Dispatched Workers (hereinafter referred to as the “2012 Revised Worker Dispatch Law”) was enacted on 28 March 2012 after some amendments were made by the Diet. Those amendments included the removal of the prohibition of registration-type worker dispatching and dispatching to the manufacturing industry. The issue of “registration-type dispatch” was one of the main issues raised by the complainant in the representation.

Article 5(1). Equality of opportunity and treatment. In paragraph 38 of tripartite Committee’s report, the Government was requested to clarify whether the provisions of Article 5(1) of the Convention apply to both the dispatch business operators and the dispatch receiving companies. The Committee notes the information provided by the Government in its 2012 report indicating that section 3 of the Labour Standards Law, which prohibits discriminatory treatment with respect to working conditions of workers, applies to both dispatch business operators and their clients in accordance with section 44 of the Worker Dispatch Law. In addition, dispatch business operators are prohibited from engaging in discriminatory treatment with respect to accepting applications and conducting interviews. The Government was invited to take the necessary action to remove any doubt as to the application to all workers of the provisions of Convention No. 181, including Article 5(1) (paragraph 39 of the report). The Government indicates that Japanese laws and regulations impose employment responsibilities on dispatching business operators that are employers in principle, and then identifies the responsible parties by specifying matters on which responsibilities should be imposed on clients by provisions of the Worker Dispatching Law. It adds that various rules are established to avoid lack of protection for dispatched workers which is caused by the unclear responsibilities of employers. The Committee invites the Government to provide further information on the application of Article 5(1) of the Convention in practice. For example, please state whether the authorities responsible for the application of the abovementioned legislation or tribunals have rendered decisions involving this matter which relates to the application of the Convention (Part IV of the report form).

Article 11. Measures to ensure adequate protection for workers employed by private employment agencies. The Japan Community Union Federation submitted in the representation that the decision rendered by the Supreme Court of Japan in the Iyo Bank case violated Article 11 of the Convention under which member States are required to ensure adequate protection for employees of temporary work agencies. In paragraph 40 of its report, the tripartite Committee noted the concern expressed by the Government with respect to new problematic forms of dispatch working, such as dispatching on a daily basis without proper management, workers continuously being engaged in dispatch work for a long time as a result of having no alternative options, and cases of dispatching to prohibited businesses. In paragraph 42, the tripartite Committee further noted that the proposed bill to revise the legislation would significantly increase the authorities’ power to control illegal dispatches. The Committee notes with interest that the 2012 Revised Worker Dispatch Law prohibits day worker dispatching in principle for a term of 30 days or less, obliges dispatching business operators to make efforts in taking measures to promote transition of fixed-term employment of certain dispatched workers to indefinite-term employment, and creates a system in which clients are deemed to have offered employment contracts to the dispatched workers in cases where illegally dispatched workers are accepted by clients that are aware of such illegality. Following the adoption of the 2012 Revised Worker Dispatch Law, the Committee invites the Government to provide further information with respect to the impact of these new measures taken to ensure protection for workers in the areas described in Article 11.

Other issues following the representation. In paragraph 41 of the tripartite Committee’s report, it was noted that – unlike the information earlier provided by the Government concerning the amendments to the Worker Dispatch Law that would strengthen the protection afforded to dispatch workers by prohibiting in principle the “registration-type dispatch” and worker dispatching to manufacturing business – the Diet did not retain the proposed amendments in the revised law enacted on 28 March 2012. The Government was invited to take all the necessary measures to bring the legislation and practice in line with Articles 1, 5 and 11 of the Convention. The Committee notes the information provided by the Government indicating that the 2012 Revised Worker Dispatch Law includes a provision to specify ways to deal with the registration-type worker dispatch and dispatching to the manufacturing industry as matters for study. The JTUC–RENGO indicates that the enactment of the 2012 Revised Worker Dispatch Law has reversed the current towards deregulation that has been the norm since the establishment of the Worker Dispatch Law. Nevertheless, the JTUC–RENGO finds it regrettable that the bill formulated on the basis of proposals put together through discussions in the Labour Policy Council was amended by the Diet. In particular, the deletion of the ban on “registration-type dispatch” and the call to reconsider the nature of this form of dispatch in the Labour Policy Council has resulted in the problem that the issue of registration-type workers, whose employment is precarious and for whom protection regarding the securing working conditions is in reality difficult to carry out, is left unresolved. In addition, issues such as the situation with manufacturing industry dispatching still remain. The JTUC–RENGO further indicates that the Revised Labour Contract Act, enacted on 3 August 2012, includes provisions that are applicable to registration-type dispatch workers and adds that worker protection can be carried out under the revised legislation. The Committee invites the Government to provide information with respect to the new legal framework in relation to “registration-type dispatch” and worker dispatching to manufacturing industry. It also invites the Government to provide information on the operation in practice of the 2012 Revised Worker Dispatch Law and the Revised Labour Contract Act with respect to registration-type dispatch workers and workers dispatched to the manufacturing industry.

Article 10. Machinery and procedures for the investigation of complaints. The Committee noted in its 2009 direct request that 11 complaints were filed with the Ministry for Health, Labour and Welfare in 2007 in respect of the services provided by private employment agencies. Among other things, such complaints pertained to the working conditions and fees. The Committee invites the Government to continue reporting on the number and nature of the complaints received in respect of the activities of private employment agencies.

Article 13. Cooperation between the public employment service and the private employment agencies. The Committee previously noted that provision is made, under the Basic Principles of Employment Policies, for public employment security offices and the private employment agencies to make efforts to improve their proper supply and demand adjustment functions through cooperation between the public and private sectors. The Committee invites the Government to provide information on the effectiveness of the cooperation between the public employment service and private employment agencies to improve their supply and demand functions.

Article 14. Adequate remedies in case of violations of the Convention. The Government indicates that it generally provides correctional guidance in cases of violations of the Worker Dispatch Law, and provided 9,280 instances of written guidance in 2011. Following the adoption of the 2012 Revised Worker Dispatch Law, the Committee invites the Government to provide information on the operation in practice of the remedies available in the event of violations of provisions of the Convention, and an evaluation of the adequacy of such remedies together with statistics, disaggregated by gender and sector of the economy, with respect to the source of complaints.

[The Government is asked to reply in detail to the present comments in 2014.]