Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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)

The Committee recalls that, at its 313th Session (March 2012), the Governing Body adopted the report of the tripartite committee established to examine a representation alleging non-observance by Japan of the Convention (document GB.313/INS/12/3). In paragraph 43 of the report, the tripartite 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. The Committee notes the Government’s report which includes information in reply to its previous comments and observations made by the Japan Business Federation (NIPPON KEIDANREN) and the Japanese Trade Union Confederation (JTUC–RENGO). It also notes the observations made by the National Confederation of Trade Unions (ZENROREN), received in September 2014. The Committee recalls that the Worker Dispatch Law was revised in 2012. The Government indicates in its report that the need to review the Worker Dispatch Law approximately one year after it is enforced that is, in October 2013, was pointed out during the deliberations in the Diet. In this regard, discussions were held at the Labour Policy Council between the Government and the social partners. A report was produced in January 2014 concluding that the employment instability issue of “registration-type dispatch” (workers are only “registered” with, but not employed by, the agency prior to their work assignment) and worker dispatching to manufacturing businesses should be responded to not by the means of prohibition, but by ensuring that dispatch business operators take measures for securing employment stability of fixed-term contract dispatched workers. Based on that report of the Labour Policy Council, a bill to amend the Worker Dispatch Law was submitted to the Diet. In its observations, the NIPPON KEIDANREN indicates that it is in favour of the bill, adding that its provisions will institute a permit system for all staffing agencies, create a good business environment for staffing agencies, and ensure equality of treatment and promote career development for dispatched workers. The NIPPON KEIDANREN is of the view that these measures are expected to solve the issues relating to “registration-type dispatch” and worker dispatching to manufacturing businesses. The JTUC–RENGO indicates that it has been making strong demands to adhere to the principle that forms of dispatch working are only temporary and to strengthen adequate protection for the employees of temporary work agencies by applying the principle of equal treatment. It adds that their views were not reflected in the bill. The JTUC–RENGO is of the view that there is a danger that a legal system normalizing indirect employment would be put in place in Japan. Moreover, there is a growing concern that forms of low-pay dispatch work will be further expanded. It adds that the term limit for dispatching workers and the equal treatment principle are two global standards that are clearly recognized in the Directive on Temporary Agency Work of the European Parliament and of the Council, as well as within the legal frameworks in China and in the Republic of Korea. The Government submitted the bill to the Diet in March 2014 but it was eventually withdrawn due to lack of time for deliberation when the session ended in June 2014. The JTUC–RENGO indicates that the bill will be resubmitted at the next session of the Diet in 2014. ZENROREN is of the view that the current state of the bill, if adopted, would likely increase the use of dispatched labour and seriously threaten the principle of direct employment. The Committee expresses its firm hope, in the same way as the tripartite committee, that the revised legislation will ensure “adequate protection” for all workers employed by private employment agencies in accordance with the Convention. The Committee invites the Government to provide a copy of the revised Worker Dispatch Law to the ILO once it has been adopted.

Article 5(1). Equality of opportunity and treatment. In paragraph 38 of the 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 Government indicates that section 44 of the Workers Dispatch Law provides that dispatch business operators and clients are subject to the guidance and inspection of the Labour Standards Inspection Offices with respect to section 3 of the Labour Standards Law, which prohibits different forms of discrimination. Moreover, the Government adds that the dispatching business operators are subject to the guidance and supervision of Prefectural Labour Bureaus with respect to the Employment Security Law. The Committee invites the Government to continue to provide information on the application of Article 5(1) of the Convention in practice. For example, please indicate 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.

Article 11. Measures to ensure adequate protection for workers employed by private employment agencies. The Government indicates that the revised Labour Contract Act, in force since April 2013, introduced provisions to convert fixed-term labour contract into open-ended contracts, to prohibit the termination of the labour contract by the employer in certain circumstances, to prohibit the imposition of working conditions on fixed-term contract workers that are unreasonably different from those of open-ended contract workers. Furthermore, the revised Worker Dispatch Law includes measures to promote the conversion of certain fixed-term contracts into contracts of an indefinite duration and to promote education and training of dispatched workers. The Committee notes that some provisions of the revised Worker Dispatch Law will be effective as of October 2015. In its observations, ZENROREN indicates that, while in recent years the number of work-related accidents causing four or more days of absence is on the decrease for the overall workforce, the number of occupational accidents is increasing in the case of temporary workers. It adds that many user enterprises neglect health and safety considerations for dispatched workers for whom they are not directly responsible. Moreover, ZENROREN indicates that Japanese legislation does not stipulate the obligation of a user enterprise to accept collective bargaining by temporary workers. The Committee invites the Government to provide its comments in this respect. It also invites the Government to specify the manner in which the provisions guaranteeing adequate protection for the workers employed by a private employment agency in the fields of collective bargaining (Article 11(b)) and occupational safety and health (Article 11(g)) are supervised by the competent national authorities in order to ensure their effective implementation (Article 14(2)).

Articles 10 and 14. Investigation of complaints and adequate remedies. The Committee notes that 13 complaints were filed with the Ministry of Health, Labour and Welfare in 2012 in respect of job placement services on matters including the clear indication of working conditions. In that same year, 87 complaints were filed regarding dispatch businesses for matters which included disguised employment contracts. The Committee further notes that 8,764 instances of written guidance were made in 2012. Also, the number of persons received by public prosecutors offices for Worker Dispatch Law violations amounted to 74 in 2012. The Committee invites the Government to continue to provide information on the number and nature of the complaints received in respect of the activities of private employment agencies. Please also continue to provide information on the remedies available in the event of violations of provisions of the Convention, an evaluation of the adequacy of such remedies, and statistics, disaggregated by sex and sector of the economy, with respect to the source of complaints.

Article 13. Cooperation between the public employment service and the private employment agencies. The Committee notes that the Basic Principles of Employment Policies were revised in 2014 and included the intention that various job-matching institutions, including the public employment service and private employment agencies, should fulfil their roles in their specialty fields and cooperate as necessary to maximize job-matching functions. The Committee invites the Government to report on the manner in which efficient cooperation between the public employment service and private employment agencies is promoted and reviewed periodically.