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

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

Employment promotion for persons with disabilities. Consultation with representative organizations of employers and workers. The Committee notes the Government’s report received in October 2014 which includes observations made by the Japanese Trade Union Confederation (JTUC–RENGO) and information in reply to the observations made by the National Union of Welfare and Childcare Workers (NUWCW) in August 2013. It also notes the most recent observations made by the NUWCW, received in August 2014. The Committee notes that Japan has ratified the United Nations Convention on the Rights of Persons with Disabilities in January 2014. The Government indicates in its report that the number of employed persons with disabilities in the private sector was 408,947 in June 2013, which is a 7 per cent increase over the previous year. The Government adds that the number of persons with disabilities who are employed has been increasing for ten consecutive years. The actual employment rate in private companies is growing steadily at 1.76 per cent, compared to 1.69 per cent in the previous year. The Government indicates that the Labour Policy Council’s Subcommittee on Employment of Persons with Disabilities sets goals for the employment policies for persons with disabilities, implements the policies and evaluates its outcomes. JTUC–RENGO is of the view that, although the employment of persons with disabilities is steadily expanding, further policies and measures are necessary as just over 40 per cent of companies have attained the statutory 2 per cent employment quota, and out of the companies that have not attained the quota, roughly 60 per cent have not employed a single person with disability. In addition, the targets of the employment rate system (quota system) are limited to persons holding a person with disabilities identification booklet but the proportion of persons actually holding the identification booklet is low. JTUC–RENGO adds that in order to put in place appropriate measures for the issues faced by persons with disabilities, it is necessary to have the data by age group, by gender and by type of disability for each of the policies and measures. The Committee invites the Government to provide its comments on the observations made by the NUCWC in August 2014. Please continue to provide an evaluation of the adopted measures for persons with disabilities in terms of increasing the employment opportunities of these persons in the open labour market. The Committee also invites the Government to provide examples of how the views and concerns of the social partners and representatives of organizations of and for persons with disabilities are taken into account in the formulation, implementation and evaluation of the policy on vocational rehabilitation and employment of persons with disabilities. 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.

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, at its 304th Session (March 2009), 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.304/14/6). The Committee also recalls that it has been entrusted with following up with the recommendations of the tripartite committee. In reply to the Committee’s previous comments, the Government provided information in its September 2013 report on the implementation and results of employment measures for persons with disabilities. In regards to the promotion of “team support” for providing continuous support during employment to workplace adaptation, 10,610 persons with disabilities found jobs in 2012. The Committee notes that 317 Employment and Life Support Centres for Persons with Disabilities were established as of April 2013. It further notes that 459 people were transferred to Type-A programmes under the Support Programme for Continuation of Work (SPCW) (designed for persons with disabilities considered already being able to work under an employment relationship) from Type-B programmes (designed for those facing difficulties working under an employment relationship, while nevertheless offering them productive activities) in 2010, and 1,606 were transferred to regular employment from Type-B programmes. In its observations made in 2013, the NUWCW indicates that the measures for the transition to open employment from Type-B programmes under the SPCW are insufficient. The Government indicates in its reply that it has been taking initiatives using employment policies in combination with social services policies to expand employment opportunities for persons with disabilities. It adds that the number of people who had changed to regular employment from Type-B programmes has increased from 1,606 in 2011 to 2,307 in 2012. The Committee invites the Government to continue to provide 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. Please continue to include 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 Public Employment Security Office on the transition of persons with disabilities from welfare to employment in the open labour market.

(b). Bringing work performed by persons with disabilities in sheltered workshops within the scope of the labour legislation (paragraph 75 of the report). In reply to the Committee’s previous comments, the Government indicates that, as of October 2011, 100,385 persons with disabilities had obtained the knowledge of work and received the necessary training in order to improve the skills through the production activities and other activities at the places of business under Type-B programmes under the SPCW. In its observations made in 2013, the NUWCW indicates that, under government policy, sheltered workshops and small-scale workshops are placed among welfare measures and not regarded as vocational rehabilitation facilities. It adds that the content of actual activities, however, is social rehabilitation and social participation through work, which corresponds to the purpose of vocational rehabilitation prescribed in Article 1 of the Convention. The NUWCW refers to the 2007 Ministerial Circular concerning the application of section 9 of the Labour Standards Law to persons with disabilities under Type B programmes under the SPCW and states that it restricts the application of labour legislation. The Government indicates in its reply that users of Type-B programmes under the SPCW are supposed to receive social services assistance while engaging in production activities without having employment contracts with the employers. They are not to be considered “workers” because they are entitled to have more flexibility regarding working days, working hours and workload without being given instructions or guidance. It adds that determination of a person’s qualifications as a worker should be made with a comprehensive view, and should be based on various elements which include the manner in which the labour is provided and remuneration is equal to labour, to determine if the person is qualified for an employer–employee relationship. The Government indicates that labour laws and regulations apply fairly to persons with disabilities and does not preclude the application of the Labour Standards Law to persons with disabilities who work in places under the Type-B programmes. The Committee invites the Government to continue to provide information 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 previous observations, the Committee noted that the Government had adopted measures to increase the rates of workshop pay in the framework of the Five-Year Plan to Double Workshop Pay (Five-Year Plan 2007–11). The Government indicates that a three-year workshop pay increase support plan has been initiated to contribute to increase workshop pay from 2012 to 2014 after conducting a review in light of the results of such efforts to date. In its observations made in 2013, the NUWCW indicates that the wage increase under the 2012–14 plan is not feasible under the current legislation, with the exemption of minimum wage legislation. The Government indicates that under Act No. 50 of 2012 concerning the Promotion of Procurement of Goods from the Disabled Employment Facilities by the State, enacted on 20 June 2012 and enforced on 1 April 2013, included administrative agencies and local governments that are obligated to procure goods and services from the disabled employment facilities on a preferential basis. It adds that the Act will contribute to an increase in workshop pay coupled with support for the pay increase for the Type-B programmes. The Committee invites the Government to continue to provide information on the 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). The Committee notes from the Government’s 2013 report that low-income households have been exempted from the disability social service fees. In its observations made in 2013, the NUWCW reiterates that charging service fees is in violation of ILO Conventions and Recommendations concerning persons with disabilities. The Government indicates that, as of December 2013, 93.4 per cent of users of disability social services, including participants in the Type-B programmes, have been receiving services free of charge. Recalling that Paragraph 22(2) of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), recommends provision of free vocational rehabilitation services, the Committee encourages the Government to continue to take measures in this regard and to provide information on the impact of the measures taken to ensure that persons with disabilities are not discouraged from becoming involved in such programmes and eventually gaining access to the labour market.

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). (b). Quota system for the employment of persons with disabilities (paragraphs 81and 82 of the report). The Committee notes the updated data provided by the Government on the implementation of the Five-Year Plan (2008–12). It also notes that the amended Act on Employment Promotion of Persons with Disabilities, enacted in June 2013, includes persons with mental disabilities in the legally mandated employment quota ratio from the employment situation of persons with disabilities. The Government indicates that the number of persons with disabilities employed in the private sector as of June 2012 was 382,363. The number of employed persons with severe disabilities was 104,970 in 2012, and increase of 9,523 from 2010. In its observations made in 2013, the NUWCW indicates that the actual number of employment of persons with severe disabilities should be expanded not by resorting to the temporary measure of the double counting system (persons with severe disabilities are double counted under the quota system) but by meeting the obligation of reasonable accommodation or adopting a new policy through collaboration of employment policies and welfare measures. The Government reports that the Subcommittee on Employment of Persons with Disabilities of the Labour Policy Council indicated in their March 2013 report that the double counting system has been playing a certain role in promoting the employment of persons with severe disabilities who have serious difficulty at work. JTUC–RENGO is of the view that there is an issue regarding double counting, but adds that this system has become an incentive for the employment of persons with severe disabilities. The Committee invites the Government to continue to provide relevant information on persons with disabilities and persons with severe disabilities employed under the quota system.

(c). Reasonable accommodation (paragraph 84). The Government indicates that the Bill on the Elimination of Discrimination against Persons with Disabilities was submitted to the Diet in April 2013 and approved in June 2013. According to the Act, administrative bodies shall provide reasonable accommodation and private enterprises shall endeavour to provide it. Moreover, the amended Act on Employment Promotion of Persons with Disabilities defines the measures to prohibit discrimination against persons with disabilities on employment and minimize the obstacles for persons with disabilities to work (obligation to provide reasonable care). The Committee notes that the effective date of the obligation to provide reasonable accommodation will be April 2016. JTUC–RENGO indicates that the concrete contents of the prohibition of discrimination and the provision of reasonable accommodation are to be formulated by guidelines, and a government research group is now finalising a report on the nature of these guidelines. The Committee invites the Government to provide updated information on the implementation and results of measures concerning reasonable accommodation.