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

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO), received together with the Government’s report. The Committee requests the Government to provide its comments in this respect.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

In its previous comments, the Committee recalled the recommendations of the tripartite committee established to examine a representation alleging non-observance by Japan of the Convention (GB.313/INS/12/3). It expressed the firm hope, in the same way as the tripartite committee, that amendments to the Act for Securing the Appropriate Operation of Worker Dispatch Undertakings and the Protection of Dispatch Workers (Worker Dispatch Act) would ensure “adequate protection” for all workers employed by private employment agencies in accordance with Articles 1, 5 and 11 of the Convention. Noting that the Bill for partial revision of the Worker Dispatch Act was enacted on 11 September 2015, the Committee requested the Government to provide detailed information on the above Act in relation to each of the provisions of the Convention. The Committee notes the information provided by the Government on the 2018 amendments to the Worker Dispatch Act which, among other things, require temporary work agencies to ensure that the dispatched workers receive equal and balanced treatment by the user enterprise, including through the conclusion of labour-management agreements. The Committee notes that these amendments entered into force on 1 April 2020. In its observations, JTUC-RENGO refers to the 2022 amendments to the Employment Insurance Act, which also amended the Employment Security Act to broaden the definition of private employment agencies that compile and provide information on job vacancies (Article 1(1)(c) of the Convention) and subject these agencies to legal restrictions. Additionally, the Committee notes the Government’s reference to a June 2022 decision of the Supreme Court concerning section 40-6 of the Worker Dispatch Act, as amended in 2015, which recognized the establishment of a contract of employment between a user enterprise and an illegally dispatched worker, based on the worker’s intention. The Committee requests the Government to provide detailed updated information in its next report on the content and application of the Worker Dispatch Act, as amended, in relation to the provisions of the Convention.

Articles 1, 5 and 11 of the Convention.Definitions. Equal treatment by private employment agencies. Measures to ensure adequate protection for workers employed by private employment agencies. The Government indicates that the 2015 and 2018 amendments to the Worker Dispatch Act did not include any changes relevant to Article 1 of the Convention. The Government points out that the Worker Dispatch Act defines worker dispatch as “having a worker employed by one person so as to be engaged in work for another person under the instructions of the latter, while maintaining the worker’s employment with the former”. The Government considers that this definition is in conformity with Article 1(1)(b). The Committee notes the observations of JTUC-RENGO with respect to the 2022 amendments to the Employment Insurance Act and Employment Security Act, which broadened the definition of private employment agencies that compile and share data on job vacancies (as contemplated in Article 1(1)(c) of the Convention), and subject them to legal restrictions. The Government does not provide specific information with respect to the nature or extent of the restrictions mentioned. With respect to Article 5 of the Convention, the Government reiterates that, pursuant to section 44(1) of the Worker Dispatch Act, the prohibition against discriminatory treatment set out in section 3 of the Labour Standards Act is applicable to temporary employment agencies (dispatching business operators) and user enterprises (“client operators”). The Government further notes that discriminatory treatment in relation to pregnancy, childbirth, childcare leave and nursing leave is prohibited under the relevant national legislation, which is applicable to both temporary employment agencies and user enterprises under sections 47-2 and 47-3 of the Worker Dispatch Act. In this context, the Government adds that if violations of labour standards-related laws and regulations are found, corrective guidance is provided. With respect to Article 11 of the Convention, the Government indicates that as part of the revision of the Worker Dispatch Act, unreasonable differences in treatment of dispatched workers and permanent employees were eliminated, and information obligations in regard to dispatched workers were strengthened. The Government adds that 53.3 per cent of temporary work agencies indicated that they had increased wages following the 2018 amendments to the Worker Dispatch Act. JTUC-RENGO observes that regulations were established for equal and balanced treatment of dispatched workers by the 2018 amendments to the Worker Dispatch Act, expressing its view that the amendments represent improvements for dispatched workers to eliminate working condition disparities. It nevertheless indicates that the amendment has not resulted in an increase in dispatched workers’ total take-home wages, with almost half the temporary work agencies reporting no changes. It considers that further action is needed to effectively enforce the amended Worker Dispatch Act. JTUC-RENGO adds that dispatched workers’ contracts were disproportionately affected by terminations during the COVID-19 pandemic and calls for effective measures to be taken to ensure stable employment for this category of workers. With respect to employment stability and career progression, the Government reiterates that the 2015 amendments to the Worker Dispatch Act require temporary work agencies to provide dispatched workers with education and training, and career guidance for those wishing to receive such training. In addition, prior to the 2015 amendments, temporary work agencies were required to make efforts to promote the conversion of a certain number of fixed-term dispatched workers to permanent employment. The Government notes that this requirement creates an obligation for dispatched workers, who are expected to be employed for three years, with a lesser obligation (to make efforts) for workers, who are expected to be employed for more than one year but less than three years. The Government indicates that the 2018 amendments to the Worker Dispatch Act require temporary work agencies to ensure equal treatment of dispatched workers with regular employees of the user enterprise through labour-management agreements meeting certain requirements. With respect to the application of the amendments concerning the promotion of employment stability, career development and ensuring equal treatment, the Government indicates that 377,418 dispatched workers received career guidance, 3,236,152 received education and training for career development and 547,984 workers benefited from employment stability measures. In light of the observations of JTUC-RENGO, the Committee requests the Government to provide detailed updated information, including disaggregated statistical data, on the content, scope and impact of the amendments to the Worker Dispatch Act on the job stability, career development, equal treatment and adequate protection of dispatched workers in accordance with Articles 5 and 11 of the Convention. In addition, noting that private employment agencies within the meaning of Article 1(1)(c) of the Convention are now subject to legal restrictions following amendments introduced in 2022 to the Employment Insurance Act and the Employment Security Act, the Committee requests the Government to provide information on the nature and scope of these restrictions and the manner in which they are applied and enforced.

Articles 10 and 14. Investigation of complaints and adequate remedies. The Committee notes the information provided by the Government with respect to amendments introduced to the Worker Dispatch Act in 2018. The amendments establish new procedures to facilitate the resolution of disputes by the relevant prefectural director, as well as conciliation processes carried out by dispute coordinating committees in matters arising from violations of the Act. The amendments seek to promote the resolution of disputes without having recourse to the courts, as well as to accelerate the resolution of disputes concerning equal pay for equal work brought by dispatched workers. The Government further indicates that these 2018 amendments include provisions aimed at eliminating unreasonable differences in treatment, strengthening the obligation to explain the conditions of their employment to workers, and developing alternative dispute resolution procedures. With respect to complaints mechanisms, the Committee notes that in 2021, 69 complaints of violations of the Worker Dispatch Act were registered with the Minister of Health, Labour and Welfare. It notes the Government’s indication that, pursuant to section 49-3 of the Worker Dispatch Act, the temporary work agency and the user enterprise are prohibited from taking any retaliatory action against the dispatched worker for bringing a complaint. In 2021, the Minister received 69 notifications pertaining, inter alia, to disguised contracting. In its observations, JTUC-RENGO indicates that, while a certain number of administrative penalties have been imposed for violations of the Worker Dispatch Act, between 2018 and 2022 there were cases of illegal dispatches, including double dispatches, and action to remedy these has been insufficient. In addition, the workers’ organization considers that, while strengthening the inspection system in relation to private employment agencies, it should take action to ensure that dispatched workers employed through problematic agencies are able to continue in appropriate employment. The Government reports that in 2020, there were 1,562,090 dispatched workers, of which 610,683 were permanent dispatched workers. In the same year, violations recorded resulted in: 8,258 cases of documented guidance, six orders for improvement, two orders suspending business operations and ten cases of license revocation for violations of the Worker Dispatch Act. In the same year, private employment agencies received 17,346,112 new job applications. There were 1,967 cases of documented guidance, three orders for improvement, two orders for business suspension and three license revocations for violations of the Employment Security Act. The Government adds that the public prosecutor’s office opened 129 criminal proceedings for violations of the Employment Security Act and 39 proceedings for violations of the Worker Dispatch Act. The Committee requests the Government to provide detailed updated information with respect to the remedies available in the event of violations of provisions of the Convention. It also requests the Government to continue to provide information on the number and type of complaints recorded concerning dispatched workers, the outcome of the complaints and penalties imposed, where relevant. The Committee requests the Government to provide information regarding inspections carried out in relation to temporary work agencies and the results of such inspections. The Committee also requests the Government to provide information on whether the national courts or other review bodies have rendered decisions relevant to the application of the Convention, particularly Articles 1, 5 and 11, and to provide the texts of these decisions.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO), received together with the Government’s report. The Committee requests the Government to provide its comments in this respect.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

In its previous comments, the Committee recalled the recommendations of the tripartite committee established to examine a representation alleging non observance by Japan of the Convention (document GB.313/INS/12/3). It expressed the firm hope, in the same way as the tripartite committee, that amendments to the Worker Dispatch Law would ensure “adequate protection” for all workers employed by private employment agencies in accordance with Articles 1, 5 and 11 of the Convention. Noting that the Bill for Partial Revision of the Act for Securing the Appropriate Operation of Worker Dispatch Undertakings and the Protection of Dispatch Workers (the amended Law) was enacted on 11 September 2015, the Committee requested the Government to provide detailed information on the amended Law in relation to each of the provisions of the Convention. The Committee regrets that the Government’s report does not fully respond to its previous request. In its observations, the JTUC–RENGO indicates that the amended Law effectively abolished the existing three-year limitation on worker dispatch arrangements. The JTUC–RENGO adds that, by shelving the introduction of the principle of equal treatment, the amendments threaten to roll back worker protections and expanded the number of “those who will be low pay dispatch workers for life”. The JTUC–RENGO calls for firm adherence to the principle that dispatch work is irregular and temporary and to the application of the principle of equal treatment. It expresses concern that the number of dispatched workers with poor working conditions will continue to increase under the amended Law. The JTUC–RENGO therefore urges verification of the situation of dispatched workers following the adoption of the amended Law, as well as a revision of the Law that will ensure the protection of dispatch workers in terms of employment stability and improved treatment. The Committee reiterates its request that the Government provide detailed information on the content and application of the amended Law in relation to each of the provisions of the Convention, with particular focus on Articles 1, 5 and 11.

Articles 10 and 14 of the Convention. Investigation of complaints and adequate remedies. The Committee notes the Government’s indication that in 2014, 1,589 instances of written administrative guidance were made in relation to Employment Security Act violations compared to 8,788 instances concerning Worker Dispatch Law violations. During the same year, 71 persons were received by the Public Prosecutor’s Office for Worker Dispatch Law violations and 83 for Employment Security Act violations. In its observations, the JTUC–RENGO points out that there are numerous problems arising out of working conditions for dispatch workers that are different from those advertised. These include issues of: employment status (whether or not a worker is a regular employee); probationary periods and wages; overtime pay; work hours and content of work. It adds that the number of such cases is increasing due to the rapidly growing number of job search websites. In this regard, the JTUC–RENGO stresses that when their actual working conditions differ from the conditions advertised, the only recourse available to dispatch workers is to immediately terminate their contract. The Committee requests the Government to continue to provide information on the number and nature of the complaints received in relation to the activities of the private employment agencies in placing dispatch workers. It also requests the Government 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, age and economic sector, with respect to the source of complaints.

Article 11. Measures to ensure adequate protection for workers employed by private employment agencies. The Government indicates that the amended Law includes measures to promote employment stability and career development for dispatched workers, including provisions requiring dispatch business operators to provide education and training to dispatched workers and career consulting services to applicants. The Committee notes, however, the observations of JTUC–RENGO indicating that the three-year limit placed by the amended Law on dispatching arrangements does not guarantee in practice the direct employment of dispatched workers at the expiration of the three-year period. The JTUC–RENGO also points out that the educational training measures of dispatched workers are insufficient to allow dispatched workers who wish to become regular employees to advance in their careers. The Committee notes the Government’s indication that the amended Law also includes measures to ensure equality of treatment of dispatched workers. In particular, the Government refers to the obligation of dispatch business operators to provide the dispatched worker with an explanation of the elements considered in determining their salary. Moreover, dispatch receiving companies are obligated to give consideration to providing information to the dispatch business operator regarding the salary levels of workers who are in a similar position to the dispatched workers. The companies are also required to allow dispatched workers to use health and welfare facilities on an equal footing with the rest of its workers. In this respect, the JTUC–RENGO points out that the amended Law establishes only the obligation to take into consideration the principle of equal treatment for dispatched workers. It therefore calls for the adoption of measures aimed at achieving fundamental improvements in the treatment of dispatched workers. The Committee requests the Government to provide information on the application in practice of the amended Law in terms of promoting employment stability and career advancement of dispatched workers and ensuring equality of treatment. In addition, the Committee requests the Government to indicate whether the authorities responsible for the application of the abovementioned legislation or tribunals have rendered decisions involving these matters which relate to the application of Article 11 of the Convention.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the Japan Business Federation (NIPPON KEIDANREN) and the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

The Committee recalls the recommendations of the tripartite committee established by the Governing Body to examine a representation alleging non-observance by Japan of the Convention (document GB.313/INS/12/3, 313th Session (March 2012)). 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. In this regard, the Committee notes the Government’s indication that the Bill for Partial Revision of the Act for Securing Appropriate Operation of Worker Dispatch Undertakings of Dispatch Workers was passed on 11 September 2015. In its observations, NIPPON KEIDANREN refers to the said Bill, before it was adopted, and indicates that it was formulated on the proposal of the Labour Policy Council and that the Bill was generally reasonable. The JTUC–RENGO also refers to the Bill in its observations and indicates that, in order to ensure that dispatched workers’ employment is stabilized and their treatment improved, it had strongly called for legal revisions that would contribute to worker protection, including maintaining restrictions on contract periods by job categories and applying the equal treatment principle. The Committee refers to its previous comments and 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. In view of the recent legislative amendments, the Committee requests the Government to provide detailed information on the amended Worker Dispatch Law in relation to each of the provisions of the Convention and to the matters raised in the previous observation.

[The Government is asked to reply in detail to the present comments in 2016.]

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

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.

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

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.]

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided in the Government’s report for the period ending in June 2008, received in October 2008, including comments from JTUC–RENGO and the Government’s replies thereto. It further notes that the Governing Body established at its 306th Session (November 2009) a tripartite committee to examine the representation alleging non-observance by Japan of Convention No. 181, which the Japan Community Federation submitted under article 24 of the ILO Constitution. The present request is therefore limited and full dialogue will continue when the proceedings before the Governing Body are terminated.

Article 2, paragraph 2, of the Convention. Scope of the Convention. The Committee notes the information provided by the Government on the organization of the mariner dispatching services, including extracts of the Mariners Employment Security Law. The Committee recalls that, according to Article 2, paragraph 2, the Convention does not apply to the recruitment and placement of seafarers. The Government might wish to refer to the Maritime Labour Convention, 2006, which includes provisions addressing this matter.

Article 14. Adequate remedies in case of violations of the Convention. The Committee notes the concerns expressed by JTUC–RENGO in respect of the mechanisms for enforcing the implementation of national legislation.
JTUC–RENGO states that under the provisions of the Worker Dispatching Law, worker dispatch services require a licence to operate and any violations of the law are addressed through the provision of administrative guidance. JTUC–RENGO states that despite the provision of such guidance, violations have not abated. In addition, JTUC–RENGO states that the current law does not provide for penalizing employers who illegally receive workers from the dispatch service provider. With particular regard to the provisions of national legislation prohibiting discrimination in relation to vocational introduction and guidance, JTUC–RENGO alleges that no penalties are imposed to redress cases of violations of these provisions. JTUC–RENGO states that it is uncertain what role civil law can play in dealing with these violations, and suggests that there is a need to consider the effectiveness of the measures for dealing with violations. The Government considers it more effective to correct employers’ actions through measures such as the provision of advice and guidance, rather than through the imposition of strict penalties. The Committee notes the Government’s indication that it makes continuous efforts to ensure the effective enforcement of the Convention, through the provision of guidance, advice and recommendations. The Government remarks that, in 2006, guidance was provided in 606 cases in respect of violations of the Employment Security Law, and in 6,281 cases in respect of the Worker Dispatching Law. The Committee invites the Government to provide information on the operation in practice of the remedies available for dealing with violations of provisions of the Convention, and an evaluation of the adequacy of such remedies together with statistics showing the effectiveness of such remedies.

Article 5, paragraph 2. Special services or targeted programmes for the most disadvantaged workers. The Committee notes the Government’s indication that section 3 of the Employment Security Law, which prohibits discriminatory treatment in the provision of employment placement services, does not prevent private employment agencies from providing special services or targeted programmes designed to assist the most disadvantaged workers in their jobseeking activities. The Committee invites the Government to report on the operation of such special services or targeted programmes, aimed at assisting the most disadvantaged workers.

Article 7, paragraph 2. Authorization of exceptions to the rule that private employment agencies shall not charge workers for the services provided. The Committee recalls that the system of collecting fees for the placement of entertainers, model technologists, administrative executives and experienced technicians who earn more than 7 million yen annually, as well as housekeepers, waiters, cooks and models, is being maintained as an exceptional measure. The Government refers to consultations with the Japan Federation of Employers’ Associations, and the Japan Trade Union Confederation in this regard. The Committee invites the Government to continue reporting on any developments in respect of the system of fee-charging employment services in respect of these categories of workers.

Article 10. Machinery and procedures for the investigation of complaints. The Committee notes 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.

Articles 11 and 12. Allocation of responsibility and measures to ensure the adequate protection for workers employed by private employment agencies. The Committee notes the information provided by the Government on the measures taken to specify the responsibilities of private employment agencies and the user enterprises with regard to worker protection. The Committee also notes the comments provided by JTUC–RENGO stating that the responsibilities of the user enterprises should be extended to ensure collective bargaining, occupational health, safety education, medical examinations and provision to compensate overtime work should exist, so as to ensure adequate protection of workers employed by private employment agencies. The Committee invites the Government to continue providing information on the manner in which responsibilities are allocated between private employment agencies and user enterprises to ensure adequate worker protection.

Article 13. Cooperation between the public employment service and the private employment agencies. The Committee notes 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 more practical information backed by statistics on the effect of conditions to promote cooperation between the public employment service and private employment agencies.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee takes note of the detailed information and the statistical data supplied by the Government in its report received in October 2005, in response to its previous direct request. It also acknowledges the reception of the translated relevant legislative texts applying the Convention, provided by the Government. It asks the Government to provide additional information on the following points.

2. Promotion of equality of opportunity and treatment in access to employment. The Government recalls that section 3 of the Employment Security Law prohibits discrimination in employment placement. It also indicates that guidance and advice in this respect are provided to private employment agencies. The Committee asks the Government to indicate if measures to ensure that private employment agencies do not discriminate in access to employment have also been envisaged (Article 5, paragraph 1, of the Convention).

3. Special services or targeted programmes for the most disadvantaged workers. The Committee takes note of the Government’s indication that the information on the implementation of special services or targeted programmes designed to assist the most disadvantaged jobseekers in their jobseeking activities by private agencies is not yet available. It asks the Government to keep it informed of any developments in this regard (Article 5, paragraph 2).

4. Authorization of exceptions to the rule that private employment agencies shall not charge workers for the services provided. The Government recalls that a system of collecting fees from applicants in the fields of housekeeping, cooks and waiters is being maintained as a transitional measure until such time as the general conditions improve. The Government further indicates that fees can also be charged by private employment agencies to technologists, administrative executives and experienced technicians with an annual income exceeding 7 million yen, for the services provided. As requested by Article 7, paragraph 3, the Committee asks the Government to continue providing information on such exceptions and give the reasons therefore.

5. Machinery and procedures for the investigation of complaints. The Committee notes that there were 33 complaints in relation to the services provided by private employment agencies. It asks the Government to continue providing information on the number of complaints received, and the nature of the information reported, concerning the activities of private employment agencies (Article 10).

[The Government is asked to reply in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information contained in the Government’s first report, which covers the period July 2000 to May 2001. It would appreciate receiving a translation of the relevant provisions of the following texts as most recently amended: Labour Standards Law (No. 49 of 1947); Workmen’s Accident Compensation Insurance Law (No. 50 of 1947); Employment Security Law (No. 141 of 1947) and its Notification (No. 141 of 1994); Worker Dispatching Law (No. 88 of 1985); Guidelines for the Measures to be Taken by the Clients of Worker Dispatching; Guidelines for the Employers of Dispatching Undertakings and Notification of the Ministry of Health, Labour and Welfare (No. 137 of 1999); and the Ministry of Health, Labour and Welfare Establishment Law (No. 97 of 1999). The Committee also requests further information on the following points.

Article 5, paragraph 1, of the Convention. The Committee notes the information provided on prohibition of discrimination once in employment. Please indicate how prohibition against discrimination in access to employment is ensured through the action of private employment agencies, in the absence of legislative provisions on his issue.

Article 5, paragraph 2. Please also indicate if special services or targeted programmes designed to assist the most disadvantaged jobseekers in their job seeking activities have been envisaged or implemented.

Article 7, paragraphs 2 and 3. According to the Government, the current system of collecting fees from applicants in the fields of housekeeping, cooks and waiters is to be maintained as a transitional measure until such time as the general conditions improve. The Committee notes this information and would appreciate being kept informed of future developments concerning placement fees for these categories of workers.

Article 8, paragraph 2. Please indicate, where applicable, the bilateral agreements concluded to prevent abuses and fraudulent practices in the recruitment, placement and employment of migrant workers.

Article 10. The Committee notes the legislative provisions cited in the report setting up various mechanisms for the filing of complaints and investigations by Government agencies concerning the activities of private employment agencies. Please provide information on the number of complaints received, and the nature of the information reported, concerning the activities of private employment agencies as well as whether employers’ and workers’ organizations are involved in the machinery and procedures established for the investigation of such complaints.

Part V of the report form. Please supply extracts from inspection reports and statistics on the number of workers covered by the measures giving effect to the Convention.