Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Workers with Family Responsibilities Convention, 1981 (No. 156) - Japan (Ratification: 1995)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Special measures to address the impact of COVID-19. In its supplementary information, the Government indicates that a special financial subsidy was put in place to support work and family-life balance in response to COVID-19, particularly applicable to workers affected by school closures. The subsidy is provided when employers allow workers who are guardians of children to take paid leave (excluding statutory annual paid leave) during the temporary closure of elementary schools or other facilities. According to the Government, from April 2020 onwards, an amount equivalent to the regular wages paid to the workers, up to 15,000 Yen (US$ 142) a day, is provided to small and medium enterprises SMEs. Moreover, workers in SMEs are also entitled to paid leave for family care. According to the Government if the total number of days of leave taken by a worker - who needs to take care of his/her family - is of 5 or more but less than 10, an amount of 200,000 Yen (US$ 1890) will be provided, while 350,000 Yen (US$ 3310) will be provided if the total number of days of leave taken per worker is 10 or more. The Committee notes that this measure is applicable for leave taken between April 1, 2020 and December 31, 2020.

The Committee notes the observations of the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report. It also notes the observations of the Japan Business Federation (NIPPON KEIDANREN) received on 29 August 2019.

Article 2 of the Convention. Application to all categories of workers. Non-regular employees. In its previous comments, the Committee asked the Government to step up its efforts to ensure the effective application of the Convention to non-regular employees, such as fixed-term contract, part-time and dispatched workers in both the private and public sectors. The Government indicates in its report that, the Childcare Leave, Caregiver Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members Act (Childcare and Family Care Leave Act) was amended by Law No.14 of 2017. The amendments allow fixed-term employees to take childcare leave, provided that: (1) the employee has been employed by the same employer continuously for a year or longer at the time of submitting the request for child care leave; and (2) it is unclear whether the employment contract (or the renewed employment contract) will end/expire before the child reaches one year and six months of age. The amendments also allow fixed-term employees to take family care leave, on condition that: (1) the employee has been employed by the same employer continuously for a year or longer, at the time of submitting the request for family care leave; and (2) it is unclear whether the employment contract (or the renewed employment contract) will end/expire six months after the expiration of 93 days from the starting date of the caregiver leave.

According to the Government, a leaflet entitled “Fixed-term Employees who are Eligible for Childcare and Family Care Leave” has been prepared in 2018, as part of the awareness raising campaign on the 2017 amendments. As regards statistical information, the Government indicates that: (1) there is no statistical information on the rate of family leave taken by fixed term workers; (2) the rate of childcare leave taken in 2017 by fixed-term workers was 7.5 per cent for male and 93 per cent for female workers; (3) in 2017, 242 part-time public service workers at the national level took childcare leave, including seven male and 234 female workers; (4) in the same year, 36 part-time public service workers took family leave (4 male and 32 female employees).

The Committee notes the observations of JTUC-RENGO stating that: (1) among women who were in a regular employment relationship prior to pregnancy, only 62.2 per cent are still in a regular employment relationship by the time their first child has reached the age of one and that the proportion of these women who took childcare was 54.7 per cent; and that (2) during the debate leading up to the 2017 amendments, JTUC-RENGO submitted that the conditions placed on taking leave for workers on fixed-term contracts should be abolished, and as a result, some of them (such as the need to show the probability of renewing the employment contract) were relaxed.

The Committee welcomes the legislative efforts undertaken by the Government to enhance the application of the Convention to all workers irrespective of their contractual status. However, it notes from the above statistical information that the rate at which childcare leave taken in 2017 by fixed-term workers is significantly disproportionate between men and women and between regular and non-regular workers. Recalling that the Convention applies to all categories of workers and all branches of economic activity, the Committee urges the Government to ensure that the Convention applies in practice to all categories of workers, in particular to non-regular employees and to provide information on the measures taken in this regard and their impact. The Committee also asks the Government to take the necessary measures to raise awareness among fixed-term workers about the 2017 amendments of the Childcare and Family Leave Act. Lastly, it asks the Government to continue to provide statistical information disaggregated by sex on the number of non-regular workers requesting and receiving childcare and family care leave in the private and public sectors.

Article 4(a). Organization of work. Long working hours. The Committee previously asked the Government to step up its efforts to reduce annual working hours in order to enable men and women with family responsibilities to enter and remain in the labour market. The Committee notes with interest the adoption in 2018 of the “Work Style Reform legislation” which bundles together amendments to eight laws, including the Employment Measures Act No.132 of 1966, the Labour Standards Act No.49 of 1947, and the Working Hours Arrangements Improvement Act No. 90 of 1992 to tackle inter alia the “karoshi” (death by overwork) phenomenon. The Act requires employers to implement specific measures to limit employees’ working hours, to ensure that employees take annual leave, and thus create a healthier and more flexible work environment. Concerning overtime, the new law contains among other measures, two rules that set maximum limits on overtime hours: (1) the Basic Limit Rule, which says that overtime hours cannot exceed 45 hours per month or 360 hours per year; and (2) the Extended Limit Rule, which allows employers to extend the basic limit under special circumstances (e.g. an exceptionally busy period, and an unexpected volume of customer complaints or a sudden change in product expectations). The extended limit cannot exceed 100 hours per month and 720 hours per year; and employees may not work, on average, more than 80 hours of overtime per month. The number of months in which the worker works over the Basic Limit cannot exceed six months in a year. Firms that violate these limits face a penalty of up to JPY300 000 (US$2,660) per worker. The Committee notes that highly skilled professional workers may be exempt from the new overtime provisions, and that, because labour shortage in Japan is more severe in certain sectors than in others, the following occupations will be exempt from this law for five years: car drivers, construction workers, doctors, and employees engaged in the research and development of new technology. The Ministry of Health, Labour and Welfare (MHLW) has set different compliance deadlines ranging from April 1, 2019 to April 1, 2023 for different requirements of the Act to give employers sufficient time to amend their work rules and put compliance mechanisms in place depending on the size of the company. In addition to overtime work limits, the Act requires workers who are entitled to at least 10 days of annual leave to take at least five of these days each year. If an employee does not voluntarily choose to use these days, it becomes the employer’s responsibility to designate the timing in which the leave must be taken. Moreover, the Guidelines for Review of Working Hours (Guidelines for Improvement of Working Hours Arrangement) were revised to encourage the introduction of the interval system between shifts in response to enforcement of the “Work Style Reform Legislation”.

The Committee notes the observations of NIPPON KEIDANREN indicating that the limit of overtime work has been agreed with the trade unions and awareness measures have been taken to promote the take up of paid leave and compliance with the revised laws on working hours. The Government further indicates that in 2017, inspections were carried out to 25,676 workplaces, and among them 11,592 workplaces received guidance for correction and improvement of illegal overtime work.

The Committee welcomes the Government’s efforts to change Japan’s long working-hour culture, which is a major obstacle to the effective implementation of the Convention. The Committee asks the Government to take proactive measures to ensure the effective application of the “Work Style Reform Legislation” to all workers. The Committee also asks the Government to provide information on the measures taken or envisaged to: (i) strictly enforce overtime work limits introduced in 2019-20; (ii) closely monitor the scheme that exempts skilled professional workers from overtime regulation to avoid excessive working hours; and (iii) introduce a minimum limit on the interval of time between the end of one work day and the beginning of the next work day. The Committee asks the Government to provide statistical information on the number of cases where penalties have been imposed on companies that do not comply with the maximum limits on overtime hours as well as the number of workers affected by the violations, and the amount of penalties imposed.

Articles 4(b) and 5. Childcare and family leave and facilities. The Committee notes that the 2017 legislative amendments to the Childcare and Family Care Leave Act have also introduced a set of new leave entitlements for both regular and non-regular workers. The latter are now entitled to request an extension of the period of childcare leave until the child reaches two years of age, if the child cannot attend kindergarten. In this regard, a series of initiatives to improve the childcare leave take-up by male workers have been taken, including: (1) the development of a system in which male workers are able to take childcare leave again in cases where they had taken it within eight weeks from the childbirth; (2) the possibility of using the family care leave in a whole or up to three different periods, and (3) the provision of subsidies for companies that encourage male workers to take childcare leave. The Government indicates that, in 2017 the percentage rate of workers who took childcare leave reached 5.14 per cent for male workers, and 83.2 per cent for female workers; whereas, in 2014, this rate was 5.2 per cent and 25.3 per cent respectively. In 2014, the rate of workers who used family care leave reached 1.2 per cent for female workers and 1.1 per cent for male workers; whereas this rate was 2.4 per cent and 3.1 per cent respectively in 2017. Moreover, the number of local public service employees in full-time work who took childcare leave in 2017 was 46,207 (2,750 male and 43,457 female employees), while the number of those who took family care leave in the same year was 2,816 (819 male and 1,997 female employees). The Committee notes that in its observations, JTUC–RENGO expressed concern about the fact that the vast majority of workers who take childcare leave are women and that, such a situation will lead to a reversal of promotion of women’s participation. It adds that there is still only a small proportion of men taking childcare leave compared to women, with a rate of 82.2 per cent for women compared to 6.16 per cent for men. This is mainly due to the issue of the number of children waiting to enter authorized day care facilities. JTUC–RENGO indicates that despite the government’s plans to expand childcare facilities: in April 2018, 19,895 children were on waiting lists for nursery centres [….]. The major cause of such a situation is the shortage of childcare and nursing workers and their level of remuneration which is lower than the average remuneration for workers in other sectors (around 110,000 yen (US$900) per month). Although an increase to 3,000 yen (US$2,000) per month was decided in April 2019 following the adoption of the New Economic Policy Package (“the Package”), such a measure is not going to be sufficient to eliminate disparity in wages. JTUC-RENGO recalls that, the Government is required to implement effective policies to quickly resolve the issue of children on day care waiting lists and promote the use of childcare leave by men by providing sufficient quality nursery centres. Referring to the 2017 Ministry of Internal Affairs and Communications’ Employment Status Survey, JTUC-RENGO states that 3 million out of the 59.21 million employees in Japan engage in nursing care while working. Of those people, men account for 1.27 million, whereas women account for 1.73 million. Regarding family leave services, JTUC–RENGO expresses the view that, to respond to the needs of an extremely aging population, it is important to balance both work and nursing care and expand leave and time off for nursing care.

In its reply, the Government indicates that it has adopted a number of measures to enhance the establishment of childcare facilities, among them the adoption of: (1) the “New Economic Policy Package” aiming at encouraging people who are engaging in nursing care activities through a pay rise equivalent to 3,000 yen per month; (2) the implementation of the “Acceleration Plan for Elimination of Waiting Children“ under which 535,000 childcare facilities were created in 2017; (3) the ”Plan for Raising Children with Peace of Mind“ adopted in June 2017, under which 320,000 childcare facilities are going to be created by the end of 2020; and (4) the “Comprehensive After-school Plan for Children“ which aims at creating additional capacity for about 250,000 children for the period of 2019 to 2021. According to the Government, as of April 2018, 27,916 childcare places were created, and 2,505 children were enrolled. Moreover, in order to enhance the after-school facilities, additional capacity for about 300,000 children spaces will be secured by the end of 2023.

In light of the above, the Committee welcomes the Government’s effort to promote greater work-life balance by expanding the leave entitlements to both regular and non-regular workers and enabling a better share of parental leave and family leave, particularly for men. However, it notes that, in practice: (i) women end up taking the majority of these leaves; (ii) a majority of women withdraw from the labour market after the birth of their first child; and (iii) women only enter the labour market once their children have grown up and the burden of bringing up children is reduced, and often then only as non-regular workers in order to be able to take care of ageing parents. Further, the Committee notes that, although the Government had promised to eliminate the lengthy waiting lists for authorized day care centres by 2018, it had to postpone the achievement of this goal to March 2021, and notes that it is a phenomenon compounded by the shortage of childcare workers and the cost of such services. In this regard, it recalls that the lack of quality, affordable care services has been identified by both men and women as one of the biggest challenges for women with family responsibilities who are in paid work, as well as the inflexibility of the hours of care of these services. Referring to its 2019 General Observation, the Committee wishes to highlight that it is essential that workers with family responsibilities have access to child and family care facilities meeting the needs of children of different ages, after school care, care for the disabled, and elderly care, that are affordable, accessible to their home and work, responsive to working hours, and provide quality care. The Committee therefore urges the Government to continue to take proactive measures to address effectively: (i) issues that discourage the employment of women; (ii) gender stereotypes, so that more men are encouraged to effectively avail themselves of the new childcare and family care leaves; and (iii) the lack of opportunities/incentives for women to join and remain in the labour market. It also requests the Government to report on the progress made towards reaching the objective of the elimination of waiting lists to facilitate the enrolment of children in day care centres by March 2021 and the measures taken to extend coverage of care services and facilities for other dependent members of the family, as well as the results achieved. The Committee asks the Government to provide statistical information, disaggregated by sex and categories of workers (regular, non-regular) on the extent to which men and women workers make use of the leave entitlements following the amendments of the relevant provisions of the Childcare and Family Care Leave Act No.14.

The Committee is raising other matters in a request addressed directly to the Government.