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

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

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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.