Observación (CEACR) - Adopción: 2023, Publicación: 112ª reunión CIT (2024)

Convenio sobre la readaptación profesional y el empleo (personas inválidas), 1983 (núm. 159) - Japón (Ratificación : 1992)

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The Committee notes the observations of the National Union of Welfare and Childcare Workers (NUWCW) received on 27 August 2018 as well as the response of the Government in that regard, transmitted with its report.

The Committee also notes the additional observations of the NUWCW received on 26 October 2023 and the observations of the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report received on 29 August 2023. The Committee requests the Government to provide its comments on these observations.

Articles 1, 2 and 3 of the Convention. Employment promotion for persons with disabilities. In reply to the Committee’s previous comments on the nature and impact of measures taken to achieve the statutory employment quota for persons with disabilities, the Government reiterates that guidance is provided to companies in the elaboration of employment plans and that non-compliant employers are publicly named and required to pay a levy of 50’000 Japanese yen per month, per person under the quota. The Government adds that, in the fiscal year (FY) 2021, 27,553 employers were required to pay the levy and that, in the period FY2018–FY2021, the names of seven non-compliant companies were disclosed. The Government further indicates that, starting from FY2024, additional support will be provided to persons with disabilities regarding the interviews and the development of professional skills throughout their careers. The Committee also notes that, in its 2023 observations, the JTUC–RENGO states that the Government is planning to increase the statutory employment quota for persons with disabilities to 2.7 per cent in 2024. The Committee however notes that the Government does not provide comments on the observations submitted in 2016 by the NUWCW (and reiterated in 2018) according to which the levy system in place to sanction non-compliant employers is not effective, as it is less costly to pay the levy than to employ persons with disabilities.

Regarding the impact of the measures implemented, the Committee notes the Government’s indication that 613,958 persons with disabilities were employed in the private sector as of June 2022, representing a 2.7 per cent increase (16,172 persons) compared with June 2021. The Committee also notes the Government’s indication that the employment rate of persons with disabilities has been steadily increasing over the last decade, reaching 2.25 per cent in 2022 (against notably 2.20 per cent in 2020 and 1.92 per cent in 2016). The Committee further notes that, based on the statistics provided by the government, among the persons with a disabilities in employment in private companies, 58.1 per cent have a physical disability (357,767 persons), 23.8 per cent have an intellectual disability (146,426 persons), and 17 per cent have a mental disability (109,764 persons). Among the persons with physical disabilities, the Government indicates that 3.83 per cent are visually impaired (13,697 persons), 8.96 per cent are hearing or equilibrium impaired (32,059 persons), 31.41 per cent are orthopedically impaired (112,241 persons), and 22.64 per cent are internally impaired (81,011 persons). The Committee however notes that the Government does not address the observations submitted in 2016 by the NUWCW, according to which the statistics provided do not reflect the actual employment situation of persons with disabilities, neither in terms of number nor quality. In terms of number, the NUWCW observes that the Government conducts a survey on the employment of persons with disabilities once every five years, whereas it carries out a Monthly Labour Force Survey on the employment of workers in general. In terms of quality, the NUWCW observes that the increased employment rate of persons with disabilities has been accompanied by declining wages, an increase in non-regular employment and deteriorating working conditions. The Committee further notes that the Government does not provide updated information on the number of companies that meet the statutory employment quota for persons with disabilities. In that regard, the Committee notes that, in its 2023 submission, the JTUC–RENGO observes that less than half of companies (48.3 per cent) meet the statutory employment quota. This represents a decrease in compliance of one per cent, compared with the data provided by the JTUC–RENGO in 2017 (48.8 per cent). The JTUC–RENGO also observes that 58.1 per cent of companies do not employ any person with disabilities. Observing that a large majority of these companies are small and medium enterprises (SMEs), the JTUC–RENGO suggests providing SMEs with financial support to hire persons with disabilities.

Recalling the objective of the Convention to have in place effective and periodically reviewed policies and measures in place to ensure effective access to the open labour market to all categories of persons with disabilities, based on the principle of equality of treatment between workers with disabilities and workers generally, the Committee notes with concern that, in spite of the measures indicated by the Government in its report, only less than half of enterprises comply with the legal quotas for the employment of persons with disabilities and that no decisive corrective measures seem to have been taken, in consultation with the social partners and representatives of persons with disabilities, to address this persisting situation. The Committee therefore requests the Government to provide updated information on any amendment to the Act on the Promotion of the Elimination of Discrimination against Persons with Disabilities, including with regard to thestatutory employment quota for persons with disabilities. Moreover, noting that imposing sanctions is a necessary component to ensure compliance, the Committee recalls that, in order to be effective and reach its objectives, these sanctions also need to be sufficiently dissuasive and requests the Government to indicate any measures taken or envisaged with a view to assessing and, if necessary, reviewing the currently applicable regime of sanctions so as to achieve better compliance with the primary objective of the laws on employment of persons with disabilities. In this respect, the Committee requests the Government to continue to provide updated information on the impact of the measures taken to achieve the statutory employment quota for persons with disabilities, including information on the number of companies which meet the quota, information on the impact of the financial and reputational sanctions imposed on non-compliant companies, and information on the employment of persons with disabilities in the open labour market. Noting that only seven non-compliant companies have had their names disclosed to the public, the committee asks the government to provide detailed information on the process for identifying companies whose names are disclosed. The Committee also requests that the Government continue to provide updated information on the nature of other measures taken to achieve the statutory employment quota for persons with disabilities, including measures to raise awareness of the capacities of persons with disabilities, overcome prejudice unfavourable to the employment of persons with disabilities and encourage their employment in SMEs. In that regard, the Government is requested to supply statistics disaggregated by sex, age and nature of the disability, to the extent possible. The Committee also requests the Government to provide its comments on the observations mentioned above from the NUWCW and from the JTUC–RENGO to which it has not yet replied.

Article 5. Consultations with the social partners. The Government reiterates that the Labour Policy Council’s Subcommittee on the Employment of Persons with Disabilities, which includes representatives of the Government, representatives of employers, representatives of workers and representatives of persons with disabilities, sets the objectives of the employment policies for persons with disabilities, implements these policies and evaluates their outcomes. As an example, the Government points to the 2022 revision of the Act on the Promotion of the Elimination of Discrimination against Persons, and the subsequent amendment of the Basic Policy on Employment Measures for Persons with Disabilities. The Government indicates that the revised texts were adopted following a discussion within the Labour Policy Council’s Subcommittee. The Government adds that the texts reflect the opinion expressed by the members of the Subcommittee. The Government further indicates that discussions regarding the social welfare of persons with disabilities take place in another forum, namely the Social Security Council’s Subcommittee on Persons with Disabilities, composed of representatives of persons with disabilities, representatives of the Government, representatives of the employers, and experts. The Committee notes, however, that the Government does not address the concerns raised by the NUWCW in 2016 (and clarified in its 2018 observations) regarding the absence of the Japan Council on Disability and of other relevant organizations when the revision of the Comprehensive Support Act for Persons with Disabilities was being discussed in 2016 before the Social Security Council’s Subcommittee on Persons with Disabilities. The Committee therefore requests the Government to respond to these observations and to provide concrete examples of the manner in which the views and concerns of the social partners and representatives of organizations of and for persons with disabilities are systematically taken into account in the formulation, implementation and evaluation of the policy on vocational rehabilitation and guidance and the employment of persons with disabilities.

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

Articles 1(3) and 3. 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, GB.304/14/6). 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 (304th Session, March 2009). The Committee also recalls that it has been entrusted with following up on implementation of the recommendations of the tripartite committee. In this context, the Government has provided updated information in its report on the implementation and results of measures taken to promote employment for persons with disabilities. Regarding the measures taken to increase employment and income-generating opportunities for persons with severe disabilities, the Government reports that, as of November 2022, approximately 36,000 persons with disabilities were participating in employment-related activities under the Employment Transfer Support Programme (ETSP). The Committee notes that this represents a 16 per cent increase since 2015 (31,000 persons). The Government adds that, as of November 2022, 320,000 persons were participating in Type-B programmes (designed for persons facing difficulties working under an employment relationship, while nevertheless offering them productive activities). The Committee notes that this represents a 39 per cent increase in users compared with 2015 (230,000 persons). The Government also indicates that, in 2021, approximately 21,000 persons transitioned from Employment Transfer Support Programme to employment in the open labour market. The Government points out that this reflects an 800 per cent increase over the last 15 years. The Government further indicates that, in 2021, 2,027 persons transitioned from the Type-B to the Type-A programme (designed for persons with disabilities considered able to work under an employment relationship). The Committee notes that this amounts to a significant decline in comparison with 2016 (2,646 persons). With regard to measures taken by public employment service offices, the Government refers again to the continued implementation of the “team support” model, which provides support to persons with disabilities from employment through to workplace adaptation. The Government adds that in FY2021, 36,024 persons were eligible to receive employment support through “team support”, resulting in 19,661 individuals finding employment, representing an employment rate of 54.6 per cent. The Government also indicates that, as of November 2022, 2,991 establishments were providing employment transition support and 1,534 establishments were offering “employment retention” support. The Government further indicates that, since FY2011, the transition to employment on the open labour market has been facilitated through the deployment of employment support coordinators at “Labour Bureaus” with specialized knowledge in the employment of persons with disabilities. The Committee requests the Government to continue providing detailed updated information on the measures taken or envisaged to increase employment and income-generating opportunities for persons with severe disabilities that have difficulties entering into an employment relationship and accessing the open labour market. The Committee also requests the Government to continue providing updated information on the number of persons transferring from Type-B programmes to Type-A programmes and into regular employment, as well as on the impact of measures implemented by the Public Employment Security Office to assist persons with disabilities in transitioning from welfare to employment on 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 tripartite committee report). In response to the concerns raised by the NUWCW in its 2018 observations regarding the dismissal of persons with disabilities in Type-A workplaces, the Government indicates that, between 2017 and 2018, several companies operating Type-A workplaces used the public subsidies to develop other, non-welfare related businesses, resulting in the closure of the Type-A workplaces. The Government indicates that, in response, the criteria for allowing a company to run a Type-A workplace were reassessed and it was decided that the wages of the persons with disabilities should be paid from the earning of their activities. The Government adds that non-compliant employers are required to submit a management improvement plan and are provided with assistance in that regard. The Government reports that, as a result, compliance with the rules on the payment of wages in Type-A workplaces improved by 70 per cent in 2017 and by 60 per cent in 2022. In response to the NUWCW’s allegations that some providers of Type A programmes use article 7 of the Minimum Wage Act (which allows for applying a reduction rate to the minimum wage) in an abusive manner, the Government indicates that article 7 aims at avoiding potential loss of employment opportunities for persons with disabilities. The Government adds that employment with a reduction rate is carefully regulated as it needs to be approved by the relevant prefectoral labour bureau, after an on-site investigation has been conducted. Regarding Type-B programmes, in response to the NUWCW’s allegations that persons with disabilities are not provided with the same legal protections as other workers, the Government indicates that persons with disabilities engaging in production activities in Type-B workplaces are typically not considered to be “workers” as they do not sign employment contracts, are free to choose their work hours and workload, and may engage in work without being supervised. The Government adds that if an employment-subordinate relationship exists between a person with disabilities and a Type-B workplace, that person is considered a worker and falls within the scope of labour legislation. The Government does not address the observations made by the NUWCW’s in 2016, according to which the employment support services provided do not take into consideration the vocational needs of persons with disabilities.

In view of the above, the Committee also recalls that, considering the Convention’s objective to fully integrate persons with disabilities into society and of to fully recognize their contribution to society, bringing the work they perform in sheltered workshops within the scope of labour legislation, to the extent appropriate, appears to be crucial (Tripartite committee report, GB.304/14/6, paragraphs 74–75). The Committee also recalls that Article 4 of the Convention establishes the principle of equal opportunity between workers with disabilities and workers generally. Moreover, Paragraph 10 of Vocational Rehabilitation and Employment (Disabled Persons) Recommendation, 1983 (No. 168), accompanying the Convention indicates that measures should be taken to promote employment opportunities for workers with disabilities which conform to the employment and salary standards applicable to workers generally (General Survey 2020 on Promoting employment and decent work in a changing landscape, paragraph 764). The Committee also wishes to stress that, in accordance with paragraphs 25 and 35 of the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), persons with disabilities should not as a result of their disability be discriminated against in respect of wages and other conditions of employment if their work is equal to that of persons with no disability and that where and to the extent to which statutory regulation of wages and conditions of employment applying to workers generally is in operation it should apply to persons with disabilities employed under sheltered conditions. The Committee further wishes to recall that work performed by persons with disabilities in sheltered production workshops with a view to vocational rehabilitation, irrespective of whether it is performed under an employment relationship, should meet certain minimum standards if it is to contribute effectively to the Convention’s objective of social and occupational integration of persons with disabilities. The Committee therefore requests the Government to provide updated information on the nature and impact of the measures taken to ensure that the treatment of persons with disabilities in Type-A and Type-B workplaces is in line with the principle of equality between workers with disabilities and workers generally enshrined in the Convention (Article 4).Regarding type-A programmes, the Committeerequests the Government to provide updated information on the measures taken to ensure the quality management of Type-A workplaces. The Committee also requests the Government to provide detailed updated information on the measures taken or envisaged to ensure that the general principle of equal remuneration for work of equal value, as set out in the Preamble of the ILO Constitution, is duly respected regarding the wages of persons with disabilities. The Government is further requested to provide detailed information on the use of a reduction rate (article 7 of the Minimum Wage Act) in relation to the wages of persons with disabilities, including information on the number of persons with disabilities affected by this measure, the nature of their disabilities, the type of work performed, and the reduction rate applied.Regarding Type-B programmes, the Committee requests the Government to provide detailed information on the measures taken or envisaged to ensure the quality of vocational rehabilitation services and to bring the work performed by persons with disabilities within the scope of labour legislation.

(c) Low pay for persons with disabilities carrying out activities under the Type-B programmes (paragraph 76 of the tripartite committee report). In response to the Committee’s previous comments, the Government reiterates that, in 2007, it adopted a Five-year wage-doubling plan. The Government also refers again to the Wage improvement plans implemented in each prefecture, which set targets for improving wages. The Government adds that the prefectures have continued to formulate Wage improvement plans, renewing them every year since FY2012. The Government further indicates that additional initiatives regarding the wages of persons with disabilities include showcasing Type-B workplaces that are proactive in wage enhancement and organizing trainings to increase management awareness in that regard. The Government reports that these initiatives resulted in a 35 percent increase in wages within Type-B programmes in FY2021 compared to FY2006. The Committee however notes that the Government does not provide information enabling the Committee to assess the evolution in wages for persons with disabilities during the period covered by the Government’s report, that is, namely between 2017 and 2023. The Committee also notes that the Government does not respond to the 2016 observations from the NUWCW according to which there is an increase in the proportion of persons with disabilities living on an annual income below 1,000,000 yen, and a wage gap of 284,762 yen between persons with disabilities in Type-B programmes and the average worker. The Committee further notes that, in its observations communicated in 2023, the JTUC-RENGO submits that information on Type-B wages should be made public and investigated. The Committee requests the Government to continue to provide information on the measures taken or envisaged to ensure equality of wages for persons with disabilities participating in Type-B programmes.The Committee also requests the Government to provide updated information on the impact of these measure, including information enabling the Committee to assess the evolution in wages during the period covered by the Government’s report.The Committee also requests the Government to provide its comments on the observations above-mentioned from the NUWCW and from the JTUC-RENGO to which it has not replied.

(d) Service fees for participants in Type-B programmes (paragraphs 77 and 79 of the tripartite committee report). In response to the observations made by the NUWCW in 2016, the Government reiterates that persons with disabilities in low-income households are exempted from paying welfare service fees, including those related to Type-A and Type-B programmes. The Government reports that, as of November 2022, 92.7 per cent of the users of welfare services, including participants in Type-B programmes, were using these services free of charge. The Committee notes that this percentage appears to remain stable since November 2016 (93.3 per cent). The Government adds that persons with disabilities who pay as service fee contribute to the costs of the welfare services based on their individual financial capacities. The Committee encourages the Government to continue taking and implementing positive measures in this regard and requests updated information on their impact.

Articles 3, 4 and 7. Equality of opportunity between persons with disabilities and workers generally. Double counting of persons with severe disabilities in relation to the quota system (paragraphs 81 and 82 of the tripartite committee report). The Committee notes the Government’s indication that the number of persons with severe disabilities in employment in companies has continued to increase, from 109,765 in June 2016, to 125,433 in June 2022, representing a 14.3 per cent increase. The Committee also notes that, in response to the NUWCW’s request that the system of double counting persons with severe disabilities be reconsidered, the Government reiterates, once again, that the double-counting system is effective and necessary to promote the employment of persons with severe disabilities. In view of the above observations of the NUWCW, the Committee requests the Government to provide information on whether it is envisaged to carry out, in consultation with the social partners and the representative organisations of persons with disabilities, an assessment on the efficiency of the double-counting system.In that regard,the Committee requests the Government to provide concrete examples illustrating the assertion that the double-counting system contributes to the promotion of the employment of persons with severe disabilities. The Committee also requests the Government to continue to provide statistical information on the employment of persons with disabilities.

Reasonable accommodation (paragraph 83 of the tripartite committee report). The Government reiterates that the Act on the Promotion of the Employment of Persons with Disabilities provides for the obligation to provide reasonable accommodation and that various guidelines were introduced on the prohibition of discrimination against persons with disabilities and the provision of reasonable accommodation. The Government adds that Prefectural labour bureaus and public employment service offices are actively engaged in communication, consultation, and other initiatives related to providing reasonable accommodation. The Government reports that, in FY2021, public employment service offices provided guidance to 244 employers who failed to comply with the legislation on reasonable accommodation. The Committee notes that the Government does not provide information on the number of employers who have implemented reasonable accommodation measures. The Committee also notes that the Government does not provide comments on the observations submitted by the NUWCW (in 2016) and by the JTUC-RENGO (in 2017), according to which the Act on the Promotion of the Employment of Persons with Disabilities only applies to private companies and does not establish a conflict resolution mechanism. In that regard, the Committee notes the observations submitted in 2018 by the NUWCW, highlighting the case of a visually impaired teacher who was dismissed based on her alleged inability to teach and who had to pursue legal action for the Japanese courts to find that the lack of reasonable accommodation, rather than her disability, hindered her ability to teach. The Committee also notes that, in its 2023 observations, the JTUC-RENGO submits that 49 per cent of business owners are unaware that, when the revised Act on the Promotion of the Employment of Persons with Disabilities comes into effect on 1 April 2024, they will be under the legal obligation to provide reasonable accommodation, instead of a mere obligation to make an effort in that regard, as it currently stands. The Committee requests the Government to provide updated information on the nature and results of measures taken concerning the provision of reasonable accommodation in the workplace, in private companies and in public organizations. Recalling that legislation and policies should provide for financial or other incentives to encourage employers to provide reasonable accommodation where necessary,the Committee requests the Government to provide information on the measures taken or envisaged to that effect. The Committee is further requested to provide information on the number of employers who have provided reasonable accommodation in the workplace. Furthermore, the Committee requests the Government to provide its comments on the aforementioned observations from the NUWCW and from the JTUC-RENGO to which it has not yet replied.