WWN’s Report to ILO 2007 5
Working Women’s Network
Reiko Shoji, President
1-5-6-403 Ootemae Chuo-ku, Osaka, 540-0008 Japan
Tel & Fax +81-(0)6-6941-8700
Email: wwin@my.email.ne.jp
URL:http://www.ne.jp/asahi/wwn/wwin/
May 23, 2007
To: Mr. Juan Somavia
Director-General of the International Labour Office
We are sending herewith the information regarding Japan‘s application of the ILO Convention No. 100, which Japan has ratified. Since this information is concerning the observation by the Committee of Experts on the Application of Coventions and Recommendations, we would be most grateful if it would be treated as one of the contribution of workers’ group at the 96th session of the International Labour Conference.
Reiko Shoji, President
Working Women’s Network
Yukiko Sakai, Chair
Women’s Union for workers of Trading Company
Kiyoko Ban, Chair
Women’s Union Nagoya
Introduction
Working Women’s Network
Reiko Shoji, President
URL:http://www.ne.jp/asahi/wwn/wwin/
Address: 1-5-6-403 Outemae Chuo-ku Osaka, 540-0008 Japan
Established: October 10 1995
Members: 650
Purpose: to achieve the improve of the status of working women and
realize the prohibition of indirect discrimination and the
Principal of equal pay for work of equal value
Women’s Union for Workers of Trading Company
Yukiko Sakai, Chair
Address: c/o Ms Tamanaka,7-13-13 Honcho Funabashi
Chiba City, 273-0005 Japan
Established: March 5.2005
Members: 30
Purpose: to achieve the improvement status and working conditions of
working women in trading companies.
Women’s Union Nagoya
Kiyoko Ban, Chair
Address: c/o Kanayama Law Firm
8F Suzuki bldg. 1-9-17 Nakaku Nagoya City, 460-0022, Japan
Established: March 20 2007
Members:15
Purpose: to establish equity and human rights of
women in regular and non-regular employment
Regarding the Individual Comment Concerning
the Equal Remuneration Convention,
1951 (No. 100) Japan (ratification: 1967) published in 2007
Report on the Situation of
Working Women in Japan
Assessment of the gender pay gap
2….The Committee also notes… the hourly scheduled cash earnings received by female part-time workers were lower than those received by male part-time workers…The Committee expresses serious concern regarding the persistent and wide gender pay gap in Japan.
The Situation of Part-time Workers
I have worked for the Bank of Nagoya as part-time worker for 28 years, far longer than the average working years of the full-time workers of this bank, which is 17 years. The difference in the daily working hours of merely 1 hour and 15 minutes, meant that my starting pay was 500 yen per hour. The pay raise I received after 28 years amounted to 400 yen. Currently the pay per hour is 900 yen, but the annual income remains around an average of 1 million yen. A male full-time employee, who has been working for as long as I have, and who has the same educational background, earns an annual average of 8 million yen.
Many of those working part-time at the bank have prior experience working in banks, and have become indispensable part of the workforce, being able to work without much training. When full-time workers retire, their positions are filled in by part-time or ‘dispatch’ workers. The content of my work is equivalent to that of a male subsection chief. At the collective bargaining table, the employer, the Bank of Nagoya, stated that there was no distinction between the work of full-time and part-time workers. But the “distinction in pay” is obvious.Currently, at the bank where I work, there are 128 more women working on fixed term contracts, including part-time and ‘dispatch’ workers, than regular female employees. In the financial sector, which has seen the advantage of using the low-cost labour to increase their profit, the number of regular employees has decreased annually, and it has been said that there are more than 100,000 part-time working in financial institutions today.
Discrimination against part-time workers in Japan consists of multiple discriminatory structures, including discrimination based on status of not being a regular employee, discrimination against women on grounds of having family responsibility, and discrimination on grounds of being employed on fixed terms. There was expectation that the latest amendment to the Law Concerning the Improvement of Employment Management, etc., of Part-time Workers (Part-time Workers Law) would cut through these discriminatory structures, and lead to the ratification of the ILO Convention No. 175, which was adopted in the year following the legislation of the Part-time Workers Law, to bring their status in line with the international standards. However, the draft amendment not only is incompatible with the ILO Recommendation, but it also upgrades the “Japanese Balancing Rule” based on the existence of requirements such as transfers and overtime work in the guideline on part-time workers to the status of legislation. The three hurdles set by the draft amendment (identical work, indefinite term of employment, mobility) would bring further
gender discrimination into part-time labour. (Kyoko Ban Part-time Worker, Nagoya Bank）
Legislation
4…. The Committee notes however that, while the EEOL prohibits discrimination with respect to matters that have an effect on remuneration levels, it does not cover pay discrimination itself, by prohibiting directly or indirectly discriminatory procedures or methods of determining remuneration, taking into account the principle of equal remuneration for work of equal value. As pointed out by the Committee previously, article 4 of the Labour Standards Law, which provides that in respect of wages an employer shall not engage in discriminatory treatment of a woman, as compared with a man, by reason of the worker being a woman, does not fully reflect the principle of the Convention, as it does not refer to the element of equal remuneration for work of equal value. This element of the Convention’s principle is crucial because it requires consideration of the remuneration received by men and women who are performing different jobs or work, on the basis of an evaluation of the content of the different jobs being performed using appropriate techniques of objective non-discrimination job evaluation. While the Government once again states that, in its view, article 4 of the Labour Standards Law satisfies the requirements of the Convention, the Committee emphasizes, in the light of the persisting and wide gender pay gap, that there is a need to address direct or indirect pay discrimination that results from the discriminatory undervaluing of work performed predominantly or exclusively by women…… The Committee asks the Government to continue to provide summaries of relevant court decisions, particularly final rulings, applying article 4 of the Labour Standards Law including in the context of equal remuneration for work of equal value. Given the persistent and wide gender pay gap, the Committee hopes that the Government will consider giving legislative expression to the principle of equal remuneration for men and women for work of equal value, with a view to ensuring the full application of the Convention, and to indicate any developments in this regard in its next report.
Article 4 of the Labour Standards Act
As the Committee indicated, the existing Article 4 of the Labour Standards Act is insufficient in eliminating the pay difference between men and women, and it is clear that if the principle of equal pay for work of equal value had been introduced into legislation, the Kanematsu pay gap case, in the attached materials, would not have taken 12 years to conclude.
Although not mentioned in the Japanese Government Report of 2005, there is a judicial judgment (final) in this country, which held that the female plaintiff’s work was “work of equal value” to that of her male comparator. The decision was held by the Kyoto District Court in the Kyo Gas case in 2001. In this case, the plaintiff submitted an expert opinion to the Kyoto District Court, proving, based on the principle of equal pay for work of equal value, that a job held by a female clerical employee working on calculating and accepting estimates for gas construction works, was of equal value with that of a male comparator, a supervisor of the gas construction works. The court accepted the opinion as evidence, and confirmed that there was no considerable difference in value between the clerical and the supervisory job. It then held that the pay difference in this case was “in violation of Article 4 of the Labour Standards Act, and illegal.”
This decision, however, was insufficient, in that it stated that deciding factors in pay were not just the value of the job, but consideration would be given also to “individual competence, performance, etc.,” and awarded only 85% of the supervisor’s pay for the plaintiff’s work of equal value. The insufficiency of the first instance decision was not rectified even at the Appeals level, and the judicial proceedings concluded with a settlement based on the amount decided at the District Court.
Still pending is the Kanematsu case involving pay discrimination against women in the Tokyo Appeals Court. The plaintiffs, who are members of the Trading Company Women’s Union, set up a Kanematsu Job Evaluation Committee, consisting of a researcher specializing in job evaluation based on the principle of equal pay for work of equal value, as well as former female employees, who had been working in the management track-course in trading companies. It compared and analyzed the job held by the plaintiffs and those by male employees in the same workplace, to conduct a job evaluation. The result was submitted to the Tokyo Appeals Court as an expert opinion on July 5, 2005.
According to the expert opinion evaluation, if the value of management track jobs held by male employees were valued at 100, the value of the clerical jobs held by the plaintiff female employees would be: in comparing Toshimitsu (male) to Sakai (plaintiff), 100:92, Takai (male) to Mori (plaintiff) 100:111, Shimogamo (male) to Kimura (plaintiff), 100:95, Hirasawa to Koseki (plaintiff), 100:100, and Bando (male) to Oda (plaintiff), 100:102. It showed that the plaintiffs were engaged in jobs that were no less inferior to those held by the male employees that these were compared with. Meanwhile, the pay the plaintiffs received were 67% at most of that of male employees in the clerical track, and in lower cases, 48%. The expert opinion concludes that it was necessary to rectify the pay in proportion to the job value mentioned above.
The government explains that job evaluation is not well suited to the employment practice in Japanese companies. However, now that the basis of the pay system has changed from seniority to merit, fair job evaluation and an evaluation system for that purpose is required. For this reason, we believe that an immediate legislation of the principle of equal pay for work of equal value is necessary, not just for eliminating the pay difference between men and women, but also for realizing equal treatment for part-time workers in comparison to full-time regular workers.
Indirect discrimination
5. With respect to its previous comments concerning indirect discrimination, the Committee notes that the 2006 amendments to the EEOL introduced a new article 7 which is intended to address indirect discrimination. Article 7 authorizes the Ministry of Health, Labour and Welfare to identify, through an ordinance, measures which, taking into consideration the ratio of men to women and other elements, could potentially be considered discrimination essentially based on sex, which employers should not take, unless the measures are considered necessary for the job or for the management of employment in view of the situation of the whole operation, or unless there are other rational reasons…. The Committee asks the Government to indicate the steps taken to ensure that the ordinance envisaged under article 7 of the EEOL will cover a wide range of measures that lead to situations where women disproportionately receive lower levels of remuneration than men without an objective job-related justification, and to provide the text of the ordinance as soon as it is adopted. It also asks the Government to indicate any steps taken to put in place measures to identify and remedy instances of indirect pay discrimination based on sex in the context of part-time, temporary and wage-based employment, as well as the use of career track management systems.
Indirect discrimination
The explicit ban on indirect discrimination included in the amended Law on Securing, etc., of Equal Opportunity and Treatment between Men and Women in Employment (Equal Employment Opportunity Law) for the first time in this country, based on the Recommendations by CEDAW was a welcome development. However, only three examples of indirect discrimination were listed in the Ordinance of the Ministry of Health, Labour and Welfare (note 1), and the list is insufficient to respond to the discrimination in the work place shifting forms in various ways.
The four remaining examples raised by the report by the Study Group on Gender Equal Employment Policy (note 2) should also be included in the Law. And for the amended Equal Employment Opportunity Law to be effective, the difference in treatment between the “employment management categories” in the Guideline under the Equal Employment Opportunity Law should be seen as indirect discrimination, and its reasonability and necessity must be strictly examined.
The Guideline sets forth a definition of the term, “employment management category” regarding “direct discrimination,” while listing prohibited treatment regarding “recruitment and hiring,” “assignment,” “promotion,” “demotion,” “training” and “welfare and benefits” under the precondition that the prohibition applies only “for each employment management category.” This means that difference in treatment between men and women, whose employment management categories were considered separate, would not be within the scope of the prohibition under the Guideline. Employers would not be held responsible for violating the Equal Employment Opportunity Law, as long as they create separate employment management categories.
Therefore, the phrase, “for each employment management category,” should be deleted, and there should be no definition of the term in the Guideline.
A question was raised by a Member of CEDAW during the examination of the Japanese Government Report under the Convention in 2003 regarding the employment management categories.
She pointed out that the Guideline under the Equal Employment Opportunity Law tolerated different management categories, and asked whether the categories created indirect discrimination. She explained that in most advanced countries, situations, in which women were concentrated in low paying work with few promotions, were considered indirect discrimination.
At the Diet session, in which the draft Amendment to the Equal Employment Opportunity Law was passed, we lobbied Diet Members, resulting in opposition Members raising the issue in the debate, but the government ignored the question, saying that it was a question raised in CEDAW.
note 1. 3 examples of indirect discrimination included in the Ministerial Ordinance
(1) height and weight – requiring certain physical height or weight in recruitment and hiring, resulting in many women being disadvantaged, and when such requirement is not necessary in performing the work
(2) nation-wide mobility – requiring nation-wide mobility in recruitment and hiring for management track course, resulting in many women being disadvantaged, and when there are no reasonable grounds for the requirement, such as that transfers are indispensable for building capacities as executives
(3) transfer experience – requiring past experience of transfers involving changes of residence for promotion, resulting in many women being disadvantaged, and when such requirement is not related to the performance of the work
note 2. 4 remaining examples of indirect discrimination in the report of the Study Group on Equal Employment Opportunity Policy
(1) requiring certain level of academic degree or degree from certain faculties in recruitment and hiring
(2) registered head of household requirement (or being the main bread-winner, having dependents) for application of welfare measures, family and other benefits
(3) difference in the job content as well as system and operation of utilization of personnel, between regular employees and part-time workers (or between management track and clerical track employees)
(4) excluding part-timer workers from application of welfare measures, family and other benefits
Career tracking systems
7. The Committee notes the Government’s indication that the report issued in 2002 by the study group on the issue of wage disparity between men and women pointed out that the use of career track systems was a cause of wage disparity because it leads to significantly lower levels of women in management positions. A 2003 survey showed that in 2000 the overall ratio of women on the main track was as low as 3.5 per cent and that 23 per cent of enterprises applying a career track system had reviewed it in the last three years. The Committee asks the Government to continue to provide information on the measures taken to decrease the use of such systems and to minimize their gender discriminatory effects, and on the extent to which such systems are being used, including updated statistical information on the distribution of men and women on the different tracks.
Career tracking systems
As mentioned above, the term “employment management categories” included in the Guideline under the Equal Employment Opportunity Law created the opening for companies to introduce the career track systems, and many women found themselves placed in clerical jobs and supportive roles. The system provided a cover for discrimination against women. Many women were left out of promotion and pay differences amounted to 55% to 60% of their male counterparts just for the reason that they were in different tracks. In the last ten years, women working for Sumitomo Electric Industries, Sumitomo Chemical, Sumitomo Metal, Nomura Securities, Kanematsu, Okaya & Co. and others found their courage to bring their employers to court to fight against the difference.
The women working for the Sumitomo manufacturing companies endured differences in pay of around 250,000 yen a month compared with male employees, who have been working as long as they have, and had the same educational backgrounds. They applied for mediation at the Osaka Women and Young People’s Office, but except for one case, they were denied, because they were considered to be in different tracks from their male counterparts, and therefore were not within the scope of the Equal Employment Opportunity Law. They began judicial proceedings to correct the pay difference, and the plaintiffs in the Sumitomo Electric Industries case, in particular, filed suit against the “State,” contesting the government’s equal employment policy. Nine years after filing suit, and with the CEDAW Recommendations, the case concluded in a favorable settlement. As a result, the plaintiffs were promoted to management positions, but the employer still maintains the career track system. The tests the company introduced for the transfer to management track is as difficult the national qualification exams, creating an imposing obstacle. To the 3,279 men in management positions, there are 53 women, comprising only 1.6% of the total. In the case of Sumitomo Chemicals, of the 1,256 in management positions, 1,253 are men (99.8%) and 3 are women (0.2%).
With these cases involving career track systems, as well as the recommendations from the ILO and CEDAW, expressing concerns that the system may be indirect discrimination, and the move towards the amendment of the Equal Employment Opportunity Law, some companies revised their career track systems. However, they brought forth new forms of indirect discrimination, as the specific cases below indicate.
Furthermore, the terms “form of employment, form of working” that defined the employment management categories, led to an increase in part-time and ‘dispatch’ workers.
Most of these non-regular workers are women. In particular, no law, including the Equal Employment Opportunity Law, provides remedies for the termination of contracts, which are renewed every couple of years. They cannot win in the courts, as they are told that they agreed to the contract. But as the Okaya & Co. and M Trading Company cases indicate, is not the form of employment of three or five year contracts indirect discrimination itself? We would like to report these new trends in the workplaces.
The Review of the Career Track System Creating New Indirect Discrimination
Trading Company – Kanematsu
The trading company, Kanematsu Corp., proposed a new personnel system in November 2005. The company maintained a separate pay system for men and women but introduced a career track-based system before the legislation of the Equal Employment Opportunity Law in 1985. The most recent change is supposed to change the track-based system to one based on job responsibility before the amended Equal Employment Opportunity Law goes into effect. The gist of the proposal is to categorize each individual employee into 5 stages according to their job responsibilities. They would also be organized into 3 job groups. Those in the lowest job responsibility is defined as those working under instruction from superiors, and most of the women will find themselves in the lowest rank, job responsibility 1 in job group I. Male employees in their second to fourth year (age 25) are also placed in the job responsibilities of the job group I, and at first glance, it seems that there is no difference in treatment between men and women. The fact, however, that the company never confirms the intention of each individual employee, and that an overwhelming number of women is assigned to one category is clearly indirect discrimination. Under the current track-based pay system, those in the clerical track (female) have regular pay raise until age 39, but under the new proposal, pay raise is guaranteed only up to age 27, and therefore 60% of the women over 28 will suffer a pay decrease. The decrease will be larger in particular, for those who have worked longer. The objective of the proposal seems to be to maintain pay for women at the level of those of a 25 year old male employee, how ever long they may have worked. For women to get a pay raise, they would have to transfer to job group II. For that, they require an evaluation of over AB, to successfully take an internal exam, have third grade bookkeeping and documentation skills under the Japan Chamber of Commerce standards, and achieve over 600 points on the TOEIC test. For those who have been working for many years, it is difficult, even to be qualified to take the exam.
Trading Company −Okaya Co.& Ltd
In June 1988, Okaya Co.& Ltd categorized all its female office employees into the clerical track, and all male office workers into management track, which led to future management positions, without confirming the wishes of the individuals. The management track was overwhelmingly male, while the clerical track was all female, which indicates that this was nothing but a cover for sex discrimination.
The work of the employees at the trading company overlaps, and is not clearly distinguishable whether the employee is a woman or man. A woman taking over work that was undertaken by a male employee, or vice versa is a daily occurrence. There were no female employees in the management track during the period of 1989 to 1995, but after I filed suit the company started accepting 1 or 2 women in the track.
The difference in pay at the time I was 58 was approximately 230,000 yen per month.
The clerical track employees earn on average 64% of those in the management track. On top of this huge pay difference, Okaya Co.& Ltd does not yet have a single female woman in its management positions. It had none even before the introduction of the career track based system. The clerical track created with the introduction has no management position within its track. This shows that the company has no intention of promoting women to management. From April 2006 onwards, only fixed-term contract employees will be hired in the clerical track. As a general rule the contract will be for 3 years, which may be renewed for a maximum 2 times. All these workers will be women. It is a new form of indirect discrimination.
Trading Company− M. Company
Company M, a trading company, changed its career track based system, and placed everyone into the management track. Specifically, it categorized everyone into 5 job groups. The basic concept was to introduce a multiple aspect system, which gives consideration to, transfers and trains each employee according to his/her intent and personality.
Although men and women were now in the same track, this was in name only, and the situation had not changed. Most women (clerical) were categorized in business support group Course B. They would be eligible for a regular pay raise for 4 years after starting to work, but their pay would be the same after the 4th year until retirement (for the next 37 years), and they were excluded from promotion.
The business support group and the staff group were separated into a Course A, in which there was a possibility of being transferred to different branches, and a Course B, which did not. As mentioned above, everyone in Course B was female. Moreover, there is no transfer system from Course B to A. Transfer from business support to staff group is possible by successfully taking a test, but the hurdle set by the test is so high only 1 person has managed to do so in the Kansai Office in the past 5 years.
The staff group is the highest job group available for women. None of the male employees in the business support group, Course A, who took the transfer test has ever failed. For them, the system is in effect that of automatic promotion. They would move up from the staff group to business line, and the next level. The job content, roles and expectations in the business support and staff groups are the same, whether the employee is in Course A or B. The evaluation standard is also the same. Meanwhile employees in Course B (female) earn 42% of the pay of the employees of the same age in Course A (male). After the introduction of the new system, about 10% of the new recruits in Course A were women, but there have been no new recruits in Course B. What is noticeable is that instead of new recruits, the company has been hiring newly graduated women as fixed-term contract workers for 5-year contract (earning approximately 70% of that of a female employee in Course B). This shows that the company is introducing new forms of hidden discrimination against women, and indirect discrimination is continuing to spread.
Major Construction Industry
Since April 2005, there are no career track based management categories, and all employees are now in the management track regardless of sex. The change in the system involved shifting each employee’s salary to the grades according to the new standard, so there was no big change in the salary. This meant that the salaries of women in the previous regional positions were not raised to the same level as the men, who have been working as long as they have, and have the same educational background. Their grade under the new system was decided by their previous salary, so the pay gap remained. It is about 200,000 yen per month.
The old practice of assigning women to receptionists also remained. We do not know how we will be graded, or how we will be evaluated. Moreover, being assigned to management track comes with the condition of possible transfers to other branches. In our company, refusing to transfer could mean dismissal.
In changing the personnel system, we have asked the management to assign women to more active roles, conduct awareness raising training and classes for men and women including management as part of positive action. There seems to have been some explanation given to people in the management positions at the time of the introduction of the new system, but there has been none for employees in general.
Some of the younger men in management positions make statements or assign work that amounts to ‘power harassment,’ saying that since men and women are equal, they should be able to ask us to do any kind of work. Since women cannot change at once, just because we have a new system, we are asking management to introduce a 2 or 3-year program to train and educate women as positive action measures, but so far no training has been introduced. The system change has not been informed correctly, and there have been instances in which women suffered from misguided acts and comments.
There is a possibility that the gap between men and women will widen, depending on what jobs we are assigned to. In other companies in the same industry, which has introduced a similar system, women were assigned to routine and supporting work, and as a result, they were given low evaluation. This led to differences in promotion, and lower pay.