EQUALITY OF OPPORTUNITY AND TREATMENT Mar 2008
Japan
Equal Remuneration Convention, 1951 (No. 100) (ratification: 1967)
1. The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2007 and the resulting conclusions of the Conference Committee. The Committee notes in particular that the Conference Committee urged the Government to promote more actively equal remuneration for men and women for work of equal value in law and in practice. The Committee notes the Government’s report and the comments concerning the application of the Convention contained in the communication dated 19 October 2007 from the Japanese
Trade Union Confederation (JTUC.RENGO) which were annexed to the report. In addition, the Committee notes the communication of 23 May 2007 from the Working Women’s Network, which was also submitted on behalf of the Women’s Union for Workers of Trading Company and the Women’s Union Nagoya. This communication was forwarded to the Government on 13 July 2007.
2. Assessment of the gender pay gap. The Committee notes from the statistical information provided by the Government that the gender pay gap in respect of scheduled cash earnings per hour among full-time workers increased from 31.2 per cent in 2004 to 32.9 per cent in 2006. The gender pay gap is highest in manufacturing (41.4 per cent) and finance and insurance (45.2 per cent), while it is lowest in transport (23.1 per cent) and telecommunications (28.3 per cent). The Committee notes that the gender pay gap remains very high. It is particularly concerned that the hourly earnings
gap for full-time workers has increased since 2004. Noting that the Government plans to undertake a detailed analysis of the factors underlying the gender wage gap, the Committee asks the Government to provide the results of this analysis, including indications regarding the impact of discrimination in recruitment and promotion on the gender pay gap, and the action taken to address the underlying factors. The Committee also asks the Government to continue to provide detailed and comparable statistical information on the earnings of men and women.
3. Part-time work. The Committee notes that the Government expects the amendments made to the Part-time Working Law in May 2007 to contribute to the reduction of the gender pay gap. The Committee notes that under the revised Law, certain part-time workers shall be deemed to be equivalent to full-time workers which, inter alia, implies that there shall be no discrimination in respect of wages, education and training, welfare facilities and other conditions. Stressing that discrimination against part-time workers is still in many ways discrimination based on gender, JTUC.
RENGO states that the revision was insufficient as only a small portion of part-time workers were covered by these new protections. The Committee asks the Government to provide information on the practical application of the revised Part-time Working Law, including information on the extent to which the revision has contributed to closing the
gender pay gap. The Government is also asked to indicate the proportion of part-time workers, disaggregated by sex, that benefit from protection against wage discrimination under the revised Law and to state whether any consideration is being given to extending this protection to the part-time labour force more generally.
4. Work of equal value. The Committee recalls that section 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 to a man, by reason of the worker being a woman, does not fully reflect the principle of the Convention, because it does not refer to the element of equal remuneration for work of equal value. In its report, the Government reiterates its view that section 4 is sufficient to satisfy the requirements of the Convention and recalls the court case in which wage disparities between men
and women performing different work were found to be in violation of section 4 of the Labour Standards Law. The Government also explains that rotating workers from one job to another within the enterprise ensures long-term human resource development and was a common practice in Japan. In such cases, the wages were determined on the basis of “job-performance ability” and not on the basis of job evaluation. The Government therefore is of the view that prohibiting discrimination in job assignment and allocation of duties, as provided for under the Equal Employment Opportunity Law
(EEOL), was an effective measure “to prevent detrimental treatment of female workers” in respect of wages.
5. The Committee notes that JTUC.RENGO calls for the revision of section 4 of the Labour Standards Law and the EEOL to ensure that both Laws prohibit gender-based wage discrimination. The Working Women’s Network stated that there was only one final judgement based on section 4 of the Labour Standards Law which held that the female plaintiff’s work was “work of equal value” to that of a male comparator. Highlighting the length of the equal pay proceedings, the Network argues that enforcing the principle of equal remuneration for men and women for work of equal value would be more effective if the principle was stated in the legislation. This was also necessary in the light of the ongoing change from seniority-based to merit-based wage systems.
6. The Committee wishes to emphasize that the principle of equal remuneration for men and women for work of equal value necessarily implies a comparison of the jobs or work performed by men and women on the basis of objective factors such as skills, effort, responsibility, or working conditions. Where such a comparison is not possible it is difficult to see how the principle could be applied. While the Convention takes the job content as a starting point for establishing equal remuneration, it does not prevent factors such as experience, ability and performance being taken into consideration in the determination of remuneration, as long as they are applied in an objective and non-discriminatory manner. The Committee therefore asks the Government to take steps to amend the legislation to provide for the principle of equal remuneration for men and women for work of equal value. It asks the Government to provide detailed information on any new court decisions regarding wage discrimination under section 4 of the Labour Standards Law that give effect to the Convention’s principle. Recalling the Conference Committee’s request to the Government to examine further the impact of employment management systems and wage systems on the earnings of women, with a view to addressing wage discrimination, the Committee asks the Government to indicate the steps taken in this regard and the results obtained from such an examination.
7. Indirect discrimination. Recalling its previous comments concerning section 7 of the EEOL, which authorizes the Ministry of Health, Labour and Welfare to identify measures that are considered to be indirectly discriminatory, the Committee notes that section 2 of the Enforcement Ordinance under the EEOL, as amended following the 2006 revision of the EEOL, identifies three such measures: (1) criteria relating to the worker’s height, weight or physical strength; (2) criteria, in the context of recruitment and employment of workers under a career tracking system, relating to the worker’s availability for reassignment resulting in the worker having to change his or her place of residence; and (3) criteria for promotion relating to the worker’s experiences obtained through job rotation and reassignment. The Committee also notes the Government’s indication that a general definition of indirect discrimination has been included in the Guidelines to the EEOL (“EEO Guidelines”) and that in cases other than those listed in section 2 of the Enforcement Ordinance indirect discrimination could be considered illegal by the courts. The Government states that it will keep the matter under review and revise section 2 of the Enforcement Ordinance as necessary, taking into account the developing jurisprudence. JTUC.RENGO raised doubts as to the conformity with international standards of the restrictive provisions on indirect discrimination in the EEOL and indicated that it would continue to call for the inclusion of a broad and unlimited definition in the Law. The Working Women’s Network also submits that a broader definition of indirect discrimination should be applied. Recalling that in accordance with the Convention all forms of indirect discrimination in respect of remuneration should be addressed, the Committee asks the Government to provide detailed information on the application of section 7 of the EEOL and section 2 of its Enforcement Ordinance. It asks the Government to continue to consult on the issue of indirect discrimination with workers’ and employers’ organizations, to report on any relevant judicial cases, and to indicate the progress made in ensuring that the definition of indirect discrimination provides effective protection from all forms of indirect discrimination in respect of remuneration.
8. Career tracking systems. The Committee notes from the Government’s report that according to the Basic Survey of Employment Management of Women 2006, the percentage of companies operating a career tracking system is 11.1 per cent, which is 1.6 per cent more than compared to 2003. No new information is available concerning the distribution of men and women in the different tracks. Both JTUC.RENGO and the Working Women’s Network state that career tracking systems continue to be used in practice as gender-based employment management. They also state that the EEO Guidelines issued by the Government created an opening for this, because they restrict the application of the prohibition of gender discrimination to men and women within each “employment management category”, which excludes comparisons between men and women employed in different categories, in contradiction with the principle of equal remuneration for work of equal value. The Committee considers that the application of the Convention’s principle cannot be restricted to men and women within each different employment category established by an enterprise. The Government is asked to supply a copy of the EEO Guidelines for the Committee’s examination and to provide its comments, if any, in reply to the above matter raised by JTUC.RENGO and the Working Women’s Network. The Committee also asks the Government to provide updated statistical information on the extent to which career tracking systems are being used, including, in particular, the number of men and women on the different tracks. The Committee asks the Government to examine further the impact of career tracking systems on the earnings of women, with a view to addressing wage discrimination, as requested by the Conference Committee, and to report on the results of such an examination.
9. Objective job evaluation. Recalling the Conference Committee’s request to the Government to step up its efforts to promote objective job evaluation methods, the Committee notes that the Government has not provided any information on measures taken in this regard. JTUC.RENGO indicates that it had proposed the use of objective job evaluation methods as a means to implement the principle of equal remuneration for work of equal value. The Committee urges the Government to indicate in its next report the measures taken to promote objective job evaluation, in accordance with Article 3 of the Convention, and as requested by the Conference Committee.
10. Labour inspection. The Committee notes from the Government’s report that in 2005, 122,733 inspections were carried out. Ten cases of violations of section 4 of the Labour Standards Law were addressed through administrative guidance, while one case was sent to the prosecutor’s office. The Committee notes the Government’s indication that inspectors confirm whether the wage disparity between men and women at a workplace “depends on the fact that workers are women or the differences in posts, ability, technique, etc.”. The Committee asks the Government to provide information on the specific methodologies used by the labour inspectors to identify instances of wage discrimination where men and women are engaged in different posts but nevertheless perform work of equal value, and to indicate whether any specific training on the principle of equal remuneration for work of equal value is being provided to labour inspectors. The Government is also asked to continue to provide information on the cases of violations of section 4 of the Labour Standards Law, including on the facts of the cases.
2008.11.28 01:07
| ILO
PAGE TOP▲
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
ysakai@diana.dti.ne.jp
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
aika@msi.biglobe.ne.jp
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.
2008.11.28 01:06
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(No. 100) Japan (ratification: 1967) Published: 2007
Description:(CEACR Individual Observation)
Convention:C100
Country:(Japan)
Subject classification: Equal Remuneration
Subject classification: Women
Subject: Equality of Opportunity and Treatment Document No. (ilolex): 062007JPN100
1. The Committee notes the Government report and the attached observations of the Japanese Trade Union Confederation (JTUC-RENGO) dated 5 September 2005 as well as the Government reply to these comments.
Assessment of the gender pay gap
2. The Committee notes that, according to the Basic Survey on Wage Structure, 2004, the overall gender pay gap (contractual cash earnings) for full-time workers was at 34.3 per cent in 2004, as compared to 35.1 per cent in 2002 and 34.5 per cent in 2000. According to the Government report, the gender pay gap concerning scheduled cash earnings of full-time workers declined continuously from 40.3 per cent in 1986 to 32.4 per cent in 2004. The Committee also notes from the data provided by the Government that, on average, women working part- time in all industries have been in their jobs for a longer service period than their male counterparts but that, in 105 of 119 occupational categories considered in the statistics provided, the hourly scheduled cash earnings received by female part-time workers were lower than those received by male part-time workers. In its observations, JTUC-RENGO considers that the wage gap is still high and the Government states that it recognizes that the remaining disparity is still wide when compared internationally. The Committee expresses serious concern regarding the persistent and wide gender pay gap in Japan. The Committee asks the Government to continue to provide detailed statistical information on earnings of regular and non-regular workers, disaggregated by sex, according to industries and occupational categories, as far as possible as outlined in the Committee 1998 general observation. It also asks the Government to supply information on any reports or studies undertaken to examine the evolution of the gender wage gap and the impact of the measures taken to address it.
Legislation
3. The Committee recalls JTUC-RENGO previous comments to the effect that enforceable legislative provisions are required to eliminate the factors underlying the gender wage disparities. The Committee notes from the Government report that an advisory council comprised of experts, including workers・and employers・representatives, had been discussing measures to strengthen the promotion of equal opportunities for men and women since September 2005. It notes that Law No. 82 of 2006 has been adopted subsequently to revise the Equal Employment Opportunities Law (EEOL) and the Labour Standards Law which will become effective as from 1 April 2007. The Committee notes with interest that the revised EEOL explicitly prohibits discrimination based on sex in respect of assignment of tasks and responsibilities, as well as any changes concerning the worker occupation or employment contract (article 6). The Committee asks the Government to provide in its future reports information on the implementation and enforcement of the revised EEOL, including examples of relevant administrative or judicial decisions relating to the application of the Convention.
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 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. In this regard, the Committee notes the Government indication that, in some cases, the courts have compared the jobs or work performed by men and women in order to determine violations of article 4 of the Labour Standards Law. However, most cases concern discriminatory practices in respect of promotion or advancement. 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.
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. Recalling the guidance provided concerning the concept of indirect discrimination in paragraph 10 of its previous observation, the Committee notes that article 7 takes a restrictive approach by authorizing the authorities to identify a limited number of situations or practices which could amount to indirect discrimination, rather than by introducing a general definition of indirect discrimination that could be applied to a variety of situations. 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.
Promotional measures
6. In its previous observation, the Committee noted that in 2003 the Government issued guidelines concerning measures for improving wage and employment management for eliminating wage disparity between men and women. These voluntary guidelines encourage employers to address certain issues, which are considered to be important causes of the gender wage gap in Japan, as reflected in the Committee previous comments. The Committee notes the Government indication that it is striving to ensure that the guidelines are widely used through the distribution of information and materials to employers・and workers・organizations. The Government also states that it facilitates efforts by employers and workers to reduce wage disparity by monitoring the situation through the preparation of wage disparity reports. The Committee further notes the examples mentioned in the Government report of positive action taken by some enterprises, e.g. measures to increase the ratio of female managers. Recalling that one of the matters addressed by the guidelines is the need to improve employment and wage-management systems, inter alia, with a view to ensuring objectivity and transparency of wage decisions, the Committee notes JTUC-RENGO position that, in order to implement the principle of equal remuneration for work of equal value, there is a need to study and develop measures of objective and non-discriminatory job evaluation. The Committee shares this assessment. The Committee asks the Government to provide detailed information on the promotion, application and effect on the gender wage gap of the abovementioned Guidelines, including information on the positive action taken and the reports on wage disparities. In particular, the Committee asks the Government to supply information indicating how enterprises are reforming their systems of employment and wage management with a view to ensuring transparent and non-discriminatory wage decisions, as well as job allocation and posting. Recalling that Article 3 of the Convention envisages objective job evaluation on the basis of the work performed as a means of giving effect to the Convention, the Committee asks the Government to indicate measures taken to promote the objective evaluation of jobs.
Career tracking systems
7. The Committee notes the Government 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.
Labour inspection
8. The Committee notes that, of the 122,793 inspections carried out during 2004, only eight found violations of article 4 of the Labour Standards Law. None of them was considered serious enough to be referred to the Prosecutor Office. The Committee asks the Government to continue to provide information on the measures taken by the labour inspectorate to address gender pay discrimination, including the number and nature of violations of section 4 found. It also asks the Government to indicate the methods used by labour inspectors to identify and detect violations of the principle of equal remuneration for men and women for work of equal value, and to indicate the nature and scope of training provided to labour inspectors on the principle of equal remuneration for men and women for work of equal value and on its implementation.
The Government is asked to supply full particulars to the Conference at its 96th Session and to report in detail in 2007.
2008.10.16 13:56
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