WWIN News NO.12 May.７.2003

Heightened NGO Activities – on the Convention on the Elimination of All Forms of Discrimination against Women BY Nikkei Shimbun, February 25, 2003

The NGO’s are increasing their activities regarding the UN Convention on the Elimination of All Forms of Discrimination against Women (Convention), which facilitated the enactment of the Equal Employment Opportunities Law. The Japanese Government submitted the 5th periodic Report on the implementation of the Convention last autumn, which will be considered by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) next July. The NGO’s are publishing counter-arguments to the Government Report, and have begun active lobbying.

On the 3rd of this month Feb, at the NGO hearing at the CEDAW Working Group held at the UN Headquarters Building, thirteen representatives of NGO’s, including the Japanese Association of International Women’s Rights, Working Women’s International Network, etc., gathered from Japan. Four out of twenty-three experts who are CEDAW members, including the Chairperson took part in the Working Group session to listen to the Japanese situation from the NGO’s representatives. The purpose of the session was to collect information and materials to prepare questions for the consideration of the 5th Government Report. The session lasted an hour, and there were some detailed questions from the CEDAW members.

The NGO’s came together to cooperate for the Working Group session. Responding to the appeal from Ms. Akamatsu, the Chairperson of the Japanese Association of International Women’s Rights, they set up a “Japan NGO Network for CEDAW.” Currently, there are about twenty NGO’s participating in the Network. The five organizations, which went to the UN Headquarters, coordinated the areas they would be responsible for, and organized their presentations within five minutes each.

The 5th Report, which will be considered in July, will focus on the institutional progress made in Japan towards the realization of equality, including the implementation of the Basic Law on Gender Equal Society and the establishment of the Gender Equality Bureau in the Cabinet Office. Regarding the issue of measures to prevent indirect discrimination (regulations and systems, which may be gender neutral, but has a disadvantageously discriminatory effect on either one of the gender), on which the government was asked to report at the previous consideration in 1994, the report merely states that the Ministry of Health, Labour and Welfare plans to set up a forum for discussions. Japan has ratified the Convention itself, but not the Optional Protocol, which was adopted in 1999 to increase its effectiveness, and its stance remains ambiguous.
The NGO’s are particularly interested in the issue of ratification of the Optional Protocol and of indirect discrimination.
“Please ask how Japan is considering the ratification of the Optional Protocol.” Mrs. Miho Watanabe of the Association of the Status of Women appealed to the members. Recently, women in their 30’s, who are company employees, as well as younger academics, are participating in the Association, broadening its membership.

The government is hesitant about ratifying the Optional Protocol because the instrument includes an individual complaint mechanism, in which individuals, who did not receive satisfactory remedies within the domestic system, can file a complaint directly to the CEDAW. It is concerned that problems may arise in the relationship with the domestic justice system.
Faced with such government attitude, the Association issues a periodic journal on timely issues regarding women. It plans to organize briefing and study meetings after February to call for the ratification of the Optional Protocol.

The Working Women’s International Network, whose members include the plaintiffs of the ongoing court cases on gender discrimination against corporate employers, was responsible for presenting the issue on indirect discrimination. A female employee working for a trading company told the members that the Network believes that the ‘general’ track in the track-based personnel systems and the situations regarding part-time and other ‘non-regular’ employees amount to indirect discrimination, and asked the members to question the government on that view.
The Network will continue information activities using the internet as well as organize meetings to work towards enhancing the effectiveness of the Convention. The Network members also plan to come to the United States for the July session.

The enactment of the Equal Employment Opportunity Law and the Child Care Leave Law, the amendment of the Nationality Law, and mandatory home economics for boys as well as girls were all made possible by the ratification of the Convention. The policies regarding women in this country has received a strong boost from the Convention. The NGO’s have, historically, supported the legislations by lobbying the Ministry of Labour, which was at that time the actual negotiating party at the UN meetings and domestic coordination, as well as holding study meetings. Professor Yamashita says that the NGO’s hope to continue this trend, and work towards a restrained cooperative relationship with the government without engaging in confrontation.

CEDAW sent its list of questions on the 5th Periodic Report to the Japanese government in mid-February. Questions include those on indirect discrimination, employment conditions of part-time workers, and the ratification of the Optional Protocol. In July, when the government will meet with the CEDAW members for consideration of the report, including its response to the questions, about fifty members of NGO’s will be present to listen to what the government has to say.

The Plaintiffs of Sumitomo Electric : Ms Katsumi Nishimura made a speech at Precession of CEDAW on 3th February 2003

First of all, I would like to thank the members of CEDAW, for giving us the time to speak. My name is Oonaka, and I will be interpreting for the speakers, to speak on behalf of Japan, the plaintiffs, who are pursuing legal cases against Sumitomo Electric and Sumitomo Metal for wage sex discrimination, and of WWN, which supports the plaintiffs. I bring before you a report on the situation of sex discrimination in Japan made apparent during the trials, as well as our recommendations.
My name is Katsumi Nishimura. I started working for Sumitomo Electric right after graduating high school, and have worked at the company for 37 years.
My name is Kinuko Ishida. I started working for Sumitomo Chemicals right after graduating high school, and have worked at the company for 40 years.

We are suing for wage discrimination compared with male employees, who started working in the same year as we did, with the same educational background, and in the same clerical jobs. The men transferred to professional track jobs a few years after starting work, and have been promoted regularly to management jobs. In Sumitomo Electric, there was no opportunity for women to transfer to the other track jobs. In Sumitomo Chemical, although there was a system for transfer, it was an exceedingly high hurdle for women. When women requested transfer, they were told, ”You shouldn’t only do work that catches attention. It is sufficient if you stick to defending the home front,” and most of them were left in the general track jobs. As a result, there is a maximum wage discrepancy of 250,000 yen per month, compared with male employees with the same educational background and working years. The women earn only 60% of these men. We felt extremely frustrated as if we had been denied being a person.
At the previous examination of the Japanese government report in 1994, we submitted a counter-report to you, and came to listen through the session. We remember the Members’ comments being right on the mark.
(The Committee noted further with interest that, despite the introduction of the Equal Employment Opportunity Law, individual discrimination continues.
The Government of Japan should ensure that the private sector complies with the provisions of the Equal Employment Opportunity Law and report on the measures taken to address the indirect discrimination faced by women.)
We reconfirmed the correctness of the Convention, and started to file suit at the courts in 1995. But 5 years after that, in 2000, the courts dismissed all arguments by the plaintiffs in rulings filled with gender bias.
The judgment admits the existence of notable difference in wages between men and women. The reason for the difference is because men were hired in categories for management candidates, and women were excluded from those categories to be maintained in general track jobs. The court declared the policy a violation of the objectives of Article 14 of the Constitution prohibiting discrimination on grounds of sex. However, the court went on to say that at the time the plaintiffs started working for the company, there was still a strong sense of traditional gender role divisions; that men supported the family financially, and women married, stayed at home to concentrate on household work and child raising; that women were inefficient labour force, who retired from work early. The court also declared that the company had the right to pursue its profits, and therefore was not illegal even if the company adopted a employment management policy of gender-based hiring, which resulted in difference in wages. The policy was admissible, due to the social understanding of the times and the primacy of corporate efficiency. We appealed right away, and the case is currently pending in the Appeals Court.
In the trial document submitted by the government last November, the government states that the Convention does not require all discrimination to be eliminated immediately. Even if there was continued discrimination at present because of past gender-based hiring, according to the same document, it occurred before the ratification of the Convention, therefore the Convention does not apply. The government continues with its arguments based on social understanding, etc., in violation of international commitments and twisting the objectives of the Constitution.
We strongly appeal for the appropriate application of the Convention, and prohibition of indirect discrimination, such as those covered by hiring categories. If the government had introduced measures against indirect discrimination based on the recommendations of this Committee 9 years ago, it would have been effective in our lawsuits, as well as in eliminating discrimination against part-time and other non-regular labour, prevalent today. We are making our greatest efforts to win our case, and are demanding that the government apply the Convention correctly.
We have compiled a paper, in view of the examination of the government’s report in July, explaining about the discrimination in workplaces in Japan. We hope that it will provide you with further information about the situation in Japan, and assist you in your discussions with the Japanese government delegation.

2008.10.16 13:34 | WWN NEWS

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WWIN news No.11 OCT.16.2002

〜 Information from Japan〜

A gift from the UN, Geneva, Switzerland in 2001

Shizuko Koedo (Working Women’s Network)
1. Speaking at the NGO briefing
In summer 2001, Working Women’s Network (WWN) flew off to Switzerland, to visit the UN. The group consisted of 9 members, including 4 of the plaintiffs of the Sumitomo trials, and 2 members residing in the U.K.
The reason for the visit was to listen to the examination sessions of the Japanese government report at the Economic and Social Rights Committee, and for the plaintiffs to speak at the Committee’s NGO briefing, about the gender biased court decisions, and the current situation in Japan.
Actually, we were waiting for the examination of the government report at the CEDAW (Committee of the Elimination of Discrimination against Women) to be held in New York, but we did not know when that was going to happen. It then came to our knowledge, that the government report was going to be discussed at the Economic and Social Rights Committee, and we rewrote the address of our counter-report from New York to Geneva.
After a quick study of the International Covenant on Economic, Social and Cultural Rights (ICESCR), we were surprised. Article 3 of the Covenant was a prohibition of discrimination based on sex, and Article 7 provided for the realization of equal pay for work of equal value, the principles we were pressing for. We then received an e-mail from Dr. Marsha Freeman, chairman of IWRAW, offering to submit the report for us, while she was in Geneva. When we told her we were going there, her response was, “Great!”　Not only did she send us examples of NGO reports of other countries, she also gave us valuable advice, such as including recommendations, so that the information will be more than just a situation report.

2. Counter-report and recommendation
The report gave an account of the decisions of the Sumitomo Electric and the Sumitomo Chemicals cases, and the effects of the amended Equal Employment Opportunity Law, as well as the statement summarizing the consultation at the Supreme Court, saying that Japan has no laws providing for equal pay for work of equal value, which would be in breach of the country’s international obligations. The recommendations set forth by WWN is as follows:
1. Since sex discrimination existed at the time of ratification of ICESCR in 1979, correction of the discrimination should be implemented retrospectively from the date the treaty went into force, and the government should comply with international law.
2. Gender education should be implemented for the judiciary including judges.
3. “Employment management categories” under the new guidelines of the amended Equal Employment Opportunities Law should be abolished, since it allows the continuation of track-based personnel system
4. Equal pay for work of equal value should be implemented
5. Legislation prohibiting indirect discrimination should be enacted
6. Positive action should be fully implemented
7. Development of gender neutral wage consultants should be publicly conducted

3. NGO briefing
The briefing by the NGO’s was held for 2 hours in the afternoon of August 13. 8 countries were up for examination, and the chairperson emphasized that speaking time for each NGO was to be strictly limited to 5 minutes.
Ms. Eiko Shirafuji, who is a plaintiff of the Sumitomo Electric case, explained in English, how the wage difference between her and a male employee, who has the same educational background and working years as her, amounted to 240,000 yen per month. She told the Committee how the court decision reflected the gender bias, by finding that the track-based system was a violation of the Constitution, but not illegal, since many women in the 1960’s and 70’s left work after marriage. The personnel management system, therefore, according to the Court, was not against public order. Sitting on either side of her was Ms. Habu and another resident of the U.K., who came all the way to join us, Ms. Keiko Aiba (who assisted with the second half of Ms. Shirafuji’s speech). Ms. Habu responded fluently to the Committee Member’s question, regarding what we wanted from the Japanese judiciary. She also spoke up, when the floor was opened for questions, to explain further about WWN. WWN, as a matter of fact, managed to speak altogether for about 8 to 9 minutes. People who support us told us that in the end, they start acting as if they were the organizers of WWN. Ms. Kimiko Okada, who joined us later as interpreter, was one of those who expressed such impressions.

4. Lobby activities
Immediately after arriving in Geneva, we started to lobby energetically, not only towards the Committee experts, but towards the mass media, International Union of Metal Workers, and other areas.
Particularly memorable was the argument we had, when we visited the ILO, with Ms. Constance Thomas, from the Equality and Employment Branch. She had expressed an appreciative view of the amendment of the Equal Opportunities Law. In the end, we finally made our point, that the new guidelines under the revised law helped maintain the track-based personnel system. Ms. Thomas assured us that she would raise some concerns to part of the amended Equal Opportunities Law.
This issue was reflected almost fully in the Concluding Observations and Recommendations of the Economic and Social Rights Committee, and we were strongly impressed at how sincerely the international organization had heard the appeals from the NGO’s. During our discussions with Ms. Thomas, we also explained about the summary of the Supreme Court consultations, including the comment that there were no legislations in Japan providing for the principle of equal pay for work of equal value. She commented sternly, that if there were no such provisions, then Japan should be required to legislate one. She asked if there were any documents to support this, and she was pleased when we handed her the copy of the Supreme Court documents, with the Court’s official seal.
5. The gift from Geneva
The following Concerns and Recommendations in the Concluding Observations by
ICESCR were altogether a great gift for us, a treasure trove, which we hope to use in our trials and our challenges in solving the gender issue.
★The provisions of the Covenant are not given effect in domestic law in a satisfactory manner.
★Correction of gender discrimination is not subject to progressive realization, but must be implemented immediately.
★ Regarding core obligations, such as gender equality and education, it is urged that the provisions are given direct applicability.
★It is urged that new legislation with an appropriate gender perspective be adopted, with a view to ensuring greater equality of men and women.
★Improving teaching and training programmes on human rights for judges, prosecutors and lawyers are recommended.
★Ratification of ILO Conventions, which abolish discrimination in employment (No.111, etc.), is encouraged.
★The issue of de facto inequality between men and women regarding wages regarding wages for work of equal value need to be addressed.
After our return to Japan, one of the plaintiffs, Ms. Kinuko Ishida, quoted from the Observations in making her case at the fist hearing in the Sumitomo Chemical appeals trial.
6. Visit to the Supreme Court, Rengo and the ILO Tokyo
On November 9, the plaintiffs and other members of WWN boarded the first bullet train to Tokyo, carrying with us all we had brought home from Geneva. We had quite a tight schedule.
9:00 Supreme Court Secretariat
10:00 Rengo (Japanese Trade Union Confederation) Gender Equality Dept.,
International Office
11:00 ILO Tokyo Office
13:00- 14:00 Cabinet Office, Ministry of Health, Labour and Welfare
14:00- 14:30 Ministry of Foreign Affairs
14:30- 15:00 Ministry of Justice
15:00- 17:30 Press Briefing
The Members of the Diet, Ms. Masako Owaki and Ms. Haruko Yoshikawa helped us in the negotiations with the Ministries.
On that day, 15 of us arrived at the Supreme Court, and handed the officer in charge of the Secretariat our petition to repeal the summary of the consultations, which were in breach of the country’s international obligations.
At the Rengo and ILO Tokyo offices, we appealed to them to cooperate towards achieving the implementation of ILO Convention No. 100 and the ratification of Convention No. 111(equal treatment), as well as the Optional Protocol(individual petition) to CEDAW. To emphasize our call for the ratification of the Optional Protocol, we read out the message WWN received from the Vice-chairperson of CEDAW, Dr. Schoepp-Schilling.
” The Optional Protocol to CEDAW, which entered into force on December 22, 2000, is an important human rights instrument. It strengths the Convention in a powerful way and potentially gives women all over the world the opportunity to seek for the de jure and de facto realization of their human right of non-discrimination in all fields of their lives.
A country, ratifying the Optional Protocol, through this act expresses its sincere commitment to the women and their enjoyment of human rights under its jurisdiction.”

7. Discussion with the Ministries
A special session was held that day, and unfortunately the meeting with non-partisan female members of the Diet had to be postponed. But the Members, Ms. Yoko Tashima, Ms. Etsuko Kawada, Ms. Eriko Yamatani, Ms. Hiroko Hatta, Ms. Noriko Hayashi, Ms. Sachiko Kawahashi, as well as Ms. Masako Owaki and Ms. Haruko Yoshikawa, literally representing all parties, joined us in our discussions with the ministries.
At the Ministry of Health, Labour and Welfare and the Cabinet Office, we asked the officer in charge for their comments on 1. information in the CEDAW report regarding court cases, and 2. prohibition of indirect discrimination. These issues had been our homework since our last negotiation by the plaintiffs and WWN, in 1999.
Regarding the first issue, the officer responded, that they had little information on court cases, to which the WWN members replied, “Ask us.” On the second issue, the response was that the issue was being studied, as there was no national consensus; they would be holding a study meeting on indirect discrimination. Ms. Owaki immediately responded, that this was the same reply the Ministry gave in the Diet questioning session 10 years ago.
At the Ministry of Foreign Affairs, we inquired which agency was responsible for human rights education for the judiciary. The officers there replied that such training was being conducted at the Supreme Court, but a staff of Ms. Mizuho Fukushima, a Diet Member, said that it was hardly a training; the participants got together to read relevant materials. When we asked why Japan could not ratify the ILO Convention No. 111, the Ministry told us that the reasons were varied, such as the issue of compatibility with the domestic laws, and that there was no definition of indirect discrimination in the country.
WWN responded by saying that there was an established definition of indirect discrimination internationally, and that we could provide them with materials related to this.
The Justice Ministry commented on the summary of the Supreme Court consultation, that it was merely a compilation of the views expressed at the meeting, and was not binding on the judges. We publicized this through the mass media immediately: “To judges in charge of labour related cases: it is not necessary to heed to the views of the Chief of the Supreme Court. Please feel free to decide as you feel is right.”
According to Ms. Mizuho Fukushima, a petition was adopted by the Upper House, with the broad support ranging from the LDP to the Communist Party, to ratify the CEDAW Optional Protocol. She was of the view that the Foreign Ministry had to respond to this in some way or another.　The Japanese Government must submit by 2006 the progress made, regarding the Concluding Observations to the Economic and Social Rights Committee. WWN will continue to monitor their actions.

A Hot Summer of the NGO’s
Towards effective implementation of international treaties

Hayashi Hiroko, Professor, Fukuoka University

1.The relationship between international treaties and domestic law
It became necessary for me to study the application of the Public Assistance Act to foreign residents in Japan, and this presented me with an opportunity to reexamine the situation regarding domestic implementation of international treaties in this country. The Public Assistance Act is applied to “nationals,” therefore foreign residents have not been considered beneficiaries under this law. The law was applied mutatis mutandis as an administrative measure through the notice of the Director of the Social Welfare Bureau, Ministry of Health and Welfare. The nationality requirement in the legislations related to social security was abolished with the ratification of the International Covenants on Human Rights in 1979 and accession of the Status of Refugee Treaty in 1981, which makes equal treatment of everyone within its jurisdiction the state’s responsibility. The same requirement, however, was not abolished in the Public Assistance Act, on grounds that effective equality was achieved through the Director’s notice. The records of the deliberations in the Diet at that time show that the Diet Members’ questions to the government were too weak and left the issue of domestic legislation ambiguous. The government went ahead with the ratification, and no legislative measures have been taken since. The courts continue to deny the foreigners’ right to live, as well as the direct application of treaties. These courts use the principle of legislative discretion to avoid any judicial decisions, with the excuse that the legislative measures have not been provided, to deny the foreign residents’ claims to public assistance. The claims of resident Koreans, who have worked and paid taxes for 56 years after the war, just like the Japanese, are still not admitted today.
The issue regarding the relationship between treaties and domestic law reemerged recently, in the discussion involving the principle of equal pay for equal work. The Supreme Court brought together the judges in charge of labour related civil and administrative cases from around the country for a conference. A judicial administrative document disclosed on July 10 revealed that the majority of the judges present agreed to the view that there were no substantive legislation stipulating the principle of equal pay for equal work, therefore it was not possible to confirm the existence of the principle. The document was disclosed, on request by the lawyers to the Supreme Court based on the Information Disclosure Law, and it outlined the conference on issues related to wages held at the Supreme Court on October 27, 1998. There were discussions on whether wage disparities between regular and non-regular employees were permissible, when years in employment, job content and working hours, etc, were the same. The majority viewed the wage disparities permissible, unless they violated public order, as there were no provisions stipulating the principle of equal pay for equal work.
In the case, in which 28 female temporary employees, whose contract were renewed on a bi-annual basis for many years, and whose work was the same as regular female employees, except for the form of employment, claimed damages for wage discrimination, the court granted damages for 80% of the regular employees’ wages, and stated that, “it cannot be admitted that the principle of equal pay for equal (value) work exists in the general legal norms regulating labour relations.” (Maruko Keihoki Case, Nagano District Court, Ueda Branch, March 15, 1996.) This interpretation seems to have been supported in the conference.

2.Ratification of international treaties and Article 4 of the Labour Standards Law
There is no explicit provision for the principle of equal pay for equal work in our labour laws, however, Japan has ratified numerous treaties regarding the principle of equal pay for work of equal value, which includes that of equal pay for equal work. (ILO Convention No. 100, Convention concerning Equal Remuneration for Men and
Women Workers for Work of Equal Value, ratified in 1967; both International Covenants ratified in 1979 – Article 7 of the ICESCR explicitly provides for equal pay for work of equal value, and equal pay for equal work for men and women, by requiring States Parties to “recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular, remuneration which provides all workers, as a minimum with: fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; Convention on the Elimination of All Forms of Discrimination against Women ratified in 1985 – Article11(b) provides for equal pay for work of equal value for men and women.)The judges have a duty to comply with the Constitution and the treaties, based on Article 98 (2) of the Constitution, but since they deny the equal pay principle on grounds of lack of substantive law, the question arises, whether the substantive law in this regards includes Article 4 of the Labour Standards Law, in which case, the judges are denying the existence of the equal pay principle between men and women.
At the time of ratification f the ILO Convention No. 100, no legislative measures were introduced, because Article 4 of the Labour Standards Law was considered sufficient. 18 years later, when CEDAW was ratified, legislative measures were adopted for labour conditions other than pay. Article 4 of the Labour Standards Law merely states that, an “employer shall not engage in discriminatory treatment of a woman as compared with a man with respect to wages by reason of the worker being a woman.” There is a dispute, whether engagement in equal (value) work by men and women is a necessary condition for finding a violation of Article 4. Various flaws of the law has been pointed out, such as 1) the article does not clarify with whom the burden of proof lies, 2) the law provides only for the criminal responsibility of the employer, but not on civil effects, so that there are no provisions, which can serve as a basis for discriminated women to claim damages for wage disparities. After the ratification of these treaties, wage disparities between men and women have not improved, and the government has received recommendations from the Committees of the ILO, CEDAW, and the Human Rights Committee. However, as of today, no new legislation has been introduced.

3. The examination of the Japanese State Report and the NGO’s
The government is responsible for submitting a regular report to the Economic and Social Rights Committee on the implementation of the ICESCR in Japan. In August 1998, the government submitted its second report to the UN, in which it states that, Japan has “ratified ILO Convention No. 100 (Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value) in July 1967, and has established a
legislative system in accordance with the Convention…Ten years have passed since the enforcement of the Equal Employment Opportunity Law. The Law’s goals are steadily being incorporated through the continuous efforts of enterprises to improve employment administration.” The report was examined by the Committee on August 21 of this year at UN Palais Wilson in Geneva. The Committee reflects in its examinations, not only the government report, but also views from the NGO’s and other private individuals, and permits NGO’s and others to submit materials for information. The session was attended by 21 members of the government delegation and approximately 70 other individuals from Japan. Such a large number of NGO’s is said to have been unheard of. Before the examination of the report, the Committee was briefed by the NGO’s on August 13, and NGO’s such as the Japan Bar Association, Association for the Human Rights of Resident Koreans, Working Women’s Network, of which the author is a member, made presentations to the Committee on the relevant issues. NGO’s such as the Bar Association submitted detailed reports, emphasizing the need for legislation, since the courts refuse to apply the treaties.
During the examination, 18 Committee members questioned the delegation on a wide range of issues, including those regarding Ainu people, discrimination against minorities such as resident Koreans, homeless persons, relief measures for victims of the Hanshin-Awaji earthquake, and sex discrimination in employment. The discussions were relayed back home by the NGO’s almost immediately. The Committee issued its concluding observations and recommendations on August 31, in which it expressed concerns that the social rights in the Covenant, including prohibition of discrimination against minorities, were not sufficiently considered in the domestic laws, policies and judicial decisions. It called for improvements such as strengthening legislative measures and human rights education and training programs for judges, prosecutors and lawyers. These recommendations, however, are not binding on the states.
The NGO’s are insisting on the ratification of the Optional Protocol of the CEDAW (effective as of December 10, 2000) to overcome the stifling situation of courts reluctant to apply treaties, and the inactive legislature. By becoming a party to the Protocol, the CEDAW Committee would be able to issue specific views based on an individual’s complaint regarding the government’s inaction towards de facto discrimination in wages and promotion, or lack of positive policies toward correction of de facto wage discrimination, for example. The government is adverse to ratification of the Protocol, since it entails issues of independence of the courts, as well as the supremacy of the Supreme Court, but the discussions provide an opportunity to review the relationship between the Constitution, treaties and the law.

(excerpt from Rodo-horitsu-junpo (Labour Law Journal) Vol.1511, Sept. 10, 2001, provisional translation)

2008.10.16 13:33 | WWN NEWS

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WWIN news No.10 AUG.20.2002

～ Information from Japan～
We are sorry that WWIN couldn’t send you the News since last summer.　We will send it by E-mail now.　Sumitomo plaintiffs and the member of WWIN went to the UN & ILO at Geneva last year.
We presented our long report to the UN on last Aug. as follow .
We’ll send you WWIN’s next News No.(11) in several weeks. 　 　 (by　Shizuko Koedo)

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AUG.13.2001
To: The Committee on Economic, Social and Cultural Rights
Working Women’s International Network

Working Women’s International Network (WWIN) is a grass roots group found in 1995. Its aim is to ensure the improvement of working women’s status, prohibit indirect discrimination and realise equal pay for work of equal value in Japan. Its membership is now about 800. WWIN’s main activities are to support the plaintiffs of Sumitomo Electric, Sumitomo Chemical and Sumitomo Metal litigations where the plaintiffs are asking to redress wage discrimination.

Japan ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in June 1979. In relation to the articles 2, 3, 6 and 7of ICESCR, we would like to give an account of Japanese women’s situation using the case of Sumitomo trials to show how persistent employment discrimination based on sex is found in some of the largest Japanese companies. We also would like to make some recommendations in this report.

Article 2, 2: Non-discrimination
The plaintiffs in the Sumitomo Electric, Sumitomo Chemical cases are asking to rectify employment discrimination against women

In 1995 nine women working in three manufacturing companies in the Sumitomo group (Sumitomo Electric, Sumitomo Chemical, Sumitomo Metal) filed a suit in the Osaka District Court for compensatory damages against the companies. They claimed that because they were women they had been subject to promotion and wage discrimination in a gender segregated employment control system.

The Sumitomo group is the one of the largest business conglomerates in Japan. However, its employment policy systematically discriminates against women. Women workers were appointed to perform only fixed and subsidiary roles in the companies. They have never been given any responsible work, even though some of these female workers have been employed for more than 20 years. They have asked their bosses for work worth doing many times. Women do not become managers although they have served for 20-30 years. Almost all their male counterparts with the same academic qualifications have become managers. Women only earn about half of men’s salary.
In 1985 Japan ratified the Convention on the Elimination of All Forms of Discrimination against Women, in 1986 the Equal Employment Opportunity Law (EEO L) was introduced and in 1999 the revised Equal Employment Opportunity Law was implemented. However, even now large Japanese enterprises still maintain discriminatory employment systems, ones which restrict women’s opportunities in terms of assignment, promotion, salary, and every aspect of a company’s business.

The Japanese court dismissed all the plaintiffs’ claims in both the Electric case in July 2000 and the Chemical case in March 2001. One of the plaintiffs of the Electric case describes the details of the two cases below.

‘Five years since we had taken the companies to the court, our claims in both the Sumitomo Electric and Chemical cases were completely dismissed.

I started work at Sumitomo Electric Industries Ltd. in 1969 after I graduated high school. Ever since I have been doing the same kind of clerical accounting work for 32 years. My five male colleagues, who also joined Sumitomo Electric as clerical workers in 1969, all managed to change their career stream into the managerial one five years after they started. And for the last ten years they have been further promoted into administrative posts. One of them was my line manager until recently.

By contrast, we women haven’t been given a chance to seek promotion and are still forced to be in the position of common clerks. In Japan, workers develop their capacities through on-the-job training. I have been asking for an opportunity to do different kinds of work to develop my capacities to a series of my line managers. I have been asking to do the work my male colleagues do. But I have been ignored.

One of the examples is the team meeting. In the team meeting, the members receive a brief on company’s policies and team strategies and discuss them. Despite making a number of their requests to attend, women are not allowed to sit in the team meeting, nor receive any necessary information to perform their duties. If the team member is a man, he can attend the meeting from the next day after he started to work. This reflects the way that the company regards women as secondary workforce. As a result, women workers only earn 60% of the men’s salary at Sumitomo Electronics and men earn US$2,000 more than women per month.
Before we filed a suit in the Osaka District Court, we had visited the Osaka Prefectural Women’s and Young Workers’ Office of the Labour Ministry to ask for assistance in settlement of disputes in 1994. This was based on the procedure in the old EEOL. However, the office rejected our claim by arguing, ‘There is no sex discrimination. The differences are based on the career courses male and female employees have been recruited and hired into different employment tracks’.
The old EEOL didn’t help us at all.

After this disappointment, we filed a suit against the companies and the Japanese government in the Osaka District Court asking to redress for employment discrimination against women. However, the decisions of the court in the Electric case was even more disappointing and wholly based on bias against women workers. The judge said:

“There were huge discrepancies between men and women. This is the result of the gender segregated employment control system which the company has been operating. And this is against the sprit of the Japanese Constitution. However, we cannot charge the company with having breached the law. Around the time, when the plaintiffs were appointed in 1969, gender role recognition was strongly rooted in general social norms in Japan, and women were not expected to work for a long period. Therefore the gender based appointment system was a reasonable policy for enterprises to have.”

The judges introduced the same kind of logic in the decisions of the Sumitomo Chemical case. When the plaintiffs asked their bosses to do the tasks men were doing, one of the bosses replied, ‘I don’t want you to be undertaking conspicuous, high profile work for the company; it is the place of women to work quietly in the background for the company’s benefit (while men are fighting at the front line)’. ‘Your job is to perform only fixed and subsidiary roles. You only need to do the jobs you are given’. ‘There were some occasions when bosses instructed other male employees to deliberately limit the role of women in the company. They made comments including, ‘Don’t let women undertake any tasks involving judgment’ or ‘ Don’t bring women outside into the public gaze’. These comments reflect that the company tries to stop women to develop their capacities, discourage them and encourage to leave the company as soon as possible. We managed to reveal that what has been really happening at the company during the trial. However, the judges rejected the plaintiffs’ claims by saying ‘If some of the bosses did make these comments, it was only a matter of individual bosses.’
We have been demanding for compensation for employment discrimination ever since we joined the company. As a supporting document, we submitted a statement written by Marsh Freeman, Director of IWRAW to the court. She said that the company’s liability should become effective in 1987 as soon as after Japan implemented the CEDAW and the EEOL. Therefore the company should already have taken some action to rectify the employment discrimination against women.

In the judgement the court stated, ‘the Convention and Law were not effective retroactively. Therefore the company has no liability for discrimination nor responsibility to redress discrimination from the past.’ However, the discrimination is still continuing. The judges failed to acknowledge the fact that Japan ratified ICESCR in June 1979 and CEDAW in June 1985. In this sense, the judges wrongly interpreted the non-retroactive principle in the Article 28 of the Vienna Convention on the Law of Treaties. Therefore we demand for compensation for discrimination ever since Japan implemented the Convention on the Elimination of All Forms of Discrimination against Women and the EEOL.

Protesting against the judges who made the decision of the Sumitomo Electric and Chemical cases with full of gender bias, the Metal plaintiffs decided to take appeal for the judges to be replaced. WWIN supported this appeal by publishing protesting adverts and organising a human chain surrounding the Osaka district court.

In June 2001, WWIN invited an expert on education to eradicate gender bias in the judiciary in the USA. This helped us to learn American experiences in terms of eliminating gender bias in the judiciary.

Recommendations:
In relation to Article 3, Guaranteeing equal rights between women and men and Article 6, the right to work
It can be asked whether the EEOL brought equal rights between women and men.
The old EEOL prohibits obvious discrimination or says that employers have an obligation to make an effort towards the elimination of obvious forms of discrimination against women. The Minister’s guidelines promulgated under the old EEOL stipulate that employers should not exclude women because of being women in each recruitment and hiring stream (the type of job, the qualification, the type of employment). As a result, in order to evade the law, two different courses of appointment have been created. They are the managerial course and the clerical course. The logic behind of the different course system is that once the course is different, it can be claimed that discrepancies are not from sex discrimination rather from the two different career steams. The system has been contributing to conceal indirect sex discrimination in the Japanese labour market.

In 1960s, a lot of private companies in Japan took up this gender based hiring system. After the old EEOL was introduced, most of these companies automatically assigned male employees to the managerial path and female employees to the clerical path. At some companies female employees who wished to go to the managerial stream had to take a harsh exam in addition to securing a recommendation from their bosses.

While most women have to be in the clerical path, the old EEOL which prohibits discrimination in promotion, training and assignment does not help women to have equal treatment with men, who are able to enter the managerial path.

Female employees at Sumitomo Electric requested the Prefectual Women’s and Young Workers’ Office to mediate in the disputes over discrimination in promotion in 1994. However, the office refused to initiate the mediation by arguing:

Male comparators are appointed to a head-office based career course, which is a different appointment course from women. Differences arising from different recruitment and hiring structures of the employment control system are allowed under the EEOL.

In other words, the discriminatory gender based appointment system still continues at Sumitomo Electric simply by changing the name of male and female jobs to the managerial and clerical careers system.

There is some evidence on sex discrimination in hiring. Table 1 shows that the number of new female graduates who started to work in the managerial course in Japanese major trading companies. The average proportion of female graduates in the managerial course in the 10 years after the EEOL was introduced, was about 1% of the whole employees in the course. This figure has not changed very much even after the EEOL was revised. Table 2 and 3 also clearly show how women employees are underrepresented in the managerial career stream in the three Sumitomo companies where the plaintiffs have been suffering from discrimination for many years. The two tables indicate that the number of women in the managerial track are so low that the companies see them as nearly tokenistic, and are not seriously promoting women in managerial roles.

In the new Labour Minister’s guideline promulgated under the revised EEOL, the measures breaching Article 5 of EEOL should be examined according to each division of the recruitment and hiring system, i.e. the type of job, the qualification, the type of employment, the form of work and other division of workers. The guideline also stipulates that the measures breaching Article 6 (discrimination in assignment, promotion and training) of EEOL should be examined by each division of the employment control system. The guideline states that once the career course is different, then the exclusion of women is not based on sex but is rather based on the two different career steams under the revised EEOL. This is why we call the two employment tracks system indirect discrimination.

As described above, under the both old and new guidelines, once the type of job, the qualification, the type of employment or the form of work is different, it does not mean to exclude women because of being women. Therefore as long as such guidelines exist, it is impossible to question any kind of sex discrimination at the workplace under the revised EEOL. In addition, these terms in the EEOL and the guidelines fail to comply with obligations under ICESCR as well as under CEDAW.

Reference:
Table 1, The number of managerial positions based on Gender under the two track hiring system (Major Trading companies)
Table 2, Men and women in the managerial track in the three Sumitomo companies
Table 3, The number of newly-employed in the managerial 1997.

Recommendations:

In relation to article 7, The condition of work/ Equal pay for work of equal value

The report written by the Japanese government claimed that in principle, wages were determined through discussions between labour and management or through collective negotiations. It also claimed that Japan has been improving status of women workers since it ratified the ILO Convention No.100 in July 1967. However, the government report gives no concrete figures of improved wage discrepancies between women and men as a proof, nor provides any clear policies to realise equal remuneration for men and women workers for work of equal value although Japan has ratified the ILO Convention No.100 and ICESCR.

The study on wage discrepancies between women and men conducted by the Association of Women Working for Trading Companies, highlights the completely different picture from what the Japanese government claims ‘steady progress’.

Table 4 shows wage comparisons between women and men from 1983, before the EEOL introduced, to 2001 at a general trading company. In this table wages of male employees in the managerial stream count as 100. One can then compare the wages of female employees in the clerical stream. At the age of 25, women in the clerical stream earn 80% of the rate of male employees in the managerial stream. At the age of 35, women get 55% and at the age of 45, women get 52%. The table also shows that a 45 years old female employee who has been working for 22 years in the clerical stream earns the same amount of salary as a 26 years old male employee who has been working for 3 years in the managerial stream.

In order to redress this huge amount of wage discrepancies, the Association of Women Working for Trading Companies, together with some academics studied pay equity (equal pay for work of equal value) at a general trading company. One of the findings is that although women and men are in the different career streams, their duties overlap with each other. For example, even the sales department, where the company claims that men in the managerial stream are playing the crucial role in the company such as drawing up contracts and sales promotional activities and women in the clerical stream undertake subsidiary tasks, women are in fact conducting 88% of the value of the men’s work. [Study group on Pay Equity, (1997) Work analysis and Pay Equity at a trading company].

References:
Table 4: Annual Income Comparison between Male & Female 1983-2001 (A trading company)
Recommendations:
To: Dear Madam Chairperson Virginia B.Dandan
Cc: Dear Committee Members on ESCR
Cc: Dear Ms Constance Thomas

The day before yesterday’s committee meeting for examining the Japanese government’s
report was very interesting. Especially I much agree with the questions and comments on necessity for educating Japanese judiciary professionals. Although I think that it may be too late, I would send you the last page of the counter report submitted by the WWIN once again by attached sheet.

This is very important thing both of CESCR and ILO also us. The Japanese Supreme court mentioned that there was no exactlyl aw in Japan which ensures
equal pay orequal work . Recently WWIN obtained its statements. I will appreciate it if you use them in the committee’s comments toward the Japanese government.

＊＊＊　　＊＊＊　　＊＊＊　　＊＊＊　　＊＊＊

Re: Additional recommendations to the Japanese Government by the Working Women International Network

The Japanese Supreme Court recently revealed a document entitled ‘The Summary of the Discussions in the Council of Judges on Civil/Administrative Labour Cases.’ The document says that ‘There is no existing domestic law, which stipulates the principle of equal pay for work of equal value’. The statement is very problematic. Therefore we draw additional recommendations to the Japanese Government in addition to our original counter report.

Recommendations:
WWIN：
E-mail: wwin@my.email.ne.jp
URL: http://www.ne.jp/asahi/wwn/wwin/

2008.10.16 11:31 | WWN NEWS

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