Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Japan (RATIFICATION: 1953)

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A Government representative recalled that his Government had always shown due respect for international labour standards and had made sincere efforts for the application of ratified Conventions, and particularly the fundamental labour rights. With regard to the existing restrictions on the fundamental labour rights of public employees, he referred to the views expressed in previous government reports under article 22 of the Constitution and at previous sessions of the Conference. He focused his comments instead on the current civil service reform.

With regard to the background of the ongoing civil service reform, as explained to the Committee last year, he indicated that the Government was pursuing the reform within a process of general administrative reform aimed both at the efficient use of public employees' abilities and at responding to the diversifying needs of public administration. The Outline of the Administrative Reform, which served as a basis for the current process, had been adopted by the Cabinet in December 2000. More recently, in June 2001, the Government had adopted the Basic Outline of the Civil Service Reform, and then in December 2001, the Plan for the Civil Service Reform. In doing so, it had conducted negotiations and consultations in good faith with employees' organizations in each case.

He said that the Plan for the Civil Service Reform set forth the objectives of: establishing a new personnel system that properly reflected competences and achievements; securing diverse human resources, including from the private sector; and establishing appropriate rules of outplacement, which was an issue of great public criticism. The Plan also envisaged that the law to amend the National Public Service Law would be submitted to the Diet by the end of 2003.

Regarding restrictions on the fundamental labour rights of public employees, the Plan stated that, "comprehensively taking into consideration concerns about ensuring a stable and continuous public service, the impact on the life of Japanese people and other relevant issues, the Government has decided to retain the current restrictions on the fundamental labour rights, while ensuring corresponding compensatory measures". The Plan also indicated that the National Personnel Authority (NPA) would continue to be properly involved in matters relating to the setting of working conditions, such as salaries, reflecting the Government's intention to maintain an adequate compensation system in accordance with the restrictions placed on the fundamental labour rights.

He emphasized in this respect that the Government had always been aware of the importance of the issue of the fundamental labour rights of public employees. Under the current process of civil service reform, this had been examined before the Cabinet's adoption of the Plan. However, the Government had not resulted in a change to the present restrictions. He said that the compensatory measures of the NPA, such as its recommendation system, had been functioning appropriately under the current restrictions on the fundamental labour rights, taking into account the principles of the ILO. For example, the working conditions of public employees had been kept at the same level as in the private sector on the basis of NPA surveys and recommendations. He therefore affirmed that the rights and interests of Japanese public employees were reliably protected. It was the Government's intention to ensure that compensation for the restrictions placed on the fundamental labour rights remained guaranteed under the current reform process by maintaining the NPA's compensatory functions.

While recognizing the ILO's views on the fundamental labour rights, he said that ways of addressing the issue of the rights of public employees should be decided upon taking into consideration the specificities of each country, such as its historical and social background. In view of the distinctive status of public employees in Japanese society, this issue required careful treatment. He hoped the Committee would understand the reasons why the Government had reached the conclusion that restrictions on the fundamental labour rights should remain as they were. He stated that measures to compensate for such restrictions would of course continue to be ensured, and that the Government would ensure to keep such functions effective, taking due account of the ILO's principles.

He concluded that the Government had been negotiating and consulting faithfully with the parties concerned, such as employees' organizations, as indicated to the Committee the previous year. Since its establishment, the Administrative Reform Promotion Bureau had held such negotiations and consultations on 91 occasions. The Government was currently in the process of making the Plan for the Civil Service Reform into a legislative form and designing the details of the system. In this process it had been holding negotiations and consultations on this issue in good faith with employees' organizations, and would continue to do so in the future.

The Worker members recalled that, as they had indicated during the presentation of the list of individual cases, they would also like to have discussed the application of Convention No. 29 by Japan, particularly as regards the compensation of victims of forced labour which took place several decades ago. Regarding the application of Convention No. 98, the violation of the right to bargain collectively in Japan was a serious breach of one of the fundamental ILO Conventions. It was regrettable to have to discuss once again the problems of application by Japan of a Convention relating to trade union rights. In the same way as the discussion the previous year of the application of Convention No. 87, the problem was related to the public sector.

Regarding protection against acts of anti-union discrimination, Article 1 of the Convention provided that "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment". This provision was designed to protect trade unionists against all the acts of anti-union discrimination. The Government indicated that there was machinery to relieve victims of unfair labour practices intended to prevent discriminatory treatment for participating in union activities. But this machinery did not work in practice, and the rights protected by Article 1 of the Convention were not guaranteed to all Japanese workers. As the Committee of Experts had pointed out, "legal provisions which provide for such protection are adequate only if they are coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application".

Regarding the promotion of negotiation rights of public employees who are not engaged in the administration of the State, the workers had emphasized in 2001, when examining the application of Convention No. 87 by Japan, that public employees' organizations should be fully involved in the public service reform which could directly affect the conditions of work of their members. One year later, they had to observe that the situation had not changed. The Japanese Trade Union Confederation RENGO reported that the Japanese Government had been unilaterally pursuing its work of the revision of the public service legislation in a manner which was even more contrary to the ILO's principles. The report of the Committee of Experts described the present state of the negotiation system between the authorities and trade union organizations representing public employees: there was only a system of consultations without any obligations in the sector. If even there were contracts and discussions between employers and workers in the public sector, that did not mean that the unions' views were taken into consideration. The information contained in the Government's report, as well as the verbal explanations furnished by the Government representative, were not convincing in this regard. Moreover, the Committee of Experts had requested the Government "to consider the measures that could be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation of collective agreements, in conformity with its obligations under Articles 4 and 6 of the Convention". The public service reform, approved by the Parliament and put into practice, would only worsen the situation of obvious violation of Convention No. 98. The Government needed to comply fully with the Committee of Experts' observations in this regard. In 2001, the Worker members had already requested the Government to involve the workers' organizations in the public service reform, thereby taking the opportunity to improve social dialogue. This appeal was becoming increasingly urgent. The Government had to change its position in this regard.

The third point on which the Committee of Experts had made comments concerned collective bargaining in national medical institutions. The problem revealed by a workers' organization (JNHWU) concerned two points. The first was the absence of collective bargaining bodies in the majority of these institutions. The Government's reply on this point was not convincing. The second point concerned the subject of collective bargaining. Article 4 of Convention No. 98 provided that the objective of negotiation between employers' and workers' organizations was the regulation of terms and conditions of employment by means of collective agreements. The Government needed to commence dialogue with the trade unions on this subject in order to reach an understanding.

The Employer members noted that the present case had been the object of comments by the Committee of Experts for a number of years and of observations by trade unions. With regard to the question of protection against anti-union discrimination, the allegations concerned acts carried out in two enterprises. The Government had indicated that the necessary legislation existed and that if its provisions were applied the situation would be resolved. The Committee of Experts had recalled that legal provisions providing the necessary protection were adequate only if they were combined with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application. As the Committee of Experts had taken up no clear position on whether or not the legislation was applied, the Conference Committee could go no further on the matter until further information was provided.

The second point raised by the Committee of Experts concerned the rights of public employees who were not engaged in the administration of the State to engage in collective negotiations. The Japanese trade unions indicated that workers' organizations were only consulted, but had no right to collective bargaining. They said that the consultations with the National Personnel Authority and with local communities led up to the adoption of recommendations, which the Government was free to implement or not as it wished. The position of the Government was that such decisions were only taken after carefully weighing up the situation, on the basis of surveys and statistical comparisons with the objective of reducing differences between conditions in the public and private sectors. The Committee of Experts had requested the Government to consider the measures that could be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the determination of terms and conditions of employment. In this respect, the Committee of Experts had welcomed the Government's indication to the Committee on Freedom of Association that a reform of the public service personnel system was under consideration. However, in the plan that had been endorsed for the reform of the civil service, differences would still exist to a certain extent between the Convention and national practice in the public sector. The Government could be requested to provide detailed information to the Committee of Experts on the envisaged reform and the case could be re-examined on the basis of such information, where appropriate.

A third point raised by the Committee of Experts concerned the exclusion of certain matters from negotiation in national medical institutions. The trade unions contended that there were too few opportunities for negotiation. The Employer members noted the Government's position that for the unions the principal objective of collective bargaining was the abolition of the two-shift system, instead of negotiating on the respective working conditions. Nevertheless, the Government had introduced a number of training measures to instruct directors of medical institutions to promote voluntary negotiation of terms and conditions of employment. The Employer members welcomed the action taken and endorsed the request by the Committee of Experts that the Government should indicate in its next report any further progress made in promoting collective bargaining for these workers.

The final matter raised by the Committee of Experts concerned the exclusion of certain matters from negotiation in state enterprises. Although it had not been mentioned by the Worker members, the trade unions and the Government had now agreed upon a new law. The Employer members noted with satisfaction that the revised labour relations law now included matters related to working conditions in state enterprises within collective bargaining. The Employer members believed that the Government should be requested to report further on these positive developments in a number of areas so that the Committee of Experts could examine the progress made.

The Worker member of Japan emphasized that the Committee had been discussing the issue of the fundamental trade union rights of public service employees in Japan for many years. The Committee had been forced to re-examine the case once again this year because of the insincerity and faithlessness of the Government, which had impeded the settlement of the issue. He therefore called upon the Government to take the issue seriously and earnestly for its total solution.

He said that the General Principles of Administrative Reform, or what the Government called the Plan for Civil Service Reform, adopted in December 2001, envisaged that the current restriction of fundamental trade union rights would remain intact, despite the many recommendations to the contrary by the Committee on Freedom of Association and the Committee of Experts. The broad and grave violations of the Convention would therefore be maintained in the future in clear defiance of the spirit of the ILO. Moreover, the decision by the Cabinet had been taken unilaterally, without any negotiations with the unions concerned on the issue of fundamental trade union rights. In spite of repeated demands, the Government had refused to negotiate, and had merely informed the trade unions of its decision shortly before its adoption. Subsequent demands for a postponement of the decision had been to no avail. This was what the Government had described as sincere negotiations or consultations. The undertaking made by the Government to the Committee the previous year had been totally ignored, showing disdain for the ILO.

The General Principles also contained proposals to diminish the capacity of the National Personnel Authority (NPA), the defects and shortcomings of which had been pointed out by the Committee on Freedom of Association on many occasions. While maintaining the existing restrictions on fundamental trade union rights, this initiative would therefore also result in a further deterioration in the compensatory measures offered. Japanese trade unions would never accept such initiatives, which would lead to a full denial of the rights of public service employees. He explained that the NPA currently had four areas of competence as a compensatory mechanism in the public service system. The first was to develop a system of wages and employment conditions; the second to set the efficiency rating standards of public employees; the third to make recommendations to the Cabinet and the Diet on the revision of wages and employment conditions; and the fourth to exercise "relief competence" in the case of labour disputes. The General Principles proposed that the first and second competences be transferred to the Government as an employer, with only the third and fourth competences remaining with the NPA. Once again, he affirmed that this deterioration in the system, in violation of ILO principles, would never be accepted by the trade unions.

Finally, he emphasized that infringements of the trade union rights of public service employees in Japan was an ongoing process, as well as a violation of ILO Conventions. The Government intended to worsen the situation without any negotiations with the trade union organizations concerned. The Bill to revise the relevant legislation was to be submitted to the Diet in January 2003. If the Government had any intention of respecting ILO Conventions and trade union rights, he called upon it to withdraw the General Principles immediately and to start sincere negotiations with the trade unions to reform the public service system in Japan and bring it into conformity with ILO Conventions.

The Worker member of the United States recalled that the previous year the Government had indicated that it was planning to reform the public service system in Japan in consultation and negotiation with the trade unions. Unfortunately, in practice, this reform would reduce the system's conformity with the Convention even further. The proposed reforms would maintain the existing legislation regarding the collective bargaining rights of public employees, despite the fact that the Committee of Experts had once again rejected the Government's justification for denying public employees the right to bargain collectively at both the national and local levels. Indeed the Committee of Experts had once again requested the Government to consider measures to encourage and promote the full and effective development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public employees who were not engaged in the administration of the State, in conformity with its obligations under Articles 4 and 6 of the Convention. In this respect, he emphasized that under the current system neither national nor local employees had the right to negotiate collective agreements. Moreover, the Committee of Experts had expressed the hope that the existing limitations on the collective bargaining rights of public employees not engaged in the administration of the State would be lifted in the near future. He explained that current national and local public service legislation excluded from collective bargaining all matters relating to the administration and operation of government business, and that the Government appeared to have sole discretion to determine what constituted the administration and operation of government business.

He regretted that the Japanese model of severely prescribing the scope of public sector bargaining was spreading throughout Asia. In the Republic of Korea, for example, any attempt by trade unions representing workers in state enterprises, and not even public servants, to raise any issue other than wages and working conditions, defined in the narrowest of senses, was clearly illegal and this prohibition was strictly enforced. Unable to bargain, unions in state enterprises often had to resort to collective action and hundreds of trade unionists in the country had been arrested for participating in peaceful, but "illegal" action.

Japanese trade unions were merely seeking the right to negotiate wages and working conditions, issues affecting wages and working conditions both directly and indirectly, and issues upon which both parties could agree to negotiate. The Government had an obligation under the Convention to move in this direction. He therefore urged the Government to take action rapidly by proposing new legislation, reviewing its proposals in accordance with its commitments under the Convention and negotiating with the trade unions.

The Worker member of the Republic of Korea said that trade unions throughout Asia were concerned by Japan's violations of Conventions Nos. 87 and 98. Moreover, the planned total revision of public service legislation in 2003 would further deviate from these standards. Such serious infringements of the ILO's principles in Japan were likely to raise major obstacles to the improvement of the labour rights of public employees in other Asian countries, such as the Republic of Korea, where there were some cultural, institutional and legal similarities with Japan. It was therefore urgent to address the serious situation in Japan which involved a deterioration in the application of the principles of decent work to public employees.

In view of the proposed timetable for public service reform in Japan, he hoped that the complaints filed by several workers' organizations on this matter would be examined by the Committee on Freedom of Association in November 2002. The current collective bargaining system had no influence on the determination of wages and other working conditions through negotiation. The definition of persons engaged in the administration of the State should be substantially reduced. Furthermore, the Government should extend collective bargaining to the matters set out in section 8 of the Law concerning Labour Relations at National Enterprises and Specified Independent Administrative Institutions. The Government should also take prompt steps to remedy the current system of determining wages and other working conditions of public service workers through the recognition of their collective bargaining rights. He therefore called on the Committee to urge the Government to stop working on its current revision of the public service system, which violated the principle of freedom of association, and to reform the system in accordance with international labour standards. He also called upon the Government of the Republic of Korea to enter into comprehensive dialogue and sincere negotiations with the trade unions concerned in the tripartite commission established to protect government employees' basic labour rights, as well as to recognize their trade unions. He also urged the Government of the Republic of Korea to pursue the universal application of international labour standards by ratifying Conventions Nos. 87 and 98 as soon as possible.

The Worker member of Germany said that for a number of years German trade unions, which faced similar problems, had been observing developments in Japan with great concern. Recently, a representative of his trade union, which also covered the public service, had been sent to Japan to obtain up-to-date information on the current situation. He indicated that he would refer in particular to the National Personnel Authority (NPA) and the arbitration awards system. Although the Government evidently considered the NPA to be an appropriate instrument of compensation for the far-reaching limitations on the trade union rights of workers in the public service, the view of the trade union movement was very different. The present legislation in Japan relating to the national and local public service only contained vague indications respecting the establishment of salaries through the NPA and the local authorities. In many cases, the NPA had provided its recommendations concerning salary levels, but these recommendations had not been taken into account in the determination of salaries. Moreover, such recommendations had been limited or postponed. For example, the recommendation in 1997 to increase the wages of certain categories had been postponed for one year. In 1999, higher administrative personnel had been excluded from the proposed salary increase. Finally, the NPA recommendation in 2000 for a change to the wage system had not been implemented. Existing differences between the private and public sectors had merely been mitigated through the granting of additional family benefits. Moreover, in many cases, agreements that had been concluded at the local level had been entirely or partially changed by decision of local authorities.

He also referred to the situation with regard to the arbitration award system. The implementation of agreements concerning workers in the fiscal services and the forestry services concluded in 1998 had been postponed for several months. This constituted an inadmissible interference in the right to collective bargaining. Substantive improvements were therefore required, as clearly requested by the Committee of Experts, in the envisaged legislative process. It was to be deplored that, even though the Government representative had given explicit recognition to the ILO's principles, it was not the Government's intention to comply with the provisions of the Convention. The Government had been criticized by ILO bodies on this matter for over 35 years. He therefore called upon the Government to give effect to the justified demands of the Japanese trade unions, which related to points raised by the ILO supervisory bodies. For this purpose, the Government would need to enter into serious dialogue with the trade unions.

The Worker member of Pakistan recalled that this serious case concerned an Asian country that was a member of the G8 and therefore had a responsibility to set a good example. In view of the fact that it had ratified both Conventions Nos. 87 and 98, it should restructure its system so that it granted the fundamental rights of collective bargaining to all workers. He expressed strong disagreement with the statement by the Government representative that such fundamental rights needed to be adapted to the specific conditions in each country. He emphasized that the fundamental trade union rights were of a universal nature and could not be made subject to national conditions in either developing or industrialized countries. While everybody agreed that it was necessary to improve the efficiency of public servants, this should not be at the expense of their basic rights. The Government had previously said on many occasions that it took seriously the recommendations of the Committee of Experts and the Committee on Freedom of Association, but was showing that this was not the case through its proposed legislation, which reduced workers' rights still further. The Government's obligations under the Convention required the full development of voluntary negotiation and, as emphasized repeatedly by the Committee on Freedom of Association, in the case of workers engaged in essential services, the development of alternative independent and impartial recourse machinery in the event of disputes. He therefore urged the Government to review its position on collective bargaining in the public service in accordance with the Convention, and to enter into meaningful dialogue with the trade unions concerned with a view to bringing its legislation into conformity with the obligations under the Convention.

The Worker member of France stated that he was speaking on behalf of the French trade unions on the effective exercise of human rights and fundamental freedoms. The Conventions on freedom of association did not limit or exclude the categories of workers referred to in the observation of the Committee of Experts on the application of the Convention in Japan. This Convention also provided safeguards against any form of anti-union discrimination and protected all workers, including public service workers and workers in the local public service or in state employment, and especially workers in national hospital services. Freedom of association, which was protected by the Convention, constituted a universal and an imprescriptible human right, as set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 1966. Freedom of association was an essential component of the right to organize because it required respect for the freedoms of opinion and expression, the right to establish trade unions, political and social associations and the right to participate in their activities, without improper or excessive constraints or discrimination as noted by the Committee of Experts and confirmed by the Government's statement. The freedom to establish unions and to negotiate collectively terms and conditions of work could not be dissociated from political and civil freedoms in general, as recalled regularly by the Committee of Experts and by the entire supervisory system. Members of the army and the police were the only categories of workers whose rights of freedom of association and bargaining could be restricted. The categories of public employees referred to in the observation made by the Committee of Experts could not be deprived of their right to organize and to negotiate collectively, nor could they be deprived of their civil and political freedoms, such as the freedom of expression and opinion. These freedoms were granted to Japanese citizens in the Constitution and could not be limited in practice to a vote at election time. Workers in administrative and health services were citizens who were at the service of all citizens, and could not be considered as second-class citizens. In Japan, the exercise of rights protected by the Convention was excessively limited. The fact that freedom of opinion and expression could not be fully enjoyed outside working hours also explained the excessive limits set on other fundamental freedoms, such as those specified in the Convention. The salaries, working conditions and social rights of workers in public hospital services were also political questions, because they depended on the state budget and the budgets of local authorities. The right of trade unions to express their views on budgetary decisions and to explain to other citizens their impact on the quality of services and on the situation of their workers were basic political freedoms which could not be suppressed without putting at risk the freedom to negotiate. In principle, old authoritarian systems had been abolished in democratic countries, regardless of their heritage. For many years, the Committee of Experts had been singling out serious cases of restrictions on freedom of association and the right to collective bargaining in the public service. These issues had also been discussed frequently by this Committee. The time had come for the Government to take the necessary measures, in consultation with the trade unions concerned, to protect civil and political freedoms and socio-economic freedoms, including the full freedom of workers in the public service and in public hospital institutions to negotiate collectively. The Committee needed to make a strong request to the Government to take urgent measures to modernize and democratize the status of these workers, who provided invaluable services to the community, and to fully commit itself to social dialogue and collective bargaining in good faith in order to ensure a high-quality public service.

The Worker member of India stated that Japan had violated Convention No. 98, particularly with regard to the promotion of the negotiation rights of public employees who are not engaged in the administration of the State. He noted that the National Personnel Authority possessed only the power to submit recommendations respecting the wages and service conditions of public servants, which the Government may freely accept or ignore, and that at no point were employees entitled to negotiate over the terms of employment. He emphasized that all decision-making power ultimately rested in Government hands, and in this context referred to reports that local governments had short-circuited the personnel commission by directly proposing monthly wage cuts or bonus reductions to local assemblies.

He observed that, in this era of increasing globalization, Japan had resorted to such practices as downsizing, retrenchment, privatization and workload increases in order to further the competitive edge of its finance capital, and that these developments came at the expense of Japan's workers. On this point, he cited press reports of employees being treated as robots and dying early deaths. He stated that Japan, for all its material wealth, remained in other respects a poor nation, and concluded by urging the ILO to pursue the matter, as appropriate, in order to ensure the rights of Japan's workers to organize and bargain collectively.

The Worker member of Australia considered that the situation was far from "satisfactory", as noted by the Committee of Experts in its concluding paragraph, and was instead deteriorating. He stated that the Government possessed the clear and unambiguous aim of severely limiting the freedom to organize and bargain collectively. As an example of this, he cited article 98(2) of the National Public Service Law, which prohibits workers from striking or engaging in "delaying tactics or other acts of dispute." By the use of such broad and inclusive language as "delaying tactics" and "other acts", he emphasized, the Government had deliberately and flagrantly breached both the letter and the spirit of Convention No. 98. He further noted that this law had redefined "essential services" so as to include all public employees in the national public service, local public service and public enterprises. He stated that this extension of the prohibition of the right to strike or engage in delaying tactics to so broad a category of employees constituted a further, deliberate attack on workers.

He also cited article 110 of the National Public Service Law, which provides for penal servitude for up to three years for persons who engage in, incite, or instigate delaying tactics or other acts of dispute, and described these sanctions as neither acceptable nor appropriate. In conclusion, he urged the Conference Committee to find the definition of "essential services", and the term "delaying tactics" incompatible with the principles of Convention No. 98.

The Government member of Japan explained that the ongoing civil service reforms were aimed at making more efficient use of public employees' abilities and accommodating to the diversifying needs of the public service. He stated that the issue of the fundamental labour rights had been examined prior to the Cabinet's adoption of said reforms, taking fully into account the ILO view of the matter, and maintained that the Government would continue to fully ensure the current compensation schemes and keep such compensatory functions effective. In conclusion, he asserted that the Government was currently under the process of making the reforms into legislative form and designing the details of the system, and it had fully recognized the ILO's view would continue to hold negotiations and consultations in good faith with employees' organizations.

The Worker members recalled that in this case the Government of Japan was under question for serious violations of Convention No. 98, in particular in the public sector, with regard to workers' rights to collectively bargain with respect to their conditions of work and employment. The different government restructurations which had taken place had resulted in a veritable erosion of workers' rights in this domain and followed a reactionary concept. The Government pretended to make reforms which gave effect to the Convention, but in reality there was no change. For this reason the Worker members asked that the Government be requested to communicate to the Committee of Experts concrete information. They also asked the Government to engage in a real dialogue with the workers' organizations and, in this framework, to sincerely treat the real problem of the absence of negotiations, a matter which infringed on fundamental rights.

The Employer members welcomed the Government representative's comments, particularly concerning planned changes to the public service. However, it remained to be seen whether sufficient protection would exist in the legislation. They noted the changes that had been implemented to date in the public sector, but felt that further changes were needed. They hoped that progress would be made to extend the right to collective bargaining to public sector workers, in particular workers in large medical institutions. The Government had taken steps, but further steps were still needed. The Employer members welcomed the expansion of the scope of issues for collective bargaining. Lastly, they hoped that the Government would bear in mind the comments of the Committee of Experts and be able to report on progress made.

The Committee noted the statement of the Government representative and the discussion that followed. It recalled that the Committee of Experts raised issues which concerned the application of Article 1 of the Convention dealing with protection against acts of anti-union discrimination, and of Article 4 concerning the promotion of collective bargaining. The Committee welcomed the positive developments in this respect in the national hospital sector and in public enterprises and encouraged the Government to continue taking measures to ensure fully the right to collective bargaining for workers in the national hospital sector. However, it noted with concern the very limited participation of public servants in the determination of their salaries. Recalling that the Convention applies to public servants not engaged in the administration of the State, the Committee expressed its firm hope that the Government will avail itself of the current public service reform, in full consultation with the social partners concerned, to encourage and promote collective bargaining, with a view to the regulation by these means of the terms and conditions of employment of public servants covered by the Convention. It urged the Government to provide, in its next report, detailed information on the developments in this respect, in particular on the measures taken or envisaged to ensure the full application of the Convention, both in law and in practice.

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The Government has communicated the following information:

Collective bargaining in special financing corporations. The Report of the Committee of Experts for this year requested the Government to supply more detailed information on the wage determination system for the employees of special financing corporations, etc. The Government intends to send detailed information in response to the request in good faith so that an adequate examination may be made at the next meeting of the Committee of Experts with full information placed at its disposal.

However, since there seems to be several misunderstandings in that report with regard to the basic facts about the wage issues in special financing corporations, etc., in Japan, the Government would like to take this opportunity to point out some of them.

1. In the summary of the Government's observations in the said report, some inaccuracy is noted in the way the Report of the Special Advisory Council on Enforcement of Administrative Reform was quoted. The Government takes basically the same views as expressed in the Advisory Council's Report.

2. Although the Committee of Experts' report mentioned that "it appears to the Committee ..., at least in certain cases, wages (of the employees of special financing corporations, etc.) have been equated to those applicable to national public employees", this is not the case. While the difference in job content, wage scale, etc., renders it difficult to have a precise comparison of the wage levels between the employees of special financing corporations, etc., and national public employees, it is generally recognised that the wage level of the employees of special financing corporations, etc., is higher than that of national public employees.

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The Committee notes the following observations concerning matters addressed in this comment, as well as the Government’s replies to these: the observations of the Japanese Trade Union Confederation (JTUC–RENGO), transmitted with the Government’s report; the observations of the National Confederation of Trade Unions (ZENROREN), received on 31 August 2021; and the observations of the Rentai Union Suginami, the Rentai Workers’ Union, Itabashi-ku Section, the Apaken Kobe (Casual/Temporary/Part-time Non-regular Workers’ Union) and the Union Rakuda (Kyoto Municipality Related Workers’ Independent Union), received on 1 September 2021. The Committee further notes the observations from Education International (EI), received on 9 September 2021, and the reply of the Government to those.

Articles 4 and 6 of the Convention. Collective bargaining rights of public service employees not engaged in the administration of the State. The Committee recalls that for many years its comments relate to the need to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State. In its previous comments, the Committee requested the Government to provide information on the steps taken to engage in consultation with the social partners, as required by the Civil Service Reform Law, so as to ensure collective bargaining rights for public service employees not engaged in the administration of the State. The Committee notes the Government’s indication once again that basic labour rights of public service employees are, to some degree, restricted, due to the distinctive status and the public nature of the functions. It recalls that public service employees benefit from the National Personnel Authority (NPA) recommendation system. It further asserts that exchanges are held annually, at various levels, with employees’ organizations on various topics, including the measures for the autonomous labour–employer relations system. Observing that there are still various concerns and opinions concerning these measures, in addition to the changing environment in labour relations, the Government intends to continue to consult with the trade unions on these issues. The Committee notes, on the other hand, the observations of the JTUC–RENGO’s, ZENROREN, Rentai Union Suginami, Rentai Workers’ Union, Itabashi-ku Section, Apaken Kobe (Casual/Temporary/Part-time Non-regular Workers’ Union) and the Union Rakuda (Kyoto Municipality Related Workers’ Independent Union) deploring, in their respective communications, that the Government has failed to initiate any meaningful consultation on the autonomous labour–employer relations system despite their demands during the past years and alleging that this illustrates the lack of intention on the part of the Government to reconsider the legal system with regard to the basic labour rights of public service employees.

Furthermore, the Committee notes that the Government reiterates that the NPA remains fully functional as a compensatory measure for the restrictions on basic labour rights of public service employees. The Government reports that the NPA held 208 meetings in 2019 and 185 meetings in 2020 to hear opinions and requests from trade unions. Additionally, the bills on remuneration and other working conditions of public employees prepared by the Government for the deliberation in the Diet are drafted according to the NPA recommendation system. In its view, these compensatory measures maintain appropriately the working conditions of national public service employees. The Committee notes, on the other hand, the opinion of the JTUC–RENGO that recommendations of the NPA are subordinated to the political decision of the Government. In the case of the recommendation on remuneration, the Committee notes that the JTUC–RENGO regretted that the wage revision processes had been conducted in a unilateral way by the Government, illustrating the fact that the NPA recommendation system is defective as a compensatory measure. The Committee recalls that, under Articles 4 and 6 of the Convention, civil servants not engaged in the administration of the State must be able to collectively negotiate their working and employment conditions, and that mere consultation mechanisms are not sufficient in this respect.  The Committee, noting that the report fails to provide any additional information on the matter, firmly expects that the Government will make every effort to expedite its consultation with the social partners concerned and that it will adopt measures for the establishment of the autonomous labour–employer relations system that will ensure, in the near future, collective bargaining rights for all public servants not engaged in the administration of the State. In the meantime, the Committee requests the Government to continue to provide information on the functioning of the NPA recommendation system as a compensatory measure to the denial of collective bargaining rights to public service employees.

Collective bargaining rights of national forestry project staff. The Committee, recalling that national forestry project staff are not among the category of workers that may be excluded from the scope of the Convention, previously requested the Government to indicate the steps taken to ensure that this category of workers is afforded the full guarantees of the Convention, including the right to bargain collectively. The Committee notes the Government’s indication that it conducts an annual exchange of opinions with employee organizations regarding working conditions in the national forestry business. Those that the Government considers may be adopted are promptly implemented, such as the reappointment to Government posts for retired staff. The Committee notes the observations of the JTUC-RENGO recalling that the reappointment system is implemented by virtue of pre-existing laws, hence it was not established through labour–employer discussions within the national forestry project and that, as a consequence, the recognition of the right to collective bargaining of national forestry project staff remains unaddressed. The Committee, noting that the report fails to provide any meaningful information on the matter, reiterates its firm hope that the Government will provide in its next report information on tangible consultations held and the measures taken to ensure that national forestry project staff is afforded the full guarantees of the Convention, including the right to bargain collectively.

Full guarantee of the Convention for local public service employees. The Committee notes the observations of Rentai Union Suginami, Rentai Workers’ Union, Union Rakuda and Apaken Kobe referring to the adverse impact of the entry into force of the revised Local Public Service Act in April 2020 on their right to organize, and stating that: (i) the new system, which aimed at limiting the use of part-time staff on permanent duties, has the effect of increasing the number of workers stripped of their basic labour rights; and (ii) the new conditional yearly employment system in place has created job anxiety and weakens union action. Additionally, the trade unions allege that this new employment system increases risks of anti-union harassment at the workplace, including threats of non-renewal of employment, which makes it more urgent to ensure basic labour rights to local public service employees. The Committee notes the Government’s reply that the change in the conditions relating to basic labour rights for some of these employees is a direct consequence of the legal amendments ensuring proper appointment of special service personnel and temporary appointment employees. The Government asserts that, based on the examination of the autonomous labour–employer relations system pertaining to national public service employees, it will carry out a careful examination of measures for the local public service employees, taking account of opinions from related organizations. The Committee recalls that the Convention covers all workers and employers, and their respective organizations, in both the private and public sectors, regardless of whether the service is essential. The only exceptions authorized concern the armed forces and the police, as well as public servants engaged in the administration of the State. It also recalls that the rights and safeguards set out in the Convention apply to all workers irrespective of the type of employment contract, regardless of whether or not their employment relationship is based on a written contract, or on a contract for an indefinite term (see 2021 General Survey on the fundamental Conventions, paragraph 168). The Committee observes that the legal amendments that entered into force in April 2020 for local public service employees have the effect of broadening the category of public sector workers whose rights under the Convention are not fully ensured. The Committee therefore urges the Government to expedite its consideration of the autonomous labour–employer relations system so as to guarantee that the rights under the Convention cover local public service employees without distinction and that the right to collective bargaining of municipal unions is not impaired through the introduction of these amendments. It requests the Government to provide detailed information on the measures taken or envisaged in this regard.

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The Committee notes the observations made by the Japanese Trade Union Confederation (JTUC–RENGO) dated 24 July 2017 and communicated with the Government’s report, as well as the Government’s reply thereto, and the observations by Japan Business Federation (NIPPON KEIDANREN) dated 3 August 2017 which were also forwarded with the Government’s report. The Committee takes note of the observations received on 1 September 2017 from the International Organisation of Employers (IOE) endorsing the observations of the NIPPON KEIDANREN. The Committee further notes the observations by the National Confederation of Trade Unions (ZENROREN) dated 21 September 2017 on obstacles to collective bargaining in practice and the Government’s reply thereto. The Committee observes that the Government’s report and comments also provide replies to the observations received in 2014 from ZENROREN.

Articles 4 and 6 of the Convention. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. The Committee recalls that its previous comments concerned the need for measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State in the framework of ongoing consultations on the reform of the civil service. The Committee previously regretted that the package of reform bills, which was the fruit of long consultations with the social partners and civil society over many years and which provided for a new framework in the national public service where both parties to labour–employer relations negotiate and determine autonomously the issue of working conditions and promote reform of the personnel management and remuneration system, was ultimately not adopted by the Diet. As a result, a number of public servants not engaged in the administration of the State remained deprived of their collective bargaining rights. The Committee had requested the Government to provide information on the steps taken by the Cabinet Bureau of Personnel Affairs to engage in consultation with the social partners as required by the Civil Service Reform Law so as to ensure collective bargaining rights for all public servants not engaged in the administration of the State.

The Committee notes the JTUC–RENGO’s observations that there has been no progress in the consultations requested by the Committee due to failure to act and pro forma responses by the Government. More specifically, the JTUC–RENGO alleges that since the inception of the Cabinet Bureau of Personnel Affairs the Government has not engaged in any meaningful consultation with public service employees’ trade unions on the issues. According to the JTUC–RENGO, in spring 2017 in reply to the request from the Public Service Employee Trade Union Liaison Council (a consultative organization consisting of trade unions affiliated with the JTUC–RENGO and related to non-worksite public service employees), the Minister in charge of national public service employees had merely repeated the same response for three years in succession: “Regarding an autonomous industrial relations system, since a wide range of issues are involved, I would like to engage in prudent considerations while exchanging views with all of you.” On the other hand, the Committee notes the Government’s indication that the Cabinet Bureau of Personnel Affairs has, since its establishment, been exchanging continuously with employees’ organizations on various topics. These hearings, however, led the Government to observe that there are still wide-ranging issues to be considered in addition to the changing environment in labour relations. The Government therefore intends to continue to consult employees’ organizations on the measures for the autonomous labour–employer relations system. The Committee notes the observations from the NIPPON KEIDANREN supporting the Government’s position.

Furthermore, the Committee notes the Government’s indication that after the Cabinet Bureau of Personnel Affairs was established, the National Personnel Authority (NPA) remained fully functional as a compensatory measure for the restrictions on basic labour rights of public service employees, and actually the Government had revised remuneration of public employees according to the NPA recommendation made after consultation with the social partners in an independent manner. The Committee notes the observations from the JTUC–RENGO that recommendations from the NPA are subordinated to the political decision of the Government. In the case of the recommendation on remuneration, the JTUC–RENGO regretted that the wage revision processes had been conducted in a unilateral and confusing way by the Government, which was illustrative of the fact that the NPA recommendation system is defective as a compensatory measure. Noting the lack of meaningful progress, despite the continuous dialogue between the Government and the social partners on measures for the autonomous labour–employer relations system, the Committee expects that the Government will make every effort to expedite its consultation with the social partners concerned and that it will adopt measures for the establishment of the autonomous labour–employer relations system that will ensure, in the near future, collective bargaining rights for all public servants not engaged in the administration of the State. In the meantime, the Committee requests the Government to continue to provide information on the functioning of the NPA recommendation system as a compensatory measure to the denial of collective bargaining rights to the public service employees.

The Committee recalls that, following observations from the JTUC–RENGO deploring the removal of collective bargaining rights from the national forestry project staff, it requested the Government to indicate the steps taken to ensure that national forestry project staff is afforded the full guarantees of the Convention, including the right to bargain collectively. The Committee notes the Government’s indication that at the time of the revision of the system, a supplementary resolution providing that “in order to ensure the fulfilment of various roles required for national forestry businesses, including maintenance/promotion of the public interest functions and promotion of integrated development/maintenance with privately owned forests, etc., efforts should be made in promoting and securing the appropriate level of the ceiling of the number of officials taking into account severe financial situations and the actual situation of site management, establishment of structures/systems, development of human resources, and transfer of skills, etc. and developing the working conditions of employees engaged in national forestry businesses” was adopted by the Committee on Agriculture, Forestry and Fisheries of the House of Representatives. The Government intends to consider the purport of this resolution by exchanging opinions on the working conditions of employees engaged in national forestry businesses. The Committee recalls once again its previous observation in which it highlighted that national forestry project staff are not among the category of workers that may be excluded from the scope of the Convention. The Committee firmly hopes that the Government will provide in its next report information on the consultations held and the measures taken to ensure that national forestry project staff is afforded the full guarantees of the Convention, including the right to bargain collectively.

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The Committee notes the observations made by the Japanese Trade Union Confederation (JTUC–RENGO) communicated with the Government’s report, as well as the Government’s reply thereto, and the observations of the Japan Business Federation (NIPPON KEIDANREN) which were also forwarded with the Government’s report. It further notes the observations submitted by the National Confederation of Trade Unions (ZENROREN) received on 25 September 2014 and requests the Government to provide its comments thereon with its next report.

Articles 4 and 6 of the Convention. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. The Committee recalls that its previous comments concerned the need for measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State in the framework of ongoing consultations on the reform of the civil service.

The Committee notes the Government’s indication that the civil service reform related bills, which had set out a new framework in the national public service where both parties to labour–employer relations negotiate and determine autonomously the issue of working conditions and promote reform of the personnel management and remuneration system, were not approved by the Diet. The Government adds that, under section 12 of the Reform Act, exchanges and consultations on measures for the autonomous labour–employer relations system were held and subsequently a new bill was approved which provided that the Cabinet Bureau of Personnel Affairs would “make efforts to reach agreements on measures for the autonomous labour-employer relations system, based on section 12 of the Civil Service Reform Law, gaining the understanding of the people, hearing from employees’ organizations”.

The Committee notes JTUC–RENGO’s observations that the National Public Service Act and the Local Public Service Act presented to the Diet in 2014 do not contain any provisions on the legal system regarding the points that have been raised under Conventions Nos 87 and 98. JTUC–RENGO expresses its deep concern that there will be no change to this situation in the foreseeable future. The Committee further observes the statement by NIPPON KEIDANREN strongly supporting the supplementary resolution in the Cabinet Committee of the House of Councillors on 10 April 2014, which is to make efforts to reach agreements on measures for autonomous labour-relations system with gaining the understanding of the people. NIPPON KEIDANREN further supports the idea that the Government would continue to carefully review and consider measures for autonomous labour-relations system for local public service employees based on voices from employees’ organizations and considering the changes of measures for national public service employees. While observing that the National Public Service Act does not include measures for the autonomous labour–employer relations system, the Committee notes that the Cabinet Bureau of Personnel Affairs is charged with examining measures for the autonomous labour–employer relations system through continuous hearing of those concerned. The Committee further notes, however, JTUC–RENGO’s observations that the Cabinet Bureau of Personnel Affairs which was established on 30 May 2014 has not held any exchanges or consultations with staff organizations on the establishment of an autonomous industrial relations system.

The Committee notes with regret that the package of reform bills, which was the fruit of long and detailed consultations with the social partners and civil society in Japan over many years, was ultimately not adopted and as a result, a number of public servants not engaged in the administration of the State remain deprived of their collective bargaining rights. The Committee requests the Government to bolster its efforts in dialogue with the social partners to review the current system so as to ensure in the very near future collective bargaining rights for all public servants not engaged in the administration of the State. It further requests the Government to provide detailed information on the steps taken by the Cabinet Bureau of Personnel Affairs to engage in consultation with the social partners on these matters as required by the Act.

The Committee notes that the observations of JTUC–RENGO and ZENROREN further raise a number of subsidiary points relating to unilateral wage cuts in 2013, which are being examined by the Committee on Freedom of Association in Cases Nos 2177 and 2183. The Committee takes note of the Government’s reply that this special temporary measure to respond to the need to revitalize the regional economies after the Great East Japan Earthquake came to an end on 31 March 2014.

Finally, the Committee notes the JTUC–RENGO observations that a recent change in applicable law has resulted in the removal of collective bargaining rights for the national forestry project staff. The Committee notes with regret the information provided by the Government concerning a legislative enactment which brings these project staff under the purview of the National Public Service Act. The Committee recalls its previous observation in which it sets out the restricted interpretation that should be given to the term “public servants engaged in the administration of the State” and requests the Government to indicate the steps taken to ensure that national forestry project staff is afforded the full guarantees of the Convention, including the right to bargain collectively.

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The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 4 August 2011, ZENTOITSU (All United) Workers’ Union on 7 October 2010, and the National Confederation of Trade Unions (ZENROREN) dated 21 September 2011. It further notes the comments made by the Japanese Trade Union Confederation (JTUC–RENGO) dated 30 August 2011 and communicated with the Government’s report, which touch on issues previously raised by the Committee and highlights recent jurisprudential and policy developments.

Article 1 of the Convention. The Committee had previously noted the long-standing dispute and court proceedings arising out of the privatization of the Japanese National Railways (JNR), which were taken over by the Japan Railway Companies (JR). The dispute concerned in particular the decision of the JR not to rehire workers belonging to certain organizations which opposed the privatization plan. The Committee had noted that the last major pending issue concerned outstanding claims for the reinstatement of the 1,047 KOKURO workers and had requested the Government to communicate any judicial determination on this issue. Recalling that this issue is being dealt within the framework of Case No. 1991 before the Committee on Freedom of Association, the Committee notes that the ITUC indicates that, while some workers did not achieve full settlement of their claims, in particular as regards reinstatement, the dispute was finally settled by the Supreme Court on 28 June 2010 with the JR agreeing to pay a total of ¥20 billion in settlement money to 904 workers (¥22 million per worker). The Committee notes with satisfaction the information provided by the Government within the framework of Case No. 1991 and to which it refers in its report which sets out the details of the final settlement of this long outstanding case. The Committee expresses its deep appreciation to all those who spared no effort to achieve this result and in some cases accepted compromise solutions in the interest of moving forward in greater harmony.

Article 4. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. The Committee’s previous comments concerned the need for measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State in the framework of ongoing consultations on the reform of the civil service.

The Committee takes note of the different steps taken by the Government to establish an autonomous labour–employer relations system, in particular the submission to the Diet on 3 June 2011 of four civil service reform related bills (“the Reform Bills”). The Government indicates that upon the adoption of these bills, a new framework will be established in the national public service where both parties to labour–employer relations negotiate and determine autonomously the issue of working conditions and promote reform of the personnel management and remuneration system, responding to changing circumstances and new political issues. In particular, the Committee notes that the Bill on Labour Relations of National Public Service Employees will grant the right to national public service employees in the non-operational sector to conclude collective agreements if approved by the Diet.

The Committee further notes the following Government’s indications with regard to the modalities of the exercise of the right to collective bargaining in the non-operational sector of the national public service: (1) exclusion of administrative vice-ministers, director-generals of agencies and director-generals of bureaus of ministries, as well as police officials and officials working for the Japan Coast Guard and penal institutions – the latter three categories will benefit from appropriate compensatory measures; (2) certification of unions for the purpose of collective bargaining by the Central Labour Relations Commission subject to national public service employees representing the majority of all labour union members; (3) prohibition of unfair labour practices and examination of allegations by the Central Labour Relations Commission; (4) conciliation, mediation and arbitration to be conducted by the Central Labour Relations Commission (including compulsory arbitration); and (5) when a collective agreement entered into requires legislative reform, the Cabinet shall be obliged to submit relevant bills to the Diet or enact or revise relevant cabinet orders. The Committee notes that the Government also indicates that the Bill for Establishment of the Civil Service Office aims at centralizing the personnel administration functions by creating a civil service office responsible for the overall management of personnel and the remuneration system as well as for undertaking negotiations with labour unions as the employer. Another bill was introduced to suppress the National Personnel Authority and its recommendation functions. The Committee notes that, throughout the abovementioned process, the Government held consultations with employees’ organizations including JTUC–RENGO, RENGO–PSLC, ZENROREN and the National Public Service Employee’s Unions (KOKKOROREN) at various levels.

The Committee notes that the Government indicates in its report that a similar framework has been proposed for local public service employees in the Basic concept of the Labour–Employer Relations System for Local Public Service Employees released by the Cabinet on 2 June 2011 with the following adjustments: (1) exclusion of personnel with restrictions on the right to organize, personnel making important administrative decisions, and personnel working at local public enterprises, etc.; (2) certification by the Prefectural Labour Relations Commission requires that the majority of the members of the union are local public service personnel belonging to the same local government; and (3) relief system overseen by the Prefectural Labour Relations Commission against unfair labour practices shall be established and the Personnel Commission recommendation functions shall be abolished.

The Committee observes that, according to JTUC–RENGO, although the Reform Bills were not brought under deliberation during the 177th ordinary session of the Diet, which ended at the end of August 2011, the Government’s reaction is a historical step towards opening the possibility of restoring fundamental workers’ rights and has important significance in pushing toward problem-solving. JTUC–RENGO also indicates that the bills regarding local public service employees are expected to be submitted to the Diet as early as possible in order to implement them simultaneously with those for national public service employees and to promote smooth deliberation of all bills. The Committee further observes that ZENROREN has expressed its lack of satisfaction with the consultation process and finds the bills unsatisfactory, in particular the requirement for prior certification of trade unions, exclusion of control and management matters from the subjects for collective bargaining and requirement for the approval of the collective agreement by the Cabinet Council prior to its signing and also that it calls for a more binding system of redress for unfair labour practices taking into account that anti-union discrimination has been persistent in the civil service for over 30 years.

The Committee expects that the necessary steps will be taken in the very near future so as to ensure collective bargaining rights in the national and local public service with the possible exceptions of public servants engaged in the administration of the State. The Committee firmly hopes that the Government will be in a position to report on concrete progress made in this respect in its next report and requests the Government to provide copies of the bills and indicate their status in its next report.

While taking into account ZENROREN’s claim that the Government unilaterally presented a bill on the reduction of state personnel expenditure allowing it to reduce the salaries of civil servants beyond the NPA recommendations despite the opposition of some employee’s organizations, the Committee notes that the Government states in its report that, for the period until the realization of an autonomous labour–employer relations system, measures for reducing personnel expenses will be examined and bills will be submitted taking into consideration the severe financial national situation. The Government indicates that the Great East Japan Earthquake on 11 March 2011 pressed the Government to further reduce annual expenditures because of the necessity to respond for recovery efforts and the Government decided to introduce, at the same time as the Reforms Bills, a Bill of Temporary Special Provisions on Remuneration for National Public Service reducing the remuneration of national public service employees as a special temporary measure to cut expenses until the new labour relations framework is operational. The Government further indicates that due to the exceptional character of the measure, negotiations were held with the Liaison Conference of National Public Service Employees’ Unions (“Liaison Conference”) affiliated with JTUC–RENGO, and KOKKOROREN, but agreement was only reached with the Liaison Conference. The Committee observes that JTUC–RENGO states that sincere consultations were held with the Government and the Alliance of Public Service Workers Unions (APU) regarding a new system of revision of wages of national public service employees through negotiation, which was included in the Reform Bills. Although the Committee understands that many of the measures taken by the Government were intended to remedy the consequences of the earthquake, the Committee expects that, until the new legislation is adopted and implemented, the Government will refrain from taking unilateral measures affecting negatively the remuneration and working conditions of public employees and will continue to examine measures in the context of the current dialogue over the civil service reform, aimed at giving a primary role to collective bargaining so that workers and their organizations may be able to participate fully and meaningfully in designing the overall bargaining framework.

Article 6. Application of the Convention to public servants. Taking note that, according to JTUC–RENGO, the translation of Article 6 of the Convention into Japanese is problematic as “public servants engaged in the administration of the State” was translated by komuin (public servants), the Committee recalls that it has adopted a restrictive approach with regard to the exclusion by the Convention of some categories of public servants from its scope. The distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in Government ministries and other comparable bodies as well as ancillary staff who may be excluded from the scope of the Convention) and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions who should benefit from the guarantees provided for in the Convention and therefore be able to negotiate collectively their conditions of employment including wages (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 199, 200 and 262). The Committee expresses the firm hope that the Government will take appropriate measures to ensure that all public servants except those engaged in the administration of the State can effectively exercise their rights under the Convention.

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The Committee notes the comments of the Japanese Trade Union Confederation (JTUC–RENGO) dated 22 October 2008 and 5 October 2009 and the International Trade Union Confederation (ITUC) dated 26 August 2009, on the application of the Convention. The Committee requests the Government to provide its observations on the most recent comments made by the JTUC–RENGO and the ITUC.

Article 1 of the Convention. The Committee had previously noted the long-standing dispute and court proceedings arising out of the privatization of the Japanese National Railways (JNR) which were taken over by the Japan Railway Companies (JR); they concern in particular, the decision of the JR not to rehire workers belonging to certain organizations which opposed the privatization plan. The Committee additionally noted that the last major pending issue concerned outstanding claims for the reinstatement of the 1,047 Kokuro workers. The Committee notes that the Government indicates in its report that this issue is still being dealt with in the framework of the relevant recommendations of the Committee on Freedom of Association and that the Government will continue to inform the Committee of any progress made in this regard. The Committee requests the Government to communicate any determination of the abovementioned issue in its next report and, in particular, the results of any appeals from the remaining workers or any other developments.

Article 4. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. Several of the Committee’s previous comments concerned the need for measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State in the framework of ongoing consultations on the reform of the civil service. The Committee notes that the JTUC–RENGO states that the Headquarters for Promoting Civil Service Reform was established pursuant to the Basic Law on Reform of National Public Officers’ Systems (Civil Service Reform Law) and, in order to develop an autonomous labour management relation system for public employees, the Labour Employer Relations System Examining Committee was set up and began its examination process. A working group was established in the committee and began discussions in April 2009 in order to work out a system for granting the right to conclude collective agreements, but it is still unclear whether that group’s conclusions will be in line with the ILO recommendations. 

The Committee notes that the Government indicates that in some local governments, there are cases where there is no choice but to implement the revision of salaries in accordance with the recommendations of Personnel Commissions in view of the current social and economic circumstances, critical fiscal conditions and progress of administrative and fiscal reform. In addition, the Government indicates that the Supreme Court has ruled that, even if a revision of remuneration has not been made in accordance with the Personnel Commission, it should not be immediately interpreted as the Personnel Commission not playing its proper compensatory functions if it is due to the really unavoidable reasons of the Prefecture’s fiscal conditions. The Committee also notes that the Government held a number of meetings with JTUC–RENGO and RENGO–PSLC at various levels formally and informally between November 2008 and March 2009. 

Additionally, in 2008 the Government held a total of 35 official meetings with employees’ organizations concerning issues including remunerations. Four of these meetings were with the Minister of Internal Affairs and Communications and based on the resulting findings, the Amendment Bill of the Law Concerning the Remuneration of Regular Service Employees was submitted to the Diet to revise the remunerations exactly as recommended by the National Personnel Authority.

Taking note of this information, the Committee once again recalls from previous comments that the capacity of public employees who are not engaged in the administration of the State to participate in the determination of wages remains substantially limited and once again requests the Government to examine measures in the context of the current dialogue over the civil service reform, aimed at giving a primary role to collective bargaining so that workers and their organizations may be able to participate fully and meaningfully in designing the overall bargaining framework. The Committee firmly hopes that the Government will be in a position to report on concrete progress made in this respect in its next report.

 

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The Committee takes note of the Government’s report as well as its response to the comments made by: the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006; the Japanese Trade Union Confederation (JTUC–RENGO) dated 28 August 2006; and the Zentoitsu (All United) Workers’ Union dated 13 December 2005, with regard to issues previously raised by the Committee including anti-union discrimination and the setting of wages in the public service. It also notes the communication by the ITUC dated 27 August 2007 with regard, inter alia, to difficulties in trade union organization and collective bargaining due to the increase in precarious forms of employment and subcontracting, including for migrant workers as well as the comments by JTUC–RENGO dated 13 October 2007. The Committee requests the Government to provide its observations on the latest comments made by the ITUC and JTUC–RENGO.

Article 1 of the Convention. The Committee notes that the comments of the Zentoitsu (All United) Workers’ Union concern a long-standing dispute and court proceedings arising out of the privatization of the Japanese National Railways (JNR) which were taken over by the Japan Railway Companies (JR); they concern in particular, the decision of the JR not to rehire workers belonging to certain organizations which opposed the privatization plan. The Committee notes that in its report the Government indicates that it is not in a position to make comments on the final determination of this issue by the courts. The Committee also notes with interest from the latest communication by the ITUC that the 17‑year dispute and trade union struggle ended in November 2006 with a final agreement which settled 61 outstanding court cases between the parties. The ITUC adds, however, that the last major issue, the reinstatement of the 1,047 Kohuao worker hold-outs, continues to be worked out. The Committee requests the Government to communicate the relevant information in its next report and, in particular, the results of any appeals from the remaining workers or any other developments.

Article 4. 1. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. The Committee’s previous comments concerned the need for measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State in the framework of ongoing consultations on the reform of the civil service. The Committee recalls that in the framework of that reform, the National Personnel Authority (NPA), a neutral body which makes recommendations to the Diet and the Government on the revision of remuneration and working conditions of public employees (based on surveys of working conditions in the private sector and taking into account the views of public employees’ organizations), proposed on 15 August 2005, a drastic reform of the whole remuneration system of public employees so as to reflect local private sector wage levels and each employee’s performance.

The Committee notes the comments made by JTUC–RENGO and the ICFTU to the effect that, on 24 December 2005, the Government adopted an “Essential Policy for Administrative Reform” which represented a major switch from the previous policy in that it provided for “frank dialogue and adjustment with the parties concerned” in order to achieve the implementation of a personnel management system based on merit and the fair management of re-employment in the context of reforms of overall employment costs; it also provided for “a broad review of the public service system, including the fundamental labour rights of civil servants and the National Personnel Authority system, the way of setting salaries for civil servants, treatment based on a merit system and performance evaluations, and the career system” taking into account public awareness and progress in reforms of the existing salary system. Based on this policy, a Special Examination Committee was created to examine, inter alia, the proper way of developing industrial relations, including the issue of fundamental labour rights of public employees. Despite this policy, however, according to JTUC–RENGO, during the 2006 revision of the remuneration levels of public employees, the NPA unilaterally modified the index on the basis of which wage levels of public employees are compared to those of the private sector, from one comprising 100 companies to one comprising 50 companies, following instructions from the Government. JTUC–RENGO recalls that the methodology for the evaluation of public employees’ remuneration levels is based on an agreement between the Government and trade union leaders dating back to 1964. The recent unilateral change is according to JTUC–RENGO evidence that the NPA system is not functioning effectively.

The Committee notes that, according to the Government, the NPA, which functions as a compensatory measure for the denial of the right to bargain collectively and to strike in the public sector, undertook, pursuant to a request by Cabinet, a review of the wage index for the determination of public employees’ wage levels – an index which it had established on its own initiative in 1964. The revision took place pursuant to wide discussions in the framework of a conference organized by the NPA with the participation of experts from various fields, as well as interviews of personnel officials in each ministry and employees’ organizations. After having heard the opinions of all sides, the NPA decided to replace the index from one based on 100 enterprises to one based on 50. Moreover, the NPA recommended in August 2006 that the reform of the remuneration structure, which had started in the fiscal year 2006, be promoted, based on the results of fact-finding surveys on the remuneration of public employees. The Government held a total of 39 official meetings with employees’ organizations in 2006 with regard to issues including remuneration. Three of these meetings were held with the Minister of Internal Affairs and Communications. Based on these findings, amendments were adopted to the Law concerning the remuneration of regular service employees so as to revise the remuneration as recommended by the NPA.

Taking note of this information, the Committee recalls from previous comments that the capacity of public employees who are not engaged in the administration of the State to participate in the determination of wages is substantially limited and once again requests the Government to examine measures in the context of the current dialogue over the civil service reform, aimed at giving a primary role to collective bargaining so that workers and their organizations may be able to participate fully and meaningfully in designing the overall bargaining framework. The Committee firmly hopes that the Government will be able to report progress in this respect in its next report.

2. Negotiations in national medical institutions. The Committee’s previous comments concerned restrictions over collective bargaining introduced in the context of the transfer of 154 national hospitals and sanatoriums to the National Hospital Organization (NHO), an independent administrative agency, as of 1 April 2004. The Committee takes note of the information provided in the Government’s report to the effect that in the 2004–06 period 268 collective bargaining sessions were held in hospitals (221 sessions between 197 hospitals and the respective branch officers of the All Japan National Medical Workers’ Union, seven sessions between seven blocks of hospitals and trade union district councils and 40 sessions between the headquarters of the NHO and the All Japan National Medical Workers’ Union). Among the items discussed were the promotion of annual leave, reduction of nurses’ nightshifts, the bargaining process, etc. Agreements were reached in 396 cases. The Committee takes note of this information.

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The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), the Zentoitsu Workers Union and the Japanese Trade Union Confederation (JTUC-RENGO), which refer largely to matters relating to the legislation and the application of the Convention in practice that are already under examination. In this respect, the Committee requests the Government to provide its observations on these comments.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

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The Committee takes note of the comments of the Japanese Trade Union Confederation (JTUC-RENGO) dated 1 September 2004 concerning the public service system reform and the negotiation rights of public employees not engaged in the administration of the State, as well as the comments of the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) dated 26 August 2003 and 4 August 2004 on the exclusion of certain matters from negotiations in national medical institutions and the Government’s reply thereto. The Committee also takes note of earlier comments made by the Zentoitsu Workers’ Union and other workers’ organizations as well as those of 18 April 2005 which raise several issues related to anti-union discrimination and collective bargaining.

Article 1 of the Convention. 1. The Committee notes that the comments of the Zentoitsu Workers’ Union and other workers’ organizations concern allegations of anti-union discrimination arising out of the privatisation of the Japanese National Railways (JNR) which were taken over by the Japan Railway Companies (the JRs), in particular, the decision of the JRs not to rehire workers belonging to certain organizations which opposed the privatisation plan. The Committee notes that this issue is under examination by the Committee on Freedom of Association and shares the recommendation made by the Committee on Freedom of Association in this regard, namely, to invite the Government to pursue discussions with all parties concerned in order to resolve this issue.

2. The Committee also notes that in its communications the Zentoitsu Workers’ Union refers to various Court rulings which allegedly neglect the right to organize and refrain from punishing unfair labour practices. The Committee requests the Government to communicate its observations in this respect in its next report which is due in 2007.

Article 4. 1. Collective bargaining rights of public service employees not engaged in the administration of the State in the context of the civil service reform. In its previous observation the Committee had requested the Government to take the necessary measures to ensure the promotion of collective bargaining for public employees who are not engaged in the administration of the State and to keep it informed of developments regarding the ongoing consultations on the reform of the civil service.

The Committee notes that according to JTUC-RENGO, there have been no improvements on the promotion of negotiations and the Government has taken further unilateral steps for the determination of wages and labour-management relations of local public servants without any consultations. Furthermore, in the framework of the civil service reform, the National Personnel Authority (NPA) requested the Diet and the Cabinet on 15 August 2005 to amend certain laws so that management may evaluate each public employee’s performance and decide their wages unilaterally. According to the JTUC-RENGO, despite negotiations and consultations with the NPA on this issue, the two sides remain as far apart as ever and the NPA’s recommendations exclude trade unions from the wage determination process.

The Committee notes that the Government largely reiterates the previously provided information on the NPA which is a neutral body established as a compensatory measure for the restriction of the right to collective bargaining of public employees. This body makes surveys on working conditions in the private sector and hears the views of public employees’ organizations before making recommendations to the Diet and the Government on the revision of remuneration and working conditions of public employees. In 2004, it held 213 official meetings with employees’ organizations. The Government adds with respect to local public employees, that Personnel Commissions also operate as neutral bodies that make recommendations in order to ensure that the employees’ salary schedules are adapted to the prevailing social conditions (cost of living, remuneration and other conditions of national public employees and those in other local public bodies as well as in the private sector).

With regard to the civil service reform, the Government indicates that after several meetings in 2004 it concluded that coordination with the parties concerned, including employees’ organizations, had not advanced sufficiently and decided to defer submitting bills for civil service reform to the Diet. At the same time, it adopted the "Future Policy for the Administrative Reform" in December 2004 in which it stated that it would consider submitting the relevant bills to the Diet while making further efforts of coordination with the parties concerned. Further meetings took place in the meantime and the Government intends to carry out its best efforts to achieve a fruitful reform through a broad exchange of views. The Government adds that during discussions held with employees’ organizations on 17 June 2005 it expressed the view that revisions would be considered on the basis of the NPA recommendation system and after having listened to the opinions and requests of employees’ organizations. The NPA held 212 official meetings with employees’ organizations from January through August 2005. Its recommendation was submitted on 15 August 2005. The latter proposal included, in addition to a revision of remuneration levels, a proposal for drastic reform of the whole remuneration system including the salaries and allowances of public employees so as to reflect local private sector wage levels and each employees’ performance. Thus, the Government states that not only it did not unilaterally determine the modalities of wage and working conditions but on the contrary, decided to follow fully the recommendation made by the NPA.

Taking note of this information, the Committee recalls from previous comments that the capacity of public employees who are not engaged in the administration of the State to participate in the determination of wages is substantially limited and once again requests the Government to take the necessary measures to give a primary role to collective bargaining so that workers and their organizations may be able to participate fully and meaningfully in designing the overall bargaining framework. The Committee hopes that the Government will be able to report progress in this respect in its next report in the context of the civil service reform.

2. Negotiations in national medical institutions. The Committee takes note of the comments of the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) dated 4 August 2004 on insufficient consultations/ negotiations in the context of the transfer of 154 national hospitals and sanatoriums to the National Hospital Organization (NHO), which is an independent administrative agency, as of 1 April 2004. The Committee notes that according to the JNHWU/ZEN-IRO, the Ministry of Health, Labour and Welfare ignored the union’s demands with regard to security of employment, terms and conditions of employment and trade union facilities. Moreover, on 1 April 2004 the NHO sent a notice to all hospital Directors stressing that they should not engage in collective bargaining over matters which do not fall within their competence, in addition to management and administrative matters, which also cannot be subject to collective bargaining. Following this, in a meeting of 19 May 2004 it was agreed that matters over which directors do not have competence are to be negotiated between the NHO headquarters and the JNHWU/ZEN-IRO headquarters; however, the trade union believes that it is unrealistic to expect the NHO to negotiate as the latter has avoided negotiations so far.

The Committee notes that according to the Government, the Ministry of Health, Labour and Welfare conducted negotiations and discussions with the union in good faith and made necessary changes to reflect the results of those negotiations and discussions in the context of the transfer of most national hospitals and sanatoria to the NHO. Moreover, legislation and applicable agreements concerning collective bargaining are implemented in hospitals and there has been in fact, a large increase in collective bargaining. NHO Headquarters negotiated with the JNHWU/ZEN-IRO on 18 occasions in 2004. Moreover, collective bargaining between a hospital and a branch of the JNHWU took place 88 times at 77 hospitals in 2004.

The Committee takes note of this information. The Committee once again recalls that it is contrary to the Convention to exclude from collective bargaining, at all levels or at the relevant level, certain matters relating to work conditions and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. The Committee requests the Government to take further measures to promote collective bargaining in national medical institutions and to indicate in its next report, which is due in 2007, the subjects over which collective bargaining took place and the number of collective agreements reached in the period 2004-06 within the system of the National Hospital Organization which has now become an Independent Administrative Institution.

3. The Committee notes the comments made by the Zentoitsu Workers’ Union to the effect that the Law on the Division of Companies contains no provision on the disclosure of information and collective bargaining in the case of transfers from an existing company to a successor one, while the Law on the Succession of Labour Contracts contains a mere obligation for employers to "consult with each employee" prior to the day on which formal documents on the company’s division are to be provided and two weeks before the shareholders’ meeting may decide on the division.

The Committee notes, however, that according to the Government, the Law concerning the Succession of Labour Contracts provides that in case workers are to work for new companies due to a division, the working conditions stipulated in the labour contracts and collective agreements shall remain applicable to the workers in the new companies.

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The Committee takes note of the comments of the Zentoitsu Workers’ Union on several issues related to anti-union discrimination and collective bargaining, the Japanese Trade Union Confederation (JTUC-RENGO) on the public service system reform and the negotiation rights of public employees not engaged in the administration of the State, as well as the comments of the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) on the exclusion of certain matters from negotiations in national medical institutions. The Committee notes that it has been commenting on these points for a number of years and requests the Government to provide its full observations on the comments made by the Zentoistu Workers’ Union, JTUC-RENGO and JNHWU/ZEN-IRO, as well as the pending comments of the Committee, in its next report (see 2003 observation, 74th Session).

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The Committee notes the information provided in the Government’s report. It further notes the comments of the Japanese Trade Union Confederation (JTUC-RENGO) dated 15 October 2001 and 27 August 2003; the Japan National Hospital Workers’ Union (JNHWU) dated 22 August 2001, 6 August 2002 and 26 August 2003; the Zentoitsu Workers’ Union and other worker’s organizations dated 26 January, 3 June, 24 September (in connection with Case No. 1991) and 12 November 2002; the International Confederation of Free Trade Unions (ICFTU) dated 31 October 2002. The Committee notes the debate that took place in the Committee on the Application of Standards at the 2002 International Labour Conference, and the Committee’s recommendations.

1. Promotion of negotiation rights of public employees not engaged in the administration of the State. In its previous comments, the Committee had recalled that the capacity of state employees who were not engaged in the administration of the State to participate in the determination of wages was substantially limited, and it requested the Government to consider the measures that could be taken to encourage the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public employees who are not engaged in the administration of the State.

The Committee notes that, according to JTUC-RENGO, public sector unions cannot really participate in the determination of wages and working conditions; meetings and consultations with the National Personnel Authority (NPA) do not lead to binding agreements and have no concrete effects on the determination of wages and working conditions; the NPA has lost its role as a compensatory system since the meetings between the NPA and the workers’ organizations were held only to hear the opinions of the organizations. The recommendations of the local personnel commissions have not been applied by some authorities.

The Committee notes that the Government reiterates its previous statements concerning the steps taken by the NPA to hear the views of public employees’ organizations before making recommendations to the Government on the revision of remuneration and working conditions of public employees. The Government adds that the NPA also bases its recommendations on surveys of working conditions. The Government maintains that the recommendation system is a viable one and that the NPA has not lost its role as a compensatory mechanism for the limitations placed upon the trade union rights of public servants. The Government also stresses that the determination of working conditions of the local public service through the local personnel commission system, which follows the same objectives and functions as the NPA system, is functioning well. Even in the cases where local governments had no choice but not to implement the revision of salaries in accordance with the recommendations of the personnel commissions, in view of the current social and economic circumstances, the Government states it has tried to conclude agreements by holding meetings with employees’ organizations, and to preserve amicable labour-management relations.

The Committee recalls that while the principle of collective bargaining as regards public servants requires some flexibility in its application, the mechanism chosen by the Government should leave a primary role to collective bargaining and workers and their organizations should be able to participate fully and meaningfully in designing the overall bargaining framework. The Committee further recalls that in a situation where, for imperative reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, the restrictions should be applied as an exceptional measure and only to the extent necessary; they should not exceed a reasonable period; and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned. Noting that the capacity of public employees not engaged in the administration of the State to participate in the determination of wages is substantially limited, the Committee requests the Government to take the necessary measures to ensure the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public employees who are not engaged in the administration of the State.

2. Civil service system reform. The Committee notes that the Japanese Government has adopted the "Plan for the Civil Service System Reform" in December 2001 and has since been pursuing the reform on the basis of the Plan. The Committee notes that the Government has been negotiating and consulting with the institutions concerned, trade unions and employees’ organizations, but considers it necessary to make further coordination among the parties concerned before submitting the Bills to the ordinary Diet. The Committee requests the Government to keep it informed of developments in respect of consultations regarding the reform, and to supply copies of the draft legislation as soon as it is available, so that it may examine its conformity with the provisions of the Convention. The Committee also refers to its comments under Convention No. 87 in connection with the public service reform.

3. Exclusion of certain matters from negotiations in national medical institutions. In its previous comments, the Committee requested the Government to continue to implement measures to encourage negotiation of terms and conditions of employment in national medical institutions and to indicate developments in that respect in its next report. In its latest report, the Government indicates that the Ministry of Health, Labour and Welfare (MHLW) has been instructing directors to promote collective bargaining, and has provided guidance to institutions in respect of preliminary negotiation. The Committee notes that, as of December 2002, negotiations were held in 13 institutions (out of 190 national hospitals and sanatoriums existing in the country at the end of 2002). The Committee requests the Government to increase efforts to encourage the negotiation of terms and conditions of employment in national medical institutions and to indicate developments in that respect in its next report.

The Committee notes that, according to the JNHWU, the management of hospitals continues to place restrictions on the items to be negotiated, on the grounds that they constitute management and administration matters and are thus not appropriate for collective bargaining (for example, the number of nurses in a night shift and a demand concerning improvement of the promotion system of nursing aids as part of a wage improvement). The Government states in this respect that the Ministry of Health, Labour and Welfare has, in its meeting of institution directors, been instructing them to promote appropriate collective bargaining. Furthermore, the meeting has once again provided guidance through the Reformal Bureau of Health and Welfare for the institutions to cope properly with JNHWU branches by appropriately managing the period of preliminary negotiations. As regards specific cases where, according to the JNHWU, negotiations were rejected, the Government states that preliminary consultations were held between JNHWU branches and hospitals on these matters to determine whether these demands concerned the administration or management; as a result of these negotiations, it was explained and agreed between labour and management that these would not become agendas in the negotiations.

The Committee recalls that it is contrary to the Convention to exclude from collective bargaining certain matters relating to work conditions and that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. Tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are an appropriate method to resolve these difficulties. The Committee requests the Government to continue to take measures to increase consultations between unions and hospital management, and to keep it informed of developments in this respect.

The Committee requests the Government to send its reply to other matters raised by workers’ organizations in their comments (especially as regards questions related to protection against acts of anti-union discrimination), as well as to the recent communication of Zentoitsu Workers’ Union dated 26 November 2003.

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The Committee notes the observations of the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) dated 22 August 2001 and 6 August 2002, the Zentoitsu (All United) Workers’ Union dated 26 January, 3 June and 24  September 2002 and the International Confederation of Free Trade Unions (ICFTU) dated 31 October 2002. The Committee requests the Government to send its comments on these observations for examination at its next meeting.

The Committee notes the response of the Government to the observation of the Japanese Trade Union Confederation (JTUC-RENGO) dated 15 October 2001 and will examine the questions raised therein at its next meeting.

Other questions raised in the Committee’s previous observation will be addressed at its next meeting, in the framework of the regular examination of the Convention.

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The Committee notes the information supplied by the Government in its reports. The Committee also notes the comments of the Japanese Trade Union Confederation (JTUC-RENGO), the Japan National Hospital Workers’ Union (JNHWU) and the Zenrokyo National Union of General Workers and the Tokyo Zenrodosha Kumiai Labour Union (NUGW). Finally, the Committee notes the recent observations of the JNHWU and JTUC-RENGO dated 22 August and 15 October 2001 respectively, and requests the Government to reply thereto. With regard to the observations of the Zentoitsu (All United) Workers’ Union and the National Railway Motive Power Union of Chiba (DORO-Chiba) dated 14 and 25 October 2001 respectively, the Committee notes that the issues raised therein are being examined by the Committee on Freedom of Association within the framework of the follow-up given to its recommendations in Case No. 1991.

1. Protection against acts of anti-union discrimination. The Committee notes that the NUGW provides observations relating to acts of anti-union discrimination carried out against its members by two enterprises. The Government indicates that the Trade Union Law has established machinery to relieve victims of unfair labour practices, with a view to preventing discriminatory treatment for participating in union activities. This machinery guarantees workers’ rights to organize and bargain collectively. The Government believes that recourse to such machinery by the NUGW will bring about appropriate relief.

The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination, in taking up employment and in the course of employment including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts). Moreover, legal provisions which provide for such protection are adequate only if they are coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application.

2. Promotion of negotiation rights of public employees who are not engaged in the administration of the State. In its previous comments, the Committee had recalled that the capacity of public employees who were not engaged in the administration of the State to participate in the process of the determination of their wages was substantially limited.

According to JTUC-RENGO, the "negotiation" system under section 5 of the National Public Service Law and section 55 of the Local Public Service Law is merely a system under which authorities can solicit opinions from employees’ organizations but is not backed up by any right to conclude collective agreements. The current system has no significance in determining wages and other working conditions through negotiations. JTUC-RENGO is of the view that the current system is a grossly defective one, in which trade unions have no way of taking part in the decision-making process, regardless of how many meetings take place between employees’ organizations and the National Personnel Authority (NPA) or the Government. The NPA has the unilateral power to decide what recommendations to make, and the Government can unilaterally decide whether or not to implement these recommendations. The same is true for the local Personnel Commission system which follows much the same objectives and functions as the NPA system. Additionally, a growing number of local governments have recently short-circuited the Personnel Commissions and have directly proposed monthly wage cuts or bonus reductions to local assemblies. These recent developments show that the determination of salaries for national and local public service employees have become increasingly unstable under the recommendation system of the NPA and Personnel Commissions which are not serving as compensatory measures for the restrictions placed on the basic labour rights of public servants. JTUC-RENGO considers that the Government should take prompt steps to remedy the current system of determining wages and other working conditions of public service workers, by providing for their collective bargaining rights.

In its report, after explaining in detail the existing process for determining employment conditions in the public service, the Government reiterates its previous statements concerning the steps taken by the NPA to hear the views of public employees’ organizations before making its recommendations to the Government on the revision of remuneration and other working conditions of public employees. In the year 2000, the NPA held official meetings with employees’ organizations on 261 occasions between January and August. The Government adds that the NPA also makes its recommendations based on surveys on working conditions. After carrying out fact-finding surveys on the remuneration of nearly 500,000 national public employees and approximately 460,000 employees at nearly 7,600 private establishments nationwide, the NPA makes a detailed comparison of remuneration in the public and private sectors through statistical means and balances pay levels in these two sectors. The Government indicates that the remuneration of national public employees has been revised in accordance with a recommendation to the effect that the gap between salaries in the private and public sectors be reduced. Finally, the Government states that it continues to respect the recommendation system of the NPA which has not lost its role as a compensatory mechanism for the limitations placed on the trade union rights of public servants.

The Committee takes note of this information but once again asks the Government to consider the measures that could be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public employees who are not engaged in the administration of the State, in conformity with its obligations under Articles 4 and 6 of the Convention, and to inform the Committee of measures taken in this regard. In this respect, the Committee notes with interest the Government’s statement to the Committee on Freedom of Association at its November 2001 meeting that a reform of the public service personnel system is under consideration (see 326th Report of the Committee on Freedom of Association, paragraph 6, approved by the Governing Body at its 282nd Session, November 2001). It accordingly hopes that the existing limitations on the collective bargaining rights of public employees who are not engaged in the administration of the State will be lifted in the near future.

3. Exclusion of certain matters from negotiation in national medical institutions. The JNHWU indicates that as of end May 2000, it had branches in 217 national health institutions in the country. However, collective bargaining was held between the management and JNHWU branches in only a very small number of institutions. Moreover, even when collective bargaining is held, most of the items proposed by the union are rejected by hospital management on the grounds they are administrative or management matters, such as for instance, working conditions related to the two-shift work system for nurses in national medical institutions.

The Government indicates that an agreement was reached between the Ministry of Health, Labour and Welfare (MHLW) and the JNHWU’s head office on 26 February 1996 that working conditions related to the two-shift work system would be the subject of collective bargaining provided that the introduction of the two-shift system itself would be a matter affecting management. The Government believes that negotiations could not be held because JNHWU branches were only demanding abolition of the two-shift work system instead of negotiating on working conditions related thereto. Moreover, the MHLW has been instructing directors of medical institutions to promote appropriate collective bargaining. The MHLW is also providing guidance to the medical institutions, through the Regional Bureaus of Health and Welfare, on how to cope properly with preliminary negotiations with JNHWU branches. The MHLW is also providing guidance on collective bargaining in its training covering key personnel of medical institutions. Thus, the MHLW is steadily implementing measures to encourage voluntary negotiation of terms and conditions of employment of public employees in national hospitals. Owing to such measures, the instances where collective bargaining was undertaken has tripled after 1999. For example, as of 31 December 2000, negotiations were held in 12 medical institutions.

It appears to the Committee from the information available that a certain number of measures seem to have been taken by the Government to encourage the voluntary negotiation of terms and conditions of employment of public employees in national medical institutions. It would encourage the Government to continue taking measures in this regard and to indicate in its next report further progress made in promoting collective bargaining for these workers.

4. Exclusion of certain matters from negotiation in state enterprises. In its previous comments, the Committee had noted that section 8 of the National Enterprise Labour Relations Law excluded matters pertaining to the management and operation of state enterprises from collective bargaining. It had further noted that issues such as promotion, demotion, transfer, discharge, seniority and disciplinary action were excluded from collective bargaining in state enterprises because of the application to employees of such enterprises of the National Public Service Law which assimilated the above matters as those relating to "management and operations".

The Committee now observes from the information provided by JTUC RENGO and the Government that when specified independent administrative institutions were established on 1 April 2001, the National Enterprise Labour Relations Law was revised to cover the employees of such institutions. It is now called the Law concerning Labour Relations at National Enterprises and Specified Independent Administrative Institutions. Section 8 of this Law stipulates that the matters which are subject to collective bargaining in state enterprises are as follows: (1) wages and other remuneration, working hours, rest, holidays and leave; (2) promotions, demotions, transfers, dismissals, suspensions, seniority, and disciplinary action; (3) occupational health and safety and accident compensation; and (4) other matters related to working conditions.

The Committee notes this information with satisfaction. It would ask the Government to transmit a copy of the new National Enterprise Labour Relations Law, along with its next report.

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The Committee had noted in its previous comments the observation of the Japanese Trade Union Confederation (JTUC-RENGO) dated 29 October 1999 concerning the application of the Convention. The Committee notes that JTUC-RENGO had sent another communication dated 2 October 2000. The Zenrokyo National Union of General Workers and the Tokyo Zenodosha Kumiai Labour Union (NUGW) sent observations in a communication dated 15 February 2000 and the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) in a communication dated 17 October 2000.

The Committee asks the Government to send its comments on these communications.

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The Committee notes the information supplied by the Government in its report. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1897 (see 308th Report, paras. 451-480, approved by the Governing Body at its November 1997 session). Finally, the Committee notes the comments of the Japan National Hospital Workers' Union (JNHWU) and the Japanese Trade Union Confederation (JTUC-RENGO). The Committee notes the recent observations of JTUC-RENGO dated 29 October 1999 and requests the Government to reply thereto.

1. Promotion of negotiation rights of public employees who are not engaged in the administration of the State. In its previous comments, the Committee had recalled that the capacity of public employees who were not engaged in the administration of the State to participate in the process of the determination of their wages was substantially limited.

In its report, the Government reiterates its previous statements concerning the steps taken by the National Personnel Authority (NPA) to hear the views of public employees' organizations before making its recommendations to the Government on the revision of remuneration and other working conditions of public employees. For example, in 1998 the NPA held official meetings with public employees' organizations on 223 occasions between January and August. The Government adds that the NPA also makes its recommendations based on surveys on working conditions. After carrying out fact-finding surveys on the remuneration of all 500,000 national public employees and approximately 500,000 employees in nearly 7,600 private establishments nationwide, the NPA makes a detailed comparison of remuneration in the public and private sectors through statistical means and balances pay levels in these two sectors. For example, in August 1998 the NPA recommended that the gap between monthly salaries in the private sector (approximately $3,335) and monthly salaries in the public sector (approximately $3,310) be reduced. The Government indicates that in 1998 salaries have been amended in accordance with that recommendation.

The Committee takes note of this information but once again asks the Government to consider the measures that could be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for such employees, in conformity with its obligations under Articles 4 and 6 of the Convention, and to inform the Committee of the measures taken in this regard.

2. Exclusion of certain matters from negotiation in national medical institutions. The Committee observes from the JNHWU's observations and the Government's reply thereto that an agreement was reached between the Ministry of Health and Welfare and the JNHWU's head office on 26 February 1996 that working conditions related to the two-shift work system in national medical institutions (whereby two nurses are assigned to each unit for night shift), would be the subject of collective bargaining. The Committee notes however that despite the above agreement, negotiations between hospital managers and JNHWU branches have only been held in three out of a total of 77 medical institutions purportedly because no problems relating to working conditions have arisen thereafter. From the information available it appears to the Committee that measures need to be taken to encourage voluntary negotiation of terms and conditions of employment of public employees in national medical institutions. It therefore requests the Government to consider measures which could be taken in this regard and to indicate in its next report any progress made in promoting collective bargaining for these workers.

3. Exclusion of certain matters from negotiation in state enterprises. In its previous comments, the Committee had noted that section 8 of the National Enterprise Labour Relations Law excluded matters pertaining to the management and operation of state enterprises from collective bargaining and had requested both the Japanese Trade Union Confederation (JTUC-RENGO) and the Government to provide specific information on the types of issues which might thus be excluded from collective bargaining.

From the information provided by JTUC-RENGO it appears to the Committee that issues such as promotion, demotion, transfer, discharge, seniority and disciplinary action are excluded from collective bargaining in state enterprises because of the application to employees of such enterprises of the National Public Service Law which assimilates the above matters as those relating to "management and operations". In addition, the Committee observes that some of the other matters such as education, training, health, recreation, safety and welfare of personnel are excluded from collective bargaining in state enterprises even if working conditions affected by decisions on such matters may be subject to collective bargaining. In this respect, the Committee considers, that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98. The Committee notes that discussions regarding the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties (see 1994 General Survey on freedom of association and collective bargaining, paragraph 250). The Committee would therefore invite the Government to prepare, in consultation with the employees' organizations concerned, clear guidelines on negotiable issues in state enterprises and to keep it informed of measures taken in this regard.

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The Committee notes the comments made by the Japan National Hospital Workers' Union (JNHWU) on the application of the Convention. In a communication dated 23 November 1998, the Government states that it is drawing up its comments on the matters raised by JNHWU and expresses its intention to submit them to the ILO before the 1999 session of the Committee. The Committee awaits the Government's response thereon, as well as on the issues raised in its previous observation, namely the negotiation rights of public employees and the exclusion of certain matters from negotiation in state enterprises.

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The Committee notes the Government's report.

Negotiation rights of public employees. The Committee has raised comments for a number of years regarding the capacity of public servants not engaged in the administration of the State to participate in the process of wage determination. In order to assist the Committee to better appreciate the national law and practice in this regard, the Committee requests the Government to specify in its next report the precise categories of public employees, including examples, entitled to collectively bargain and conclude collective agreements and on what subjects, and those specifically excluded from bargaining rights or the right to conclude a collective agreement or an agreement relating to particular subjects. The Committee would also appreciate receiving translations of the relevant legislative texts.

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The Committee notes the Government's report.

1. Negotiation rights of public employees. The Committee notes that the Government's report contains no new elements concerning this issue. The Committee recalls its concern that the capacity of public servants not engaged in the administration of the State to participate in the process of wage determination is substantially limited. The Committee again asks the Government to consider the measures that could be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for such employees, in conformity with its obligations under Articles 4 and 6 of the Convention, and to inform the Committee of the measures taken in this regard. A request regarding this matter is being addressed directly to the Government.

2. Exclusion of certain matters from negotiation in state enterprises. On this point raised by the Committee in previous observations, information has been received from the Japanese Trade Union Confederation (JTUC-RENGO) which has been forwarded to the Government for its comments. The Committee will, therefore, return to this issue once the Government has had an opportunity to respond to JTUC-RENGO's communication.

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The Committee notes the information provided by the Government in its latest report.

Promotion of collective bargaining

1. Negotiation rights of public employees. In its previous comments, the Committee recalled that the capacity of public employees who were not engaged in the administration of the State to participate in the process of the determination of their wages was substantially limited. It requested the Government to indicate the measures which could be envisaged to encourage and promote the full development and utilization of machinery for voluntary negotiation for such employees.

In its latest report, the Government reiterates its previous statements concerning the steps taken by the National Personnel Authority and the Personnel Commission to hear the views of the employees' organizations before making its recommendations. It also adds that meetings are often held between the Government and workers' organizations prior to the Government's submitting the bill, based upon the recommendations of the National Personnel Authority, to amend the Law concerning Compensation of Employees in Regular Service.

As it appears from the information provided in the Government's report that no measures have been taken to encourage voluntary negotiation with respect to public employees who are not engaged in the administration of the State, the Committee would once again ask the Government to consider the measures which could be taken or contemplated in this regard and to indicate in its next report any progress made in promoting collective bargaining for these workers.

2. Exclusion of certain matters from negotiation in state enterprises. Referring to the Japanese Trade Union Confederation's (RENGO) previous comments, the Committee requested the Government to provide precise information on the matters pertaining to management and operations which are excluded from negotiation or consultation. In its latest report, the Government states that, under section 8 of the National Enterprise Labour Relations Law, all matters relating to working conditions shall be subjects for collective bargaining, including those relating to management and operations and, in practice, each national enterprise has made consultations with their employees as necessary.

The Committee notes, however, that section 8 reads as follows: "... the following matters relating to employees shall be subject to collective bargaining and may be provided for in a collective agreement; provided, however, that matters pertaining to the management and operation of the national enterprises shall be excluded from collective bargaining". It requests both the Government to provide specific information on the types of issues which might be thus excluded from collective bargaining and on the manner in which this proviso is applied in practice. The Committee would also ask RENGO to indicate the precise manner in which they consider this section violates Article 4 of the Convention as concerns the voluntary negotiation of terms and conditions of employment.

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The Committee notes the information supplied by the Government in its reports as well as the comments by the Japanese Trade Union Confederation (JTUC-RENGO) in a communication dated 8 December 1993.

The Committee notes that the comments presented by RENGO refer to the situation of public employees (in the employment of the State, local bodies or state enterprises). These matters have been brought to the attention of the Committee on previous occasions. In its detailed report, the Government stresses that the comments communicated by RENGO do not mean that specific new problems have occurred. The Committee notes that the Government maintains its specific stance and cites, with reference to the points raised by RENGO, relevant comments already forwarded to the ILO in the past.

The comments submitted by RENGO essentially relate to the following matters, all of which have been subject to comments by the Committee on previous occasions:

1. Anti-union discrimination

Right to organize for various public servants (police, Maritime Safety Agency, prison, firefighters and others)

The Government observes that this question is dealt with by Convention No. 87. It recalls that the Maritime Safety Agency is in charge of police on the sea, that the functions of the employees of penal institutions are assimilated to those of the police. As for the firefighting personnel (whose situation the Committee examined under Convention No. 87), the Government states that it intends to continue its efforts to find a solution.

The Committee refers to its previous observations under Convention No. 87.

Registration of public employees' organizations and other limitations

The Government recalls that the system of registration does not intend to discriminate against employee organizations in their negotiating capacity. The system of registration purports to authenticate employee organizations with a view to establishing rational labour-management relations between the authorities concerned and independent and democratic organizations. The Government's understanding is that where a non-registered employees' organization requests management to negotiate with it, management should endeavour not to reject the request arbitrarily. The Committee had previously noted from the Government's indication that there had been no case in practice where an authority had arbitrarily refused to negotiate with an organization for the sole reason that it was not registered.

As for the limitations of terms of office for full-time trade union officers while retaining their status of public employees, the Committee notes the information of the Government in its report of changes introduced in the past. The Committee considers that this question does not fall under Article 1 of the Convention.

Prohibition of strikes for state employees

The Committee, while noting the comments by RENGO and the indications in the Government's report, refers to its previous observations under Convention No. 87.

2. Promotion of collective bargaining

Negotiation rights of public employees

According to RENGO, the State Employees Law and the Local Public Employees Law stipulate that negotiation between the authority and trade unions does not include the right to conclude collective agreements. The Local Public Employees Law allows for written agreements, provided they do not violate municipal laws, regulations and rules. RENGO and the Liaison Committee of Public Employees Unions (KOUMUIN-RENNRAKU-KAI) continue to demand the participation of trade unions in the decision-making concerning wages and working conditions. Although meetings often take place between the Government and trade unions on the application of recommendations made by the Personnel Agency, they have never affected government decisions.

For RENGO, the view of trade unions is not sufficiently reflected in the elaboration of the recommendations by the Personnel Agency. It considers that there should be legal provisions for previous consultations on important policy decisions.

The recommendations of the Personnel Agency, according to RENGO, were fully applied in recent years, but the Government does not take its decision on the recommendations until several months later, so that the application is delayed by up to nine months in comparison with the wage increase in the private sector.

The Committee notes the Government's repeated statement that the National Personnel Authority and the Personnel Commission, whose mission is to make recommendations as necessary to adapt the working conditions of society, make incessant efforts to determine the trends of working conditions in the private sector and to obtain freely expressed opinions from employees' organizations and make recommendations taking those factors into account. Meetings between the Government and employees' organizations are frequently held concerning wages and other working conditions, and the National Personnel Authority frequently hears the opinion of employees' organizations before it makes recommendations concerning wages and other matters.

With regard to public servants, the Committee wishes to point out that Article 6 establishes that the Convention does not deal with the position of public servants engaged in the administration of the State; the persons who are employed by the State or in the public sector but who do not act as agents of the public authority, however, come under the scope of the Convention.

Noting the information supplied by the Government, the Committee recalls that it had previously observed that the capacity of public employees (i.e. those who are not engaged in the administration of the State) to participate in the process of the determination of their wages is substantially limited. It would therefore ask the Government to indicate what measures could be envisaged to encourage and promote the full development and utilization of machinery for voluntary negotiation.

Exclusion of certain matters from negotiation in state enterprises

According to RENGO, the State Enterprise Labour Relations Law excludes matters of administration and management from negotiation. The meaning of these matters is not clearly defined, and negotiation is actually limited or refused because of arbitrary interpretation. Under the same law, additional wage payment should be accepted by the parliament.

In its report, the Government states again its basic view that under the Public Corporation and National Enterprise Labour Relations Law, all matters relating to working conditions may be subject to collective bargaining. The Government refers to the recommendation of the Advisory Council on the Public Service Personnel System to the effect that conditions of work which are affected by decisions relating to management and operations should be matters for labour-managment negotiations. Management actually holds prior consultations with labour in the public corporations and national enterprises even on matters pertaining to management and operations. Diet approval for additional expenditure of funds of national enterprises is not designed to prohibit the parties concerned from conducting collective agreements but to leave the validity of budgetary appropriation for wages to the approval of the Diet.

The Committee would ask the Government to give in its next report precise information as to matters pertaining to managenent and operations, within the meaning of the Public Corporations and National Enterprises Labour Relations Law, which are clearly excluded from negotiation or consultation.

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The Committee notes the information supplied by the Government in its reports.

In its previous observation, the Committee commented on the following points:

1. the implementation of the recommendations made by the National Personnel Authority (NPA) relating to wage increases for public employees in the non-operational sector;

2. the implementation of arbitration awards issued by the Public Corporations and National Enterprises Labour Relations Commission (KOROI) concerning employees in these corporations and enterprises;

3. collective bargaining in bodies financed by the Government.

As no new developments appear to have occurred regarding the two first points, the Committee wishes to refer to its previous comments, namely that it hopes that the recommendations of the NPA will continue to be implemented and that the awards of the KOROI should be implemented fully and rapidly.

With regard to collective negotiations in corporations financed by the Government, the Committee notes the Government's statement to the effect that wages and other terms and conditions of employment are determined by autonomous collective bargaining between the trade unions and the management concerned.

However, many organisations of this type have to obtain, with regard to wages, authorisation from the competent Minister, who consults the Minister of Finance. This procedure is followed in order to ensure the proper expenditure of public funds, since these corporations depend, for most of their resources, on such funds. Furthermore, market constraints cannot act in these cases since the corporations in question are not managed on their own commercial resources. The Committee also notes the Government's statement to the effect that it has never intervened in collective bargaining in such organisations and that the approval of the competent Minister has been given in all cases. Finally, it notes that it is generally recognised that the wage level of employees in these corporations is higher than that of national public employees.

The Committee hopes that the collective agreements concluded in corporations financed by the Government will continue to conform to the freely expressed wishes of the social partners. It requests the Government to continue supplying information on collective bargaining practices in these corporations, and in particular on the comments of the competent Ministers on the agreements submitted to them.