Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

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

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.