Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

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.