Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

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.