Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Japan (Ratification: 1965)

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; the Japan Federation of Prefectural and Municipal Workers’ Unions (JICHIROREN) and the National Network of Fire‑Fighters (FFN) dated 13 April 2007 with regard to the issues previously raised by the Committee including the public service system reform and the right to organize of fire‑fighters. It further notes the communication by the ITUC dated 27 August 2007 with regard to difficulties in trade union organizing due to an increase in precarious forms of employment and subcontracting, including for migrant workers and the communication of JTUC-RENGO dated 19 October 2007. The Committee requests the Government to provide its observations on the latest comments by the ITUC and the JTUC-RENGO.

1. Denial of the right to organize of firefighting personnel. The Committee recalls its long-standing comments concerning the need to recognize the right to organize for firefighting personnel.

The Committee takes note of the Government’s report which reiterates its previous position to the effect that the services and functions of the fire defence in Japan correspond to those of the police and therefore fall under the exception of Article 9 of the Convention. In 1997 a system of fire defence personnel committees was created, allowing for the participation of fire defence personnel in decisions over their terms and conditions of employment. On 15 October 2004, eight years since the establishment of the system, certain improvements were agreed between the Minister of Internal Affairs and Communications and the representative of the JICHIROREN on the practices of the fire defence personnel committees, including with regard to the timing of the sessions of the committees (to be held in the first half of the fiscal year, from April to September, in order to allow enough time for budget allocations), the provision of feedback to employees who submitted opinions to the committees, the communication of summaries of the deliberations and opinions of the committees and the creation of a “liaison facilitator” system to provide explanations to the personnel (improvements introduced in the Order on the organization and operation of the fire defence personnel committees under article 14(5), paragraph 4, of the Fire Defence Organization Law).

The Committee notes that, according to the comments communicated by JICHIROREN and FFN, following a survey conducted in eight fire defence departments to which FFN officers belong so as to evaluate the implementation of the above improvements, it was revealed that no real progress had been achieved with regard to the right to organize of firefighters. In particular, committee meetings were scarce (held once a year), employees did not receive proper feedback, the “opinion coordinators” did not function properly and many opinions submitted by the employees had been dismissed as not falling under the committee deliberations, thus demonstrating overall the limited role that these committees could play. The Committee recalls that in previous comments, these organizations had indicated that, although they considered the fire defence personnel committees as an advancement in providing an opportunity to staff to state their own opinions, they also considered that these committees were not equivalent to giving personnel the right to organize and that the law needed to be amended in this respect.

The Committee notes from the Government’s report that by March 2007, nearly 5,000 opinions annually and 60,000 in total had been discussed in almost all (99.6 per cent) of fire defence headquarters across the country, and each year about 40 per cent of the opinions were found to be appropriate for adoption and of those, more than half were implemented by the fire chief. These opinions concerned for instance, measures to counter smoking, the introduction of counselling as a means to counter stress, the improvement of the office environment such as nap rooms for those on shift, etc. Almost 80 per cent of the opinions discussed have been submitted through liaison facilitators. In a recent notification the Government invited all local authorities to fully implement the relevant discussions and the liaison facilitator system. The Committee further takes note of the information provision and training measures to ensure the full implementation of the system.

The Committee once again recalls that as early as 1973, it had stated that it “does not consider that the functions of fire defence personnel are of such a nature as to warrant the exclusion of this category of workers under Article 9 of the Convention” and hoped that the Government would take “appropriate steps to ensure that the right to organize is recognized for this category of workers” (ILC, 58th Session, Report III(4A), page 122). The Committee therefore once again requests the Government to indicate in its next report the additional legislative measures taken or contemplated in order to ensure that fire defence personnel are guaranteed the right to organize.

2. Prohibition of the right to strike of public servants. The Committee takes note of the interim conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2177 and 2183 (329th Report, paragraphs 567–652, and 331st Report, paragraphs 516–558) to the effect that public sector employees, like their private sector counterparts, should enjoy the right to strike, with the possible exceptions of public servants exercising authority in the name of the State and workers employed in essential services in the strict sense of the term. Moreover, public employees who may be deprived of this right should be afforded appropriate compensatory guarantees (329th Report, paragraph 641, and 331st Report, paragraph 554). The Committee recalls that in its previous comments it had referred to the detailed comments of the Fact-Finding and Conciliation Commission on Freedom of Association which stressed the importance “… in circumstances where strikes are prohibited or restricted in the civil service or in essential services within the strict meaning of the term, of according sufficient guarantees to the workers concerned in order to safeguard their interests” (ILC, 63rd Session, 1977, Report III(4A), page 153).

The Committee recalls that it has expressed concern in the past at the lack of progress in this regard, given that the Government has been confined ever since the Fact-Finding and Conciliation Commission on Freedom of Association took place (ILC, 64th Session, 1978, Report III(4A), page 143), to noting that the Supreme Court of Japan maintained throughout its judgments that the prohibition of strikes by public servants is constitutional. Noting that the Government’s report once again repeats its previously stated position, the Committee once again asks the Government to indicate in its next report the measures taken or envisaged to ensure that the right to strike is guaranteed to public servants who are not exercising authority in the name of the State and to workers who are not working in essential services in the strict sense of the term, and that the others (e.g. hospital workers) benefit from sufficient compensatory guarantees in order to safeguard their interests, namely adequate, impartial and speedy conciliation and arbitration procedures, in which the parties have confidence and can participate at all stages, and in which the awards, once made, are binding and fully and promptly implemented.

3. Reform of the civil service. The Committee notes that in Cases Nos 2177 and 2183 the Committee on Freedom of Association requested that the Government, as well as the complainants National Confederation of Trade Unions (ZENZOREN) and JICHIROREN make efforts with a view to achieving rapidly a consensus on the reform of the public service and on legislative amendments addressing the issues raised above and many others.

The Committee takes note of 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 of the General Principles for Civil Service System Reform 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” and treatment based on merit and performance evaluations, taking into account public awareness and progress in reforms of the existing salary system. Pursuant to this policy, government–labour consultations were held on three occasions between January and May 2006 and the two parties agreed that the best way to develop industrial relations and discuss the issue of fundamental labour rights of public service employees was to establish a “Special Examination Committee” consisting of 17 members including three representatives from trade unions, in addition to representatives from private enterprises, academia and the mass media. At the first meeting of the committee held on 27 July 2006, it was agreed that a meeting would be held once a month to discuss: (a) the scope of public work for a simple and efficient government; (b) the proper classification structure and job descriptions for workers engaged in public work; and on the basis of these (c) the proper way of developing industrial relations, including the issue of fundamental labour rights of public employees.

The Committee also takes note of the information provided by the Government on this point, to the effect that until May 2007, the Special Examination Committee had held ten meetings until May 2007 and had approved a note by its chairperson according to which “the issue of labour–employer relations in the public sector, including the fundamental labour rights of public employees, should be re-examined with an eye towards reform”. Moreover, the Government submitted two bills to the Diet aimed, inter alia, at introducing an ability- and performance-based personnel management system for public employees at the national and local levels respectively. It also adopted a Cabinet Decision on civil service reform according to which the Government shall continue to examine the fundamental labour rights of public employees taking into consideration the discussions taking place at the Special Examination Committee and further exchanges of views with concerned parties such as employees’ organizations.

The Committee takes note of this information and wishes to stress once again that the reform process which will establish the legislative framework of industrial relations in the public sector for many years to come is a particularly appropriate opportunity to hold full, frank and meaningful consultations with all interested parties on all the issues which create difficulties with the application of the Convention and whose legal and practical problems have been raised by workers’ organizations over the years. The Committee trusts that the Government will vigorously pursue these consultations in order to find mutually acceptable solutions to these difficulties and to bring the law and practice into full conformity with the provisions of the Convention and asks it to provide information on the progress made in its next report.