Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

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.