Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the observations of the Rentai Union Suginami, the Rentai Workers’ Union, Itabashi-ku Section, the Apaken Kobe (Casual/Temporary/Part-time Non-regular Workers’ Union) and the Union Rakuda (Kyoto Municipality Related Workers’ Independent Union) received on 25 August and 25 September 2020, and the reply of the Government thereto. The Committee also notes the observations of the Japan Business Federation (NIPPON KEIDANREN) transmitted by the Government on 30 September 2020.

Not having received other supplementary information, the Committee proceeded with the examination of the application of the Convention on the basis of the observations received from the social partners this year and the Government’s reply thereto (see Article 3), as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations made by the Japanese Trade Union Confederation (JTUC–RENGO), transmitted with the Government’s report, and the Government’s reply thereto. JTUC–RENGO indicated that it was hopeful at the outset that the Government would address the issues of implementation of the Convention as an enforcement of the “Resolution on Japan’s increased contribution to the ILO” adopted on 26 June 2019 by the Diet on the occasion of the Centenary of the Organization. In the Resolution, the Diet noted that “given the role it should be playing to attain the ILO’s Fundamental Principles, International Labour Standards, tripartism and reach the goal of decent work is becoming greater and greater, it recognizes a new importance of the role the country should be playing in the ILO, and resolve in the future to continue contributing maximally to the pursuit and actualization of these principles together with the other Member States worldwide …”. However, JTUC–RENGO regrets that the report of the Government reveals an apparent lack of will to resolve issues within the current legal system. The Committee also notes the observations of the Rentai Union Suginami, the Apaken Kobe (Casual/Temporary/Part-time Non-regular Workers’ Union), the Rentai Workers’ Union, Itabashi-ku Section; and the Union Rakuda (Kyoto Municipality Related Workers’ Independent Union), received on 19 July 2019, in relation to the right to organize of local public service employees and their unions. The Committee notes the observations of the International Organisation of Employers (IOE) and the NIPPON KEIDANREN, received on 30 August 2019, and the Government’s reply thereto.

Article 2 of the Convention. 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. For the past years, the Government had been referring to the operation of the Fire Defence Personnel Committee (FDPC) system, which was presented as an alternative. The role of the FDPC was to examine proposals on working conditions by the personnel and to submit its conclusions to the chief of the fire department. The Government further indicated that surveys, directed to fire defence headquarters, were regularly conducted to gather information on the deliberations and results of the FDPC. The Government also mentioned a specific survey, conducted in January 2018, aiming at assessing the operation of the FDPC system and eventually seeking improvement. The results of the survey were discussed in the Fire and Disaster Management Agency. While the outcome of this survey was that the FDPC system is operated properly, the workers representatives in the Fire and Disaster Management Agency called for improvement in the operation of the FDPC, including procedural transparency, and a more conducive environment for personnel to provide their opinions to the FDPC. The Government indicates that a new implementation policy of the FDPC was consequently developed with the social partners and came into force in April 2019. The Fire and Disaster Management Agency had notified all fire defence headquarters of the new policy requesting them to hold information sessions on the amendments to the policy. Moreover, the Government indicates that, since January 2019, the Ministry of Internal Affairs and Communications held three consultations with the workers representatives where it discussed the Government’s opinion that fire defence personnel are considered as police in relation to the implementation of the Convention. The Government indicates that the Fire and Disaster Management Agency will continue to hold regular consultations in this regard.

The Committee notes the observations of JTUC–RENGO indicating that in discussions held with the All-Japan Prefectural and Municipal Workers’ Union (JICHIRO), the Government reaffirmed its views that firefighters are considered as police. The Committee also notes the view of NIPPON KEIDANREN that the reporting line, the organizational managerial order, and the cooperative relationship of fire defense personnel with workers’ organizations may affect the residents’ trust in firefighting, the nation’s safety, and security. Therefore, according to NIPPON KEIDANREN, it is necessary to continue carefully reviewing the granting of the right to organize to firefighters.

The Committee however notes the concerns raised by JTUC–RENGO that the Government has not responded directly to the Conference Committee’s conclusions from 2018, and that no time-bound action plan was developed with social partners as requested by the Conference Committee. The only development that could be noted is the intention to proceed in consultations between the Ministry of Internal Affairs and Communications and JICHIRO, which have been conducted since July 2018. JTUC–RENGO regrets that the Government continues to allude to old reports of the Committee on Freedom of Association (CFA), which predated the Government’s ratification as justification for the status quo, and recalls that the CFA’s June 2018 examination of these issues called on the Government to fully grant to firefighters the rights to organize and to collective bargaining.

While it appreciates the information on the new implementation policy for the FDPC, the Committee wishes to emphasize that this policy remains distinct from the recognition of the right to organize under Article 2 of the Convention. The Committee notes the developments in relation to consultations with JICHIRO initiated in January 2019 and the intention of the Government to maintain this dialogue. The Committee once again expresses its firm expectation that continuing consultations will contribute to further progress towards ensuring the right of firefighting personnel to form and join an organization of their own choosing to defend their occupational interests. The Committee requests the Government to provide detailed information on any developments in this regard.

Article 2. Right to organize of prison staff. The Committee recalls its long-standing comments concerning the need to recognize the right to organize of prison staff. The Committee notes that the Government reiterates its position that prison officers are included in the police. The Government also reiterates that this view is accepted by the Committee on Freedom of Association in its 12th and 54th Reports. According to the Government, granting the right to organize to the personnel of penal institutions would pose difficulty for the appropriate performance of their duties and the proper maintenance of discipline and order in the penal institutions. However, taking into account the Committee’s previous comments, the Government decided to grant meaningful opportunities for the personnel of penal institutions to express their opinions by the following measures: (i) the Ministry of Justice organized meetings for executive officials and representatives of the personnel from each penal institution to the Regional Correctional Headquarters (RCH) to exchange opinions on the improvement of work environments and recreational activities for the personnel; (ii) in the framework of the agenda on “improvement of workplace to prevent resignation”, female personnel will be interviewed and their opinions will be examined and reflected in measures for improvement of their work conditions; and (iii) inspectors from the Ministry of Justice and the RCH will provide opportunities to the personnel to express their opinions on their working conditions. The Government recalls that contact persons are designated in penal institutions to hear proposals from the personnel on their proposal to improve their working conditions, and that a Penal Institution Visiting Committee is established in each penal institution to hear the personnel on matters such as the administration of the penal institution, working conditions, work–life balance, paid leave, etc. Finally, the Government asserts that in cases where any emergency occurs in a penal institution, and that it is required to promptly and properly bring the situation under control, by force if necessary, granting the right to organize to the personnel of penal institutions could pose a problem for appropriate performance of their duties and the proper maintenance of discipline and order.

The Committee notes the observations from NIPPON KEIDANREN supporting the Government’s view that prison officers should be considered as part of the police under Article 9 of the Convention.

The Committee also notes the observations from JTUC–RENGO regretting that the Government did not follow up on the Committee’s previous comments to consider the different categories of prison officers in determining, in consultation with the social partners, whether they are part of the police. JTUC–RENGO is of the view that: (i) the different measures described by the Government to provide opportunities to the personnel of penal institutions to express their opinions on their working conditions are irrelevant to union rights, including the right to organize. Since they merely constitute exchange of views with individual employees, they cannot be considered as negotiation; (ii) these measures described by the Government serve as substitutes for a meaningful discussion on granting the right to organize to the personnel of penal institutions; (iii) the carrying and use of weapons and administration of judicial police work, as motives for denying the right to organize to prison officers, does not constitute a logical argument. The right to organize is recognized for labour standards inspectors, authorized fisheries supervisors and other employees designated as special judicial police officials similarly to prison officers. Furthermore, the right to organize is recognized for narcotics agents, despite the fact that they are special judicial police officials and are granted the authority to carry and use weapons; and (iv) the increased utilization of private finance initiative (PFI) techniques for correctional institutions and the private consignment of a variety of work, and the fact that the Government is not questioning the right to organize of private sector workers, contradicts the argument put forward by the Government not to grant the right to organize to prison staff because of the need for this category of workers to be able to maintain control in cases of emergency situation. Finally, JTUC–RENGO observes that regulations granting the right to organize to the private sector workers receiving these consignments has not been disputed. Consequently, for the union, the argument of the Government that it is not appropriate to give the personnel of penal institutions the right to organize, because it poses a problem for appropriate performance of duties and proper maintenance of discipline and order in case of an emergency situation, falls short due to the Government’s own policy on private sector consignment in penal institutions.

The Committee considers it useful to recall that, in previous reports, the Government referred to the following distinction among staff in penal institutions: (i) prison officers with a duty of total operations in penal institutions, including conducting security services with the use of physical force, who are allowed to use small arms and light weapons; (ii) penal institution staff other than prison officers who are engaged directly in the management of penal institutions or the treatment of inmates; and (iii) penal institution staff designated, by virtue of the Code of Criminal Procedure, to carry out duties of the judicial police officials with regard to crimes which occur in penal institutions and who have the authority to arrest, search and seize. While appreciating the information provided by the Government in its report on the new initiatives to give opportunities to the personnel of penal institutions to provide their opinions on various aspects, including on their working conditions, the Committee emphasizes that these measures remain distinct from the recognition of the right to organize under Article 2 of the Convention. The Committee further observes that the Government has not engaged, despite reiterated calls from this Committee and the Conference Committee, in any consultation with the social partners to consider the different categories of prison officers. The Committee therefore urges the Government to take, in consultation with the national social partners and other concerned stakeholders, the necessary measures to ensure that prison officers other than those with the specific duties of the judicial police may form and join an organization of their own choosing to defend their occupational interests, and to provide detailed information on the steps taken in this regard.

Article 3. Denial of basic labour rights to public sector employees. The Committee recalls its long-standing comments on the need to ensure basic labour rights for public service employees, in particular that they enjoy the right to industrial action without risk of sanctions, with the only exception being public servants exercising authority in the name of the State and workers employed in essential services in the strict sense of the term. The Committee notes the general information provided by the Government on its overall approach, which remains to continue to hear opinions from employee organizations. The Committee also notes that, according to the Government, the number of employees in Governmental Administrative Agencies has diminished from 807,000 in March 2003 to 299,000 in March 2019, leaving fewer workers in the public sector without their basic labour rights.

Furthermore, the Committee recalls that the Government refers to the procedures of the National Personnel Authority (NPA) as a compensatory guarantee for public service employees deprived of their basic labour rights. Noting the persistent divergent views on the adequate nature of the NPA as a compensatory measure, the Committee requested the Government to consider, in consultation with the social partners, the most appropriate mechanism that would ensure impartial and speedy conciliation and arbitration. In its report, the Government indicates that the NPA held 213 official meetings with employees’ organizations in 2018. The Government also reiterates that these compensatory measures maintain appropriately the working conditions of public service employees. The Committee notes the observations from NIPPON KEIDANREN supporting the Government’s intention to continue to review carefully measures for an autonomous labour–employer relations system (which in the past the Government had indicated would grant to national public service employees in the non-operational sector the right to negotiate working conditions and to conclude collective agreements).

The Committee also notes the observations from the JTUC–RENGO regretting that the Government’s position on the autonomous labour–employer relations system has not evolved and the Government’s failure to take action as requested by the ILO supervisory bodies. JTUC–RENGO regrets that, despite assertion to the ILO that it would take into consideration the recommendation of the Conference Committee, in a meeting in March 2019, the Government merely gave the same response it has been repeating to employees’ organizations for the last three years, that “there are wide-ranging issues regarding autonomous labour–management relations systems, so while exchanging views with employees organizations, it would like to consider this carefully”. Consequently, JTUC–RENGO expresses its deep concern at the apparent lack of intention on the part of the Government to reconsider the legal system with regard to the basic labour rights of public service employees, and once again requests that the ILO investigate these matters through a mission to the country.

The Committee urges the Government to indicate any measures taken or envisaged to ensure that public service employees, who are not exercising authority in the name of the State, enjoy fully their basic labour rights, including the right to industrial action. It further urges the Government to indicate any consultation with the social partners concerned for the review of the current system with a view to ensuring effective, 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, will be fully and promptly implemented. In the meantime, the Committee requests the Government to provide information on the public departments and divisions that are no longer classified as Governmental Administrative Agencies since March 2003, accounting for the reduction in the number of workers in the public sector without their basic labour rights. It also requests the Government to continue to provide detailed information on the functioning of the NPA recommendation system.

Furthermore, the Committee notes the observations of Rentai Union Suginami, Rentai Workers’ Union, Union rakuda and Apaken Kobe referring to the adverse impact of the entry into force of the revised Local Public Service Act in April 2020 on their right to organize, and stating that: (i) non-regular local public service employees and their unions are not covered by the general labour law that provides for basic labour rights and their ability to appeal to the labour relations commission in case of alleged unfair labour practice; (ii) the new system, which aimed at limiting the use of part-time staff on permanent duties, has the effect of increasing the number of workers stripped of their basic labour rights; (iii) the conditional yearly employment system in place has created job anxiety and weakens union action and (iv) these situations further call for the urgent restoration of basic labour rights to all public service employees. The Committee notes the Government’s indication that the legal amendments ensure proper appointment of special service personnel and temporary appointment employees, and clarify the framework of appointment of regular service part-time staff. The amendments guarantee the status of these personnel and employees along with the introduction of some allowances due to them. According to the Government, the change of basic labour rights condition is therefore the consequence of the guarantee of originally expected appointment form to them. Consequently, in the Government’s view, the statement from Rentai Union Suginami that the amendments deprive temporary and part-time officials of their basic labour rights is not accurate. While noting the Government’s reiteration that the change of status improves the treatment of part-time employees, the Committee observes that these amendments have the effect of broadening the category of public sector workers whose rights under the Convention are not fully ensured. The Committee therefore urges the Government to expedite its consideration of the autonomous labour relations system so as to ensure that municipal unions are not deprived of their long-held trade union rights through the introduction of these amendments. It requests the Government to provide detailed information on the measures taken or envisaged in this regard.

The Committee notes the Government’s statement that it is examining carefully how to respond to the conclusions and recommendations formulated by the Conference Committee in 2018 and the various concerns regarding measures for the autonomous labour-employer relations system, while continuing to hear opinions from the social partners. The Government intends to regularly provide information on initiatives taken in this regard in good faith. Recalling the Conference Committee conclusions, including the lack of meaningful progress in taking necessary measures regarding the autonomous labour-employer relations system, the Committee once again strongly encourages the Government to indicate any measures taken or envisaged to elaborate, in consultation with the social partners concerned, a time-bound plan of action to implement the recommendations made above and to report on any progress made in this respect.