Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the following observations concerning matters addressed in this comment, as well as the Government’s replies to them: the observations of the Japanese Trade Union Confederation (JTUC–RENGO), transmitted with the Government’s report; of the National Confederation of Trade Unions (ZENROREN), received on 31 August 2021; and 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 1 September 2021. The Committee further notes the observations from Education International (EI), received on 9 September 2021, and the reply of the Government 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. In its previous report, the Government indicated that a new implementation policy of the FDPC, developed with the social partners, came into force in April 2019. In this regard, the Committee notes the observations from ZENROREN that the Japan Federation of Prefectural and Municipal Workers’ Union (JICHIROREN), joined by the Firefighters’ Network (FFN), had requested the Ministry for Internal Affairs and Communications and the Fire and Disaster Management Agency to come up with concrete measures to ensure that firefighters’ opinions regarding working conditions and workplace safety are heard in the operation of the FDPC. JICHIROREN and FFN conducted a survey among firefighters in June 2021; the result indicated that the FDPC system is still considered to give discretionary power to the head of the fire department. ZENROREN regretted that, despite such result, the Government’s response was merely to indicate that the FDPC system runs appropriately.

Furthermore, the Government indicates in its latest report that, since January 2019, the Ministry of Internal Affairs and Communications held six 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. In the Government’s view, the four consultations held in April, July and December 2019 enabled a substantive exchange on its opinion and on the Firefighting Staff Committee system. The fifth and sixth consultations, held in August 2020 and January 2021 respectively, enabled discussion of the situation of modern fire administration and the issue of harassment. The Government indicates that the employees voiced their appreciation for the regularity of the consultations and were willing to continue to hold regular consultations. The Committee notes, on the other hand, that JTUC–RENGO deplores the Government’s continued failure to respond to the Committee’s longstanding recommendation to grant the right to organise to firefighting personnel. JTUC–RENGO states that the establishment of reporting systems and consulting services brought up by the Fire and Disaster Management Agency amount to nothing more than makeshift measures and the Government's denial of the right to organize hampers fire and emergency services by lowering morale among the personnel.

The Committee wishes to recall its prior emphasis that the implementation policy for the FDPC remains distinct from the recognition of the right to organize under Article 2 of the Convention. It notes the divergent views on the meaningfulness of the consultations held since January 2019, and understands that no progress was made towards bringing positions closer together on the right to organise of firefighting personnel.  The Committee is bound to express again 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, that this view was accepted by the Committee on Freedom of Association in its 12th and 54th Reports, and that 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. The Government also reiterates its view that, in cases where any emergency occurs in a penal institution, it is required to promptly and properly bring the situation under control, by force if necessary; thus granting the right to organize to the personnel of penal institutions could pose a problem for the appropriate performance of their duties and the proper maintenance of discipline and order. The Government recalls that it decided to grant expanded opportunities for the personnel of penal institutions to express their opinions in the eight Regional Correctional Headquarters across the country in 2019 and 2021, with the participation of 228 general staff members (from 77 penal institutions) in 2019, and 233 general staff members (from 78 penal institutions) in 2021. The participants exchanged opinions on improving the work environment, on the nature of staff recreation as a way to contribute to a more open workplace and on the promotion of a better work-life balance for staff.

On the other hand, the Committee 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. They merely constitute an exchange of views with individual employees and 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; and (iii) it is unlikely the Government can report any concrete example of measures taken that have improved the work environment based on the exchange of opinions described above.

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 judicial police officials with regard to crimes which occur in penal institutions and who have the authority to arrest, search and seize. The Committee observes in this regard 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. Furthermore, the Committee wishes to recall that, in its view, the Government initiatives to give opportunities to the personnel of penal institutions to provide their opinions on various aspects, including on their working conditions, remain distinct from the recognition of the right to organize under Article 2 of the Convention. The Committee is bound to urge once again the Government to take, in consultation with the 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. Public service 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 further notes the information on the reduction of the number of national public service employees, as a result of the creation of Incorporated Administrative Agencies and the privatization of public departments or divisions. According to the Government, the number of employees in Governmental Administrative Agencies has diminished from 807,000 in March 2003 to 302,000 in March 2021. The Government thus considers that presently the restrictions on the basic labour rights for national public service employees, whose number is decreasing, is considerably limited.

The Committee recalls that the Government has been referring over the years to the procedures of the National Personnel Authority (NPA) as a compensatory guarantee for public service employees whose basic labour rights are restricted. Previously, the Committee had noted the persistent divergent views on the adequate nature of the NPA as a compensatory measure, and had 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 185 official meetings with employees’ organizations in 2020, making recommendations enabling working conditions of public service employees to be brought in line with the general conditions of society. The Government invokes the example of the use of the NPA recommendation system for revision of the remuneration of public service employees, implemented since 1960. Thus, the Government restates that these compensatory measures maintain appropriately the working conditions of public service employees.

The Committee notes, on the other hand, 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, recalling the obligation of the Government under Section 12 of the Basic Act on the National Civil Service Reform (2008), regrets that the Government gives the same response it has been repeating for many years, that “there are wide-ranging issues regarding autonomous labour–employer relations systems, so while exchanging views with employees organizations, it is necessary to continue to consider this carefully”. Furthermore, JTUC–RENGO reiterates that the NPA recommendations are left to political decision, making it obvious that such mechanism is defective as a compensatory measure. JTUC–RENGO denounces the statement from the Government that the privatization of national administrative agencies had left fewer public service employees without their basic labour rights as an attempt to seek acceptance of these restrictions. The Committee notes that JTUC–RENGO deplores the evident 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 supervisory bodies call into question the Government’s attitude and investigate these matters.

The Committee, noting that the report fails to provide any additional information on the matter, is therefore bound to urge once again that the Government indicate tangible 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, in particular the right to industrial action. In view of persistent divergent views, the Committee also urges the Government to resume consultations 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. It requests the Government to provide information on steps taken in this regard. It also requests the Government to continue providing information on the functioning of the NPA recommendation system.

Local public service employees. The Committee had previously noted 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 (through special service positions appointed by fiscal year just as regular service employees), 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 latest observations provided by these trade unions, as well as by JTUC–RENGO and ZENROREN, deploring that the situation described remains unaddressed. Additionally, these observations allege that the increase in consultation on harassment at the workplace and non-renewal of employment, is part of a new framework making it difficult for non-regular employees to join municipal unions, which in turn makes it more urgent to ensure basic labour rights to local public service employees.

The Committee notes the Government’s statement that the legal amendments ensure proper appointment of special service personnel and temporary appointment employees, and that the change of basic labour rights conditions is a direct consequence. The Government asserts that, based on the examination of the autonomous labour-employer relations system of national public service employees, it will carry out careful examination of measures for local public service employees, listening to opinions from related organizations. The Committee recalls its view that the legal amendments that entered into force in April 2020 for local public service employees 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-employer 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.

Articles 2 and 3. Consultations on a time-bound action plan of measures for the autonomous labour–employer relations system. In its previous comments, the Committee noted the Government’s statement that it was examining carefully how to respond to the conclusions and recommendations formulated by the Committee on the Application of Standards of the International Labour Conference (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 Committee observes with regret that no tangible progress seems to have been made in this respect. In its report, the Government merely indicates that it exchanged opinions with JTUC–RENGO and will provide information on initiatives taken in this regard in good faith. The Committee notes, on the other hand, that JTUC–RENGO denies such exchange of opinions took place and deplores that, despite the time that elapsed since the Conference Committee called on the Government to develop a time-bound action plan together with the social partners in order to implement its recommendations, the Government has taken no step towards its materialization. The Committee also notes ZENROREN’s view that, based on how consultations were held with its affiliated organizations on the pending matters, it is clear that the Government has no willingness to draw-up the action plan requested by the ILO supervisory bodies. Recalling the Conference Committee conclusions, including as to 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 take meaningful steps 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.

[The Government is asked to reply in full to the present comments in 2023.]