Interim Report - Report No 66, 1963

Case No 179 (Japan) - Complaint date: 30-APR-58 - Closed

1. 198. When the Committee continued its consideration of this case at its May 1962 meeting, it confined its examination to the developments which had occurred since its previous session with respect to the position with regard to the ratification by Japan of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The interim report contained in paragraphs 18 to 25 of its 64th Report (see paragraph 204 below) on this matter is submitted to the Governing Body.
2. 199. The Committee, while not reporting further in substance on the remaining allegations outstanding in this case, nevertheless indicated briefly, in its 64th Report, what was the actual position in May 1962 with regard to the examination of those allegations, on which it had last reported to the Governing Body in November 1961 in paragraphs 220 to 431 of its 58th Report.
3. 200. As indicated in paragraph 24 of its 64th Report, the Committee had, since the submission of its 58th Report, received communications dated 22 January, 13 February and 16 February 1962 from the Government, which contained a partial answer to the requests for further information contained in the 58th Report of the Committee. Further documents of complaint had been furnished by the Japan Teachers' Union and the All-Japan Prefectural and Municipal Workers' Union in communications dated 10 February 1962, concerning which the Government furnished observations by a letter dated 16 May 1962. Finally, further communications dated 22 February, 1 May and 14 May 1962 had been received from the I.C.F.T.U, the Japan Teachers' Union and the General Council of Trade Unions of Japan respectively, but the Government had not then furnished its observations thereon.
4. 201. Since the Committee met in May 1962, the Government has forwarded, in addition to a communication dated 14 September 1962 relating to the position with regard to the ratification of the said Convention No. 87, two further communications dated 24 August and 23 October 1962 relating to the matters referred to in paragraph 200 above.
5. 202. Japan has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Position with Regard to the Ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

1. 203. At its May 1962 meeting the Committee submitted a further interim report on this aspect of the case to the Governing Body in paragraphs 18 to 25 of its 64th Report.
2. 204. The Committee, after reviewing the latest position with regard to the ratification by Japan of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), made to the Governing Body the recommendations contained in subparagraphs (a) to (f) of paragraph 25 of its 64th Report, which read as follows:
3. 25. In these circumstances the Committee recommends the Governing Body:
4. (a) to take note of the Government's statement in its communication dated 20 April 1962 that, following informal negotiations between representatives of the government and opposition parties, Bills relating to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and to amendments to the related national legislation were submitted to the Diet on 13 April 1962, in the same form as that in which they had been submitted in March 1961;
5. (b) to take note of the further statements by the Government in its communication dated 11 May 1962 to the effect:
6. (i) that the said negotiations resulted in remarkable progress being made in the adjustment of opinions on the points at issue, but that it did not prove possible to reach final agreement before the session of the Diet closed on 7 May 1962;
7. (ii) that negotiations between the government and opposition parties are expected to continue and that, while it is regretted that the Bills were not adopted during the recent session of the Diet, the Government considers that marked progress in substance has been made compared with the situation prevailing during the sessions of the Diet in 1960 and 1961; that the Government intends to renew its efforts in this connection and will furnish information as to further developments;
8. (c) to express its keen disappointment, having regard to the many previous assurances given by the Government, as indicated in paragraph 109 (b) of the 60th Report of the Committee cited above, with reference to the intention to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that yet again a session of the Diet has ended without approval being given to the Bills submitted to it in this connection;
9. (d) to express the hope that the Government will re-submit the Bills in question as a matter of priority to the next session of the Diet;
10. (e) to request the Government to furnish information as to further developments in this connection;
11. (f) to urge the Government, having regard to its expressed intention of ratifying the said Convention, to endeavour, pending such ratification, to avoid any measures being taken which might run counter to the principles contained in the Convention, and, in particular, to avoid any arrests, dismissals or reprimands for trade union activities.
12. ......................................................................................................................................................
13. 205. The 64th Report of the Committee was approved by the Governing Body on 1 June 1962, in the course of its 152nd Session. The conclusions and request for further information contained therein were brought to the notice of the Government of Japan by a letter dated 6 June 1962.
14. 206. The Government furnished further information on this aspect of the case in a communication dated 14 September 1962.
15. 207. The Government states that the election of the House of Councillors was held on 1 July 1962 and the first session of the National Diet after the election took place from 4 August to 2 September 1962. The duration of this session being so short and a considerable time being spent on matters relating to the composition of the House of Councillors, such as the selection of its officers on the basis of the election results, the period devoted to substantial deliberations was necessarily reduced. It was thus foreseen from the outset that the passage of the Bills relating to the ratification of Convention No. 87 in this session would be difficult. Nevertheless, with a view to promoting as far as possible the procedures relating to the said Bills, informal negotiations between the representatives nominated respectively by the government and opposition parties (referred to in the communication of 11 May 1962) were re-opened to settle the points at issue of the said Bills in the course of this session, as in the case of the preceding session. Talks between these representatives were held on several occasions and continuous efforts were made in full earnest in order to adjust the dissenting opinions, with the result that further progress was made compared with the situation prevailing during the preceding session of the Diet, although final agreement could not be obtained before the session closed on 2 September. In conclusion, the Government states that both the government and opposition parties have agreed that the negotiations will be continued between sessions aiming at the passage of the said Bills in the next session of the Diet, and promises that information will be furnished as to further developments in this connection.
16. 208. In these circumstances the Committee recommends the Governing Body:
17. (a) to take note of the Government's statement in its communication dated 14 September 1962 that, following the election of the House of Councillors on 1 July 1962, the National Diet met from 4 August to 2 September 1962 and that, owing to the shortness of that session and to the considerable time devoted thereat to procedural matters relating to the composition of the House of Councillors, it was not possible to deal at that session with the passage of the Bills relating to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);
18. (b) to take note of the further statements by the Government in its communication dated 14 September 1962 to the effect:
19. (i) that the informal negotiations between representatives of the government and opposition parties referred to in paragraph 25 (a) of the 64th Report of the Committee cited in paragraph 204 above were re-opened to settle the points at issue in the said Bills in the course of the session of the National Diet which ended on 2 September 1962;
20. (ii) that talks between the said representatives were held on several occasions and efforts were made to adjust the dissenting opinions, with the result that further progress was made compared with the situation previously prevailing, although final agreement could not be obtained before the session closed on 2 September 1962;
21. (iii) that the government and opposition parties have agreed that the negotiations will be continued between sessions aiming at the passage of the said Bills in the next session of the Diet and that information will be furnished as to further developments in this connection;
22. (c) to express once again its keen disappointment, having regard to the many previous assurances given by the Government from 25 February 1959 onwards, as indicated in paragraph 109 (b) of the 60th Report and in paragraph 25 (c) of the 64th Report, with reference to the intention to ratify the said Convention, that yet again a session of the Diet has ended without approval being given to the Bills related to such ratification;
23. (d) to express the hope that the Government will submit the Bills in question as a matter of priority to the next session of the Diet;
24. (e) to request the Government to be good enough to furnish information as to further developments in this connection;
25. (f) to urge the Government once again, having regard to its expressed intention of ratifying the said Convention, to endeavour, pending such ratification, to avoid any measures being taken which might run counter to the principles contained in the Convention.
26. Allegations relating to the Denial of the Right to Strike and to the Lack of Compensatory Guarantees (Affecting Organisations Subject to the Local Public Service Law)
27. 209. In paragraphs 234 to 267 of its 58th Report, the Committee analysed and examined at some length allegations relating to the lack of compensatory guarantees - in the shape of adequate and impartial machinery to safeguard the interests of workers who are denied the right to strike under the Local Public Service Law. In the course of this examination the Committee had to consider the functions and composition of the bodies which, under the Local Public Service Law, are required to be set up for the purpose of dealing with disputes-the Personnel Commissions in the Prefectures and five main cities and the Equity Commissions to be set up in cities, towns and villages where there is no Personnel Commission.
28. 210. After reviewing the allegations made by the complainants and the observations furnished by the Government, the Committee formulated the conclusions contained in paragraphs 264 to 267 of its 58th Report, which read as follows:
29. 264. The Committee considers, therefore, that on the evidence before it and according to the provisions of the Local Public Service Law, the Personnel Commission does not appear to be an arbitration body but an advisory body, so far as representations on wages and other conditions of employment are concerned. The Government states that no other arbitration machinery exists or is envisaged.
30. 265. So far as the impartiality of the Personnel Commissions is concerned, the Government, while stating that they must consist of persons of high moral character with experience of certain matters (see paragraph 255 above) offers no information to refute the complainants' statement concerning the occupational or professional background of the 153 members now sitting on these Commissions (see paragraph 252 above). If the complainants' statement is correct, it would seem that, apart from 47 persons drawn from the legal and medical professions, the rest are almost all drawn from high managerial circles in the public or private sectors of the economy, the senior civil service or local governmental bodies. They are all, moreover, on the Government's admission, appointed by the head of the local body, subject to approval by such body, which is itself the employing authority.
31. 266. In some respects the issues raised involve questions of principle analogous to those of which the Committee had to take account when examining, in paragraphs 34 to 61 of its 54th Report, allegations relating to the Arbitration Committee of the Public Corporation Labour Relations Commission. When examining those allegations, the Committee emphasised the principle that where strikes are restricted or prohibited such restriction or prohibition should be accompanied by the provision of conciliation procedures and of impartial arbitration machinery whose awards are in all cases binding on both sides, and also the principle that, with regard to such machinery, it should be ensured that the different interests are fairly reflected in the numerical composition of the body from among which arbitrators are chosen and that all the neutral or public members thereof are persons whose impartiality commands general confidence. The situation now under consideration by the Committee differs from that examined in paragraphs 34 to 61 of the Committee's 54th Report, especially in that, firstly, the Personnel Commissions, as stated in paragraph 262 above, are not arbitral bodies, and, secondly, they are appointed directly by the head of the public body which is the employer. These factual differences would not appear to affect the validity of the general principles enunciated above and the Committee, therefore, reaffirms the importance which it attaches to those principles.
32. 267. In these circumstances the Committee recommends the Governing Body:
33. (a) to reaffirm the importance which the Governing Body has always attached to the principle that, where strikes are prohibited, there should be other means of redress; to note the Government's statement that it intends to amend the Local Public Enterprise Labour Relations Law to provide for arbitration machinery whose awards shall be binding in the case of employees of local public bodies who are not designated local public servants; to suggest to the Government that it should consider the advisability of adopting the widespread practice of bringing local public servants also within the scope of similar machinery;
34. (b) to suggest to the Government that it may care to consider what steps can be taken to ensure that the different interests are fairly reflected in the numerical composition of the Personnel Commissions and that all the neutral or public members of the Commissions are persons whose impartiality commands general confidence;
35. (c) to suggest to the Government that it may care to consider also the advisability of providing that each of the respective parties concerned shall have an equal voice in the appointment of the members of the Personnel Commissions.
36. 211. Further evidence on this aspect of the case was adduced by the All-Japan Prefectural and Municipal Workers' Union in its communication dated 10 February 1962 and by the Japan Teachers' Union in its communication dated 1 May 1962. The Government made further comments on this aspect of the case in its communication dated 16 May 1962.
37. 212. In its communication dated 10 February 1962 the All-Japan Prefectural and Municipal Workers' Union, which had already submitted evidence relating to the Personnel Commissions examined by the Committee in its 58th Report, seeks to show that the Equity Commissions afford even less safeguards to the workers than do the Personnel Commissions. While the Personnel Commissions have the power to submit opinions or make recommendations independently to the assembly or head or appointing authorities of the local public body concerning compensation and working conditions, the complainant declares that the Equity Commissions can only act if the personnel apply for appropriate action to be taken by the local public authority or if a member of the personnel appears for review when he considers himself to have been subjected to adverse action. Only individuals and not their organisations, it is alleged, can apply to an Equity Commission. Thus, declares the complainant, in the 3,000-odd cities, towns, etc., having Equity Commissions and no Personnel Commission, there is not even a proper form of recommendation-making to cover the conditions of workers deprived of the right to strike.
38. 213. With regard to the evidence which it submitted previously concerning the membership of the Personnel Commissions-see paragraph 265 of the Committee's 58th Report cited in paragraph 210 above-the complaining organisation alleges further that a member of the Ehime Prefectural Commission is an ex-mayor and that the Yamaguchi Prefectural Government Chief of Personnel is a member of the Yamaguchi Prefectural Personnel Commission.
39. 214. In the case of the Equity Commissions, it is alleged, persons with no " knowledge and sound judgment concerning personnel administration " are appointed, contrary to law, so that they are entirely at the mercy of the local authorities. As examples, the complainant cites the Noto Equity Commission as consisting of two persons engaged in fisheries and a charcoal seller, and that of the Tsuwano Equity Commission as consisting of two village ex-treasurers and an ex-army officer. In other cases, it is alleged, the non-availability of experienced persons facilitates the appointment of ex-senior officials. Moreover, it is claimed, the Equity Commissions rarely meet, except to hear reports by local authorities. It is alleged that even the Omuda City Equity Commission, one of the rare Commissions including a member from the trade union side, met only three times in 1960, the union member alone attempting to cause it to exercise any activity.
40. 215. The complaining organisation argues further that the implementation of any findings of Personnel or Equity Commissions is obstructed by the local public bodies. It cites the Matsuyama municipal authorities as having resisted the findings of the Equity Commission concerning 456 persons. It refers also to a case which came before the Kumamoto Prefectural Personnel Commission. It is further contended that in a case of adverse personal treatment, the Nagasaki Prefectural Personnel Commission found in October 1961 that a Mr. Matsumoto had been wrongfully dismissed in April 1961 and that on 20 December 1961 he had still not been reinstated.
41. 216. Finally, in Mie Prefecture, it is alleged, 21 out of 60 towns and villages have no Equity Commission at all.
42. 217. It is alleged that the text of the proposed Bill to amend the Local Public Enterprise Labour Regulations Law does not contain, as promised by the Government, provision for arbitration awards to be binding on both sides, but would merely require the head of the local public body to make every effort to have an award implemented, and would maintain in respect of awards the present provision applying in the case of agreements to the effect that any agreement involving the expenditure of funds not available from the budget or other funds shall not be binding upon the local public body concerned until appropriate action has been taken by the assembly of the local public body concerned.
43. 218. In its communication dated I May 1962 the Japan Teachers' Union, referring to the recommendations made in paragraph 267 (a) of the Committee's 58th Report cited in paragraph 210 above, declares that the pending Bill to amend the Local Public Service Law takes no account of the recommendation made in that paragraph. As an illustration of the fact that decisions of the Personnel Commissions do not bind the local public bodies, the complainant refers to a decision of the Chiba Prefectural Personnel Commission given on 23 June 1961 in respect of applications for action submitted to it in September to November 1959, as still not having been implemented.
44. 219. In its communication dated 16 May 1962 the Government repeats in substance its earlier arguments to the effect that the Personnel Commissions and Equity Commissions do protect the interests of employees, the Equity Commission differing from the Personnel Commission only in that the latter alone has power to make recommendations concerning employees' compensation and to deal with certain other matters.
45. 220. The Government denies that the Commissions are not impartially constituted and states that the allegation regarding the Ehime and Yamaguchi Personnel Commissions (see paragraph 213) is false. The Ehime Commission consists of a chairman, who was a member of the Prefectural Labour Relations Commission until 1947 and has occupied no official post since then, a member who is the branch chief of a credit co-operative, and a member who was mayor of Saijo City from 1951 to 1955. The Yamaguchi Commission consists of a university lecturer, a lawyer and a third member who was, prior to 1950, among other things, Chief of the Personnel Section of the Yamaguchi Prefectural Government. The allegation regarding the inactivity of the Omuda Equity Commission in 1960 (see paragraph 214) is groundless because no applications were made to it in that year. Mr. Matsumoto (see paragraph 215) has now been reinstated. In the Matsuyama case (see paragraph 215) no effect was given to the recommendation because a new ground of action was asked for. Of the 60 localities in Mie Prefecture (see paragraph 216), only nine are still without Equity Commissions and it is expected that in these cases they will soon be appointed.
46. 221. With regard to the Government's contention that the allegations made with respect to the Ehime and Yamaguchi Personnel Commissions (see paragraph 213) are false, it is to be observed that in fact the Government admits that a member of the Ehime Commission is an ex-mayor, as alleged. In the case of the Yamaguchi Commission the member criticised as being a chief of personnel is, in fact, an ex-Chief of the Personnel Section. The remaining evidence now adduced adds nothing in principle to that examined by the Committee in its 58th Report except to confirm that the recommendations made by the Committee concerning the Personnel Commissions appear to be equally applicable to the Equity Commissions.
47. 222. It is further to be noted that the Government's communication of 16 May 1962 makes no reference to the allegation (see paragraph 217) that the pending Bill to amend the Local Public Enterprise Labour Relations Law does not give effect to the earlier statement made by the Government that it intended, in that Bill, to provide for the awards of arbitration machinery to be binding on both sides.
48. 223. In these circumstances the Committee recommends the Governing Body:
49. (a) to reaffirm the importance which the Governing Body has always attached to the principle that, where strikes are prohibited, there should be other means of redress;
50. (b) to suggest to the Government once again, recalling its earlier specific statement that it intends to amend the Local Public Enterprise Labour Relations Law to provide for arbitration machinery whose awards shall be binding in the case of employees of local public bodies who are not designated local public servants, that it should consider the advisability of adopting the widespread practice of bringing local public servants also within the scope of similar machinery;
51. (c) to suggest to the Government once again that it may care to consider what steps can be taken to ensure that the different interests are fairly reflected in the numerical composition of the Personnel Commissions and that all the neutral or public members of the Commissions are persons whose impartiality commands general confidence;
52. (d) to suggest to the Government once again that it may care to consider also the advisability of providing that each of the respective parties concerned shall have an equal voice in the appointment of the members of the Personnel Commissions;
53. (e) to suggest to the Government that it may also take account, in the case of the Equity Commissions, of the suggestions contained in subparagraphs (c) and (d) above.
54. Allegations relating to Acts of Anti-Union Discrimination (Japan Teachers' Union)
55. 224. In its communications dated 9 November and 8 December 1960 the Japan Teachers' Union points out that section 56 of the Local Public Service Law stipulates that local civil servants shall not be subjected to discriminatory treatment on the ground that they have joined a trade union or acted legitimately on behalf of the union and that, under section 8-1 (10), any person aggrieved may ask the Personnel Commission to review acts of discrimination and adopt necessary measures.
56. 225. Workers in private industry are protected under the Trade Union Law against (a) acts of anti-union discrimination in respect of employment, (b) refusal to bargain collectively and (c) interference by the employer in union management. The complainant declares that the Local Public Service Law (like the National Public Service Law) gives protection only against the first of these types of acts and that the Government, so far as local civil servants are concerned, is not implementing Articles 2 and 3 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan. The complainant alleges that the Government applies the term " public servants engaged in the administration of the State " (Article 6 of the said Convention) as including all public servants, including teachers, who have no connection whatsoever with the administration of the State.
57. 226. The complainant goes on to list a number of cases in which alleged acts of antiunion discrimination against individuals have taken place by reason of their membership in the Japan Teachers' Union. In particular they refer to acts in one prefecture connected with participation in the Ehime Research Conference, organised by the Prefectural Education Commission and having authority to appoint teachers and to pursue educational research. Teachers were to be asked by their headmasters to take part. It is alleged that the Ehime Prefectural Commission barred members of the Japan Teachers' Union from participating unless they first withdrew from the union. As evidence, the complainant adduces statements as to their interviews with education authorities or headmasters made by Mr. S. Ishikawa (Vice-Chairman of the Niihama-Shi Teachers' Union), Mr. Y. Kitayama (teacher at Iwamatsu Secondary School) and Mr. T. Ogawa (teacher at Lekushi Elementary School). The complainant declares that the purpose of this was to replace the union by the Research Conference in the region concerned. At the same time, it is alleged, teachers were threatened with discrimination in respect of promotion unless they left the Japan Teachers' Union. As evidence of this the complainants adduce statements by Mr. Takatoshi Inoue (headmaster of Nakano Municipal Elementary School), Mr. T. Mizumoto (teacher), Mr. K. Yamaoka (teacher at Kawabe Secondary School), Mr. N. Hisai (teacher at Kawabe Elementary School) and Mr. S. Nishiyama (teacher at Sakao Elementary School). A further purported statement by Mr. Takeo Inoue, Chairman of the Executive Committee of the Ehime Prefectural Teachers' Union, lists cases of alleged discrimination against members and committee members of the union in respect of transfers to remote areas, discriminatory statements by members of the local governmental authority (for example, that a certain teacher would make a good headmaster if he were not a member of the union executive); on the other hand, teachers who withdrew from the union under pressure, it is alleged, immediately received more favourable treatment in respect of salary increments. These examples of discrimination against the Japan Teachers' Union in one Prefectural District, it is alleged, are repeated all over the country.
58. 227. According to the statement of Mr. Ishikawa, he and five other officials and executive members of the Niihama Teachers' Union held negotiations on 25 August 1960 with Mr. Ozaki, Guidance Chief of the Saijo Education Office. It is alleged that Mr. Ozaki declared that a portion of the government grant for education research had been allotted to the Ehime Prefecture but that the Niihama municipal authority would not allow any of the money to be used for members of the Japan Teachers' Union but only for persons abiding by the ideas of the Ministry of Education. It is also alleged that at this interview Mr. Ozaki admitted having entertained three members of the union, Messrs. Kato, Shiraishi and Onishi, and having suggested to them that they leave the union because members of the union were excluded from the Ehime Educational Research Conference. According to the statement, the three members concerned then resigned from the union.
59. 228. According to the statement of Mr. Kitayama, on 19 September 1960 at Iwamatsu Secondary School the headmaster, Mr. Nagaosa, declared that members of the Japan Teachers' Union would be excluded from the Ehime conference and suggested that the teachers should not " fail to catch the bus ", meaning that they should resign from the union.
60. 229. According to the statement of Mr. Imura, on 17 September 1960 the headmaster of Hisara Elementary School, Mr. Yoshida, declared that the local education commission had forwarded to him a document stating that the Educational Research Conference would not include members of the union.
61. 230. According to the statement of Mr. Ogawa, on 19 September 1960 the headmaster of Jekushi Elementary School, Mr. Fujiwara, declared at the school that he wished " non-union members " to participate in the Ehime Educational Research Conference but that " if one, already a union member, wants to join it, he must retire from the union ". It is alleged that Mr. Fujiwara made this announcement at the request of the Chief of Education.
62. 231. According to the statement of Mr. Takatoshi Inoue, headmaster of Nakano Elementary School, one of the teachers at his school, Mr. Mizumoto, prior to his joining this school on 1 April 1959, had been warned twice in writing because of his participation in 1958 in " the united action " of the Japan Teachers' Union; nevertheless he received his annual increment on 1 April 1959, but the increment due on 1 April 1960 was delayed for three months. When Mr. Inoue asked the local education commission why this had been done, he says that he was told that it was probably because of the warnings and that he pointed out that these were matters outside the incremental period in question. Mr. Inoue declares that in the teachers' merit rating which he himself conducted on 1 November 1959, Mr. Mizumoto scored good marks and was in the upper group of the teachers concerned, but that some teachers lower in the merit rating were given their increments on 1 April 1960 in preference to Mr. Mizumoto. Mr. Inoue considers that this was an illegitimate and unfair action placing pressure on Mr. Mizumoto because he was an active union member. Mr. Mizumoto confirms this statement and declares that another teacher who had also had two warnings like himself obtained his increment after resigning from the union.
63. 232. Mr. Takatoshi Inoue then refers to the case of another of his teachers, Mr. S. Yamaoka, who had also received warnings for his participation in the action taken by his union in 1958. He received his increment in 1959 but, on 18 October 1960, the date of Mr. Inoue's statement, he had still not received the increment for 1960. Mr. Inoue points out that in his case also teachers lower in the merit rating of 1 November 1959 received their increments in 1960. At this point Mr. Inoue confirms Mr. Mizumoto's statement as to another teacher, who had also received warnings, having been granted his increment following his resignation from the union.
64. 233. According to the statement of Mr. K. Yamaoka, teacher at Kawabe Secondary School (not the same person as the Mr. S. Yamaoka referred to in the preceding paragraph), Mr. Horio, the headmaster, told him on 22 June 1960 that he had been talking with the school inspectors, who had said that members of the union were regarded as hooligans. For 20 minutes, declares Mr. Yamaoka, the headmaster tried to persuade him to leave the union, after which he talked similarly to another teacher, Mr. Kawata.
65. 234. Mr. Hisai, also a teacher at Kawabe Elementary School, declares that about the end of August 1960 he was told of a remark by the Education Superintendent to the effect that funds had been appropriated to set up a kindergarten at the school because only a few of the teachers were members of the union and that " those affiliated to the union had better leave it at the earliest possible date ". A few days later, declares Mr. Hisai, his headmaster said to him: " Don't you think that it would be disadvantageous if you remain a union member?... I will co-operate with you if you retire from the union. If you remain in the union it is likely you will be adversely treated in respect of personnel affairs and salary problems. I advise you to reconsider being a union member."
66. 235. According to the statement of Mr. Nishiyama, teacher at Sakao Elementary School, pressure was put upon him to resign from the Ehime Prefectural Teachers' Union (the section of the Japan Teachers' Union for the prefecture). He states that when he was teaching on 7 September 1960 he was called into another room, where he found Mr. Omori, Chief of Education, and Mr. Kamikubo, the Chairman of the Education Commission, who asked him if he had changed his mind about remaining in the union and said that " if there is a union member among the teachers it will hinder the administration of the school ". As he left he says that they told him that they " were waiting for his desirable answer " concerning his union membership.
67. 236. According to the statement by Mr. Takeo Inoue, Chairman of the Executive Committee of the Ehime Prefectural Teachers' Union, one section of the union in the prefecture, the Shuso Teachers' Union, played a leading part in the teachers' struggle in 1956 and 1957 against the institution of the teachers' " merit rating " system. He alleges that the 15 teachers transferred outside the Shuso area on 1 April 1958 included Messrs. K. Ishimaru, H. Onoe, Y. Ochi, A. Tamai and T. Yamauchi, all five members of the union executive committee, Mr. S. Takahashi, former chairman of the Prefectural Teachers' Union, Mr. K. Takahashi, former executive member, Mr. Y. Tamai, member of the union's propaganda division, Mr. H. Morimatsu, active member of the union's youth division, and Messrs. V. Suzuki and E. Betsumiya, who had refused to resign from the union, and Mr. K. Watanabe, chairman of the executive committee. Mr. Inoue alleges that the members of the town education commission and two influential Liberal Democrat members of the Prefectural Assembly habitually made anti-union remarks-for example, that Mr. K. Watonabe " would make a good headmaster if he were not the chairman of the executive committee " of the union. As a result, it is alleged, almost the whole executive of the Shuso Teachers' Union were transferred out of the district and the three executive members who were not moved out of the district-Messrs. Akikawa, Tan and Kondo-were moved to remote mountain areas within the district.
68. 237. Mr. Inoue states that the teachers at Dowa Elementary School and Dowa Secondary School were victimised as active union members who had taken a prominent part in resisting the merit rating system, all the six teachers at the secondary school being transferred on 1 April 1959 and all except one of those who were union members at the elementary school also being transferred. In another part of the prefecture, it is alleged, unfair personnel transfers caused nearly half the members of the Onsen Teachers' Union to resign from it in order to avoid adverse treatment.
69. 238. Mr. Inoue states that in the prefecture 3,070 teachers who were union members had their increments postponed because of their participation in their union's resistance to the merit rating system-916 of these being increments falling due on 1 April, a higher figure than for any other quarter-but that those who resigned from the union had the postponement of their increment cancelled, while some who resigned early were given a special increment; fear of adverse treatment caused the membership of the Ehime Prefectural Teachers' Union to fall steadily from 9,664 in 1957 to 4,259 in August 1960. He states that there are something like 10,000 teachers in all the Prefecture. The biggest monthly losses of membership, according to his figures, were 733 in April 1958, 910 in April 1959 and 665 in April 1960. The next largest figures were 436 in January 1959, 312 in January 1960, 300 in July 1959. In July 1958, the complainants state, there were only four withdrawals. Mr. Inoue tabulates his figures in accordance with the school year, beginning on 1 April and ending on the following 31 March.
70. 239. In its communication dated 24 January 1961 the Government comments on the allegation that local public servants do not have the same protection as do workers in private industry against acts of interference covered by Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and that they are not protected by any " machinery appropriate to national conditions " as defined in Article 3 of the Convention. The Government states that, " since it is inconceivable that local public entities should infringe, by acts of interference, the union's right to organise, which is guaranteed by the Constitution and the laws, there is no institution to afford redress for unfair labour practices against the unions " like that established for workers in private industry. But, declares the Government, there are special provisions in section 56 of the Local Public Service Law and there is an appeal system (sections 49, 50, 51) under which local public servants can request examination of cases of dismissal and other unfair treatment adverse to their interests.
71. 240. The Government argues that compulsory education which local authorities must establish is part of the administration of the State and that teachers in Japan, therefore, are " public servants engaged in the administration of the State " within the meaning of Article 6 of the said Convention No. 98.
72. 241. The Educational Research Conference in Ehime Prefecture, states the Government, is an organisation voluntarily established by headmasters and teachers " who seceded from " the Japan Teachers' Union for the purpose of conducting educational research activities. The Government denies that any pressure was put on teachers to force them to leave the union, stating that, although the chairman and superintendent of the Ehime Prefectural Board of Education " had most properly pointed out illegal conduct on the part of the Teachers' Union, they have never made malicious abuse whatsoever on the union ".
73. 242. In its communication dated 9 May 1961 the Government states that an inquiry by the Ehime Prefectural Board of Education revealed that there is no truth in the statements adduced by the complainants in order to show that pressure was brought on Mr. Kitayama and other persons named by the complainants to persuade them to leave the Japan Teachers' Union. Nor is it true, declares the Government, that teachers who left the union were given advantages.
74. 243. According to the procedure for the examination of alleged infringements of trade union rights the Committee has expressed the hope that where precise allegations are made governments will formulate for objective examination detailed factual replies to such detailed factual charges as may be put forward. In all cases in which the information supplied by governments to which complaints have been communicated appears too inadequate or of too general a character, the Committee has followed the practice of requesting the government concerned to supply it with more detailed information in order to enable it to express a considered view to the Governing Body.
75. 244. In the present connection the Committee observed at its May 1961 meeting that the complainants had supported their allegations by purported detailed reports of conversations by eight different named persons, and according to each of these statements specific anti-union acts were committed. In reply, the Government had made a general denial and stated that the Ehime Prefectural Board-precisely the employer involved in each case - made an inquiry which revealed that the statements were not true.
76. 245. In these circumstances the Committee decided to request the Government to furnish more detailed observations on the respective pieces of evidence adduced by the complainants in support of their allegations.
77. 246. In its communication dated 3 October 1961 the Government, after referring to the powers of the Personnel Commissions in the prefectures to give binding decisions in cases in which an employee alleged adverse treatment, declared that, since the Committee submitted its 54th Report to the Governing Body, the Japan Teachers' Union had been representing the findings in that report as being adverse to the Government. Then the Government proceeded to comment on the situation in the Ehime Prefecture and on the specific alleged cases of anti-union discrimination concerning which further information was requested by the Committee.
78. 247. The Government declared that in August 1961 the Minister of Education sent two officials to Ehime Prefecture to investigate the matters raised in the complaint. Their findings were to the effect that the Education Research Conference in Ehime Prefecture was an " organisation freely conceived and formed for the purpose of educational research on the initiative of the school principals and teachers who had withdrawn from the Japan Teachers' Union " because they disagreed with its policy and activities; that " the members of the Japan Teachers' Union were not allowed to take part in the Conference in the light of the purpose of the setting up of the Conference "; that no education authority in the Prefecture ever forced or urged teachers to leave their union; that neither favourable nor unfavourable treatment was ever given in respect of rises in salary or transfer for the reason that any person was or was not a member of the union.
79. 248. With regard to the statement of Mr. Ishikawa (see paragraph 227 above), the Government stated that the six members of the executive of the Niihama Teachers' Union did not negotiate with Mr. Ozaki, the Guidance Chief of the Saijo Education Office, but that they visited him at his home and " merely had some conversations with him ". The Government denied the allegation that government grants of financial aid to educational research benefit only those who support the ideas of the Ministry of Education, and stated that the grants are made to educational research organisations whether their membership comprises members of teachers' unions or not. The Government admitted that Mr. Ozaki had dinner with the three teachers named by Mr. Ishikawa, but stated that this was a reunion of old friends and was not a meeting to instigate recession from the union.
80. 249. With regard to the statement of Mr. Kitayama (see paragraph 228), the Government denied that the headmaster ever made the remark attributed to him by the complainants.
81. 250. With regard to the statement of Mr. Imura (see paragraph 229), the Government declared that the document mentioned was issued by the Ehime Research Conference itself and not by the Education Commission; the Ehime Research Conference is " not a public establishment but an autonomous body of teachers ".
82. 251. With regard to the statement of Mr. Ogawa (see paragraph 230), the Government denied that Mr. Fujiwara, the headmaster, invited teachers to participate in the Ehime Research Conference at the request of the education authority, and stated that what he did was to " express his mere wish to teachers to consider possible participation ", each person being " free to decide whether he or she should participate or not ".
83. 252. With regard to the statement of Mr. Takatoshi Inoue concerning Mr. Mizumoto and Mr. S. Yamaoka (see paragraphs 231 and 232), the Government declared that the allegation that the delay in their increments was discriminatory because of their union membership was " based on certain prejudice ". The reason, stated the Government, was that the Prefectural Board of Education could not recognise their service as " good ", having regard both to their merit assessment and to the warnings they had received. The teacher alleged to have been given his increment because he seceded from the union was a headmaster. He was given his increment, declared the Government, because his merit assessment and his services were good; the statement that it was because he left the union was " a dogmatism tinctured with prejudice ".
84. 253. With regard to the statement of Mr. K. Yamaoka (see paragraph 233), the Government stated that the headmaster, Mr. Horio, did talk with the two teachers concerned "about the present state of the union" but that "at that time he never invited them to secede from the union". The Government stated that the allegation that the school inspectors spoke ill of the union in an effort to bring about withdrawal from union membership "is dogmatic ".
85. 254. With regard to the statement of Mr. Hisai (see paragraph 234), the Government declared that no remark was ever made about the question of union membership in relation to the allocation of a subsidy for a kindergarten and that the headmaster never made to Mr. Hisai the remarks alleged. The Government added: " It is true that Principal Yamanoichi talked to Mr. Hisai two or three times, each for ten minutes or so, saying that for the smooth operation of the school it was necessary to create an atmosphere in which all the teachers of the school, irrespective of being members or non-members of the union, could exchange opinions freely and frankly. But he had never instigated the secession from the union, suggesting the advantages and disadvantages mentioned in the statement."
86. 255. With regard to the statement of Mr. Nishiyama (see paragraph 235), the Government declared that the allegation that he was urged to leave the union is " a distortion of the facts ". The Government said that on the day in question the teachers held a small been party; in the course of this, Mr. Nishiyama was asked by the Chairman of the Board of Education " about the atmosphere of the teachers' room " but that he was never invited to leave the union. The Government claimed that this was confirmed by other teachers who were there at the time.
87. 256. The Government then commented on the statements made by Mr. Takeo Inoue (see paragraphs 236 to 238).
88. 257. The Government stated that 16 teachers were transferred to schools outside Shuso District of Ehime Prefecture on 1 April 1958, including " the executive members of the Shuso Teachers' Union as listed " by the complainants; they were not transferred because they were union officers or active members but " as part of the normal personnel reshuffling designed for better educational effects with due regard to the evaluation of the individual records of service ". Ten teachers listed in the statement appealed on the ground of adverse treatment to the Ehime Prefectural Personnel Commission on 9 May 1958; when the Commission had pronounced the transfer legitimate in three of the cases, the other seven persons withdrew their appeals. The ten teachers then began proceedings in the District Court on 7 June 1958, but " withdrew the case of their own accord on 19 March 1959 during the course of the hearing ". One person mentioned, Mr. S. Takahashi, was transferred, according to the Government, at his own request.
89. 258. With regard to the transfer of teachers at the two Nuwa schools (" Dowa " is not correct, stated the Government), it was denied that union membership was the reason. The Government said that the teachers concerned committed " law-defying and subversive acts ", so that the villagers of Nuwa asked the Board of Education to send them away. Three of those concerned appealed to the Personnel Commission but withdrew their appeals.
90. 259. With regard to the contention that persons resigning from the union were favourably treated in respect of salary increments, the Government stated that 3,775 teachers in the Prefecture became the subject of formal disciplinary action or informal warnings because of their participation in their union's illegal acts of dispute in opposition to the merit rating system; as a punishment, increments were postponed. No discrimination was made, declared the Government, between members and non-members of the union. The Government denied that postponement of increment was revoked in the case of teachers who left the union and stated that the allegation as to special increments being given to those who resigned early " is an intended distortion of fact ". According to the applicable regulations, declared the Government, special increments are granted to a prescribed percentage of employees whose records are especially good; hence, there is " no discrimination between members and non-members of the union. It is a matter of course that those who committed illegal acts should not benefit by the special salary increment. The statements that those who remained in the union received unfavourable treatment and that the Prefectural Board of Education and the municipal boards were inviting union members to leave the union by giving them favourable treatment in regard to their salary increments and transfer of post are not true. These statements were made by strongly preconceived prejudice."
91. 260. Finally, the Government agreed that the membership of the Ehime Prefectural Teachers' Union has been decreasing yearly since 1958, but gave as the reason for this dissatisfaction among teachers because of the " law-defying and radical campaign policy of the Japan Teachers' Union ". Some members left the Ehime Union in July 1958, said the Government, because the union tried to hinder attendance at a summer course sponsored by Ehime Board of Education. The Government described this withdrawal as " the first case ". Then, said the Government, a large number of members left the union in protest against its " illegal united action against the merit rating system " on 15 September 1958. " It is erroneous ", concluded the Government, " to state that the decrease was brought about by the employer's effort to disrupt the union."
92. 261. The Committee, at its November 1961 meeting, observed that it had before it a considerable amount of detailed evidence, but that a few points of crucial importance, especially having regard to Japan's ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), were still not entirely clear. In particular, it appeared that an association or body called the " Ehime Educational Research Conference " was set up at some period in the years 1956 to 1958. According to the complainants, the Conference was organised by the Prefectural Education Commission " to replace the union " and has authority to appoint teachers and to pursue educational research. According to the Government, the Conference was " an organisation voluntarily established by headmasters and teachers who seceded from the Japan Teachers' Union for the purpose of conducting educational research activities ". The complainants and the Government (see paragraph 247) both said that members of the Japan Teachers' Union were excluded from the Conference, although they disagreed as to the motives for this. The complainants alleged that financial aid had been given by the central and/or prefectural education authorities to the Conference; the Government stated that grants of financial aid are made to educational research organisations whether their membership includes members of teachers' unions or not.
93. 262. If indeed it is true, observed the Committee, that the Ehime Educational Research Conference is purely a body for educational research founded because its members disagreed with the educational policy of the Japan Teachers' Union, there would not appear to be any ground for objection to it. In this connection the Committee considered that it would be desirable for it to have before it more definite information as to the structure, aims and functioning of the Ehime Educational Research Conference. The Committee, therefore, requested the Government to be good enough to state (a) whether the Ehime Educational Research Conference is purely a body for the conduct of educational research or whether it is an organisation representing the occupational interests of its members vis-à-vis the authorities; (b) what is the nature of the contact or relations between the Conference and the Ehime education authorities and, especially, how far has it been assisted financially by those authorities or by the Government; (c) whether the Conference has the power to appoint teachers, as alleged. Further, the Committee requested the Government to furnish details as to the contents of the Constitution and rules of the Ehime Educational Research Conference.
94. 263. The Committee pointed out that it has always attached the greatest importance to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan, that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. Having regard to the fact that this is the essential principle brought into question in the present allegations relating to members of the Ehime Prefectural Teachers' Union, a number of points seemed to the Committee to call for further clarification.
95. 264. According to Mr. Inoue, the chairman of this union, the threat of disadvantageous treatment in respect of increments or adverse transfers or other prejudicial treatment caused the union to lose almost 60 per cent of its membership, the figure falling from 9,664 in 1957 to 4,259 in August 1960. Of the 5,405 members thus lost, it was alleged, 2,308 were lost in three months alone-April 1958, April 1959, April 1960; all the allegations relating to adverse transfers of personnel named 1 April, the opening date of the school year, as the effective date of such transfers, while 1 April was also alleged to have been the quarterly date on which the highest number of increments were postponed (see paragraph 238). In reply the Government denied that threats of disadvantageous treatment caused members to leave the union, stating that no such threats were ever made. The Government declared that members had left the union because they disagreed with its policies, citing certain resignations in July 1958 and larger secessions following the action taken by the union on 15 September 1958.
96. 265. In these circumstances the Committee requested the Government to state whether it accepts the figures given by Mr. Inoue as substantially correct, and, if so, whether it could suggest any explanation for the very high losses of members suffered each April by contrast with other months of the year; further, as it appeared that the union lost more than half its membership in three years, the Committee asked the Government which trade union was recognised at the present time by the Ehime prefectural education authorities as the trade union representing the occupational interests of the teachers vis-à-vis those authorities.
97. 266. Since the meeting of the Committee in November 1961 there have been the following further developments with regard to this aspect of the case: (a) the Government replied to the Committee's requests for further information by a communication dated 22 January 1962; (b) the Japan Teachers' Union furnished a further document of complaint on 10 February 1962; (c) the Government forwarded its observations thereon in a communication dated 16 May 1962; and (d) the Japan Teachers' Union made further allegations in a communication dated 1 May 1962.
98. 267. With regard to the questions put by the Committee concerning the Ehime Educational Research Conference (see paragraph 262 above), the Government declares in its communication dated 22 January 1961 that the Conference is purely a body for educational research, that part of its expenses in respect of educational research in 1960 and 1961 were covered by grants from the Ministry of Education awarded strictly on the same basis as to other similar research bodies in the country, that the prefectural authorities have never given it any financial assistance, and that the Conference has no power whatever with regard to appointing and dismissing teachers, power in this respect being vested exclusively in the prefectural board of education.
99. 268. The Government furnishes the Constitution of the Conference. Nothing in section 7 of this Constitution relating to the activities of the Conference appears to refer specifically to what are normal activities of trade unions but the terminology is so broad (objects such as " welfare services for the members and consolidation of friendly and collaborative relations among the members ", " liaison and co-operation with other educational institutions and organisations " and " other activities necessary to advance the purpose " [of the Conference]) that the activities of the Conference cannot be said to be limitatively defined. It is to be noted that membership of the Conference " shall be composed of those educational personnel who are in the service of the elementary and lower secondary schools " in this prefecture and " who support the purpose " of the Conference.
100. 269. With regard to the questions put by the Committee concerning secessions from the Ehime Prefectural Teachers' Union (see paragraph 265 above), the Government declares that the alleged figures cited in paragraph 264 are, on the whole, estimated to be correct. The Government states that " the fact that a comparatively large number of members secede from the union in April every year may be accounted for by the fact that every year " a considerably large scale of transfer of teachers within the prefectural boundaries is effected at the end of March according to the prescribed policy of the appointment authority, namely the prefectural board of education ". The Government adds that " it is very easily conceivable that during this period of renewal Japanese teachers may exercise due reflection upon their past attitude towards their professional union and formulate a new attitude. Such being the case, it is supposed that many of the teachers who had already been inclined to oppose the leadership of the union staff in waging illegal and violent struggles made up their mind to secede from the union at the very beginning of the new school year."
101. 270. The Government states with regard to the other question put by the Committee (see paragraph 265 above) that in Ehime Prefecture, at the present time the Ehime Prefectural Teachers' Union, the Ehime Prefectural Upper Secondary School Educational Personnel Union, the Ehime Prefectural Upper Secondary School Teachers' Union and the Ehime Prefectural League of Educational Personnel all have the right to bargain collectively with the competent authorities.
102. 271. In its communication dated 10 February 1962 the Japan Teachers' Union expresses the view that the objects set forth in section 7 of its Constitution show clearly that the Ehime Educational Research Conference is not purely a body for the conduct of educational research. In support of this argument it is alleged that Mr. Ohnishi, Chairman of the Ehime Prefectural Education Commission, stated on 16 May 1961 at the Education Committee Session of the House of Councillors, that the Conference was the body organised in compliance with the provisions of the state Constitution, which guarantee the right to organise to the workers, thus endorsing the fact that the Conference is " the body to represent the occupational interests of its members vis-à-vis the authorities ". Mr. Ohnishi is also alleged to have said: " as this Conference is also the organisation to be protected by the statutory terms of article 28 of the state Constitution, we do not attempt to make any grants of financial aid, just as in the case of the Prefectural Teachers' Union, to the Conference in connection with its operation. Nevertheless, I believe it would not be inappropriate at all to make such grants to the Educational Research Conference, provided that its activities have been recognised as those of genuinely good character in respect to educational research."
103. 272. The complainant then states that it never alleged that the Conference had power actually to appoint teachers. What is alleged is that any employees not belonging to the Conference-and to belong to the Conference they must not be members of the union-are discriminated against. In support of the contention that affiliation to the Conference is a condition for receiving favourable treatment at the time of appointment, the complainant submits a further purported extract of minutes of the 16 May 1961 Education Committee Session of the House of Councillors. According to this extract, a witness of this session, Mr. Honda, assistant principal of the Hisary Junior High School, stated that two new teachers fresh from college were assigned to his school and that, when they went to the Education Commission Office to pick up their seals of appointment, these were handed over in exchange for their subscribing their signatures to papers making them members of the Conference.
104. 273. The complainant declares that, as noted in paragraph 244 above, inquiries made into the alleged cases of anti-union discrimination were made with disregard for the truth by the actual employer involved, the Ehime Prefectural Education Commission. In support of this contention, the complainants refer to the case of a teacher named Nagako Nishi, citing further purported extracts from the minutes of the Education Committee Session of the House of Councillors on 16 May 1961.
105. 274. According to the complainant, the assistant principal of Miss Nishi's school visited her sick mother, when she was absent, to ask her to influence her daughter to leave the union, failing which she would be transferred to another school, this conversation being witnessed by the teacher's younger sister. Mr. Ohnishi was asked in the debate why his investigation report-on which the Government's reply to the I.L.O was based-stated that no discussion with the mother took place, when, after the death of the mother next day, the Human Rights Protection Bureau was called in and reported that a discussion did in fact take place. The purported ultimate reply of Mr. Ohnishi was that he did not directly lead the investigation.
106. 275. According to a further purported extract from these minutes the Education Committee itself found that a Mr and Mrs. Imura had been transferred to teaching posts in remote districts because of their association with the complaint lodged by the Japan Teachers' Union with the I.L.O.
107. 276. The Government replies to the Japan Teachers' Union's complaint of 10 February 1962 in its communication dated 16 May 1962.
108. 277. With regard to the Ehime Educational Research Conference the Government denies that Mr. Ohnishi admitted that the Conference was a labour organisation within the meaning of article 28 of the state Constitution and declares that what he said has been distorted. According to the Government, he said that because the Conference was not an organisation under the Local Public Service Law he did not regard it as a body with which to negotiate on wages and working conditions, but that, before answering any questions as to his opinion of the character of the Conference he would need time for reflection. With respect to the alleged exchange of teachers' documents of appointment for their signatures as members of the Conference, the Government states that " the writ of appointment and the affiliation with the Conference are different things " and that " the latter was never made a condition for the former ".
109. 278. With regard to the other matters alleged (see paragraphs 273 to 275), the Government states that the complainants have given only those extracts which support their case. Facts appearing in the report of the Human Rights Protection Bureau might well contain facts not appearing in that of the report of the prefectural board of education committee of inquiry, since there is a difference in the viewpoints of the two inquiries. According to the Government, Mr. Ohnishi, on being confronted with questions on this point, said that he would have to inquire further before he could say whether the evidence of Miss Nishi's younger sister as to what was said to her sick mother was true or not.
110. 279. With reference to the contention concerning alleged anti-union discrimination, the Government declares that, in answer to the statements of the Education Committee in the House of Councillors, Mr. Ohnishi denied that any distinction regarding transfers is made between union members and non-members, some of the latter also having to be transferred to remote areas.
111. 280. In its communication dated 1 May 1962 the Japan Teachers' Union lists further cases of alleged anti-union discrimination and interference with the union in other prefectures, and also criticises the Personnel Commissions dealing with certain of such cases.
112. 281. The union draws attention to the fact that the Personnel Commissions can give binding decisions only in cases of alleged adverse personal treatment. It claims, however, that they do not properly perform even this function. Thus, it is alleged, the Personnel Commission of Yahagata Prefecture has never given judgment on two appeals submitted to it in 1958 and 1959. As a further illustration the complainant cites 29 separate cases submitted to the Personnel Commission of Kochi Prefecture. And when judgments are given, it is alleged, they are always biased against the union. In this connection the complainant refers to a judgment of the Personnel Commission of Gumma Prefecture dismissing the appeals of 33 members of the union who claimed that they had been transferred because of their union membership.
113. 282. The complainant then refers to another kind of case affecting the Minami-Nasu local of the Tochigi Prefectural Teachers' Union. It is alleged that in 1961 there was a mass secession from the local union because of intervention by Mr. Tadashi Koizume, chief of the Minami-Nasu Branch Office of the Prefectural Educational Board, the employing authority. The complainant furnishes a purported copy of an agreement signed by Mr. Koizume on 8 December 1961 undertaking that previous acts of coercion to cause members to leave the union would not be repeated and promising that in future union members would not be discriminated against in matters relating to salary increases, promotion and transfer. In the purported text of a letter dated 8 December 1961 signed by Mr. Koizume, the latter expresses regret for remarks made by him to female teachers which might have been interpreted as interference in and criticism of their union. But on 12 December, it is alleged, he signed a letter revoking the agreement and previous letters on the ground that he signed them at a time when, after being tired by long negotiation, he had " lost his appropriate ability of judgment ". This repudiation, it is alleged, was ordered by the Prefectural Education Board.
114. 283. The complainant also furnishes documentation in support of the allegation that the Hyogo Prefectural Education Board refuses to negotiate with the Hyogo Prefectural Union of Senior High School Teachers, contrary to a recommendation of the Local Labour Relations Commission, because its officials include persons who have been dismissed from their employment. Proceedings alleging unfair labour practices are now pending before the Commission.
115. 284. The complaint of the Japan Teachers' Union dated 1 May 1962 was transmitted to the Government on 22 May 1962.
116. 285. With regard to the request for further information made by the Committee at its meeting in November 1961 the Government has furnished further observations on the points raised. With regard to the detailed allegations made by the Japan Teachers' Union in its communication dated 10 February 1962 (see paragraphs 271 to 275), however, the Government has done little more than state that the complainant has distorted the truth. Certain observations, bearing in part on the complaint dated 1 May 1962 analysed in paragraphs 280 to 283 above and in part on the earlier complaints presented in 1960, were forwarded by the Government in a communication dated 23 October 1962, received on 24 October 1962.
117. 286. When it examined the earlier allegations made by the Japan Teachers' Union, the Committee pointed out that in all cases in which the information supplied by governments to which complaints have been communicated appears to be inadequate or of too general a character, it has followed the practice of requesting the government concerned to supply it with more detailed information in order to enable it to express a considered view to the Governing Body.
118. 287. In these circumstances, while thanking the Government for the information furnished in response to the request made by the Committee at its November 1961 meeting, the Committee now requests the Government to be good enough to furnish fuller information concerning the detailed allegations made in the communication from the Japan Teachers' Union dated 10 February 1962. In the meantime, the Committee recommends the Governing Body to take note of its present interim report on these allegations, it being understood that the Committee will report further thereon to the Governing Body when the information and observations requested from the Government have been received.
119. Allegations relating to Interference with the National Railway Workers' Union (N.R.W.U.), and with the Adhesion of Workers to It
120. 288. The N.R.W.U in its communication dated 20 February 1961 alleges that the management of the Japanese National Railways interferes with the right to organise in the following ways: (a) persuasion (through immediate supervisors) of workers to defect from the union and/or to join the splinter unions formed during the period when the management refused to bargain with the N.R.W.U, accompanied by promises of personal gain or threats of disadvantageous treatment; (6) interference through immediate supervisors with the workers' choice of officers when elections are held; (c) restrictions placed by supervisors on activities of N.R.W.U units; (d) consideration of a worker's loyalty to the N.R.W.U policy as a factor against him when compiling his merit rating; (e) discrimination against those who take part in N.R.W.U activities and favouritism towards those who do not take part.
121. 289. The complainant furnished a number of examples of alleged interference.
122. 290. During managerial courses organised in the Kanayawa Railway Operating Division, it is alleged, the lecturers have criticised the union and stigmatised certain leaders as Communists.
123. 291. It is alleged that, in connection with a union election on 8 September 1959, a general meeting of the complainant's Fukui Branch was held and that an assistant stationmaster, Mr. Shago, used his official position to canvass on behalf of a Mr. Sada Kato, a known anti-unionist.
124. 292. Mr. S. Tokinda, assistant stationmaster at Kanayawa Station, it is alleged, entertained with food and drink some 40 assistant stationmasters and chief officers of the workshops, criticised the N.R.W.U, and persuaded them to appoint a preparatory committee for a new union of employees at the station. The complainant states that this meeting was called ostensibly to discuss services to passengers and an excursion trip but that these matters were not discussed at all.
125. 293. It is alleged that Mr. H. Iwakawa, stationmaster at Naoetsu and not a union member, assembled his staff on 29 February 1960 and delivered an address to them, in the course of which he made it understood that the fact that 30 officers of the complainant union were among the employees at the station would be borne in mind in connection with the merit ratings that were being made. On 9 March 1960, it is alleged, a supervisor at the station ordered union notices to be removed from the notice board; the assistant stationmaster, Mr. K. Ichimura, caused the complainant union's notice board to be removed from the place it had occupied since 1955 by members of a new regional union sponsored by the authorities. On 10 March 1960, it is alleged, Mr. Iwakawa told the complaining union's branch secretary not to collect union dues in the offices in future.
126. 294. On 11 March 1960, it is alleged, Mr. Y. Ogiwara, a vice-chairman of the rival union sponsored by the authorities at Naoetsu called on Mr. H. Takenouchi, a member of the N.R.W.U, and told him that Mr. Ichimura, the assistant stationmaster, was worried about his allegiance to the N.R.W.U, reminded him of the promotions he had had and thus persuaded him to sign a membership form of the rival regional union, after which, on 20 March 1960, Mr. Ichimura said to Mr. Takenouchi: " I am very glad that you have made such a good decision. I did not care what you did while you belonged to the N.R.W.U but, as you have joined the new regional union, I hope you will do your best without any worry."
127. 295. A conference of members of the new regional union at Naoetsu Station was held on 16 and 17 March 1960. It is alleged that the vice-chairman then said: " One who, having once joined the new regional union, returns to the N.R.W.U, will be adversely treated... and would be unable to return in the employment of the National Railway. It is not I but the railway authorities who say this."
128. 296. On 3 March 1960, it is alleged, Mr. Y. Sugimoto, assistant stationmaster at Arai Station, spoke to two members of the N.R.W.U, Mr. E. Kakinoki and Mr. H. Karasawa, and told them to leave the N.R.W.U and join the rival regional union; as a result the two members and two other members of the N.R.W.U joined the regional union. Because the regional union did not protect their interests, it is alleged, Mr. Kakinoki and some others rejoined the N.R.W.U on 31 May 1960, and, on 10 August 1960, these persons were the only ones who did not receive an increment, although they were qualified for it. On 27 August, declares the complainant, Mr. N. Ozaki, the stationmaster, told them that they were being penalised for having returned to the N.R.W.U and that he had been blamed by the authorities for not preventing their return, adding: " It is the policy of the railway authority to crush the N.R.W.U and to have the second union alone."
129. 297. In its communication dated 1 May 1951 the Government cited the prospectuses of certain new unions in 1957 as evidence that they were formed voluntarily and, in general terms, denied interference with members of the N.R.W.U. The Government considered that the right of the workers or unions concerned to apply for remedy to the Public Corporation and National Enterprise Labour Relations Commission in the event of unfair labour practices of the kind referred to in Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the power of the Commission-for this purpose, consisting only of its " neutral public-interest " members-to order remedial action, ensured full protection. Of 18 cases of this kind submitted to the Commission so far, declared the Government, one was rejected, one was the subject of a remedial order and 16 were withdrawn by the applicants.
130. 298. At its May 1961 meeting the Committee noted that, in its reply, the Government confined itself to a general denial of the matters alleged and explained that, in the event of such interference as alleged, a remedy exists by way of application to the Public Corporation and National Enterprise Labour Relations Commission, this remedy having been pursued on a number of occasions. Observing that the complainants had submitted detailed allegations as to the conduct of a Mr. Shago in connection with a union election, as to actions by a Mr. S. Tokinda, by a number of officials at Naoetsu and by persons under their orders and by officials at Arai Station, the Committee decided to request the Government to furnish further observations on the matters raised in these allegations.
131. 299. The Government commented further on these allegations in its communication dated 16 September 1961, stating that the Japanese National Railways had made an investigation.
132. 300. With regard to the case of a union election (see paragraph 291), the Government stated that an assistant stationmaster at Fukui Station, Mr. Takahashi, heard someone say at the station that one of his subordinates, Mr. Kato, was standing for a union election, and that he replied something like " Please be good to him ". The Government denied that he was canvassing or interfering in the election. No reference was made by the Government to Mr. Shago or to the union meeting mentioned by the complainants.
133. 301. With regard to the allegations relating to Mr. S. Tokuda (not Mr. S. Tokinda) (see paragraph 292), the Government gave the following account. Mr. Tokuda arranged a social gathering-a common custom in the cherry-flower season-attended by about 40 higher-grade employees of the station, who shared the expenses between them. This gathering was named, for convenience, " Meeting to Discuss Promotion of Passenger Service ". The Government denied that the purpose of the meeting was to establish a new union; Mr. Tokuda referred to the importance of closer co-ordination among assistant stationmasters and supervisors, but made no remarks constituting an interference with union activities. The Government stated that neither Mr. Tokuda nor any of the " management side " at the station had any knowledge of the Constitution of a preparatory committee for a new union as alleged.
134. 302. With regard to the address by Mr. Iwakawa, stationmaster at Naoetsu (see paragraph 293), the Government cited the address which he delivered following his appointment. According to the version here given, he made various remarks as to the need for a sense of responsibility and made it clear that he would not tolerate anything contrary to laws and regulations or disobedience to orders; then he stated that he would evaluate the work of his supervisory staff of 30 and that they would prepare the merit rating of the men working under them.
135. 303. With regard to the case of the union notice board (see paragraph 293), the Government stated that the Railway Workers' Union had moved its notice board in 1955 from the place where it had been authorised to put it to another unauthorised place, and that Mr. Iwakawa caused it to be put back in its original place. The Government stated that on the opposite side of the corridor where the board was newly set up there was the notice board of the Niigata Regional Union, but that no discrimination was made between the two unions.
136. 304. On 4 June 1954 the management discontinued the practice of checking-off union dues. The N.R.W.U, according to the Government, began to collect union dues on paydays on the station premises and in working hours and this was stopped; the rival union was treated in the same way.
137. 305. With regard to the case of Mr. Takenouchi (see paragraph 294), the Government denied responsibility for any conversation between him and Mr. Ogiwara, and stated that Mr. Ichimura never made the remarks alleged. Mr. Ichimura did call at Mr. Takenouchi's home and talked with him but not, said the Government, " about union problems ".
138. 306. The Government stated the management had nothing to do with anything said by Mr. Ogiwara at a union meeting (see paragraph 295) and did not tell him what he should say, as alleged.
139. 307. With regard to the allegations as to events at Arai Station (see paragraph 296), the Government denied that assistant stationmaster Sugimoto persuaded members of the N.R.W.U to leave it and join the new union and stated that the management had nothing to do with the transfer of Messrs. Kakinoki and Karasawa to the new rival union or with their subsequent return to their old union. It was admitted that Mr. Kakinoki did not get his pay increase, but the Government stated that this was due to defects in his work and that stationmaster Ozaki did not make the remarks alleged.
140. 308. In conclusion, the Government denied that the management of the National Railways ever interfered with or discriminated against the N.R.W.U or discriminated against it with a view to assisting the development of the second union.
141. 309. The Government declared that all the cases listed by the N.R.W.U were at present being examined by the Public Corporation and National Enterprise Labour Relations Commission.
142. 310. In these circumstances the Committee, assuming at its November 1961 meeting that the Commission is fully appraised of the guarantees provided for in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan, decided to request the Government to be good enough to furnish detailed information concerning the findings of the Commission with regard to these cases, together with the reasons on which such findings were based.
143. 311. Further information on these matters is furnished by the Government in its communication dated 24 August 1962, in which it summarises the findings of the Public Corporation and National Enterprise Labour Relations Commission on the cases of alleged antiunion discrimination submitted to it (in a later communication dated 19 September the full text of the orders made by the Commission is given).
144. 312. In these orders the Commission recognises the existence of the unfair labour practices raised in certain of the allegations and not those raised in the others. In addition, it recognised that unfair labour practices had occurred in certain instances not raised in the allegations before the Committee.
145. 313. With regard to the allegations raised with respect to matters occurring within the Kanazawa (not " Kanazawa ") Railway Operating Division, the Commission, as a consequence of the matters alleged in relation to Kanazawa Station, including the promotion of a rival union (see paragraph 292), matters concerning pressure on members with a view to making them leave the complaining organisation exercised at Minami Fukui Station, Etchu Daimon Station, the use of the Kanazawa railway employers' newspaper to promote a rival union, ordered the Railway Administration concerned to deliver within seven days to the complainants a document as prescribed. According to the order the document was to state: " The Japanese National Railways hereby expresses its regret over the interference with and controlling of the operation of your union by some of the stationmasters and assistant stationmasters in the Kanazawa Railway Operation Division by means of persuading certain employees of the Division to withdraw from your union, and by the Kanazawa Railway Operating Division by means of circulating its organ Kintetsu Dayori which carried an article detrimental to your union, and undertakes not to repeat such acts in the future."
146. 314. With regard to certain matters alleged to have occurred, within the Niigata Railway Operating Division, at Arai Station (see paragraph 296) and Sakata Station, the Commission made an order that the respondents should deliver a document stating: " The Japanese National Railways hereby expresses its regret over the interference with and controlling of the operation of your union by the stationmasters or assistant stationmasters of the Arai Station and the Sakata Station in the National Railways Niigata Branch by means of persuading certain employees to withdraw from your union, and undertakes not to repeat such acts in the future."
147. 315. In conclusion the Government states that the Japanese National Railways instituted an administrative suit on 19 July 1962 requesting revocation of those parts of the orders' which upheld the allegations of the N.R.W.U.
148. 316. In these circumstances the Committee takes note of the information furnished with regard to the findings of the Public Corporation and National Enterprise Labour Relations Commission, requests the Government to state what are the legal provisions which entitle an employer to appeal against findings of fact by the Commission by means of an administrative suit, to explain what tribunal or other body entertains such a suit and to keep the Committee informed as to the outcome of the suit in question.
149. Allegations relating to Victimisation of Members of the Railway Workers' Unions
150. 317. In its communication dated 14 May 1962 the General Council of Trade Unions of Japan alleges that, despite the conclusions contained in the reports of the Committee, victimisation of the railway workers continues. On average, it is claimed, statistics of disciplinary measures reveal that in the last ten years the equivalent of two sanctions for every single member of the N.R.W.U have been imposed.
151. 318. In its communication dated 24 August 1962 the Government lists at some length the various measures taken, explaining that they have all been due to illegal acts of dispute committed by the members of the railway workers' unions.
152. 319. When the Committee, at its November 1961 meeting, had before it allegations of this nature, it observed, as previously indicated in paragraphs 69 to 78 of its 54th Report, that to examine those allegations in substance would be tantamount to re-examining the question of the prohibition of strikes in the services concerned and decided that, in view of the conclusions relating to the allegations relating to the right to strike set forth in paragraphs 34 to 61 of that report, and of the various observations and reservations made therein, it should regard the principles brought into question by the further allegations as having already been covered by those paragraphs. In regard to the allegations now made in this connection, the Committee has come to the same conclusion.
153. Allegations relating to Matters Covered by the Negotiating Rights of Organisations of Civil Servants
154. 320. The Congress of Government Employees' Unions contends that the current refusal of the Government to allow the " appointment or dismissal of any individual " to be the subject of negotiation is incompatible with Article 11 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in the light of the observation concerning Denmark made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations in 1957.
155. 321. In its communication dated 9 May 1961 the Government states that it did not fully understand to what the complainants refer when they criticise the Government's attitude concerning the " appointment and dismissal of individuals ", but that no provision in the pending Bill to amend the National Public Service Law " prohibits entirely negotiations concerning appointment and dismissal ".
156. 322. In its observations relating to Denmark referred to above, the Committee of Experts on the Application of Conventions and Recommendations stated that it had " been obliged to consider to what extent the fact that even recognised organisations may not negotiate on the appointment or dismissal of any individual may result, especially in the case of dismissal, in considerably restricting the exercise of the right to organise (Article 11) since the very purpose of occupational organisations is to be able to defend the interests of their members ". In 1958, after having received further information from the Government of Denmark, the Committee of Experts observed that " any decision concerning transfer, demotion or disciplinary dismissal may be taken only after consultation with the recognised organisation (section 18, paragraph 6, of Act No. 301 of 1946)."
157. 323. At its May 1961 meeting, the Committee observed that the Government had stated that nothing in the amending legislation would prohibit the right to negotiate on such matters. As the allegation related, however, to a matter of current practice, the Committee decided to request the Government to furnish its observations on the allegation that it is the current practice of the Government to refuse to allow " the appointment or dismissal of any individual " to be the subject of negotiation with the employees' organisation.
158. 324. In the communication dated 16 September 1961 the Government declared that, under the existing law, negotiation is permitted with respect to the " appointment or dismissal of any individual when the matter is related to the working conditions of the employees ". In practice, declared the Government, such negotiation is taking place; but there could not be negotiation with respect to disciplinary dismissal, by virtue of Rule 14.0 of the National Personnel Authority that " negotiation shall not include disciplinary matters " (under the Bill, said the Government, " it is contemplated not to enact such provision "). The Government considered that employees are protected against unjustifiable disciplinary action, however, because the grounds for, and procedure and effect of disciplinary action are prescribed by the National Public Service Law or by the Rules of the National Personnel Authority. Further, if an employee considered that he had been adversely treated, he could appeal for review to the National Personnel Authority in accordance with the said law. In case of disciplinary action alleged to have been taken on the ground of having engaged in unlawful or improper union activity, the employee concerned might be represented " in practice ", when he defended himself against the action " in the hearings ", by a representative of the employees' organisation.
159. 325. At its November 1961 meeting the Committee observed that it would appear that, under existing law and practice, negotiation may not take place with respect to disciplinary action against an employee, including dismissal, but that under the Bill to amend the National Public Service Law it is not intended to " enact such provision ". The existing situation, however, appeared to be governed by the Rules of the National Personnel Authority, rather than by statute.
160. 326. In these circumstances the Committee requested the Government to state whether, on the basis of the foregoing, the Committee was correct in interpreting the information given by the Government as meaning that, when the Bill to amend the National Public Service Law is enacted, matters relating to disciplinary dismissal and other disciplinary action will, in law and in practice, become the subject of negotiation, and that, accordingly, Rule 14.0 of the National Personnel Authority will be rescinded.
161. 327. In its communication dated 22 January 1962 the Government repeats its earlier statement that, under the existing law, with respect to the appointment or dismissal of any individual, this may, when the matter thereof is related to the working conditions of the employees, be the subject of negotiations, and that, in practice, such negotiation is taking place; but disciplinary dismissal may not be the subject of negotiation by virtue of the aforesaid Rule 14.0 of the National Personnel Authority. However, declares the Government, when the Bill to amend the National Public Service Law is enacted, Rule 14.0 of the National Personnel Authority will be rescinded and no such restrictive provisions will exist thereafter. Therefore, adds the Government, with respect to matters relating to disciplinary action (including dismissal), when the matter thereof is related to the working conditions of the employees, it will legally become the subject of negotiation and, the Government considers, it will in practice become the subject of negotiation.
162. 328. In these circumstances the Committee recommends the Governing Body:
163. (a) to take note of the Government's statement that Rule 14.0 of the National Personnel Authority, which provides that negotiation shall not include disciplinary matters, will be rescinded when the Bill to amend the National Public Service Law is enacted, and that no such restrictive provisions will exist thereafter;
164. (b) to express the hope that the Government will take the steps which it has indicated it has in contemplation and to be good enough to keep the Governing Body informed as to further developments in this connection.
165. Allegations relating to Restriction of the Scope of Organisations
166. 329. The All-Japan Prefectural and Municipal Workers' Union alleges that the employees of local public bodies covered respectively by the Local Public Service Law, the Local Public Enterprise Labour Relations Law and the Law for Educational Personnel are required to form separate employees' organisations or trade unions, those covered by the Local Public Enterprise Labour Relations Law being further divided into two groups for the purpose of the right to organise-" personnel " and " persons employed for simple labour ". At the same time " technical and supervisory personnel and others engaged in administrative duty " may not join the unions of other " personnel " or " persons employed for simple labour ". The consequence of the dual system of vertical and horizontal subdivision, declares the complainant, is to reduce the unit organisations to a very small size; the only larger organisation they can form is the " virtual " federation, but the latter cannot negotiate or acquire legal personality. The complainant contends that these restrictions will be maintained under the legislative amendments which are envisaged.
167. 330. The complainant refers to the case of the Industrial Council of Ooita Prefectural Government Workers' Union. This organisation was set up by industrial public service personnel, who are covered (by virtue of section 57 of the Local Public Service Law) by the Local Public Enterprise Labour Relations Law, within the jurisdiction of the Ooita Prefectural Government Workers' Union, affiliated with the complainant organisation. In 1960 the Industrial Council, it is alleged, was subjected to interference by the employers with regard to the election of its officers and, when it appealed to the Local Labour Relations Commission for a remedy, its appeal was not regarded as receivable until it had made certain revisions to its Constitution.
168. 331. The complainant then refers to the case of the Iwate Prefectural Government Medical Employees' Union-an organisation covered by the Local Public Enterprise Labour Relations Law and open to all the employees of the 30 hospitals in Iwate Prefecture. In 1959, it is alleged, the Prefectural Government revised the relevant by-law to change the scope of the employees ineligible for union membership as coming under the heading of " managerial or supervisory " staff ineligible for any union membership by virtue of section 5-2 of the Local Public Enterprise Labour Relations Law, thus disqualifying for union membership 20 out of 27 chairmen of existing union branches and 274 of the union's 1,900 members.
169. 332. In its communication dated 2 October 1961 the Government confirmed that local public employees are divided into general administrative employees-who may form an employees' organisation under the Local Public Service Law-and the employees of the local public enterprises or persons employed for simple labour, who can form a trade union under the Trade Union Law, subject to the provisions of the Local Public Enterprise Labour Relations Law. The former enjoy (local) statutory terms and conditions: the latter conclude collective agreements. Under the existing law, the general administrative employees, in order to be able to register and negotiate, must confine their membership to the said employees. The educational employees are in the same position. The employees of local public enterprises and persons employed for simple labour can, declared the Government, organise a trade union or a federation extending beyond the limit of one local public enterprise or local public body.
170. 333. Under the amending Bill, declared the Government, the requirement that the employees' organisation of the general administrative employees shall be formed exclusively by the employees of the local public body concerned and the requirement that the trade union shall be formed exclusively by the employees of the local public enterprises and persons employed for simple labour are not to be maintained. Therefore, said the Government, the contention that the policy of subdividing the union organisations into smaller units will be maintained even after the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), " is totally groundless ".
171. 334. The Government stated (in paragraph 24 of its said communication dated 2 October 1961) that it intends to maintain the situation according to which " technical and supervisory personnel and others engaged in administrative duty " are distinguished from " persons employed for simple labour " and are treated, from the point of view of labour relations, in the same way as " general administrative employees ". With regard to the provision in section 5-1 of the Local Public Enterprise Labour Relations Law, according to which " those holding managerial or supervisory positions and those in charge of confidential affairs shall not be permitted to organise or affiliate with trade unions ", the Government added information that, under the existing law, these categories are allowed to organise an employees' organisation under a Local Public Service Law. Under the amending Bill, section 5-1 will be deleted and the categories therein at present referred to will be able to organise a trade union but not to participate in the same trade union as the general employees.
172. 335. With regard to the case of the Industrial Council of the Ooita Prefectural Government Workers' Unions, the Government stated that before a trade union can avail itself of the Trade Union Law procedure which gives protection against unfair labour practices, the union and its Constitution must comply with the standards laid down in the Trade Union Law. Whether there is such compliance is to be decided by the public members of the Labour Relations Commission. In case of non-compliance, the Commission may, instead of disqualifying the union, recommend it to bring itself first into conformity with the Trade Union Law. In this case the Commission took the latter course and the union acted in accordance with the Commission's recommendations and was able to take action to avail itself of the procedures provided for in the Trade Union Law.
173. 336. With regard to the case of the Iwate Prefectural Government Medical Employees' Union, the Government referred to the provision in section 5-1 of the Local Public Enterprise Labour Relations Law excluding managerial and supervisory staff and those employed in a confidential capacity from membership of the union organised by the general employees of the local public enterprise, stating that this provision protects the trade union from domination by elements representing the interests of authority. Section 5-2 states that the inclusion of different grades in the managerial and supervisory category is determined by local by-laws in accordance with standards set by Cabinet order-the Government considered that this prevents the delimitation of the category being determined arbitrarily. The by-law operating in the case of the Iwate Union is, said the Government, in conformity with the standards set by Cabinet order. The Government said nothing in refutation of the complainant's statement as to the number of officers and members who become disqualified for membership of the union under the by-law.
174. 337. At its November 1961 meeting, the Committee observed that the question as to the present separation, from the point of view of freedom to organise, of the different occupational categories employed by local public bodies raises certain complicated problems of interpretation which were not entirely clear from the documentation before the Committee. It seemed, however, leaving aside for the moment the question of supervisory employees, that the position is as follows. The " general administrative employees " of a local public body are the employees of the said body whose terms of employment are governed by by-laws and who fall within the provisions of the Local Public Service Law - these persons may form only an employees' organisation within the Law. Educational employees of a local public body can also form a union limited only to their category also under the Local Public Service Law but separate from that of the " general administrative employees ". There, under the Local Public Enterprise Labour Relations Law, the " personnel " of a given enterprise may form a trade union limited to such " personnel " as may the " persons employed for simple labour ". Further, the Government had stated that the employees of local public enterprises and persons employed for simple labour can organise a trade union or a federation extending beyond the limit of one local public enterprise or local public body. The Committee requested the Government to be good enough to state whether the above interpretation is correct and to explain: (a) whether all the " personnel " and the " persons employed for simple labour " by a local public enterprise can unite in the same union and whether all the employees of all the local public enterprises in a prefecture can form one union or federation for the prefecture, which has the right to negotiate collective agreements; (b) whether all the " general administrative employees " of all the local labour bodies in a prefecture can unite in one employees' organisation; (c) whether the different organisations formed by employees covered respectively by the Local Public Service Law, the Local Public Enterprise Labour Relations Law and the Law for Educational Personnel can form one joint federation for a prefecture; and (d) whether the term " persons employed for simple labour " refers only to certain employees of local public enterprises or includes also manual employees of local public bodies as well and, in the latter event, whether the latter persons can join the same local public enterprise employees' union.
175. 338. In view of the Government's statement as to the amendments to be made to the legislation (see paragraph 333), the Committee-again leaving aside the question of supervisory personnel-requested the Government to state whether the consequence of those amendments would be to enable all the general administrative employees of a local public body to unite in one trade union organisation with all the personnel and persons employed for simple labour of a local public enterprise, and whether one single organisation, competent to negotiate, could cover a whole prefecture.
176. 339. With regard to supervisory grades it seemed to the Committee that the Government intends to maintain the separation, from the point of view of the right to organise, between these grades on the one hand and all the lower grades on the other. Here again, however, some points were not clear. It seemed that, in the case of each local public enterprise, the local public body responsible can designate by by-law the " persons holding managerial or supervisory positions and those in charge of confidential affairs " who, according to section 5-1 of the Local Public Enterprise Labour Relations Law, " shall not be permitted to organise or affiliate with trade unions ". The Committee requested the Government to state (a) under what legal provisions do they now have the right, referred to by the Government (paragraph 334), to organise under the Local Public Service Law, and whether they can so organise jointly with " general administrative employees " of the local public body; (b) how their situation would be changed by the proposed legislative amendments; (c) who are the " technical and supervisory personnel and others engaged in administrative duty " referred to in paragraph 24 of the Government's communication dated 2 October 1961, and by what legislation their right to organise is governed; and (d) whether, in view of the intention to maintain under the amended legislation the requirement that managerial and supervisory grades may only form organisations separate from those organised by the other employees, it is intended to permit these organisations to federate with those organised by the other employees.
177. 340. In its communication dated 22 January 1962 the Government, referring to the matters raised in paragraph 337 above, first seeks to clarify the legal position, feeling that it has not previously been made sufficiently clear to the Committee. The local public employees employed by local public bodies are divided broadly into four categories: (a) " general administrative employees " who are engaged in administrative services; (b) " educational employees " who are engaged in school education; (c) " employees of local public enterprises "; and (d) " persons employed for simple labour " who are engaged in simple manual labour in general administrative agencies other than the local public enterprises.
178. 341. " General administrative employees " may organise employees' organisations under the provisions of sections 52 to 56 of the Local Public Service Law. As their working conditions are determined by the by-laws of the respective local public body, such an organisation must be formed exclusively by the general administrative employees of the local public body concerned.
179. 342. " Educational employees " may organise for each local public body an employees' organisation under the Local Public Service Law, in the same way as may general administrative employees. The general administrative employees and the educational employees of a local public body can unite in the same employees' organisation. The working conditions of the educational employees of municipal schools are determined by the by-laws of the prefecture concerned, as are those of employees of the schools of the prefecture itself. Hence all the organisations of municipal school employees in one prefecture may federate at the prefectural level with the organisations formed by the employees of the schools of that prefecture. This federation can negotiate with the authorities of the prefecture but must be formed solely by educational employees subject to the by-laws of the prefecture.
180. 343. " Employees of local public enterprises " governed by the Local Public Enterprise Labour Relations Law are all the employees, manual or non-manual, employed by the local public enterprises. " Persons employed for simple labour " to whom the said Law is also applied are only those persons who are engaged in simple manual labour in general administrative agencies other than local public enterprises. The " employees of local public enterprises " and " persons employed for simple labour " can only form unions limited to their category, but can unite in the same trade union jointly with the same categories employed by other local public enterprises of the same local public body or of other local public bodies. Under the proposed amending legislation the position of the organisations of such local public employees will be as indicated in paragraph 333 above.
181. 344. Having given these explanations the Government replies as follows to the specific questions put by the Committee as indicated in paragraph 339 above: (a) under the existing legislation, " employees of local public enterprises " and " persons employed for simple labour " can form a trade union or federation extending beyond the limit of one municipality or prefecture in order to bargain collectively with the authorities and to conclude collective agreements; (b) an organisation formed by " general administrative employees " must be limited to one local public body in order to be registered and to negotiate, and an organisation formed by " all the general administrative employees of all the local public bodies in a prefecture " cannot be registered and cannot negotiate; (c) a federation or joint federation formed " for a prefecture " by organisations consisting respectively of " general administrative employees ", " educational employees ", " employees of local public enterprises " and " persons employed for simple labour " cannot negotiate or conclude collective agreements; (d) this question is answered in (a) above.
182. 345. In reply to the question put by the Committee (see paragraph 338) as to the effects of the proposed amending legislation, the Government states that, under the Bill, an employees' organisation formed by " general administrative employees " of a local public body and a trade union formed by " employees of local public enterprises " and " persons employed for simple labour " of the local public body concerned could unite in one federation competent to negotiate, and the said employees could not only unite in one organisation extending beyond the limit of a local public body, but also could unite in one organisation, competent to negotiate, " covering a whole prefecture ", and, in addition, organisations formed by these employees could unite in one federation, competent to negotiate, covering a whole prefecture.
183. 346. In reply to the questions put by the Committee, as indicated in paragraph 339 above, with reference to the position of supervisory personnel, the Government replies as follows: " Employees of local public enterprises " are in principle governed by the Local Public Service Law, since they are also local public employees. However, these employees, except for those holding managerial or supervisory positions and those in charge of confidential affairs (i.e. " supervisory staff and the like "), are excluded from the application of sections 52 to 56 of the Local Public Service Law relating to employees' organisations and are made subject to sections 36 to 39 of the Local Public Enterprise Labour Relations Law; hence, they may form trade unions, bargain collectively with the authorities and conclude collective agreements in accordance with the latter Law. But the " supervisory staff and the like " remain subject to the local Public Service Law, under which they can form employees' organisations, but the proviso to section 5 (1) of the Local Public Enterprise Labour Relations Law deprives them of the right to form organisations under the latter Law. The said " supervisory staff and the like ", therefore, are treated in their labour relations in the same way as " general administrative employees " covered by the Local Public Service Law, and can form an organisation jointly with such general administrative employees.
184. 347. The Government explains that the Cabinet order concerning the scope of " persons employed for simple labour " to be taken as a standard in deciding whether the employees are such persons or not enumerates a category of jobs generally regarded as simple manual labour among those held by the local public employees belonging to the general administrative agencies other than the local public enterprises. The Cabinet order excludes from this category a variety of persons ranging from technical experts, managerial supervisors, etc., to actual foremen of labourers. Such personnel are regarded as " general administrative employees " fully covered by the Local Public Service Law, in accordance with which they may form organisations.
185. 348. Article 2 of the Trade Union Law, declares the Government, is also applicable to employees of local public enterprises and is intended to protect workers' organisations from domination by employers; hence, if general workers and supervisory staff unite in one organisation this is not regarded as a trade union within the law. The latter must form their own organisations. Again, federations including organisations of both these categories are not regarded in law as trade unions with which an employer is obliged to bargain.
186. 349. In its communication dated 10 February 1962 the All-Japan Prefectural and Municipal Workers' Union raises a number of points in which it disagrees with some of the Government's explanations as to the situation under the present law with regard to the organising and federating rights of the four main categories of local public employees referred to in paragraph 340 above. It also does not agree with the Government as to some of the latter's legislative intentions. The Government, in its communication dated 16 May 1962, repeats and clarifies its explanations analysed above with a view to showing that the complainants have misunderstood the position.
187. 350. The Committee now has before it a very considerable amount of evidence, most of it consisting of complex and manifold legal provisions governing the exercise of freedom of association by the four main categories of local public employees under the existing law. It also has evidence that this situation will be modified in various ways by the proposed amending legislation related to the Government's intention of ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). At the moment it has been informed by the Government as to the amendments which it proposes to make, some of which are disputed by the complainants. It may well be that some of the proposed texts will be further changed before they become law. In these circumstances, before formulating its recommendations on this particular aspect of the present allegations, the Committee has decided to await the final outcome with regard to the proposed legislative amendments.
188. 351. With regard to those parts of the allegations which relate to supervisory employees the position is somewhat different, as the Committee has already drawn attention to the fact that it is contended that in Japan the word " supervisory " appears to be applied to cover an unusually wide range of employees. It covers, for example, even the foreman who directs unskilled labourers (see paragraph 347). It would seem desirable that in the final drafting of the proposed amendments to the national legislation due regard should be had to this consideration by limiting the definition of " supervisors " to cover only those persons who genuinely represent the interests of employers. Subject to this reservation, the Committee has decided, as regards this aspect of the allegations also, to await the final outcome with respect to the proposed legislative amendments before formulating its recommendations to the Governing Body.
189. 352. In these circumstances the Committee recommends the Governing Body to take note of its present interim report with regard to these allegations.
190. Allegations relating to Collective Bargaining by Organisations of Employees of Local Public Enterprises
191. 353. The All-Japan Prefectural and Municipal Workers' Union alleges that collective bargaining is restricted because (a) under the Local Public Enterprise Relations Law matters affecting the management and operation of the local public enterprise are excluded from the scope of collective bargaining; (b) an agreement the provisions of which are in conflict with the by-laws shall not take effect to the extent to which it is in conflict with the by-laws unless the latter are amended accordingly; and (c) an agreement involving the expenditure of funds not available from the budget or funds of the local public enterprise shall not be binding upon the authority until appropriate action has been taken by the assembly of the local public body concerned.
192. 354. The complainant refers specifically to an agreement concluded by the Fukuoka Prefectural Government Workers' Union with the Prefectural Governor on 27 May 1960. This agreement provided that (a) service personnel who joined the union should be allowed to attend any conference of the union so long as this did not hamper the normal operation of the administration's business; (b) if any changes were made in wages and other conditions of employment, the union would be informed in advance and its views would be respected; (c) any transfers or changes of employees should be notified to the union in advance; and (d) a check-off of dues would be operated. The Chief of the Public Service Division of the Autonomy Ministry, declares the complainant, objected to certain provisions in the agreement on the ground that they run counter to the duty assigned to the head of the local public body; in particular, personnel might leave their work in working hours only in special cases provided for in laws or by-laws and no agreement on this matter should have preceded the amendment of the by-laws, while, as regards changes of wages, the appointing authority (the Governor) should have power to decide as to special wage increments and no agreement should have been concluded which placed his power under restraint or restriction.
193. 355. The Government declares that matters affecting the management and operation of the local public enterprise are to be carried out in accordance with law and are not therefore a matter for collective bargaining. However, the relevant provisions have been so interpreted and approved as to permit even matters affecting management and operation to be subjects for collective bargaining where they relate to the working conditions of employees. The working conditions of employees of local public enterprises and of persons employed for simple labour are to be determined, says the Government, by collective agreement reached through collective bargaining between the authority and the trade union, pursuant to section 7 of the Local Public Enterprise Labour Relations Law. But, says the Government, certain matters such as " kinds of wages " are to be determined by by-law by virtue of section 38 of the Local Public Enterprise Law (Law No. 292 of 1952), so that an agreement may sometimes run counter to this by-law. To cope with such cases, it is provided in section 8 of the Local Public Enterprise Labour Relations Law that the head of the local public body must submit a Bill to reverse or abrogate the pertinent by-law to the assembly of the local public body so that the agreement may cease to be in conflict with the by-law.
194. 356. The Government goes on to explain that the local public enterprise must operate within the limit of the budget approved by the assembly of the local public body. If an agreement would involve the budget being exceeded, the head of the local public body must refer the agreement to the assembly of the local public body for approval (section 10 of the Local Public Enterprise Labour Relations Law). These provisions are intended to give better effect to the principle of that Law that " the working conditions of the employees of the local public enterprise and persons employed for simple labour must be determined by the collective agreement between the authority and the trade union through voluntary collective bargaining ".
195. 357. The Fukuoka Prefectural Government Workers' Union, states the Government, is an organisation of employees governed by the Local Public Service Law and is not able to conclude " collective agreements ". The question as to the legal propriety of the " written agreement " entered into had, before and after its signature, been the subject of conflicting legal opinion.
196. 358. In the first place, the Committee took the view at its November 1961 meeting that the case of the Fukuoka agreement should not have been linked by the complainant with the present allegations, being related to the allegations dealt with in paragraphs 400 to 402 of its 58th Report. In view of the conclusions formulated in those paragraphs, the Committee considered it unnecessary to consider this particular aspect further.
197. 359. The Committee observed that, while section 7-1 of the Local Public Enterprise Labour Relations Law states that matters affecting the management and operation of the local public enterprise shall be excluded from collective bargaining, section 7-2 provides, without reservation, that matters concerning wages and other remuneration, working hours, recess, holidays and vacations, standards of promotion, demotion, transfer, discharge, suspension from office, seniority and disciplinary disposition, safety and sanitation and accident compensation for work, and working conditions other than those mentioned " may be subject to collective bargaining and shall be appropriately provided for in all trade agreements ". Under section 8, the chief of the local public body, where an agreement has been concluded the terms of which are in conflict with the by-law of the local public body concerned, shall, within ten days after its conclusion, submit a Bill on the necessary revision or abrogation of the by-law, in order that the said agreement may cease to conflict with the by-law, to the assembly of the local public body concerned for decision by it; unless there is revision or abrogation of the by-law in question, the agreement shall not take effect to the extent that the provision is in conflict with it.
198. 360. It seemed to the Committee to be provided without equivocation that the wages and other conditions of employment of persons governed by the Local Public Enterprise Labour Relations Law are matters to be determined by collective agreement. The principle of the Law, indeed, as expressed by the Government (see paragraph 356) is that they " must " be determined by collective agreement. The implementation of such agreement may require modification of local by-laws. It was clear to the Committee that the whole principle of settling matters by collective agreement would be ineffective unless it is recognised that there is an obligation to modify by-laws so as to secure compliance with collective agreements, and so the question of modification ceases to be within the discretion of the local public body.
199. 361. Under section 10 of the Local Public Enterprise Law any agreement involving the expenditure of funds not available from the budget or funds of the local public enterprise shall not be binding upon the local public body concerned and no funds shall be disbursed pursuant thereto, until appropriate action has been taken by the assembly of the local public body concerned. Within ten days of the conclusion of such an agreement, the head of the local public body must submit it to the said assembly.
200. 362. In this connection the Committee drew attention in paragraph 412 of its 58th Report to the principle expressed by the Governing Body, when it adopted paragraph 188 (e) (iii) of the Committee's 54th Report, that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by compulsory arbitration tribunals, and to express the view that the application of this principle should be effectively ensured in the case of the exercise of budgetary powers by a local public body in relation to collective agreements entered into by or on behalf of that public body.
201. 363. Having regard to the considerations set forth in paragraphs 360 and 362 above, the Committee requested the Government to state whether agreements submitted to the assemblies of local public bodies have been rejected, by reason of refusal by the assemblies to amend by-laws or allocate moneys, as the case may be, and, if so, on how many occasions, and what can be done to render agreements effective if they are so rejected.
202. 364. In its communication dated 22 January 1962 the Government states that 1,040 collective agreements on wages and other working conditions were concluded in 241 local public enterprises having trade unions between 1 October 1952 and 1 December 1961. In no case did an agreement require the approval of the assembly of a local public body, under section 8 of the Local Public Enterprise Labour Relations Law, by reason of its being in conflict with the by-law of the local public body carrying on the local public enterprise concerned. There was only one case in which an agreement was required to gain the approval of the assembly of the local public body concerned, under section 10 of the Local Public Enterprise Labour Relations Law, by reason of the fact that it involved the expenditure of funds not available from the budget or funds of the local public enterprise concerned; this was not fully implemented because it was not approved, owing to the financial difficulties of the enterprise and public body in question. However, adds the Government, since about one year subsequent to the making of this agreement, the wage rises provided for therein have been fully implemented.
203. 365. In its communication dated 10 February 1962, the complaining organisation argues that, even if rejection of agreements by assemblies of local public bodies is rare, the bad effect of the system itself on collective bargaining is obvious. The complainant states that the legal possibility or probability of rejection by assemblies of agreements favourable to the workers means that only disadvantageous agreements are concluded. The contents of every agreement are restrained in advance, says the complainant, by the low standards as to wages and other conditions already laid down in local by-laws.
204. 366. It would appear from the Government's communication dated 22 January 1962 that on almost every occasion the agreements entered into by employers who act as agents of the local public body to whom they are answerable have in fact been implemented. Since that time, the complainants, in their communication dated 10 February 1962, have put forward the contention that the system at present in force results in the conclusion only of agreements which do not afford satisfactory terms for the workers.
205. 367. While taking note of these statements, the Committee considers that they add no new elements of information to cause it to change the observations which it has already made and which are referred to in paragraphs 360 to 362 above. Having noted the statements in question, the Committee, observing that the Local Public Enterprise Labour Relations Law is one of the enactments which will be affected when the proposed amendments to the national legislation are effected, the Committee has decided to await the outcome with regard to the said amendments before submitting its final recommendations on these allegations to the Governing Body.
206. Allegations relating to Acts of Interference with Regard to Unions Affiliated to the All-Japan Prefectural and Municipal Workers' Union
207. 368. The All-Japan Prefectural and Municipal Workers' Union alleges that there have been acts of interference with regard to unions covered by the Local Public Service Law and that no appropriate remedies have been available; acts of interference are alleged also with regard to affiliates of the complainant covered by the Local Public Enterprise Labour Relations Law. The complainant declares that whereas the unions and their members covered by the Local Public Enterprise Labour Relations Law enjoy the remedies prescribed by the Trade Union Law, much less protection is afforded by the Local Public Service Law.
208. 369. The complainant cites the case of the Akita Prefectural Government Employees' Union, covered by the Local Public Service Law, alleging that by virtue of " confidential instructions " issued by the authorities, the union was split and there was interference with the union elections. The Industrial Council of Ooita Prefectural Government Workers' Unions, claimed by the complainant to be governed by the Local Public Enterprise Labour Relations Law, is alleged to have suffered interference with regard to its elections, but that its application for a remedy was refused on the ground that it came within the scope of the Local Public Service Law. With regard to the Shizuoka Municipal Employees' Union, it is alleged, the municipal authorities printed and distributed forms to be signed by members of the union and signifying their resignation from the union. Other acts of interference by the Gumma Government are alleged, as well as a number of cases of individual union members alleged to have been interfered with because of participation in union activities. Various acts of interference by authorities at Saijo, Hammatsu, Kawaguchi and Tanabe are alleged. Other cases raised relate to matters alleged to have occurred at Shizuoka, Goshogwara, Yasato, Karatsu, Kisikwei, Taniyama, Saijo, Matsuyama, Kitajima, Kyoto, Ise and Gyoda.
209. 370. It is alleged that the Government intends to amend the Local Public Service Law to provide that the statutory remedies in respect of adverse treatment shall not apply in the case of an employee who violates his duty as defined in the by-laws and regulations of a local public body and the rules issued by agencies of the public body.
210. 371. Finally, the complainant alleges that, although local public employees are not " public servants engaged in the administration of the State ", the Government regards them as falling within Article 6 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and claims accordingly that they are not covered by the guarantees provided for in that Convention.
211. 372. The Government states that, as it pointed out in reply to the complaint of the Japan Teachers' Union, that the remedies afforded by the Local Public Service Law are different from the remedies under other legislation, because of the duty of the public employees to devote themselves to public service to comply with the by-laws, etc., of the public bodies and to obey the orders of their superiors. Any breach of these obligations cannot be excused on the ground that it is performed on behalf of an employees' organisation.
212. 373. In the Government's view the local public bodies are a fundamental component of the organisation of governing the State, which is ensured by their joint co-operation with the central Government. In the same way as national public servants, local public employees have statutory terms and conditions of employment; the Government claims therefore that because of this fact they are " public servants engaged in the administration of the State " and that the Committee has already dealt with this point in paragraph 179 of its 54th Report.
213. 374. When the Committee considered these matters at its November 1961 meeting, it had before it a statement by the Government that all the specific cases of alleged interference with trade unions and their members cited by the complainants were being inquired into and that observations thereon would be forwarded.
214. 375. In these circumstances the Committee requested the Government to be good enough to forward these observations as soon as possible and adjourned further examination of these allegations until such observations had been received.
215. 376. Information as to the findings of its investigation into these cases " as so far made " has been furnished by the Government of Japan in its communications dated 13 February, 16 February and 16 May 1962. The Government points out, however, that many of these cases are now the subject of proceedings pending before Equity Commissions, ordinary courts and courts of appeal and that, in these circumstances, it does not wish to express its views on these cases while the proceedings are still pending.
216. 377. In these circumstances the Committee requests the Government to be good enough to furnish information as soon as possible as to the results of any further investigations that it may now have made and copies of the findings that have been or may be made by the Equity Commissions, courts, appeal courts or other instances with regard to the various cases stated by the Government to have been brought before them.
217. Allegations relating to the Abolition of the Check-Off of Union Dues
218. 378. The All-Japan Prefectural and Municipal Workers' Union alleges that it is intended to amend the Local Public Service Law so as to prohibit the operation of the check-off.
219. 379. The Government declared that the proposed amendment would prohibit the check off unless it is authorised by the " by-laws or by laws ".
220. 380. The Committee, at its meeting in November 1961, expressed the view that it is the generally accepted practice for a voluntary check-off to be a matter for negotiation by collective agreement and that an employer is normally free to enter or not to enter into such an agreement. It would appear that local public bodies have so far been free in this respect in Japan in regard to local public employees and their organisations.
221. 381. The Committee requested the Government to explain whether the proposed amendments would leave the local public body free to issue a by-law, in its legislative capacity, authorising itself or its agents, in the capacity of employers, to enter into agreements with employee organisations under the Local Public Service Law containing provision for the operation of a voluntary check-off.
222. 382. In its communication dated 22 January 1962 the Government declares that under the proposed Bill the local public body is free to issue a by-law in which it decides, as an employer, or entrusts freedom to its agents to decide, whether to enter into agreements with employees' organisations under the Local Public Service Law containing provision for a voluntary check-off.
223. 383. In these circumstances the Committee recommends the Governing Body to decide that, in view of the assurance given by the Government referred to in paragraph 382 above, these allegations do not call for further examination.

The Committee's recommendations

1. 384. In all the circumstances the Committee, recalling once again that when the Governing Body, at its 149th Session (June 1961), adopted the recommendations contained in paragraph 188 of the Committee's 54th Report, it drew the attention of the Government of Japan to the importance which it attaches to a number of principles in question in the present case, recommends the Governing Body:
2. (1) with regard to the position concerning the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
   • (a) to take note of the Government's statement in its communication dated 14 September 1962 that, following the election of the House of Councillors on 1 July 1962, the National Diet met from 4 August to 2 September 1962 and that, owing to the shortness of that session and to the considerable time devoted thereat to procedural matters relating to the composition of the House of Councillors, it was not possible to deal at that session with the passage of the Bills relating to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87);
   • (b) to take note of the further statements by the Government in its communication dated 14 September 1962 to the effect:
   • (i) that the informal negotiations between representatives of the government and opposition parties referred to in paragraph 25 (a) of the 64th Report of the Committee cited in paragraph 204 above were re-opened to settle the points at issue in the said Bills in the course of the session of the National Diet which ended on 2 September 1962;
   • (ii) that talks between the said representatives were held on several occasions and efforts were made to adjust the dissenting opinions, with the result that further progress was made compared with the situation previously prevailing, although final agreement could not be obtained before the session closed on 2 September 1962;
   • (iii) that the government and opposition parties have agreed that the negotiations will be continued between sessions aiming at the passage of the said Bills in the next session of the Diet and that information will be furnished as to further developments in this connection;
   • (c) to express once again its keen disappointment, having regard to the many previous assurances given by the Government from 25 February 1959 onwards, as indicated in paragraph 109 (b) of the 60th Report of the Committee and in paragraph 25 (c) of the 64th Report of the Committee, with reference to the intention to ratify the said Convention, that yet again a session of the Diet has ended without approval being given to the Bills related to such ratification;
   • (d) to express the hope that the Government will submit the Bills in question as a matter of priority to the next session of the Diet;
   • (e) to request the Government to be good enough to furnish information as to further developments in this connection;
   • (f) to urge the Government once again, having regard to its expressed intention of ratifying the said Convention, to endeavour, pending such ratification, to avoid any measures being taken which might run counter to the principles contained in the Convention;
3. (2) with regard to the remaining allegations:
   • (a) to decide that, in view of the assurance given by the Government in its communication dated 22 January 1962 referred to in paragraph 382 above, the allegations relating to the check-off of union dues do not call for further examination;
   • (b) to decide, with respect to the allegations relating to the denial of the right to strike and to the lack of compensatory guarantees (affecting organisations subject to the Local Public Service Law):
   • (i) to reaffirm the importance which the Governing Body has always attached to the principle that, where strikes are prohibited, there should be other means of redress;
   • (ii) to suggest to the Government once again, recalling its earlier specific statement that it intends to amend the Local Public Enterprise Labour Relations Law to provide for arbitration machinery whose awards shall be binding in the case of employees of local public bodies who are not designated local public servants, that it should consider the advisability of adopting the widespread practice of bringing local public servants also within the scope of similar machinery;
   • (iii) to suggest to the Government once again that it may care to consider what steps can be taken to ensure that the different interests are fairly reflected in the numerical composition of the Personnel Commissions and that all the neutral or public members of the Commissions are persons whose impartiality commands general confidence;
   • (iv) to suggest to the Government once again that it may care to consider also the advisability of providing that each of the respective parties concerned shall have an equal voice in the appointment of the members of the Personnel Commissions;
   • (v) to suggest to the Government that it may also take account, in the case of the Equity Commissions, of the suggestions contained in subparagraphs (iii) and (iv) above;
   • (c) to decide, with regard to the allegations relating to matters covered by the negotiating rights of organisations of civil servants:
   • (i) to take note of the Government's statement that Rule 14.0 of the National Personnel Authority, which provides that negotiation shall not include disciplinary matters, will be rescinded when the Bill to amend the National Public Service Law is enacted, and that no such restrictive provisions will exist thereafter;
   • (ii) to express the hope that the Government will take the steps which it has indicated it has in contemplation and to be good enough to keep the Governing Body informed as to further developments in this connection;
   • (d) to take note of the present interim report of the Committee with regard to the allegations relating to acts of anti-union discrimination (Japan Teachers' Union), to interference with the National Railway Workers' Union and with the adhesion of workers to it, to restriction of the scope of organisations, to collective bargaining by organisations of employees of local public enterprises and to acts of interference with regard to unions affiliated to the All-Japan Prefectural and Municipal Workers' Union, it being understood that the Committee will report further thereon to the Governing Body when it has received additional information which it has decided to request from the Government.