Interim Report - Report No 54, 1961

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

1. 6. The first complaint by the General Council of Trade Unions of Japan was addressed directly to the I.L.O on 30 April 1958, and was transmitted to the Government of Japan by a letter dated 12 May 1958. The I.C.F.T.U and the I.T.F informed the I.L.O, by communications dated 16 May and 23 May 1958 respectively, that they supported the abovementioned complaint. These two communications, together with a further complaint dated 22 May 1958 received from the P.T.T.I. (Berne), were transmitted to the Government by a letter dated 4 June 1958. The last-mentioned organisation furnished further information in a communication dated 25 August 1958, transmitted to the Government on 29 August 1958.
2. 7. The Government of Japan forwarded its observations on the above complaint of the General Council of Trade Unions of Japan in a communication dated 9 October 1958. The Government forwarded further observations in respect of the same complaint in a communication dated 6 November 1958.
3. 8. A further complaint was presented on 22 September 1958 by the All-Japan Postal Workers' Union. This complaint was forwarded on 8 October 1958 to the Government of Japan. Additional information was forwarded by this complainant in a letter addressed to the I.L.O on 6 October 1958 and transmitted to the Government on 17 October; the General Council of Trade Unions of Japan supplemented these allegations by a further communication dated 26 November 1958, transmitted to the Government on 18 December 1958. The complaint of the All-Japan Postal Workers' Union was supported by the I.C.F.T.U in a communication dated 3 November 1958, transmitted to the Government on 26 November 1958. The General Council of Trade Unions of Japan presented new allegations in a communication dated 20 October 1958, transmitted on 30 October 1958 to the Government. On 21 October 1958 the Pancyprian Federation of Labour alleged in general terms that public employees do not have the right to organise in Japan. In view of the detailed allegations on this matter already before the Committee, this communication was not transmitted to the Government.
4. 9. At its meeting in Geneva on 13 November 1958 the Committee examined only one aspect of the various complaints that were before it-that comprised in certain allegations relating to restrictions on trade union membership and elections of officers-and postponed its consideration of the remaining allegations until its following session. With respect to the allegations examined, it submitted certain recommendations to the Governing Body in an interim report, which was approved by the Governing Body at its 140th Session (18-21 November 1958).
5. 10. Further observations were forwarded by the Government of Japan in three communications dated respectively 26 and 31 January and 25 February 1959. Some of these observations related not only to the matters indicated in paragraph 4 above but also to the various allegations to which the Government did not refer in the replies which it forwarded prior to the meeting of the Committee in November 1958. The complainants presented additional information in two communications dated 19 and 24 February 1959. At its meeting in February 1959 the Committee presented a further interim report to the Governing Body. Further information was submitted by the complainants in communications dated 10 March and 14 May 1959. Additional observations were furnished by the Government of Japan in two communications both dated 22 May 1959. At its meeting in May 1959 the Committee presented a further interim report to the Governing Body. The conclusions contained therein were communicated to the Government of Japan by the Director-General in a letter dated 8 June 1959.
6. 11. The I.C.F.T.U and the P.T.T.I furnished additional information in two communications dated 12 October 1959 and 4 November 1959 respectively. Meanwhile, by a communication dated 26 October 1959, the Government forwarded further observations in reply to the report made by the Committee.
7. 12. At its meeting in November 1959 the Committee made a further interim report, in which additional information was requested from the Government both by the Governing Body and by the Committee. The Government replied by a communication dated 9 February 1960.
8. 13. At its meeting in February 1960 the Committee submitted another interim report to the Governing Body containing a number of conclusions and requests for further information. By a letter dated 17 March 1960 these were brought to the notice of the Government, which replied by a letter dated 14 May 1960.
9. 14. This reply was considered by the Committee at its meeting in May 1960. Again, the Committee submitted to the Governing Body an interim report containing conclusions and requests for further information, which were brought to the notice of the Government by a letter dated 13 June 1960. The Government replied by a letter dated 13 August 1960.
10. 15. At its meeting in November 1960 the Committee made another interim report and requested further information from the Government. The Director-General conveyed this request to the Government by a letter dated 23 November 1960, with which he also transmitted to the Government, for its observations, a number of further communications received from complainants-communications dated 14 October 1960 from the All-Japan Postal Workers' Union, dated 20 October 1960 from the Public Services International (London), dated 9 November 1960 from the Japan Teachers' Union, and dated 12 November 1960 from the Japanese Congress of Government Employees' Unions. Observations were forwarded by the Government in a communication dated 24 January 1961. Further information submitted by the Japan Teachers' Union on 8 December 1960 and by the Japanese Congress of Government Employees' Unions on 14 January 1961 was transmitted to the Government on 2 February 1961. Further observations were forwarded by the Government on 14 February 1961.
11. 16. At its meeting on 23 February 1961 the Committee decided to request the Government to continue to keep the Governing Body informed of further developments and adjourned its examination of the case until its present session. In doing so, the Committee indicated its intention of examining at this session not only the allegations relating to restrictions on trade union members and election of officers-the only allegations hitherto examined in substance-but also all the other allegations raised in the various complaints which have been submitted. The Government was informed of the Committee's decision by a letter dated 14 March 1961. With that same letter the Director-General transmitted to the Government, for its observations, copies of two communications from the I.C.F.T.U and the International Federation of Free Teachers' Unions, both dated 16 February 1961 and expressing support for the complaint of the Japan Teachers' Union, a copy of a new complaint dated 20 February 1961, from the N.R.W.U, and a copy of a further communication from the I.C.F.T.U, dated 23 February 1961, forwarded in support of the complaint of the N.R.W.U.
12. 17. The Government forwarded its observations on the complaint of the N.R.W.U by a communication dated 1 May 1961.
13. 18. On 9 May 1961 the Government forwarded information as to the latest situation with regard to its proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and on 9 and 11 May 1961 further observations on the complaints of the N.R.W.U, the Japanese Teachers' Union and the Congress of Government Employees' Unions.
14. 19. All the aforesaid complaints are examined together in the present report, as they are closely inter-related and the same or similar allegations are raised by several of the complainants. The different allegations are considered separately.
15. 20. However, in certain cases allegations relating to similar matters in different legal contexts will call for separate consideration. This results from the fact that the national monopolies, the railways, the post office and certain other branches (see especially complaints of the Postal Workers' Union and N.R.W.U.) are subject to the Public Corporation and National Enterprise Labour Relations Law, whereas the teachers (see the complaint of the Japan Teachers' Union) are governed by the Local Public Service Law, while the majority of other government employees and civil servants (see the complaint of the Congress of Government Employees' Unions) are subject to the National Public Service Law. The Committee does not have before it allegations relating to workers in the private sector covered by other legislation, including the Trade Union Law.
16. 21. 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).

A. A. The complainants' allegations

• Allegations relating to Restrictions on Trade Union Membership and Election of Officers
  22. 22 These allegations were first raised in the earliest complaints of the General Council of Trade Unions of Japan, the P.T.T.I and the All-Japan Postal Workers' Union. It will be remembered that the most essential point made in these allegations, which were analysed more fully in paragraphs 7 to 12 of the Committee's 32nd Report, was the contention that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, 1948, and the similar provision in section 5 (3) of the Local Public Enterprise Labour Relations Law, place two restrictions on the exercise of trade union rights, because, firstly, union membership is limited to employees engaged in the public corporation or national enterprise concerned and, secondly, only such employees are eligible to serve as officers of the Union. Because certain unions, including the Locomotive Engineers' Union and the All-Japan Postal Workers' Union, had retained as officers persons who had been dismissed from their employment, the employing administrations, it was alleged, had refused to bargain collectively with the unions in question. After considering these allegations at its meeting in November 1958, together with the Government's observations thereon, the Committee, noting that the Government was studying the legal provisions referred to above in conjunction with the question of possible ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), submitted to the Governing Body the recommendations contained in paragraph 20 of its 32nd Report, approved by the Governing Body at its 140th Session (18-21 November 1958).
  23. 23 At subsequent sessions the Committee, noting the various communications forwarded from time to time by the complainants and the information as to developments with regard to the question of ratification of the said Convention contained in several communications received from the Government of Japan, submitted a series of interim reports to the Governing Body. At its meeting in May 1960 the Committee submitted to the Governing Body the recommendations contained in paragraph 98 of its 47th Report, which reads as follows:
  98. 98 In these circumstances the Committee recommends the Governing Body:
      • (a) to note with satisfaction the Government's statement that, having decided to seek the approval of the National Diet for ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it has submitted the Convention to the Diet together with Bills to amend the relevant legislation, including Bills to abrogate section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law;
      • (b) to express the hope that the proposals to ratify the Convention and to enact the Bills referred to above will be approved by the National Diet at an early date;
      • (c) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
  24. 24 Further information as to progress made towards the ratifications of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), was given by the Government in a communication dated 13 August 1960. At its meeting in November 1960 the Committee considered this communication and submitted to the Governing Body the conclusions contained in paragraph 7 of its 49th Report, which reads as follows:
  7. 7 With regard to the case relating to Japan (Case No. 179), the Committee had before it a letter from the Government, dated 13 August 1960, in which the Government states that the Bills submitted to the National Diet for the purpose of seeking approval for the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and of abrogating section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law in April 1960 were not reached by the National Diet in the course of its last session. The Government states further that the Convention and the Bills to amend the relevant legislation are to be submitted to the next regular session of the National Diet, which will convene at the end of this year. In these circumstances the Committee decided to take note of the Government's statement and, having regard to the decision of the Governing Body when it adopted paragraph 98 of the Committee's 47th Report, to reaffirm the hope expressed in that report that the proposal to ratify the Convention and to enact the Bills referred to above will be approved by the National Diet and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection.
• This report was approved by the Governing Body at its 147th Session (15-18 November 1960).
  25. 25 At its meeting in February 1961 the Committee had before it a further communication from the Government, dated 21 February 1961. The Committee, after examining this communication, submitted to the Governing Body the conclusions contained in paragraph 9 of its 52nd Report, which reads as follows:
  9. 9 With regard to the case relating to Japan (Case No. 179), the Committee had before it a letter from the Government, dated 21 February 1961, in which the Government states that, in his policy speech delivered at the opening of the regular session of the Diet resumed at the end of January 1961, the Prime Minister of Japan stated that " with regard to the ratification " of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), " the Government recognises the necessity of giving careful study to the preparation of related national laws, and is preparing to submit the Convention together with the related Bills to the present session of the National Diet, from the standpoint of promoting the development of a free and democratic labour movement ". The letter goes on to state that the Government of Japan, acting on the above-mentioned basic line, is now preparing earnestly for the presentation to the current session of the National Diet of the Freedom of Association and Protection of the Right to Organise Convention, 1948, and the Bills to amend the related laws. In these circumstances the Committee decided to take note of this statement by the Government, which renews the previous assurances given as to taking the necessary action to ratify the Convention, to express the hope that the proposal to ratify the Convention and to enact the Bills referred to above will have been approved by the National Diet by the time the Committee meets in its next session in May 1961, and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection. The Committee further decided that, at its next session, it will examine all the allegations raised in the different complaints in this case, on the basis of the documentation now before it, together with such further documentation as may be received at a sufficiently early date to permit of its being taken into consideration by the Committee at that session.
• This report was approved by the Governing Body at its 148th Session (7-10 March 1961).
  26. 26 In its communication dated 9 May 1961 the Government states that it submitted to the National Diet, on 25 March 1961, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Bills to amend the related laws; and that they are now under consideration by the Diet.
  27. 27 The Committee therefore recommends the Governing Body to take note of this statement by the Government, to express the hope that the proposal to ratify the Convention and to adapt the legislation to it will be approved by the National Diet at an early date, in accordance with the wish expressed by the Prime Minister of Japan when meeting representatives of the Japanese trade unions on 14 April 1961, that such action should be taken by the Diet at its present session.
  28. 28 In its communication dated 20 February 1961 the N.R.W.U recalls the period during which the administration refused to bargain with it because it had retained as officers persons who had been dismissed from their employment and describes how this refusal caused the union to lose much of its membership and organisational strength.
  29. 29 The Government, in its communication dated 1 May 1961, refers to its earlier observations on this matter. It denies any responsibility for the fact that certain splinter unions were formed in 1957 and gives a number of citations with a view to showing that the workers concerned formed such unions because they were dissatisfied with the policies of the N.R.W.U. The unions concerned were mostly craft unions but some were district unions.
  30. 30 The Committee considers that the matters raised in this connection, as indicated in the two preceding paragraphs, add no new element in principle to the evidence on the question which was taken into consideration by the Committee when reaching the conclusions contained in its 32nd Report (see paragraph 22 above), and that it is unnecessary for it to examine further this particular aspect of the allegations.
  31. 31 The Committee has also had occasion to take account of the provisions of the legislation of Japan in the light of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan. At its meeting in November 1949 the Committee recommended the Governing Body to note and endorse certain observations made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations as to the compatibility of section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law with Article 2 of the said Convention No. 98; this recommendation was approved by the Governing Body at its 144th Session (March 1960). At its meeting in May 1960 the Committee on Freedom of Association observed that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, at its 30th Session (March-April 1960), after noting the information given verbally by the Government to the International Labour Conference in 1959 and in the report furnished by the Government, in respect of the period 1 July 1958-30 June 1959, on the application of Convention No. 98, pointed out that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law, which provide that officers of trade unions must be persons employed in the undertaking in which the union operates, run counter to Article 2 of the Convention. Noting that the Government, according to its report, intended to repeal section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, the Committee of Experts expressed the hope that this repeal would be effected as soon as possible and that section 5 (3) of the Local Public Enterprise Labour Relations Law would also be repealed.
  32. 32 The matter was further considered by the Committee of Experts at its 31st Session (March 1961), when it made the following observations:
• The Committee has taken note with interest of the information furnished orally by a Government representative to the Conference and also of the detailed report furnished by the Government.
  1. 1 According to the Government, section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, providing that trade union officers must be persons employed in the undertaking in which the trade union carried on its activities, is intended to protect the trade union movement in this sector of the economy against " subversive elements "; further, this section cannot afford a pretext for acts of interference because the grounds for dismissal are defined in the Law and various appeal procedures are available to the persons concerned; finally, the onus of proving the reason for dismissal falls upon the employer.
  2. 2 The Committee observes, however, that it would be extremely difficult for a worker who was dismissed by an employer invoking, for example, " neglect of duty " (section 31 (2) of the Japanese National Railways Law) to prove that the real motive for his dismissal was to be found in his trade union activities. Further, as lodging of an appeal does not suspend the decision taken, a dismissed trade union leader must, under the provisions of the Law, resign his trade union post when he is dismissed. As the Committee emphasised in 1959, section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, and section 5 (3) of the Local Public Enterprise Labour Relations Law, which is in similar terms, make it possible for the managements of these undertakings to hinder the activities of a trade union and thus run counter to Article 2 of the Convention, according to which " workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration ".
• The Committee therefore expresses the hope that, in order to secure the full application of the Convention, the Government, which has expressed its intention to repeal the provisions referred to above, will be able to effect this repeal in the near future.
  33. 33 The Committee recommends the Governing Body to endorse the above observation of the Committee of Experts on the Application of Conventions and Recommendations, to note the submission to the national Diet of Bills to amend the legislation, and to express the hope that legislation on this point will be promptly enacted.
• Allegations relating to the Denial of the Right to Strike and to Defects in the Mediation and Arbitration System (Affecting Organisations Subject to the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law)
  34. 34 The General Council of Trade Unions of Japan alleges in its communication dated 30 April 1958 that section 17 of the Public Corporation and National Enterprise Labour Relations Law denies the right to strike to persons employed in public corporations and national enterprises, persons who violate this provision being " subjected to dismissal " under section 18, and that this is contrary to the guarantee of the right to strike contained in article 28 of the Constitution of Japan. Workers in other undertakings enjoy the right. The complainant states that this gives rise to strange anomalies, such as the fact that the right to strike is not accorded to employees of the Osaka Subway Corporation (a local public corporation), but is granted, subject to ten days' notice, to employees performing the same work for the Tokyo Subway Company, which is a private enterprise.
  35. 35 The All-Japan Postal Workers' Union claims that some of the industries and services covered by the Public Corporation and National Enterprise Labour Relations Law are not so essential as to necessitate the prohibition of the right to strike. The P.T.T.I lists the undertakings in which strikes are prohibited, under this law and also under the Local Public Enterprise Labour Relations Law, as comprising public corporations (railways, transport, telegraph and telephone services, tobacco and alcohol government monopolies, postal and savings services, government-controlled forestry, printing and minting operations) and local public enterprises (local railways, automobile transportation, electricity, gas and water supply services). According to the All-Japan Postal Workers' Union, this means that in 1954, according to Government statistics, 3,500,000 workers (23.4 per cent of the total labour force) were denied the right to strike.
  36. 36 The reports of the Joint I.T.F.-I.C.F.T.U. Mission and of the P.T.T.I. Mission to Japan in 1957 also contend that sections 17 and 18 of the Public Corporation and National Enterprise Labour Relations Law violate article 28 of the Constitution of Japan and involve discrimination against workers in public employment. With respect to the argument that interruption of the essential services concerned would have grave economic consequences, both Missions contend that many procedures are available in law which can protect the public interest and still ensure the ultimate right of workers to exercise their economic strength-negotiation, conciliation, arbitration, boards of inquiry, prescribed " cooling-off " periods, etc. They argue further that it is unreasonable to deny the right to strike to workers employed in the alcohol and tobacco monopolies on precisely the same basis as to workers employed in such essential public services as railways, communications and public health. The P.T.T.I. Mission considers that anti-strike provisions should not apply to postal workers on the ground that they do not do so in many democratic countries (Italy, France, Austria, Germany, Belgium, United Kingdom, Ireland, Denmark, Norway, Sweden, Finland, etc.). This Mission also criticises the fact that strikes by personnel of the police and fire services, the Public Safety Bureau and the prison service by civil servants in the regular government and local government service are punishable by imprisonment for up to three years or a fine not exceeding 100,000 yen.
  37. 37 The two Missions then proceed to criticise the operation of the mediation and arbitration machinery which deals with disputes affecting the various categories which are prohibited from calling strikes. They claim that much of the industrial strife that has occurred has been provoked by a series of failures on the part of the public service enterprises to implement arbitration awards promptly. They declare that the fact that public corporations have almost no budgetary autonomy in respect to budgeting, because authorisations must be made by the Diet, is a source of confusion, disagreement and uncertainty. While one provision makes awards binding on both parties, another provision, it is alleged, makes them bind the workers only; the need for approval by the Diet means that several months may elapse before an award is approved (and the Diet may disapprove) and funds appropriated to meet it, thus causing restlessness among the workers. It is further alleged that, contrary to law, it has not been the practice to implement arbitration awards retroactively to the dates on which they are made, and that not once in seven years has the Government implemented fully and promptly awards relating to postal employees. As further evidence of its contention that postal workers have suffered unfairly, the P.T.T.I adduces statistical data, for the purpose of showing that their wages compare unfavourably with those of similar employees in other countries and with the wages of employees in Japanese private industry and that the wages of publicly employed persons in general are unfavourable compared with those in other categories and having regard to the rise in the cost of living.
  38. 38 The General Council of Trade Unions of Japan in its communication dated 30 April 1958, also criticising the need for awards to be approved by the Diet, claims that in seven cases approval had been refused up to that date. Hence, the unions had resorted to direct action in order to enforce prompt implementation of awards, which had led to disciplinary measures such as reprimand, suspension or dismissal being applied, and, in some cases, to prosecutions on charges of obstructing public business, violating provisions of the Criminal Code, etc. In conclusion this complainant alleges that the Government, by allowing the dilatory implementation of awards to continue, has violated section 35 of the Public Corporation and National Enterprise Labour Relations Law, which provides that " the Government shall make efforts to see that arbitration awards be implemented ".
  39. 39 Finally, the complainants allege that the arbitration machinery itself is not constituted on a democratic basis. According to the General Council of Trade Unions of Japan, section 34 of the Public Corporation and National Enterprise Labour Relations Law provides for arbitration by the Public Corporation and National Enterprise Labour Relations Commission composed, for this purpose, either of all the neutral members of the Commission or of three arbitrators nominated by the Chairman of the Commission from among the neutral members; thus, the Commission consists of government-appointed members and the actual parties in dispute are not represented on it. The complainant contrasts this with section 31 (2) of the Labour Relations Adjustment Law, applying to industry in the private sector, under which the Chairman of the Labour Relations Commission appoints the arbitrators with the agreement of the parties concerned, or failing agreement, after asking the opinions of the parties. The Joint I.T.F.-I.C.F.T.U. Mission and the P.T.T.I. Mission also claim that it is wrong in principle for the arbitration boards to be composed entirely of government-appointed members, usually public servants, neither party being represented on the boards or having any voice in the selection of arbitrators. They claim that each party should be represented and should themselves select the neutral member, the authorities choosing him only in default of agreement. They also criticise the fact that the same boards should furnish both mediation and arbitration, the arbitration board thus being called upon to decide a question on which it has already formed conclusions in the course of mediation. Referring to the jurisprudence of the Committee on Freedom of Association, the All-Japan Postal Workers' Union contends that, where the right to strike is denied, it is an internationally recognised principle that an adequate guarantee should be given to protect fully the interests of workers deprived of an essential means of defending their occupational interests, but that the machinery of arbitration connected with the Public Corporation Labour Relations Commission does not afford a guarantee which is adequate or which protects fully the interests of the workers.
  40. 40 A number of the complainants adduce copious statistical references in support of the general argument that, as a result of the denial of the right to strike and of the failure of the arbitration system to ensure awards compatible with the cost of living, workers in public employment are grossly underpaid and in a far worse position than comparable workers in, the private sector. Such statistics were annexed to the various complaints analysed above and, more recently, were cited by the All-Japan Postal Workers' Union in a communication dated 14 October 1960.
  41. 41 The Government, in its communications dated 9 October and 6 November 1958 and 31 January 1959, contends that the prohibition of strikes and other acts of dispute in the case of employees of public corporations and national enterprises, which the Supreme Court has held not to be contrary to the Constitution of Japan, is necessary in order to ensure the normal operation of undertakings important to the public interest. Lockouts are also prohibited. In compensation an arbitration system is provided. The Arbitration Committee, says the Government, is authorised to make awards which are binding on both sides; hence, the workers concerned do not suffer unequal treatment compared with workers in similar enterprises in the private sector (e.g. private railways) who may strike. The Government claims that the Committee on Freedom of Association accepted this view when it examined Case No. 60 relating to Japan.
  42. 42 Arbitration awards bind both sides. But, says the Government, when an award involves the expenditure of funds that are not available from the previously approved budget or from Corporation funds, it must be submitted to the Diet for approval. The Government states that, of 14 awards affecting railway employees made since the enactment of the Public Corporation and National Enterprise Labour Relations Law, all except four-made some years ago-have been fully implemented (in 1949 the Diet reduced the amount granted by an award, and, in 1950, 1951 and 1953, it approved three others " subject to a slight postponement of the date of implementation "). Since this Law came to be applied to the Postal Services in 1953, six awards have been made. The Government states that five were implemented fully, while there was only a slight delay, as a result of action taken by the Diet having regard to prevailing financial considerations, in implementing the sixth one. (In its later communication dated 14 February 1961 the Government states that awards made in April 1959 and April 1960 were fully implemented.)
  43. 43 With respect to the Arbitration Committee itself, the Government explains that it is composed either of all the public members of the Public Corporation and National Enterprise Labour Relations Commission or of three of such members nominated by the Chairman of the Commission. According to law, the public members of the Commission are appointed by the Prime Minister subject to the agreement of both Houses, from among the persons listed in a panel of candidates drawn up after the opinions of the members representing employers and workers have been heard. In the Government's view this means that the public members cannot be appointed at its own discretion, and the accusation that the selection is not made democratically is not justified because the Chairman of the Commission, who nominates the Committee members from among the public members, is himself elected chairman by all the members of the Commission. In conclusion the Government states that the members representing employers and workers are entitled " to participate in the arbitration procedure and to express their opinion ".
  44. 44 In its communication dated 14 February 1961 the Government comments on the allegations contained in the communication dated 14 October 1960 from the All-Japan Postal Workers' Union. The Government furnishes a number of statistics to support its contention that the wage levels of postal workers are superior to those enjoyed by workers in private industry. It also repeats in substance the points made in its earlier replies which are analysed in the preceding paragraph.
  45. 45 The complaint submitted on 20 February 1961 by the N.R.W.U puts forward, on behalf of railway employees, arguments somewhat similar to those put forward by the Postal Workers' Union. The essence of the complaint is that the right to strike is denied and that the arbitration machinery which should compensate for this denial does not protect the interests of the workers, so that the wage standards of members of the union have deteriorated. The union submits detailed statistics designed to show that Japanese workers as a whole are badly paid compared with workers in other countries and that transport employees in Japan have made in recent years even less gains than workers in private industry in Japan. Similarly, tables are submitted to show that the denial of the right to strike has caused a deterioration of other working conditions besides wages (hours, holidays, workload, etc.).
  46. 46 The compulsory arbitration machinery, instead of providing " adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests," declares this complainant, quoting the Committee's jurisprudence, has in fact functioned more as machinery to carry out wage policies of the State. The complainant alleges that since 1949 five arbitration awards affecting railway workers have not been fully implemented and that a case brought before the courts by the union to claim redress for the consequential losses is still pending after ten years.
  47. 47 The N.R.W.U alleges that it was because of the failure to implement arbitration awards that it decided in December 1952 that direct action would be necessary. In that month it instructed its members in certain branches of railway operations to work strictly to rule. The leading officers of the union were at once dismissed. Further cases of direct action followed and led to stern reprisals. Although the Government promised in March 1957 that awards would be fully implemented in future, it is alleged that it took steps to ensure that the awards would not be prejudicial to the Government by appointing to the Arbitration Board, as two members representing " public interest ", Mr. S. Togashi, the head of the Secretariat of the Public Corporation and National Enterprise Labour Relations Commission, and Mr. Y. Sakata, ex-Director of the Tax Administration Agency and an incumbent member of the Bank of Japan Board of Directors, thus rendering the arbitration system fully prepared to function as a machinery to execute wage policies of the State.
  48. 48 The Government furnished its observations on the complaint of the N.R.W.U in a communication dated 1 May 1961. The Government refers again to the reasons it gave earlier as necessitating the prohibition of strikes by section 17 of the Public Corporation and National Enterprise Labour Relations Law and as justifying measures taken where the N.R.W.U has resorted to direct action. The Government furnishes its own statistics, arguing that the regular pay of railway workers does not compare unfavourably with that of workers in other branches. The Government disputes the other contentions by the N.R.W.U that other conditions have deteriorated and that the workload has been unreasonably increased.
  49. 49 Then the Government proceeds to comment on the N.R.W.U's complaints concerning the arbitration system.
  50. 50 The Government explains that where voluntary collective bargaining breaks down, mediation is carried out by the Public Corporation and National Enterprise Labour Relations Commission. For this purpose, under sections 28 and 29 of the Public Corporation Law, a mediation committee is set up, consisting of not more than three persons representing the public interest and equal numbers of persons representing management and employees. If this fails, there is compulsory arbitration by the Commission, in the form of an arbitration committee consisting solely of the members representing the public interest. Section 35 of the Law provides than an award shall be final and binding on both parties and that the Government should make every effort to see that the award is carried into effect.
  51. 51 The Government denies that it has appointed its own high officials to the Commission in order to influence its awards. Members of the Commission representing the public interest are to be appointed by the Prime Minister from a list prepared by the Minister of Labour based on the opinions of employer and worker members and with the consent of both Houses of the Diet (section 20 of the Public Corporation Law). All the " public interest " members so far, declares the Government, have been consented to by the employer and worker members of the Commission with the unanimous approval of both Houses; all awards have been made impartially.
  52. 52 When an award involves expenditure of funds not available from the appropriate corporation budget or corporation funds, the approval of the Diet has to be obtained for the disbursement (sections 16 and 35 of the Law). Awards have been completely implemented since the revision of the legislation in 1956. Of 113 awards since 1949, only 12-made prior to 1956-were not implemented in full. Of the five awards relating to its members cited by the N.R.W.U, four were fully implemented after slight delay, declares the Government, and the fifth partially implemented, these unfavourable decisions of the Diet having been unavoidable in the period of financial difficulty after the end of the war.
  53. 53 Referring to the long-drawn-out lawsuit mentioned by the complainant, the Government declares that the Supreme Court handed down decisions in 1960 ruling against the complainants on certain points.
  54. 54 In certain previous cases the Committee has considered that allegations regarding the prohibition of the right to strike are not outside its competence in so far, but only in so far, as such a prohibition affects the exercise of trade union rights. The allegations in the present case relate not to a prohibition of the right to strike in general but to a prohibition of strikes in essential services, or in public undertakings regarded as equivalent thereto, any interruption of which, in the Government's view, would be seriously detrimental to the public interest. In past cases the Committee has accepted the general principle of special restrictions on the right to strike in essential services, provided that satisfactory alternative arrangements are provided. In one of those cases-Case No. 11 relating to Brazil-the Committee had to deal with the question not merely of a restriction, but (as in the present case) of an outright prohibition of strikes in essential occupations. While concluding that the allegation then made should not be examined further, the Committee drew attention to the importance which it attaches, in cases in which strikes are prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests. Indeed, the Committee has consistently applied this principle in all cases in which strikes are either prohibited or restricted and with regard both to essential occupations and to industry in general. In Case No. 60 relating to Japan, the Committee examined allegations relating to the same legal provisions prohibiting strikes as are before it in this present case. In Case No. 60 the Committee, after reaffirming the principle enunciated in the case relating to Brazil, concluded that the allegations relating to the denial of the right to strike did not call for further examination; it did so, however, only after it had observed that the denial of the right to strike was accompanied, by virtue of the relevant legislation, " by certain guarantees to safeguard the interests of the workers-a corresponding denial of the right of lockout, provision of joint conciliation procedure and, where and only where conciliation fails, the provision of joint arbitration machinery ".
  55. 55 With respect to the actual prohibition of the right to strike in occupations regarded as essential in Japan, a new issue is raised in the present case by the contention put forward in the reports of the I.T.F.-I.C.F.T.U and P.T.T.I. Missions to Japan that it is not reasonable to apply to such undertakings as the alcohol and tobacco monopolies the same criteria as are applied to such essential services as railways, communications and public health. It would appear from the legislation, indeed, that all publicly owned corporations and undertakings are treated as uniformly essential by reason solely that they are publicly owned. In Case No. 146 relating to Colombia the Committee observed that the Government had the right under the relevant legislation to include in the definition of those services in which strikes are forbidden any others that, in the opinion of the Government, affect the safety, health, education and economic or social life of the population and the power to decide, in consultation with the Council of State, which forms of employment fell within the categories defined; the Committee, therefore, recommended the Governing Body to draw the attention of the Government of Colombia to the possibility of abuse present in such a situation.° In the present case, while it is not contended that the Government has power to designate, at its discretion, services as essential, the law as it already subsists prohibits strikes in all publicly owned corporations and undertakings irrespective of their nature. The importance of these enterprises is considerable and they employ a very large number of workers. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because their interruption may cause public hardship and those which are not essential according to this criterion, and to suggest to the Government that it may care to give consideration to this aspect of the matter at an appropriate time.
  56. 56 Certain further new issues are raised in the present case by the allegations that the guarantees provided as compensation for the denial of the right to strike do not in fact fully " safeguard the interests of the workers " because they are not effective and are not impartial. In the allegations respecting the effectiveness and impartiality of the arbitration machinery the complainants impugn one of the premises on which the Committee based its conclusion in Case No. 60-that arbitration awards under the Public Corporation and National Enterprise Labour Relations Law are " binding on both sides "-and, in fact, deny that due effect is given to the principle enunciated by the Committee in Case No. 151 relating to the Dominican Republic that prohibitions of strikes should be " accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage".
  57. 57 It is claimed that the proceedings are not speedy and are not genuinely binding on both sides and that this is contrary to the law. In fact, section 35 of the Public Corporation and National Enterprise Labour Relations Law Provides:
• Decisions of the Commission shall be final and binding upon both the parties and the Government shall endeavour as much as possible for realisation of the said decision. Provided that any decision involving the expenditure of funds not available from the budget or funds appropriated to the public corporation, etc., shall be as prescribed by article 16.2
• Section 16 of the same Law reads:
• Any agreement involving the expenditure of funds not available from the budget or funds appropriated to the public corporation, etc. shall not be binding upon the Government and no funds shall be disbursed pursuant thereto until appropriate action has been taken by the Diet.
• Such agreement shall be submitted to the Diet with reasons thereof for ratification or disapproval within ten days of its conclusion; provided that, if the Diet is not in session, such agreement shall be submitted to the Diet within five days after it convenes. Approval by the Diet shall render the terms of the agreement effective as of the date specified in such agreement.
  58. 58 It would seem from the foregoing provisions that any award falling within the proviso to section 35 is, in fact, not binding upon the Government, as employer, until it has been approved by the Diet, although it appears that in fact, and particularly in the last few years, the large majority of the awards have been fully implemented.
  59. 59 The position is not in itself unusual. In a number of countries, where public corporations or boards for nationalised industries become bound by awards which cannot be met entirely out of funds already appropriated to or accumulated by the undertaking concerned, recourse must be had to Parliament to devise the ways and means by which further moneys shall be made available. It is, however, a necessary corollary of such an arrangement that the budgetary powers reserved to the legislative authority should not be used in such a case to interfere with the terms of an award handed down by a compulsory arbitration tribunal in the establishment of which as a maker of binding awards the Government and the Legislature have concurred. This principle has been supported by the International Court of Justice in an Advisory Opinion given on 13 July 1954 with respect to the effect of awards of compensation made by the United Nations Administrative Tribunal. The Court, after noting that under its Charter powers (article 17) the General Assembly of the United Nations " shall consider and approve the budget of the Organisation ", stated that " the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organisation, and to this extent the General Assembly has no alternative but to honour these engagements.... The Court therefore considers that the assignment of the budgetary function to the General Assembly cannot be regarded as conferring upon it the right to refuse to give effect to the obligation arising out of an award of the Administrative Tribunal." To depart from this practice would, the Committee considers, detract from the effective application of the principle that where workers in essential services are deprived of the right to strike they should be compensated by the provision of arbitration machinery the awards of which are " binding on both sides ".
  60. 60 In these circumstances the Committee recommends the Governing Body:
      • (a) to draw the attention of the Government of Japan to the importance which it attaches to the principle that, where strikes by workers in essential services or occupations 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 that such awards should be fully and promptly implemented once they have been made;
      • (b) to draw the attention of the Government, while noting its statement that the large majority of awards have been fully implemented, to the importance which the Governing Body attaches in this connection to the principle 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 the compulsory arbitration tribunal, and to its view that any departure from this practice would detract from the effective application of the principle set forth in the preceding subparagraph;
      • (c) to suggest to the Government that it may care to examine its legislation governing the settlement of disputes in public corporations and national enterprises in the light of the foregoing principles and to consider what amendments to that legislation and to existing practice might be desirable in order to ensure that the said principles are effectively applied.
  61. 61 There remains the issue regarding the alleged lack of impartiality resulting from the composition of the Arbitration Committee itself. Section 20 of the Public Corporation and National Enterprise Labour Relations Law provides that the Public Corporation and National Enterprise Labour Relations Commission shall consist of five members representing the public interest and three members representing employers and three representing workers. The five public members are appointed by the Prime Minister, subject to the agreement of both Houses, from a panel of names drawn up after the opinions of the employers' and workers' members have been heard. All the members elect the Chairman from among the public members (section 25). The Mediation Committee is to consist of three or less mediators chosen from each of the three groups of members in the Commission by its Chairman. The Arbitration Committee is composed either of all the five public members of the Commission or of three of such members designated by the Chairman (section 34). It would therefore seem that, as alleged, the same members or some of them may in certain cases serve on both Committees in the same dispute (if three of the five public members sit on a Mediation Committee, apparently at least one must sit among the three on an ensuing Arbitration Committee). Without expressing any view on the contention that this has resulted in unfairness in the making of awards, the Committee considers that there is an incompatibility between service in the two capacities. It is not invariably the case that Arbitration Committees of this kind should necessarily include members directly representing employers and workers-in some countries they do so but in others, as in the present case, they consist entirely of neutral or public members. Again, the Committee considers that the appointment of the neutral members of an Arbitration Committee from among the neutral members of the Commission by a neutral chairman originally elected by all three groups should not, without specific evidence to the contrary, be regarded as necessarily conducive to partiality. The really essential point-and this is in accordance with the expressed view of the Committee that arbitration should be impartial-is that all the neutral members of the Commission, all five or any three of whom may serve as arbitrators, should not only be strictly impartial but, if the confidence of both sides, on which the successful operation even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned. It is not sufficient that justice is done; it is also important that it should be apparent that justice is done. Rightly or wrongly, the workers appear to have some distrust of the machinery in this case because certain of the neutral members have, in the past, according to their statement, been public servants or occupied high office in the state administration and, for this reason, the workers appear to think that this makes them synonymous with the interests of Government and, therefore, of the employer. In these circumstances the Committee recommends the Governing Body 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 Public Corporation and National Enterprise Labour Relations Commission, from among whom arbitrators are chosen, and that all the neutral or public members of the Commission are persons whose impartiality commands general confidence.
• Allegations relating to Disciplinary Measures against Trade Unionists (Railway and Postal Workers)
  62. 62 The General Council of Trade Unions of Japan alleges that, because of violations of the prohibition of strikes, 71 members of the N.R.W.U and four members of the Locomotive Engineers' Union have been disciplined. The I.T.F.-I.C.F.T.U. Mission criticises these disciplinary measures, stating that, even if the acts committed by the workers were not lawful, they have been provoked by the dilatory implementation of awards. The Mission stresses that since the incidents leading to these measures occurred early in 1957, the atmosphere has improved and the workers have become fully conscious of their duties according to law as public employees, so that, having regard to the hardship which they have suffered, consideration should be given to restoring them to their employment.
  63. 63 The report of the P.T.T.I. Mission refers to disciplinary measures against postal employees. On 27 March 1958 there were stoppages of work, for from one to two hours, at about 95 post offices. Output on that day was reduced by 75 per cent at three Tokyo post offices and morning mail deliveries were considerably delayed-the delivery of 860,000 letters and 16,000 parcels was delayed up to three hours and the processing of another 200,000 was deferred until next day; long-distance telephone calls were delayed, but the incidents had little effect on telephone and telegram services because temporary non-union workers were mobilised. It is alleged that the Minister of Posts and Telecommunications threatened large-scale dismissals. A press report on 29 April 1958 is said to have announced that seven postal workers had been dismissed and 22,469 disciplined in other ways. The total number of postal workers thus disciplined in the last four years is put by the All-Japan Postal Workers' Union at 28,535.
  64. 64 The N.R.W.U and the Locomotive Engineers' Union are stated by the General Council of Trade Unions of Japan to have instituted legal proceedings charging " invalidity of dismissal " and demanding " continuation of the employment contract ", basing their case on the contentions that dismissal for trade union activities is an unfair labour practice under section 7 of the Trade Union Law, that article 28 of the Constitution has been violated and that the treatment of the National Railway employees is discriminatory because employees of privately owned railways have never been dismissed because of their acts in disputes. The competent court, it is stated, has not yet given judgment.
  65. 65 In its communication dated 20 February 1961 the N.R.W.U declares that, since it started upon direct action to try to secure implementation of arbitration awards, there has been a vicious circle of acts of dispute and refusals, in the course of which 80 persons have been dismissed, 77,394 have been subjected to disciplinary punishments and 486,177 have suffered wage cuts.
  66. 66 It furnishes statistics and other details to show that the alleged victimisation of members has resulted in serious harm to the finances of the Union.
  67. 67 The Government states that the prohibition, under section 17 of the Public Corporation and National Enterprise Labour Relations Law, of acts of dispute by employees of the undertakings governed by the Law is necessary to ensure proper functioning of those undertakings, and that the Supreme Court has decided that the prohibition does not violate the Constitutional guarantee of the right of workers to organise, bargain and act collectively (1951 (a) No. 1688; the Grand Bench Decision of 22 June 1955). Section 7 of the Trade Union Law prohibits, as an unfair labour practice, the dismissal or discriminatory treatment of workers because they have performed " proper acts of a trade union "; but, the Government declares, this protection does not apply in respect of unlawful acts in the performance of unlawful union activity, and the railway employees referred to were discharged, under section 18 of the Public Corporation and National Enterprise Labour Relations Law, for having performed acts of dispute prohibited by law and not " by reason of proper acts of a trade union ", while the postal workers concerned were dismissed " because of their interruption of normal operations of business in violation of law ". The Government reaffirms these arguments in its later communication dated 14 February 1961.
  68. 68 In its communication dated 1 May 1961 the Government again refers at some length to unlawful acts of dispute stated to have been committed by the railway workers and to the disciplinary measures taken. In particular the Government alleges that one form of action taken is for from 30 per cent to 100 per cent of the workers to take their leave simultaneously and without permission, while another is the holding of workshop rallies for several hours during working-time and again without permission.
  69. 69 In paragraphs 34 to 61 above the Committee has already considered the prohibitions of strikes in certain essential services in Japan, including the railways and the postal services, and has submitted recommendations to the Governing Body as to what are the compensatory safeguards which it considers should be enjoyed by the workers concerned. To examine the present allegations in substance would be tantamount to re-examining the question of the prohibition of strikes in the services concerned. In view of what has been stated in paragraphs 34 to 61, the Committee considers that the principles brought into question in the present allegations have already been covered in the paragraphs in question.
• Allegations relating to Arrests of Trade Unionists (Railway and Postal Workers)
  70. 70 With respect to events subsequent to the stoppages of work in Japanese post offices on 27 March 1958, the P.T.T.I, basing itself on a report from the I.C.F.T.U. Asian office in Tokyo, dated 16 May 1958, alleges that 22 members-not union officials - of the All-Japan Postal Workers' Union were arrested by the Tokyo police, after failing to comply with a summons to attend for interrogation. Twelve are said to have been released by 16 May. The complainant declares that the police made the arrests, purportedly, pursuant to section 79 of the Postal Communication Law, which prescribes imprisonment with hard labour for not more than one year or a fine not exceeding 10,000 yen when any person employed in the postal communication service purposely neglects his service or delays postal deliveries. The police, according to the complainant, interpreted the law wrongly. Section 1 of the Trade Union Law provides that section 35 of the Criminal Code shall apply in the case of " proper acts of a trade union which are appropriate ... ". This section 35 provides that any act pursuant to laws, ordinances or " proper execution of the business " shall not be punished. But, states the complainant, the police regarded the acts of the postal workers as contrary to section 17 of the Public Corporation and National Enterprise Labour Relations Law and considered that they were therefore not entitled to the protection of section 1 of the Trade Union Law but liable to prosecution under the ordinary Criminal Code. The complainant argues that breaches of the prohibition of strikes laid down in section 17 of the Public Corporation Law are punishable, according to section 18, by dismissal. There was further union action, met in turn by further police action. In a later communication dated 28 August 1958 the complainant alleges that between 13 May and 13 June 1958 about 70 members of the All-Japan Postal Workers' Union were detained by the police for from three to seven days and " severely " interrogated by officers from the Public Prosecutor's Office, another 200 being forced to visit police stations for questioning, and that eight officers of this union were charged with punishable offences at the beginning of August 1958. More precisely, the All-Japan Postal Workers' Union claims that eight persons were prosecuted in Tokyo on 4 August 1958, four more in Nagoya on 5 August and another seven in Osaka on 22 August.
  71. 71 The same legal points are raised by the All-Japan Postal Workers' Union. This complainant alleges that, when the Postal Communication Law was being enacted, a question was put in the Postal Committee of the House of Representatives as to the relationship of section 79 to trade union activities, and that the government representative replied that " the punishment clause will not be applied to collective bargaining or other actions which cause failure to handle postal matters or delay in the services " (Minutes No. 21 of the Communications Committee of the First Session of the House of Representatives, 20 November 1947, page 150)-a principle upheld, it is alleged, in the general sessions of both Houses (Minutes No. 67 of the First Session of the House of Representatives and Minutes No. 62 of the First Session of the House of Counsellors). The Postal Communication Law was enacted in December 1947, adds the complainant, when the right to strike of postal workers was already recognised in accordance with article 28 of the Constitution. For these reasons, in the view of the complainant, section 79 of the Law cannot apply to acts in the course of disputes, this being corroborated by the fact that dismissal is the only sanction provided for by the Public Corporation and National Enterprise Labour Relations Law.
  72. 72 The Government of Japan replies that, under the Trade Union Law, lawful union activities are exempted from criminal responsibility. Acts which violate the laws are not so exempt. When the Postal Communication Law was enacted in 1947, acts of dispute by postal employees were not unlawful. Hence, such acts did not make them liable to prosecution under section 79 of the Postal Communication Law, which prescribes imprisonment or a fine in the case of a person engaged in the mail service who wilfully and maliciously does not handle mail or causes it to be delayed. Since 1948 acts of dispute by postal employees have been prohibited by law. Accordingly, since that time, section 79 of the Postal Communication Law has been applied to persons who, by committing unlawful acts of dispute or otherwise, fail to fulfil their official duties.
  73. 73 In its communication dated 14 February 1961 the Government refers again to the proceedings taken under section 79 of the Postal Communication Law in respect of the events which took place in March 1958. Four hundred postal workers on night duty at Tokyo Central Post Office had been caused by their leaders to desert their posts for more than six hours, declares the Government, and 44 workers were arrested in this connection; eight of them were prosecuted on suspicion of instigating the acts prohibited by section 79 of the Postal Communication Law, but proceedings against the rest were stayed. The case against those prosecuted is now before the court. On 26 March 1959 three members of the executive of the Postal Workers' Union, says the Government, accompanied by some 500 employees of the Tokyo Local Post Office Life Insurance Office, who were members of the union, made a forcible entry into the Ministry of Postal Services, demonstrated and waged a sit-down strike in the building. The three leaders were each fined 2,500 yen by the Tokyo District Court on 22 July 1960.
  74. 74 The N.R.W.U alleges that trumped-up cases of prosecution are used to restrict the activities of union officers. The complainant declares that union officials who have entered railway shops and yards to speak to workers have been prosecuted for trespass, as have officials who have visited the head office of the Railways Administration for purposes of negotiation and been prevented from entering by railway public security officers. It is alleged that the security officers intimidate members from attending union rallies and that when union officials try to escort them to the rallies they are indicted on charges of interfering with the execution of public duties or with the performance of the work. The security officers are mobilised, declares the complainant, to check union activities.
  75. 75 The union gives its version of various cases in which the union resorted to direct action, which led to intervention by the railway police, arrests and prosecution.
  76. 76 In its communication dated 1 May 1961 the Government refers to many allegedly criminal offences in the course of unlawful acts of dispute which have led to prosecution violence, intimidation, infliction of bodily injury, unlawful detention of people, intrusion into other peoples' premises, etc. With regard to the specific allegation that union officers were indicted simply because they visited workplaces to see workers and because they called at the headquarters building for purposes of negotiation, the Government states that in fact members of the union stormed workplaces and removed people forcibly from the work and that the negotiating members who went to headquarters were accompanied by a large number of other unauthorised members who made their way into the building without permission. The Government goes on to give its account of events stated to have taken place at Kagoshima Station and Echigo-Takiya Station and gives details of the prosecutions which were brought in the courts.
  77. 77 The Government makes observations on the allegations concerning interference with the N.R.W.U by the railway police, stating that their function is to maintain peace and order and to see that passengers and the general public are protected " and that railway business is smoothly operated ". They " do not keep an eye on the activities of the unions, so long as such activities are lawful and judicious ". Nor are they to interfere with the activities of the unions, provided that such activities are not acts of violence or not in violation of laws and regulations.
  78. 78 Like the disciplinary measures referred to in paragraphs 62 to 69 above, these allegations relate to measures, albeit of a more serious nature, applied in the case of breaches of the provisions prohibiting strikes in certain services, including the postal services. It would seem that where persons were detained, charges were brought against them before the ordinary courts according to normal penal procedure. The Committee therefore considers, for the same reasons as were set forth in paragraph 69 above, that the essential principles which are implicitly raised in these allegations have already been covered by the reservations and observations contained in paragraphs 34 to 61 above.
• Allegations relating to Searches of Trade Union Premises
  79. 79 In the course of the aforesaid measures taken against trade unionists, the P.T.T.I alleges, the police raided, on 10 May 1958, offices of the All-Japan Postal Workers' Union throughout Japan, including 33 branches in Tokyo, Osaka and Nagoya. The All-Japan Postal Workers' Union lists ten addresses of union premises, together with a number of private houses of union officials, alleged to have been searched by the police.
  80. 80 As the Government has not replied to these allegations, the Committee requests the Government to furnish its observations thereon before it makes its recommendations to the Governing Body.
• 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)
  81. 81 In its communications dated 9 November and 8 December 1960 the Japan Teachers' Union complains that the right to strike is denied to elementary and secondary school teachers-who have the status of local civil servants subject to the Local Public Service Law-and that no proper compensatory guarantees are afforded to them in order to safeguard their interests.
  82. 82 Section 37 of the Local Public Service Law prohibits strikes by local civil servants, on pain of dismissal. As a counterpart, the said Law provides for the establishment of a Personnel Commission in each Prefecture, with power to keep wages, hours and other working conditions under continuous review and to report thereon to the local public body and to " take measures " in connection with demands submitted on behalf of the personnel. Each Commission is to consist of three persons appointed by the head of the local public body, with the consent of the assembly of the public body.
  83. 83 The complainant's case, in brief, is that the Personnel Commissions have failed to protect the rights of workers deprived of their right to strike, that the working conditions of teachers have deteriorated (the complainant refers in particular to conditions in the Saga Prefecture) and that when they have been driven to take direct action in support of fair demands legal proceedings have been taken against them.
  84. 84 The complainant cites a considerable number of alleged facts and statistics in support of this contention-increased number of pupils compared with numbers of teachers, resulting in longer hours and heavier work; non-payment of increments due under Prefectural Wage Regulations on the pretext of lack of funds; poor pay compared with workers in industry-and also lists a large number of cases of teachers disciplined, dismissed or prosecuted for engaging in or inciting direct action of one form or another.
  85. 85 Among the evidence adduced by the complaining organisation with a view to proving that denial of the right to strike is not compensated for by the provision of machinery for the settlement of disputes is a purported extract of a judgment given by the Morioka District Court. According to the complaining organisation, the Iwate Prefectural Government twice passed by-laws postponing the payment of increments, contrary to the recommendation of the competent Personnel Commission and, when the local teachers' union instituted proceedings in the court, judgment was given against them on the ground that the authority had the unilateral right to fix wages and that " the opinion of the Personnel Commission has no binding power".
  86. 86 In its communication dated 24 January 1961 the Government states that the working conditions of teachers are laid down in prefectural regulations; section 37 of the Local Public Service Law prohibits strikes by local civil servants, including teachers, and the Supreme Court has held this prohibition to be valid. The prohibition of strikes does not contravene the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), argues the Government, because these Conventions do not deal with the right to strike.
  87. 87 The Government then deals with the allegation that the Personnel Commissions have not protected the interests of the workers, so that the conditions of employment of teachers have deteriorated. The Government states that it is the function of a Personnel Commission to express its observations " in connection with the enactment, revision and abrogation of the prefectural regulations concerning the personnel " and that " it has also such functions of arbitration as to examine, give judgment on, and take necessary measures on the claims for an action concerning working conditions of the personnel, and to examine, and take necessary measures upon, any action adverse to the interests of the personnel ". The members of the Personnel Commission " are chosen, with the approval of the prefectural assembly, from among those who are of high moral character and who have a deep understanding of the principle of local autonomy and democratic and efficient handling of affairs, as well as good knowledge of personnel administration " and certain steps are prescribed by law " to avoid politically partial appointments of the members ". Thus, in the Government's view, where the conditions of teachers are prescribed by prefectural regulations, the Personnel Commissions are " an adequate guarantee for ensuring the interests of educational public servants who are deprived of the right to strike ".
  88. 88 Referring to the position in the Saga Prefecture cited by the complainants the Government states that in 1956 this Prefecture had to take drastic austerity measures because of damage sustained through typhoons but that since then wages have been brought in line with those in other areas. In the period in question, says the Government, the Saga Prefectural Personnel Commission " made recommendations three times to the prefectural authorities to ensure that raises in wages be properly given effect to ".
  89. 89 In its communication dated 14 February 1961 the Government furnishes information with a view to showing that measures by way of disciplinary action or prosecution taken against members of the Japan Teachers' Union have been occasioned by their own unlawful acts. The offences listed are taking leave simultaneously so as to paralyse operations, refusal to perform day or night duty, simultaneous walk-out when tests were to be held, acts with a view to preventing seminars being held, incarcerating superior educational officers, riotous conduct, wounding, assault, demonstrations violating the Road Traffic Control Law, entering and refusing to leave premises. Altogether, it would appear, 56 persons were dismissed, 289 suspended and 3,288 suffered salary reductions or warnings. One hundred and five public prosecutions are pending.
  90. 90 In its communication dated 9 May 1961 the Government declares that the statistical tables furnished by the Japan Teachers' Union are distorted and, in several cases, quite meaningless, but admits that the teachers, in common with all other local public servants, experienced delays in implementation of salary increments in the period 1954-57, when the financial situation of the local public bodies was very bad. Since then, however, declares the Government, such delays have ceased to occur.
  91. 91 It does not seem clear to the Committee, from the evidence at present before it, just to what extent the interests of local public servants, denied the right to strike, are safeguarded under the provisions of the Local Public Service Law. While such persons, including teachers, are classed as civil servants in Japan, their employment is governed not by national statutes but by municipal or prefectural by-laws or regulations. While the local civil servant covered by such by-laws or regulations is not in the same position as publicly employed workers, nevertheless it is usual for the civil servants of local authorities in the majority of countries to be protected by the establishment of adequate and impartial conciliation and arbitration machinery for the settlement of disputes. It is alleged that the Personnel Commissions fail to protect the workers. The exact powers of the Commissions are not quite clear. On the one hand, the Government states that the Commissions have " such functions of arbitration as to examine, give judgment on, and take necessary measures on the claims for an action concerning working conditions of the personnel, and to examine, and take necessary measures upon, any action adverse to the interests of the personnel " and offer " an adequate guarantee for ensuring the interests of educational public servants who are deprived of the right to strike ". On the other hand, the complainants allege that a court has stated that " the opinion of the Personnel Commission has no binding power ", while the Government states that in a period of financial difficulty the Saga Prefectural Commissions " made recommendations " to the authorities on three occasions. The Government also states that the law ensures that the Commissions, although appointed by the assemblies of the local public bodies, are " politically " impartial.
  92. 92 The Committee requests the Government to explain more fully whether the Commissions can only make recommendations on working conditions and, if so, on what grounds they can be described as having " such functions of arbitration " as " to examine, give judgment ... and take necessary measures on ... claims ". The Committee also asks the Government to state, in the event of the Commissions being unable to give decisions binding the authorities, what other machinery for arbitration, if any, exists for the settlement of disputes between local authorities and the employees governed by regulations issued by such authorities.
• Allegations relating to the Denial of the Right of Association to the Personnel of Certain Services
  93. 93 It is alleged in the report of 7 May 1958 on the P.T.T.I. Mission to Japan that, in addition to the police, personnel of the fire services, the Public Safety Bureau and the prison service are denied the right to organise under section 98 of the National Public Service Law. The Government has not itself commented on this allegation in its reply, but, in the aforementioned report of the Subcommittee of the Advisory Committee on Labour Problems the view is expressed that the functions of the fire service, the marine safety service and the prison service should, having regard to their legal status and development in Japan, be assimilated to those of the police service, the application in their case of the guarantees laid down in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), being left to be decided by the provisions of national laws or regulations.
  94. 94 In Case No. 60 relating to Japan the Committee has examined allegations that personnel of the police and fire services, the Maritime Safety Board and penal institutions are not granted the right to organise in Japan. Article 9 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), provides that the extent to which the guarantees provided for in the Convention-including, therefore, the guarantee of freedom of association-shall apply to the armed forces and the police and shall be determined by national laws and regulations. In Case No. 60, regarding the services referred to above as " the police and certain services assimilated thereto ", the Committee concluded that the allegations made with respect to them did not call for further examination. In the present case, therefore, as the allegations now made add nothing to those previously examined in Case No. 60, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
• Allegations relating to the Denial of the Right of Association to Supervisory Employees (under the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law)
  95. 95 It is alleged by the All-Japan Postal Workers' Union in its communication dated 22 September 1958 that section 4 (1) of the Public Corporation and National Enterprise Labour Relations Law provides that those who hold managerial and supervisory positions and those employed in a confidential capacity cannot become members of a union. The complainant declares that, by Labour Ministry Notice No. 10 of 25 April 1958, relating to employees of the National Railway Corporation, the Government designated those holding the positions of reserve deputy-stationmaster and head of local sub-branch as persons " holding managerial and supervisory positions " who cannot become members of trade unions, this having resulted in some 9,000 of the 370,000 members of the railway employees' unions losing the right of union membership. By amending the wording of the administrative regulations, alleges the complainant, the Postal Ministry has now caused any person reaching the grade of senior supervisor to be regarded as falling within section 4 (1) above, and, in view of the experiences of the railway workers, and employees of other public corporations, the complainant believed, in the first instance, that the Government intended in this way to exclude 5,277 persons from union membership. The complainant states that this situation ensues from section 4 (2) of the Public Corporation and National Enterprise Labour Relations Law, which provides that the categories of employees rendered ineligible for union membership shall be designated by the Labour Minister on the recommendation of the Public Corporation Labour Relations Commission. For this reason the complainant considers that the Government might argue that the employer does not make the designation arbitrarily. But, alleges the complainant, the Commission is not completely independent of the employer or impartial; it is tripartite but, under section 20 of the Public Corporation and National Enterprise Labour Relations Law, " the Prime Minister appoints the neutral members, with the approval of both Houses, from among the panel of candidates drafted by the Labour Minister after hearing the opinions of members representing employers and members representing labour ". The complainant alleges that, prior to 1952, the procedure was more democratic, the Prime Minister appointing the neutral members with the approval of the members representing management and labour. According to the complainant, three of the five neutral members are university professors, the other two being Mr. T. Sakata, a member of the Board of the Bank of Japan and ex-Director of the National Taxation Bureau, and Mr. S. Togashi, ex-Director of the Labour Standards Bureau. The complainant considers that these two members represent the interests of the Government and, therefore, of the employer.
  96. 96 The Government argues in its communication dated 31 January 1959 that the authorities concerned cannot arbitrarily designate the categories of " supervisory employees " ; who are denied the right to organise, because any designation must be based on a resolution of the Public Corporation and National Enterprise Labour Relations Commission. The Commission itself, declares the Government, is impartial and democratic, the neutral members being appointed with the consent of both Houses of the Diet from among the persons entered in the list of candidates prepared after hearing the opinions of the representatives of the employers and employees. The reason for supervisory categories being excluded from the right to organise by section 4 (1) of the Public Corporation and National Enterprise Labour Relations Law is, according to the Government, " to prevent a company union (a union under the domination of the employer) from being organised ".
  97. 97 In its communication dated 19 February 1959, made, professedly, in reply to the Government's observations, the All-Japan Postal Workers' Union states that its original fears as to the number of members who might lose their eligibility for union membership (see paragraph 27 above) had largely been confirmed because, by Labour Ministry Ordinance No. 3 of 22 January 1959 (a copy of which is furnished by the complainant), 4,058 union members lost their right to union membership by reason of their being designated, without any change ensuing in their duties, as persons holding managerial or supervisory posts. The complainants declare that, as a result of this extension of the application of the provision, one in ten of the 260,000 postal employees are regarded as having managerial and supervisory posts. They point out, moreover, that by virtue of the proviso to section 4 (1) of the Law these persons are not only prohibited from affiliating with a union but cannot even organise a union. The All-Japan Postal Workers' Union states that it alone can judge whether there is any danger of its becoming a " company union " and that there is no danger of any such development by reason of the persons affected remaining members of the union.
  98. 98 In Case No. 60 relating to Japan the Committee concluded that allegations that the right to organise was denied to " certain higher categories regarded in Japan as being identified with management rather than with employees " did not call for further examination. According to the allegations now made, which are far more precise and detailed than those previously examined, the word " supervisory " is claimed to be applied so widely in Japan as to cover thousands of persons in categories to which the right to organise is normally accorded in the majority of countries. Moreover, although special rules exist concerning the organising rights of supervisory employees in certain countries, the principle generally applied in such cases is that, if they are not permitted to join the same organisations as do the employees under their supervision, they nevertheless enjoy the right to form or join organisations of their own. Further, it appears to the Committee that the danger of the formation of " company " unions is not likely to arise in the case of public corporations and national enterprises.
  99. 99 In the Bill to amend the Public Corporation and National Enterprise Labour Relations Law now before the National Diet, the text of which the Government has furnished, the prohibition of the formation of organisations by supervisory employees appears to be omitted.
  100. 100 In these circumstances the Committee recommends the Governing Body to note that, in the Bill to amend the Public Corporation and National Enterprise Labour Relations Law now before the National Diet, the provision in the existing Law prohibiting the formation of organisations by supervisory employees does not appear to be maintained, and to express the hope that legislation resulting in the removal of the present restriction will soon be enacted.
• Allegations relating to Proposed Amendments to the National Public Service Law
  101. 101 The Japanese Congress of Government Employees' Unions, in its memorandum forwarded to the I.L.O on 20 October 1960 by the Public Services International (London), makes allegations relating to a number of amendments which the Government is said to be making to the National Public Service Law in connection with the proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  102. 102 In so doing, this complainant draws attention to the fact that the Committee examined the contents of a pending Bill in Case No. 105 (Greece) and claims that it submits in its complaint " precise and detailed allegations " within the meaning of paragraph 136 of the Committee's 14th Report and that the Committee, therefore, should examine them in substance even prior to the enactment of the new legislation.
  103. 103 It is alleged that the new section 108-2 (3) and (4) of the Law would provide that " the personnel holding managerial or supervisory positions or those whose duties involve handling of confidential matters "-referred to elsewhere in the Bill as " managerial personnel and the like "-are to be prescribed by rules of the National Personnel Authority. a new section 108-3 (4) would limit the membership of an employees' organisation to persons actually employed, plus dismissed employees until one year after the dismissal or so long as an appeal against dismissal was pending. The above limitations, it is contended, would extend to federations (new section 108-2 (1)).
  104. 104 The complainant proceeds to review these provisions in the light of the General Remarks of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations contained in its report in 19594, stating, firstly, that in paragraphs 15 and 16 of those General Remarks the Committee of Experts pointed out that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), permits the prohibition of workers engaged in different occupations establishing the same organisation only provided that the separate organisations for each occupation shall have the right to establish and join federations and Confederations. But, says the complainant, the federation in Japan must also be established solely by organisations of national public employees. The complainant goes on to argue that the amending provisions introduce limitations similar to the limitations by categories held to be incompatible with the said Convention No. 87 in an Observation by the Committee of Experts in respect to Pakistan. Designation of the categories in question by the National Personnel Authority, which is also responsible for registration of organisations, is likened by the complainant to the system described by the Committee of Experts as equivalent to " previous authorisation " in paragraph 31 of its General Remarks in 1959. Such a system, moreover, in the complainant's view, would enable the employer to transfer inconvenient union activists and so endanger the registration of a union-a situation criticised by the Committee of Experts in paragraph 84 of its said General Remarks
  105. 105 Further, the complainant declares that section 53 of the Local Public Service Law requires unions to be organised separately for each local public body, thus going beyond the permitted limitation by occupation and amounting to a requirement that separate unions must be set up in such undertakings-a situation criticised by the Committee of Experts, declares the complainant, in paragraph 35 of its said General Remarks, and by the Committee on Freedom of Association in Cases Nos. 134 and 141 relating to Chile.
  106. 106 The complainant then refers to the new provisions relating to the registration of organisations. The new section 108-5 (1) of the National Public Service Law would grant the right of negotiation only to registered organisations; only registered organisations could acquire legal personality. According to Rule No. 13-2 of the National Personnel Authority, only registered organisations " may make requests for administrative action on working conditions " to the Authority. Organisations must comply with several prescribed conditions before they can be registered, " including the limitations as to membership " analysed earlier. The registered organisation has such privileges, according to the complainant, that registration is indispensable. After reviewing the conclusions of the Committee on Freedom of Association in Case No. 11 (Brazil) and Case No. 12 (Argentine Republic) and the contents of paragraphs 30, 31, 32 and 35 of the General Remarks made by the Committee of Experts in 1959, the complainant argues that the privileges of the registered organisation are such that the non-registered organisations would have great difficulty in " furthering and defending the interests " of its members as mentioned in paragraph 27 of the General Remarks, and that the new section 108-3 (3) of the National Public Service Law, in particular, gives the Personnel Authority far too much discretion with regard to the registration of an organisation-subject to appeal to the courts only on points of law-so that, following the reasoning of the Committee of Experts, registration is here equivalent to a requirement of previous authorisation, while the privileges of the registered organisation are so great as to endanger the right of workers to establish and join organisations " of their own choosing ". The new provision in section 108-3 (3) of the Law would not only oblige the registering organisation to specify in its Constitution the rules for drawing up and amending the Constitution and for electing officials, but it would also have to prove to the Personnel Authority that it had applied these rules in fact before the Authority would register it; in the light of paragraph 64 of the General Remarks of the Committee of Experts, states the complainant, this is contrary to Article 3, paragraph 2, of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87).
  107. 107 In view of the foregoing, declares the complainant, the fact that appeals would be to the courts only on points of law against a decision of the Authority to cancel registration amounts to " suspension by administrative authority " as envisaged in paragraphs 80 and 81 of the aforesaid General Remarks of the Committee of Experts.
  108. 108 As the prerequisite for acquisition of legal personality would be the same as for registration, the complainant argues that there is here an incompatibility with Article 7 of the aforesaid Convention No. 87.
  109. 109 The complainant points out that section 98 (2) of the National Public Service Law at present ensures the right of government employees' unions to negotiate both on working conditions and other conditions. But the new section 108-5 (1) would differentiate, says the complainant, between working conditions and other conditions, the right to negotiate on the other conditions being restricted, while new section 108-5 (3) would provide that " matters concerning the management and operation of affairs of the State shall not be " the subject of negotiation. At the same time other proposals, according to the complainant, would deprive the National Personnel Authority of much of its jurisdiction, so that its customary right to negotiate terms of agreement and then to make recommendations as to legislative action would be greatly curtailed, its powers of decision being transferred wholly to the Government. As this is all part of the legislative programme accompanying the procedure for ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the complainant argues that it is intended to curtail trade union rights established by custom in a manner contrary to article 19 (8) of the Constitution of the I.L.O.
  110. 110 In its communication dated 14 February 1961 the Government begins by stating that it was considering whether the content of the Bills to be submitted to the current session of the National Diet should be the same as that of the Bills submitted by the previous Cabinet to the session in 1960 and on the text of which the complainants make their allegations. The views expressed in the reply of 14 February 1961 and analysed below are those which the Government " entertained when the Bills were submitted to the last session of the National Diet ".
  111. 111 It was decided to amend the National Public Service Law so as to permit full freedom of choice of officers elected freely and democratically by the employees' organisations-they would be enabled to elect officers who were not employees.
  112. 112 Under the existing law employees representing employers are not prohibited from joining the same organisations as the other employees. The Bill would have prohibited managerial and supervisory employees and those employed in a confidential capacity from belonging to the same organisations as other employees.
  113. 113 The new provisions regarding registration of organisations, declares the Government, lay down certain requirements to be complied with by organisations in order to be or to remain registered. Registration is not compulsory and non-registered organisations would not be denied the right to exist and function. Only registration would permit of the acquisition of legal personality but such personality does not affect the existence and activities of organisations; cancellation of registration does not entail dissolution. The Bill would entrust the handling of registration and deregistration to the National Personnel Authority, described by the Government as a fair and independent organ, with a right of appeal against its decisions to the court of justice.
  114. 114 Corresponding adjustments to the Local Public Service Law would be made.
  115. 115 At the same time the Government decided to readjust the responsibility for personnel administration on the part of the authorities. Matters relating to salary, efficiency, training, compensation for accident, mutual aid, retirement, etc., would be transferred from the authority of the National Personnel Authority and Minister of Finance to that of the Prime Minister. But such matters as recommendations to the National Diet and Cabinet concerning maintenance and improvement of wages and other conditions of work of national public employees and requests for administrative action to be taken thereon, procedures for administrative remedy of actions disadvantageous to employees and their organisations would be dealt with, as before, by the National Personnel Authority, whose full independence would be maintained by retaining the legal provisions according to which the National Diet alone has the right to dismiss the commissioners of the Authority and the Authority may report and make recommendations directly to the National Diet without going through the Cabinet.
  116. 116 The Government appends to its reply the text of the relevant part of the previous Bill to amend the National Public Service Law.
  117. 117 In its communication dated 9 May 1961 the Government declares that in fact the Bills now submitted to the present session of the National Diet are similar in content to the Bills previously submitted in 1960. It therefore makes its own observations on the substance. Texts of the Bills to amend the National Public Service Law-the Bill in issue in the allegations here being considered-and the Public Corporation and National Enterprise Labour Relations Law have been forwarded by the Government.
  118. 118 The Government declares that the Bill places no restriction at all on membership of the employees' organisations and does not prohibit them from federating jointly " with any organisations of workers ". Membership is restricted in the case of a registered employees' organisation; this provision is designed to establish normal relations between the government authorities and the employees' organisation by registering only the organisation composed solely of employees whose conditions are governed by law and regulations; the competent authorities are " required ... to enter into negotiations, unless there are justifiable reasons to refuse so to do, with such a registered employees' organisation, when the latter has so proposed ". But the registered employees' organisation has freedom of election of officers and of federating jointly " with other employees' organisations and any workers' organisations ". Further, states the Government, " a non-registered employees' organisation under the Bill may equally present its demands to and negotiate with the authorities with a view to furthering and defending the interests of its members " (section 108-5 of the Bill). The registration provided for in the Bill is therefore not a practical requirement for the establishment and administration of an organisation.... The authorities will, in principle, be willing to negotiate with the registered organisations (section 108-1 of the Bill). On the other hand, even non-registered organisations may negotiate.
  119. 119 The Government repeats its earlier statements concerning the rules ensuring the independence of the National Personnel Authority.
  120. 120 Another condition precedent to entitlement to registration under the Bill is that " managerial staff and the like " should not join the employees' organisation catering for other categories. Under the Bill, managerial staff and the like, including supervisory staff and persons employed in a confidential capacity, may form their own separate organisations; in the Government's view this will help to ensure the independence of the organisations of other employees in relation to the employers. The Government does not consider this to be the same thing as the classification by categories mentioned in the observations of the Committee of Experts on the Application of Conventions and Recommendations. The National Personnel Authority will, under the Bill, determine the scope of " managerial staff and the like " but this scope, says the Government, " has been determined a priori, and it is only made clear by the National Personnel Authority ", so that the system is not tantamount to prior authorisation because it is operated by the Authority which is also responsible for registration.
  121. 121 The Government denies that under the provisions of the Bill the employer could transfer an active trade unionist and so endanger the registration of a trade union, personnel changes for this purpose being prohibited by law, while, in the case of such action to the disadvantage of employees, an appeal for review may be made to the National Personnel Authority and to the court of law.
  122. 122 The Government states that the acquisition of legal personality is not a requisite to the existence and activity of an organisation but is merely a means of conferring financial facilities on an organisation and does not restrict the rights provided for in Articles 2, 3 and 4 of the aforesaid Convention No. 87. Only a very small percentage of unions has chosen to acquire legal personality.
  123. 123 Prerequisites for registration, including matters to be dealt with in union rules, provision for election of officers by direct secret ballot, etc., under the Bill are, says the Government, pure formalities and do not involve danger to the autonomy of an organisation -in effecting registration the National Personnel Authority cannot act arbitrarily at its own discretion. An employees' organisation can appeal to a court of law if the Authority" has committed an illegal action in regard to the registration. The interpretation of the complainant that paragraphs 3 and 4 of section 3 of the Bill deny the right of appeal on factual matters, is based on a sheer misinterpretation of these provisions ". Cancellation of registration of an organisation, says the Government, " does not impair in any way its existence and activities as an organisation of workers ". The same right of appeal is accorded against cancellation as against refusal of registration.
  124. 124 With reference to the allegations relating to the matters to be left to negotiation under the new section 108-5 (1) and (3) (see paragraph 109 above), the Government states that under both the existing law and the Bill to amend the National Public Service Law provision is made for negotiation " concerning the conditions of work and for other lawful purposes including social and welfare activities ", but matters affecting the management and operation of government business are excluded from the scope of negotiation. In this connection the Government argues that article 19 (8) of the Constitution of the I.L.O does not impose on a State ratifying a Convention " the obligation to maintain standards more favourable than those established by the Convention " and that " the revision or abolition of a system by the State from its own standpoint which is not dealt with by any Convention has nothing to do with article 19 (8) of the Constitution ".
  125. 125 Finally, the Government comments on the allegations concerning the scope of organisation under the Local Public Service Law, stating that the amending Bill does not prohibit employees belonging to two or more local public bodies from forming a federation jointly with other employees' organisations or workers' organisations-restrictions on membership apply, as in the case of national public employees' organisations, only if the organisation registers. But working conditions of local public employees are determined by the assembly of the local public body (municipality or prefecture) concerned.
  126. 126 The allegations relate to proposed amending legislation which is still being examined by the National Diet. In a number of cases the Committee has considered how far it should comment on pending legislation. While the Committee has in certain cases dismissed allegations relating to proposed legislation, either because of the vagueness of the allegations or because the proposed enactment was not government-sponsored, it has declared on the other hand, that, when it has before it precise and detailed allegations concerning a proposed enactment submitted to the Legislature by the Government, the fact that the allegations relate to a text which does not have the force of law should not of itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee expressed the view that in such circumstances it is desirable that the Government and the complainant should be made aware of its point of view with regard to a proposed Bill before it is enacted, in view of the fact that it is open to the Government, on whose initiative such a matter depends, to make any amendments which may seem desirable.
  127. 127 In the present case detailed allegations have been made concerning a number of the provisions in the amending legislation now before the National Diet. The Government has made a detailed reply and has also furnished texts of certain Bills as finally submitted to the Diet. The Committee, therefore, following its previous practice, and especially having regard to the fact that the initiation of the Bills is specifically related to the Government's proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), considers it appropriate to express its views on the intended amendments in the light of the provisions of the said Convention. However, as there is always the possibility that the texts of the Bills may be altered in the Diet and as it is difficult to visualise at this stage the cumulative effect of a comprehensive programme of legislative amendments, the full extent of which is not entirely clear, the Committee has confined itself at this juncture to commenting on a few of the major points raised and, for the rest, has decided to await the final outcome before formulating further conclusions.
  128. 128 These major points are related to the question of the proposed provisions regarding registration of public employees' organisations. The complainants allege that the right of negotiation would be enjoyed only by registered organisations, whose privileges would therefore be so great that the non-registered organisation would have great difficulty in " furthering and defending the interests " of its members and that the right of workers to establish and join organisations " of their own choosing " would be restricted. The Government confirms that, under the Bill to amend the National Public Service Law, an organisation could be registered only if its membership were confined to public employees and if " managerial staff and the like " form organisations separate from those of the other employees.
  129. 129 The essential issue which the Committee has considered at the present stage is the question of which organisations would have the right to negotiate because, if the situation were such that only organisations which fulfilled the above conditions for registration could negotiate, as alleged, such a situation would appear to call for examination in the light of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government, however, denies that this would be the position.
  130. 130 In this connection the Government states that " a non-registered employees' organisation under the Bill may equally present its demands to and negotiate with the authorities with a view to furthering and defending the interests of its members " (section 108-5 of the Bill). This is a categorical assurance and the Committee takes formal note of it as such.
  131. 131 The Government states that the competent authorities are " required ... to enter into negotiations, unless there are justifiable reasons to refuse so to do, with such a registered employees' organisation, when the latter has so proposed " and that " the authorities will, in principle, be willing to negotiate with the registered organisations. On the other hand, even non-registered organisations may negotiate ".
  132. 132 In these circumstances the Committee, having regard to the importance which it attaches to the right of negotiation of representative organisations, whether they are registered or not, requests the Government to state whether, in practice, the competent authorities negotiate with non-registered organisations and, if so, whether they negotiate with them on the same conditions as they do with registered organisations.
• Allegations relating to Acts of Anti-Union Discrimination (Japan Teachers' Union)
  133. 133 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.
  134. 134 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.
  135. 135 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. T. 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 the said Mr. T. Inoue 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.
  136. 136 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.
  137. 137 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.
  138. 138 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 ".
  139. 139 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.
  140. 140 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 to be 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.
  141. 141 In the present connection the complainants have supported their allegations by purported detailed reports of conversations by no less than eight different named persons, and according to each of these statements specific anti-union acts were committed. In reply the Government makes a general denial and states that the Ehime Prefectural Board precisely the employer involved in each case-made an inquiry which revealed that the statements are not true.
  142. 142 In these circumstances the Committee requests the Government to furnish more detailed observations on the respective pieces of evidence adduced by the complainants in support of their allegations.
• Allegations relating to Non-Recognition of the Japan Teachers' Union
  143. 143 It is alleged by the Japan Teachers' Union that section 55 of the Local Public Service Law states that a registered personnel organisation of local civil servants may negotiate, on certain conditions, but does not have the right to conclude a collective agreement with the authorities of the local public body concerned. Under sections 52 and 53 only a trade union organised within the scope of one local public body (e.g. prefecture) can become a " registered organisation " entitled to negotiate and any federation organised in more than one public body (e.g. the Japan Teachers' Union) is regarded only as a de facto organisation. Thus the Japan Teachers' Union cannot bargain with local public bodies and the Minister of Education will not bargain with it at the national level, because the policy of education is decentralisation. Yet, argue the complainants, the chiefs of Prefectural Education Commissions are appointed by the Minister, who also draws up the national education budget, which has direct bearing on the working conditions of local civil servants as expenditure is shared between the State, the prefectures and the municipal authorities. Unless the Japan Teachers' Union can bargain collectively with the Minister, it is alleged, the wages and working conditions of teachers can never be improved. The union does not demand the right to conclude collective agreements but the right to have its views taken into consideration.
  144. 144 The complainant declares that the Minister is trying to weaken the Japan Teachers' Union, also, by exerting pressure to cause it to abandon the policy of protecting teachers' rights as employees and to co-operate purely in the furtherance of educational policy.
  145. 145 The complainant adduces purported reports in the issues of Mainichi Shimbun dated 24 October 1960 and of the Japan Times for 25 October 1960 of statements to the press by the Minister. The Minister is alleged to have said that the Japan Teachers' Union is not a trade union but merely a voluntary organisation.
  146. 146 In its communications dated 24 January and 14 February 1961 the Government begins by outlining the educational system in Japan. All elementary schools and lower secondary schools, i.e. the public schools, education in which is compulsory, are established by municipalities. In each prefecture and municipality a board of education is responsible for educational administration. There are 46 prefectures and over 3,500 municipalities. Teachers in the public schools are local public servants under the Local Public Service Law, teachers in the schools set up by any one municipality being public servants of the municipality. Salaries are paid by prefectures out of moneys contributed partly by the State.
  147. 147 Teachers may form a union in each municipality to negotiate with the municipal board of education. They may federate within the limits of their single prefecture and negotiate with the prefectural authority. In each prefecture there is a Personnel Commission to ensure proper personnel administration; it makes recommendations on this subject and also has " the quasi-judicial function of examining any action adverse to the personnel ".
  148. 148 The Government therefore argues that, in view of the decentralisation system, provision is made only for unions within the limits of a given prefecture. But the Government states that it does not deny the right of the regional teachers' unions to form a nation-wide Confederation such as the Japan Teachers' Union.
  149. 149 The Government does deny that negotiation between the Japan Teachers' Union and the Ministry of Education is indispensable for improving teachers' wages, because these are prescribed in the prefectures. It also denies that superintendents of prefectural education boards are appointed by the Government-the boards appoint them, subject to approval by the Minister of Education, which has never been refused. Nor does the preparation of the education budget enable the Minister of Education to influence wages because the State's 50 per cent share of the expenditure is based on what is actually paid by the prefectures.
  150. 150 The Government declares that several prefectural boards have put into effect the so-called " merit assessment " of teachers, to which the Ehime Prefectural Teachers' Union, for instance, was violently opposed. When the Ministry of Education introduced a revised curriculum, states the Government, the Japan Teachers' Union boycotted the informational meetings organised by the Ministry, because it disagreed with the revision, and interfered with such meetings by violence.
  151. 151 The Government states that it has criticised the policies and philosophies of the Japan Teachers' Union and has called upon it to refrain from illegal acts, but that it has never meant it to be understood that the union should abandon its policy of protecting the interests of teachers as workers. The Government argues that the union opposes all the Government's educational policy and measures and that it would merely be implied that the Government accepted the views of the union if the Minister of Education were to meet with its leaders.
  152. 152 In support of its attitude the Government cites purported extracts from manifestos of the union. Thus, in the campaign policy adopted by the union in 1957, the Government declares that it was stated that the question of legality or illegality depended on whether it could assert its strength so that " there is no room left for our opponent to exercise oppression and interference "-in the view of the Government this was a statement of intention to nullify laws and regulations by direct action. A memorandum put out by the union in July 1960, declares the Government, states that the union had stopped the visit of President Eisenhower to Japan and brought down the Kishi Cabinet, and that " much should be learned from the lesson of the struggle which, through the strength of the masses, has turned to dead letters the Tokyo Metropolitan Regulations to control assembly and demonstration, which constitute a violation of the Constitution of Japan ". But, says the Government, the Supreme Court ruled that the said Regulations do not violate the Constitution.
  153. 153 The Government also alleges a number of acts of violence by the union as justification for not having dealings with it-locking up members of a Prefectural Board of Education, violence against the police, boycotts of teachers who did not join the union, noisy interference with meetings, damage to property, etc.
  154. 154 The Government furnishes a purported extract from the Code of Ethics for Teachers issued by the Japan Teachers' Union in October 1960. This contains such observations as: " social measures to replace the keystone of the social structure should be adopted so that a social system conceived from an entirely different standpoint may be brought about " -" if you teach that the present society is no good, it should be destroyed so as to bring about a democratic society... you will be held as a violator of the course of study... though you should teach in that way ". From these and other citations the Government concludes that the Teachers' Union upholds a class struggle, wishes to set up a new social system and urges teachers to teach that the present society should be destroyed.
  155. 155 In its communication dated 9 May 1961 the Government states that, if teachers are to be regarded as " workers " within the meaning of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it follows that their " employers " are the prefectural boards of education. Hence, negotiation is at the prefectural level. The Government expresses the view that it would be illogical and wrong for the Minister of Education to negotiate with the Japan Teachers' Union, by-passing the prefectural boards, when he has no power to determine the wages and other conditions of employment of teachers.
  156. 156 Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), gives effect to the generally accepted principle that workers, without distinction whatsoever, should have the right to establish and join organisations of their own choosing. This right applies to workers, whether public or private, and whether civil servants or not, with the sole possible exception of members of the armed services and police. The Committee considers that a government is perfectly entitled to say that it will not negotiate on a national basis and that it will restrict negotiations to the plant level-or the municipal or prefectural level, as the case may be. Indeed, it is to be observed that, in a considerable number of countries, the terms of employment of local civil servants are determined directly by the local authority concerned, but that, in negotiations with the different authorities, such local civil servants are normally represented, if they so desire, by their national organisation. But the Government of Japan appears to imply that, because negotiation under the Local Public Service Law is to be at the regional level, this means that the negotiating organisation must also be one existing only at the regional level; the Committee considers that such a restriction may constitute a limitation of the right of workers to establish and join organisations of their own choosing and to elect their representatives in full freedom (Article 3 of the Convention). Even though the regional unions can confederate in the Japan Teachers' Union, it is only the regional union which can negotiate with the regional authority.
  157. 157 In these circumstances the Committee recommends the Governing Body to decide, while agreeing that the determination of the broad lines of educational policy, although a matter on which it may be normal to consult teachers' organisations, is not one for collective bargaining between such organisations and the education authorities, and recognising that activities of a subversive character can claim no sanction from the principle of freedom of association:
       • (a) to draw the attention of the Government to the importance which it attaches to the principle that workers should be able to establish and join organisations of their own choosing and to elect their representatives in full freedom;
       • (b) to express the view that, while the employing authorities have the right to decide whether they will negotiate at the regional or national level on their side, the workers, whether negotiating at the regional or national level, should, in accordance with the above principles, be entitled to choose as they wish the organisation which shall represent them in the negotiations.
  158. Allegations relating to Interference with the N. R. W. U. and with the Adhesion of Workers To It
  158. 158 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; (b) 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.
  159. 159 The complainant furnishes a number of examples of alleged interference.
  160. 160 During managerial courses organised in the Kanayawa railway operating division, it is alleged, the lecturers criticised the union and stigmatised certain leaders as Communists.
  161. 161 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.
  162. 162 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.
  163. 163 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.
  164. 164 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 ".
  165. 165 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 ".
  166. 166 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 ".
  167. 167 In its communication dated 1 May 1961 the Government cites the prospectuses of certain new unions in 1957 as evidence that they were formed voluntarily and, in general terms, denies interference with members of the N.R.W.U. The Government considers 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, ensures full protection. Of 18 cases of this kind submitted to the Commission so far, declares the Government, one was rejected, one was the subject of a remedial order and 16 were withdrawn by the applicants.
  168. 168 In its reply the Government confines itself to a general denial of the matters alleged and explains 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.
  169. 169 As the complainants have 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 requests the Government to furnish further observations on the matters raised in these allegations.
• Allegations relating to the Full-Time Union Officer System
  170. 170 The Japan Teachers' Union declares that it is established practice in Japan for unions organised by national civil servants (National Personnel Authority Regulations No. 15-3 under the National Public Service Law) and local civil servants (Prefectorial By-laws under the Local Public Service Law) to have full-time union officers retaining their status (but not receiving salary when so acting). They have the right to devote their time exclusively to union activities. But this privilege is accorded only to registered personnel organisations (i.e. organisations registered with the National Personnel Authority or the local Personnel Commission, as the case may be) and only if, in the judgment of the employing authorities, the public servant will not be hampered. At the same time, registration can be cancelled, in the case of a local civil servants' union, if the union employs as an officer or admits as a member one who is not a local civil servant. [This part of the allegations raises, in respect of national and local civil servants, the same issue as was examined earlier with regard to unions of employees of national and local public enterprises. The Wakayama Prefectorial Union, it is alleged, was regarded as illegal by the Prefectorial Education Commission because it elected dismissed teachers as officers and the Commission refused to permit it to have full-time retaining status, against which decision the union appealed to the courts, where the matter is still pending. Many instances are given by the complainants to illustrate the alleged increasing tendency at national and local levels to limit the number of persons who may serve as full-time union officers retaining status.
  171. 171 Now, it is alleged, as part of the legislative programme undertaken with a view to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Government has introduced Bills providing for the abrogation after another three years of the system of full-time union officers retaining status in respect of unions of national and local civil servants (and of unions of employees of national and local public enterprises). A similar allegation is made by the Congress of Government Employees' Unions, which regards such abrogation as an infringement of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and as a worsening of trade union rights established by custom, contrary to article 19 (8) of the Constitution of the I.L.O. The Japan Teachers' Union declares that the Government's expressed reason for doing away with the system is that it will no longer be necessary when it is made legally possible for the unions concerned to have as officers persons who are not engaged in the occupation concerned. In the view of the complainant, this will mean that unions can no longer have as officers persons with real experience of the needs of the members gained by reason of their being fellow-employees.
  172. 172 In its communication dated 24 January 1961 the Government admits that it has been the practice at both the national and local levels for a certain number of public servants to be discharged, " with the permission of the appointment authorities " as prescribed by law, to engage for a long duration in full-time union work, after which they are re-employed at the salary they would have normally have attained if they had not been absent. No permission is needed to serve as part-time union officer outside working hours. More recently, Prefectorial boards of education have called for abrogation or limitation of the system, partly because of expense and partly because education needs all its teachers and prolonged absence is detrimental to their teaching. The system is to be abolished because, under the pending legislative amendments, it will be possible to appoint full-time union officers from outside the ranks of public servants. The Government confirms the facts concerning the Wakayama Prefectorial Union as stated by the complainants.
  173. 173 In its communication dated 14 February 1961 concentrating on the complaint of the Congress of Government Employees' Unions the Government states that, in connection with the pending amendment of the National Public Service Law, the full-time officer system would be abolished as no longer necessary for the same reasons as in the local public service.
  174. 174 In its communication dated 9 May 1961 the Government again states that, under the Bill to amend the National Public Service Law as now submitted to the Diet, persons other than employees can be appointed officers of employees' organisations. Thus, the system of the full-time union officer retaining his status as an employee will not be continued.
  175. 175 Under the subsisting law an organisation may appoint as its officers only persons who are engaged in the occupation for which it caters and who, if no dispensation is given, are obliged by civil service regulations to devote their time exclusively to these civil service duties. Such an organisation can appoint a full-time officer only if he is given leave of absence; he remains an employee, and therefore eligible to be an officer, only if such leave of absence is accompanied by retention of status. So long as the law remains as it is, therefore, the Committee considers that only the retention of the present system would enable organisations to organise their administration.
  176. 176 But, if a trade union has the right to elect as its full-time officers persons from outside the occupation of the members for which it caters, as the Government says will be the position under the new legislation, the Committee considers that the employers concerned could no longer be regarded as being under an obligation to give leave of absence from their work, for a period of long duration, without payment of wages but with retention of status, to persons engaged in such occupation for the purpose of acting as full-time union officers.
  177. 177 In these circumstances the Committee recommends the Governing Body to decide that, subject to the reservations contained in paragraphs 175 and 176 above, these allegations do not call for further examination.
• Allegations relating to Denial of the Right of Civil Servants' Organisations - to Conclude Collective Agreements
  178. 178 It is alleged by the P.T.T.I that public servants employed by government or local government bodies, other than the public employees covered by the Public Corporation and National Enterprise Labour Relations Law, are permitted to organise but do not have the right to bargain collectively and to conclude labour agreements. The Government has not presented any observations on this particular aspect of the case.
  179. 179 The Committee, however, examined a similar allegation in Case No. 60 relating to Japan. In the earlier case the Committee noted that the public servants in question were in fact those engaged in the " regular service " of the national public service (governed by the National Public Service Law, 1947, as amended) and in the " regular public service " of the local public service (governed by the Local Public Service Law, 1950, as amended). The Committee observed that Japan had ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Article 4 of which provides " Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ", and Article 6 of which provides " This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way ". Noting that the public servants involved in the allegations were precisely persons enjoying statutory terms and conditions of employment, as envisaged in Article 6 of the Convention, the Committee observed that the Government, by enabling them to present grievances and representations through their organisations with a view to their being taken into consideration by those responsible for laying down or making recommendations concerning the contents of their statutory terms and conditions, had adopted the principle most usually accepted in other countries with respect to civil servants of this category, whose situation under the law admits of negotiation but not of the conclusion of collective agreements. The Committee therefore, considering that in this respect the Government appeared to have acted in a manner consistent with Article 4 of Convention No. 98, recommended the Governing Body to decide that the allegations did not call for further examination. As the present allegations by the P.T.T.I add nothing to those already considered in Case No. 60, the Committee has come to the same conclusion for the same reasons.
• Allegations relating to Matters Covered by the Negotiating Rights of Organisations of Civil Servants
  180. 180 The Congress of Government Employees' Union 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.
  181. 181 In its communication dated 9 May 1961 the Government states that it does 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 ".
  182. 182 In its Observation 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 of the said Convention), " since the very purpose of occupational organisations is to be able to defend the interests of their members ".
  183. 183 The Government has stated that nothing in the amending legislation would prohibit the right to negotiate on such matters. But the allegation relates to a matter of current practice. In these circumstances the Committee requests 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.
• Allegations relating to the Police Duties Law
  184. 184 The General Council of Trade Unions of Japan, in its communication dated 20 October 1958, alleges that the Government intends to intensify its pressure on the labour movement by amending the Police Duties Law. If amended as proposed, it is alleged, section 2 would enable the police to search suspects under a police check-up system, section 3 would permit them to arrest workers on the pretext of " protection " and, under sections 4 and 5, they could disperse meetings, demonstrations and other collective activities, on the pretext of eliminating danger or maintaining public safety and order, and could enter any buildings, compounds or vehicles. These powers, in the view of the complainant, would permit the police, in their unilateral discretion, to restrict free, collective activities by workers and trade unions. It is alleged that the Government's intention is to deprive the people of democratic rights guaranteed by the Constitution-freedom of meeting, association and speech, including the workers' right of association and of collective action-and that approval of the legislative amendments by the Diet would turn Japan into a police state. For these reasons the independent unions are fighting to defeat the proposed action. In conclusion, states the complainant, the Government intends to enforce undemocratic, oppressive legislation following its refusal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  185. 185 In its subsequent communication dated 26 November 1958 the General Council of Trade Unions of Japan declares that, in conjunction with other unions and organisations of youth, culture, women, etc., it has turned public opinion against the Bill. This, together with other developments, alleges the complainant, defeated the attempts by the Government to prolong the session of the Diet beyond 7 November 1958, the date on which it was due to end, in order to pass the Bill into law. But, concludes the complainant, the Government intends to introduce the Bill before the Diet at the " proper " time.
  186. 186 The Government furnishes, with its communication dated 26 January 1959, the text of the Police Duties Law and of the Bill containing the proposed amendments to it. The real intention of the Bill, states the Government, is to enable the police to deal more effectively with the protection of the legal interests of individuals rather than with the maintenance of public order-for example, special emphasis is placed in the Bill on measures to prevent juvenile delinquency and to take drunkards, lunatics, sick persons, lost children, etc., into protective custody. It would be impossible, declares the Government, for the police " to restrict lawful mass movements on the basis of its one-sided judgment ". The revised section 2 relates only to questioning of persons suspected of having committed or being about to commit a crime and to the right of the police to oblige such persons to surrender any " deadly weapons " in their possession. With regard to the allegations relating to sections 4 and 5, the Government declares that it would be " impossible for the police to disperse ordinary gatherings, demonstrations and other mass movements which do not become criminal in nature ". With respect to powers of entry into buildings, declares the Government, the police are authorised to enter any place which is open to the public in order to prevent a crime, but could enter a private building " only where there is imminent danger ". The Government declares that the allegation that, by revising the Law, it intends to suppress freedom of association, the right to organise and the trade union movement is " based on an arbitrary presumption that the Revision Bill is intended to tamper with the labour movement " and " is utterly groundless ". In conclusion the Government states that, the deliberations on the Bill not having been concluded in the last session of the Diet, it " has not decided yet as to the further treatment of the Bill ".
  187. 187 The Committee decided, in a previous case, that it is not called upon in general to examine a situation, which, it is alleged, will arise under legislation which has not been enacted. It has, in fact, examined such situations only in cases in which there were precise allegations and it had arguments before it presented both by the complainant and the Government on the basis of the actual text of the Bill in question. The Committee expressed the opinion that in such a case it is desirable that the Government and the complainant should be made aware of its point of view with regard to a proposed Bill before it is enacted, in view of the fact that it is open to the Government, on whose initiative such a matter depends, to make any amendments which may seem desirable. In the present case there is nothing in the actual text of the Bill which would appear, prima facie, to relate specifically to the exercise of trade union rights. The allegations, moreover, are in somewhat general terms and relate rather to the imputed intentions of the Government than to any provisions in the Bill appearing to be aimed at the trade unions. On the other hand, the Government has made a number of concrete statements in which it denies any such intentions as are alleged, describing the allegations as based upon presumptions which are groundless. In these circumstances the Committee considers that the complainants have not offered sufficient proof to show that the proposed Bill, if enacted, would infringe trade union rights and, therefore, recommends the Governing Body, having regard to the specific statements by the Government referred to in paragraph 186 above, to decide that these allegations do not call for further examination.

The Committee's recommendations

1. 188. In all the circumstances the Committee recommends the Governing Body:
   • (a) to take note of the Government's statement, in its communication dated 9 May 1961, that it submitted to the National Diet, on 25 March 1961, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Bills to amend the related laws, and that they are now under consideration by the Diet; to express the hope that the proposal to ratify the Convention and to adapt the legislation to it will be approved by the National Diet at an early date, in accordance with the wish expressed by the Prime Minister of Japan when meeting representatives of the Japanese trade unions on 14 April 1961 that such action should be taken by the Diet at its present session; and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection;
   • (b) to endorse the observations made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations at its 31st Session (March 1961), and cited in paragraph 32 above, concerning section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law viewed in the light of Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan; to note the submission to the National Diet of Bills to amend the legislation; and to express the hope that legislation on this point will be promptly enacted;
   • (c) to decide that the allegations relating to the denial of the right of association to the personnel of certain services, to denial of the right of civil servants' organisations to conclude collective agreements, and to the Police Duties Law do not call for further examination;
   • (d) to decide that the allegations relating to the full-time union officer system do not, subject to the reservations contained in paragraphs 175 and 176 above, call for further examination;
   • (e) to decide, with respect to the allegations relating to the denial of the right to strike and to defects in the mediation and arbitration system (under the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law), which fall within the competence of the Committee in so far, but only in so far, as they affect the exercise of trade union rights:
   • (i) to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because their interruption may cause public hardship and those which are not essential according to this criterion, and to suggest to the Government that it may care to give consideration to this aspect of the matter at an appropriate time;
   • (ii) to draw the attention of the Government to the importance which it attaches to the principle that, where strikes by workers in essential services or occupations 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 that such awards should be fully and promptly implemented once they have been made;
   • (iii) to draw the attention of the Government, while noting its statement that the large majority of awards have been fully implemented, to the importance which the Governing Body attaches in this connection to the principle 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 the compulsory arbitration tribunal and to its view that any departure from this practice would detract from the effective application of the principle set forth in the preceding subparagraph;
   • (iv) to suggest to the Government that it may care to examine its legislation governing the settlement of disputes in public corporations and national enterprises in the light of the foregoing principles and to consider what amendments to that legislation and to existing practice might be desirable in order to ensure that the said principles are effectively applied;
   • (v) 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 Public Corporation and National Enterprise Labour Relations Commission, from among whom arbitrators are chosen, and that all the neutral or public members of the Commission are persons whose impartiality commands general confidence;
   • (f) to decide, with regard to the allegations relating to non-recognition of the Japan Teachers' Union, while agreeing that the determination of the broad lines of educational policy, although a matter on which it may be normal to consult teachers' organisations, is not one for collective bargaining between such organisations and the education authorities, and recognising that activities of a subversive character can claim no sanction from the principle of freedom of association:
   • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that workers should be able to establish and join organisations of their own choosing and to elect their representatives in full freedom;
   • (ii) to express the view that, while the employing authorities have the right to decide whether they will negotiate at the regional or national level on their side, the workers, whether negotiating at the regional or national level, should in accordance with the above principles, be entitled to choose as they wish the organisation which shall represent them in the negotiations.
   • (g) to note, with regard to the allegations relating to the denial of the right of association to supervisory employees of public corporations and enterprises, that, in the Bill to amend the Public Corporation and National Enterprise Labour Relations Law now before the National Diet, the provision in the existing Law prohibiting the formation of organisations by supervisory employees does not appear to be maintained, and to express the hope that legislation resulting in the removal of the present restriction will soon be enacted;
   • (h) to take note of the present interim report with regard to the allegations relating to searches of trade union premises, to the denial of the right to strike and to the lack of compensatory guarantees (affecting organisations subject to the Local Public Service Law), to proposed amendments to the National Public Service Law, to acts of anti- union discrimination (in relation to the Japan Teachers' Union), to interference with the N.R.W.U and with the adhesion of workers to it, and to matters covered by the negotiating rights of organisations of civil servants, it being understood that the Committee will report further thereon when additional observations and information which it has requested from the Government have been received.
     • Geneva, 30 May 1961. (Signed) ROBERTO AGO, Chairman.