Interim Report - Report No 120, 1971

Case No 398 (Japan) - Complaint date: 30-APR-64 - Closed

1. 180. This case was first examined by the Committee at its session in November 1965, when it decided to request the Government to furnish further information on certain aspects of the case. It was further considered by the Committee at its session in May 1966, on which occasion it submitted its interim conclusions to the Governing Body in paragraphs 42 to 153 of its 92nd Report, at its sessions in November 1966 and February 1967 when it requested further information from the Government, and at its session in November 1967, when it submitted further interim conclusions, which are to be found in paragraphs 218 to 235 of its 101st Report. The case was again considered by the Committee at its session in May 1968, when it submitted further interim conclusions in paragraphs 176 to 182 of its 105th Report, which, inter alia, requested the Government to supply the further information originally asked for at the session held in May 1966. The case was next considered by the Committee at its session in May 1969, when the Committee, although having received the texts of the judgments concerning two of the persons referred to in the complaint, decided to adjourn its examination of the case pending the receipt of further information requested from the Government. Subsequently the case came before the Committee at its sessions held in November 1969, February 1970 and May 1970; on each of these occasions the Committee repeated its request for further information on the case.
2. 181. On 8 May 1969, 22 May 1970 and 20 October 1970 the Government sent communications containing information relating to different aspects of the case.
3. 182. Japan has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Delay in Legal Proceedings
  183. 183 At its November 1967 session the Committee observed that the allegations of undue delay in legal proceedings referred to dismissals which had taken place between 6 April 1959 and 18 January 1962, but that there were a large number of court cases arising out of these dismissals which were still pending before the Fukuoka District Court or the Fukuoka High Court.
  184. 184 After examining the considerations invoked by the Government in explaining the protraction of these legal proceedings the Committee recalled certain conclusions reached by the Fact-Finding and Conciliation Commission on Freedom of Association in the case concerning persons employed in the public sector in Japan. The Committee therefore recommended the Governing Body to draw the Government's attention to the importance it attaches to expeditious proceedings, in the absence of which an offended employee will feel a growing sense of injustice, with consequent harmful effects on industrial relations, and to the risk of potential violation of trade union rights inherent in the absence of expeditious court proceedings in cases involving dismissals.
  185. 185 The Committee also recommended the Governing Body to request the Government to inform it as to the outcome of the proceedings still pending. According to the information available (see paragraphs 178 and 179 of the 105th Report), the cases still before the courts concerned the trade unionists Messrs. C. Endo, M. Shimoda, K. Iwashita, J. Hayashi, A. Matsuura, T. Hayashimasa as well as 168 workers who had asked the Fukuoka District Court to invalidate their dismissal by the Mitsui Mining Company.
  186. 186 The Government appended to its communication of 8 May 1969 a summary of the judgments rendered by the Fukuoka District Court in the case of Messrs. Hayashimasa and Matsuura. These judgments, dated 18 December 1968, dismiss the appellants' petitions for reinstatement as employees of the company on the grounds that the applicants had on a number of different occasions committed acts of violence, intimidation and injury. The Court considered that the above-mentioned acts of the applicants fell within the reasons for dismissal specified in the collective agreement and rules of employment.
  187. 187 The Government appended to its communication of 22 May 1970 a summary of a judgment rendered by the Fukuoka High Court in the case of Messrs. Shimoda, Hayashi and Iwayama (according to the Government the spelling " Iwashita " is erroneous). This judgment, dated 29 January 1970, dismisses the appellant's petition for a court decree which " reverses the original decision and provisionally rules that the appellants preserve their position in terms of the contract of employment concluded with the employee ". The Court, in dismissing the appeal, rejected the appellants' argument that the acts which had given rise to their dismissal from employment constituted legitimate trade union activities. It found that each of these acts went beyond the limits of such activities and constituted grounds for disciplinary dismissal. It did not accept the contention that the dismissals constituted an unfair labour practice or an abuse of the right of dismissal.
  188. 188 The Government appended to its communication of 20 October 1970 a summary of a judgment rendered by the Fukuoka District Court relating to a case of dismissal of one, Kazuhiro Aiura, and 167 other persons. On 27 June 1970 the Court rendered judgment in the case of 122 of the total number of persons who had applied for reinstatement as employees of the company, granting the applications of ten men and dismissing the rest (some forty-six applications had already been withdrawn). In granting the applications of the ten in question, the Court found that their dismissal constituted an unfair labour practice, since it was motivated by their position in the union and their activities on behalf of the union. In the case of one man, the Court refrained from giving a ruling, for although his dismissal constituted an unfair labour practice, he had reached the age of retirement by the time the Court came to consider his case. The Court dismissed the applications of the remaining 111 applicants either on the ground that they had been dismissed for reasons of economy or else on the ground that by withdrawing their labour, or coercing others to withdraw their labour without resorting to legitimate strike action, or by disturbing the - order of the workshop, they had gone beyond the limits of legitimate trade union activities. Such acts, pursued the Court, were naturally regarded as acts disturbing the business of the company.
  189. 189 In these circumstances, the Committee recommends the Governing Body:
       • (a) to take note of the judgments rendered by the Fukuoka High Court and the Fukuoka District Court;
       • (b) while repeating the considerations to which reference is made in paragraph 184, to request the Government to keep it informed as to the outcome of the court proceedings still pending in respect of Mr. C. End o.
  190. Other Allegations Outstanding
  190. 190 At its session in May 1966 the Committee examined a number of other allegations, in respect of which it requested the Government to supply further information. These allegations referred to the discharge of ten officers of the Miike Coalminers' Union (paragraphs 45 to 52 of the 92nd Report); discrimination against union members in respect of recruitment, wages and work assignment and payment of accident compensation (paragraphs 58 to 77 of the 92nd Report); and the repudiation of collective bargaining with the Miike Coalminers' Union and interference with the Union (paragraphs 78 to 96 of the 92nd Report). The information requested relates to the supply of the texts of decisions of the Fukuoka District Court, the Central Labour Relations Commission and the Fukuoka Prefectural Labour Relations Commission in respect of the matters referred to in the various allegations, as stated in paragraphs 52, 75, 77, 94 and 96 of the 92nd Report. The information in question has not yet been supplied by the Government.

The Committee's recommendations

1. 191. In these circumstances, with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to delay in legal proceedings:
   • (i) to draw the Government's attention once again to the importance it attaches to expeditious proceedings, in the absence of which an offended employee will feel a growing sense of injustice, with consequent harmful effects on industrial relations, and the risk of potential violation of trade union rights inherent in the absence of expeditious court proceedings in cases involving dismissals;
   • (ii) to take note of the judgments rendered by the Fukuoka High Court and the Fukuoka District Court;
   • (iii) to request the Government to keep it informed as to the outcome of the legal proceedings still pending in respect of Mr. C. Endo;
   • (b) with regard to the other allegations outstanding, to repeat the request already made to the Government for the supply of the information to which reference was made in paragraphs 52, 75, 77, 94 and 96 of the 92nd Report;
   • (c) to take note of the present interim report, it being understood that the Committee will report to the Governing Body again once it has received the information requested from the Government.