Definitive Report - Report No 133, 1972

Case No 686 (Japan) - Complaint date: 01-NOV-71 - Closed

1. 94. The Committee examined this case at its 61st Session (May-June 1972), when it submitted an interim report thereon to the Governing Body (paragraphs 30 to 83 of its 132nd Report).
2. 95. In the above-mentioned report the Committee set out some preliminary considerations on the allegations and the replies which the Government had made thereto. At the same time, the Committee requested the Government to supply its observations in connection with the additional information which had been supplied by the complainants on 20 April 1972. The complainants, in a telegram dated 15 June 1972, submitted additional information in connection with the complaints.
3. 96. In communications dated 23 June 1972 and 15 August 1972 the Government transmitted its observations on the allegations and additional information contained in the communications of the complainants dated 20 April 1972 and 15 June 1972. In three further communications, two dated 23 October 1972 and one dated 24 October 1972, the Government transmitted additional information relating to the case.
4. 97. Japan has ratified 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

1. 98. In their communication of 20 April 1972 the complainants state that, since the Public Corporation and National Enterprise Labour Relations Commission (KOROI) issued its relief orders in connection with the cases involving the KOKURO and the DORYOKUSHA, there has been a certain change in the attitude taken by the National Railways authority. The KOKURO and the DORYOKUSHA, state the complainants, had filed 155 complaints of unfair labour practices with the KOROI out of a large number of such cases which had arisen in the first nine months of 1971. In October and November 1971 the KOROI found that six cases in the Shizuoka Operating Division and two cases in the Osako Operating Division involved unfair labour practices. According to the complainants, such rulings were quite unusual and were the result of missions undertaken by politicians, industrialists and intellectuals to study unfair labour practices in the railways. These rulings, continue the complainants, were accepted by the National Railways authority and apologies were expressed to the complainant unions.
2. 99. The complainants add that the President of the National Railways authority reprimanded the officers and superintendents directly responsible for the unfair labour practices. These reprimands, state the complainants, were merely nominal and were designed to allay public opinion. They were not the kind of legal sanctions (dismissal, suspension, reduction in pay) provided for in section 82 of the National Public Employees' Act or section 31 of the National Railways Law in cases where an employee had acted contrary to the law or to his duties. Considering the mass disciplinary action taken by the Railways authority in May 1971 affecting 25,340 men, including the dismissal of 68, the reprimands could not be regarded, according to the complainants, as legal sanctions against those responsible.
3. 100. On 22 October 1971, state the complainants, the Minister of Labour and the President of the Railways authority met the presidents of the complainant unions. The Minister requested labour and management to settle the disputes through independent collective bargaining, though he made no suggestions as to how the issues might be solved. In response to his request, the unions met the management on 29 October 1971 to establish a system of machinery for the settlement of disputes at both central and local levels. The complainants state that a labour-management memorandum concerning the system was signed on the part of the KOKURO and the DORYOKUSHA on 10 and 25 December 1971 respectively.
4. 101. The complainants add that the committee set up in accordance with the aforesaid memorandum has examined the following issues: (a) standards of personnel promotion and duty classification and the rules for issuing a medal for distinguished service; (b) standards of wage increment ranking; (c) standards of eligibility for residing in a house owned by the authority; (d) union's symbolic ribbons and arm-bands; (e) relief measures for unionists and employees who have been discriminated against for having been involved in labour disputes. To a certain extent, state the complainants, some conditions were improved after they were examined by the committee. However, the problems concerning essential principles, in particular the question of disciplinary action, still remained unsolved.
5. 102. The complainants state that two of the unions in question, expecting the Railways authority to respect faithfully the memorandum under which the committee was established and to make every effort to restore normal conditions for the persons who had been discriminated against, tried, until March 1972, to have the cases withdrawn or to reach a compromise.
6. 103. The complainants allege that the change in the attitude of the Railways authority, in reprimanding managerial staff for committing unfair labour practices, issuing formal apologies and establishing labour-management machinery for the settlement of disputes, is superficial and that the basic strategy of the authority continues to be an organised attack against the unions and the application of disciplinary provisions. Statements were made by the President and Vice-President of the authority after the orders were issued by the KOROI which indicate that the management has no intention of reconsidering its attitude.
7. 104. The cases of unfair labour practices in the National Railways, continue the complainants, attracted much attention at the 66th Extraordinary Session of the Diet. The issues were examined by the Committee on Social Affairs and Labour on 11 October 1971, by the Committee on Legal Affairs on 12 October 1971, by the Committee on Transportation on 13 October 1971, on behalf of the House of Representatives, and, also on 13 October 1971, by the Joint Hearing Committee of the Committees on Social Affairs and Labour and Transportation on behalf of the House of Councillors. In reply to questions from both Government and Opposition members as to where the real responsibility lay for unfair industrial practices in the railways, the complainants state that the President of the Railways, authority confirmed that unfair labour practices occurred only at the more local levels of management and that he had no intention of reprimanding the personnel responsible for them.
8. 105. According to the complainants, the National Railways authority, in its journal, the " Kodoma ", made it clear that strike activities are totally illegal and that all measures and disciplinary action aimed at the suppression of strikes are permissible and to be recommended. The complainants add that, while strikes are prohibited by section 17 of the. Public Corporation and National Enterprise Labour Relations Law, the arbitrary interpretation and application of this Law by the Government and the Railways authority is in gross violation of internationally recognised principles in the field of labour-management relations.
9. 106. The attitude taken by the Railways authority, continue the complainants, is well illustrated by the arrangements for wage ranking of employees made in September and, October 1971. The complainants supply a table of statistics which, in their view, shows that members of the complainants' unions were discriminated against in this respect. The complainants further state that even where the Supreme Court and many local courts have decided in favour of public employees in cases of disciplinary action, the Railways authority has appealed these judgements, thus keeping the persons concerned suspended from service for longer periods. This, according to the complainants, is an abuse of the authority's right of appeal.
10. 107. Furthermore, state the complainants, despite the unions' announcement of a list, of supervisory staff that had been responsible for unfair labour practices, the management took little or no action, and, in some cases, certain supervisors were promoted.
11. 108. It is also alleged by the complainants that the Railways authority continues to interfere in the activities of the unions which are designed to preserve unity among the members, for example by prohibiting union symbols such as ribbons and banners.
12. 109. The complainants add that the soaring cost of living has been met by demands for higher wages and joint action programmes, and that the Joint Conference of Trade Unions of Public Corporation and National Enterprise (telecommunication, national railways, postal service, etc.) adopted a similar programme in January 1972. The complainants state that on 17 March 1972 representatives of the Joint Conference met the Minister of Labour and requested increased wages, formal recognition of the right to strike and the cessation of disciplinary action. The Government's replies to these demands, according to the complainants, were that, as regards wages, thorough talks between management and labour were expected but that the economic situation was serious and, in addition, the" National Railways were suffering many management problems. As for the right to strike, it was expected that the Public Employees System Council (an advisory government body) would find a fair solution after examination of the issues. As for disciplinary measures, the Government stated that since strike activities by workers in public corporations or national enterprise were prohibited by the legislation in force, it was inevitable that disciplinary, action should be taken against any workers violating the law. In addition, the complainants, in their communication dated 15 June 1972, state that in spite of an arbitration award on wages made on 27 May 1972, the Government, in accordance with section 16 of the Public Corporation and National Enterprise Labour Relations Law, submitted this to the Diet because no budgetary funds were available to implement the award.
13. 110. In conclusion, the complainants state that a labour-management confrontation is envisaged as a result of the possible redundancy of some 110,000 workers over the next five years, caused by the Government's plan to overcome the deficit in the railways. It is foreseen, add the complainants, that the National Railways authority will continue its attacks against freedom of association and collective bargaining. Further, state the complainants, section 17 of the Public Corporation and National Enterprise Labour Relations Law does not prohibit totally the right to strike, and the collective activities undertaken by the complainant unions as a manifestation of protest against imminent attack against unions are legal actions and proper strike activities.
14. 111. The Government, in its communication dated 23 June 1972, transmits the observations of the National Railways authority on the additional information submitted by the complainants. In its reply dated 15 August 1972, the Government states that the observations requested on the information contained in the communication of the complainants dated 20 April 1972 have already been forwarded to the ILO. It wishes, however, to offer the following observations on the matters raised by the Committee in paragraphs 81 and 82 of its 132nd Report.
15. 112. In paragraph 81 of its 132nd Report, the Committee emphasised " the importance of an effective and speedy machinery for the examination of complaints of anti-union discrimination in employment as a means to implement the provisions of Convention No. 98 ", and stated that " in the case of national public enterprises the national authorities have an additional responsibility in preventing any acts of this nature and should take appropriate measures to this effect, such as a clear policy statement accompanied by specific instructions to be implemented at all levels of management ".
16. 113. The Government points out that, with regard to the " effectiveness " of the machinery, it has already been stated in the observations transmitted by the Government on 9 February 1972 that the existing system of remedying unfair labour practices in Japan is based on the so-called principle of restitution, which requires (in the form of the order of the Labour Relations Commission (including the KOROI) to the employer) that the state which existed before the occurrence of the unfair labour practice be restored on the responsibility of the employer himself. It is generally recognised, continues the Government, that, from the viewpoint of smooth labour-management relations and protection of labour, the present system is superior to the system of inflicting a penal sanction on employers who are guilty of an unfair labour practice (the system of unfair labour practices which existed in Japan until 1949). The effectiveness of this system seems to have been fully proved by the fact that the orders of the KOROI to remedy unfair labour practices gave a powerful impetus to, and played a decisive role in, the settlement of the dispute in the National Railways. Moreover, states the Government, it may be added that the workers are guaranteed the full right to bring a suit to the law courts under the ordinary procedure.
17. 114. Secondly, with respect to the " speediness " of the KOROI in remedying unfair labour practices, the Government states that this is undoubtedly an important problem in view of the fact that such machinery exists so that unfair labour practices can be dealt with simply and speedily. The Government states that it does not consider that the examination by the KOROI of cases of unfair labour practices is particularly delayed at present, but that an effort should be made to speed up the examination of cases with the co-operation of the employers and workers.
18. 115. In addition, continues the Government, the National Railways authority should be responsible for preventing, to the fullest extent possible, unfair labour practices occurring at the lower levels of the organisation, and the authorities have already taken, in connection with the dispute in question, various measures to make such a policy generally known.
19. 116. In its communication of 23 October 1972 the Government transmits a copy of a statement made on 11 October 1971 by the President of the National Railways, in which he stated that unfair labour practices could not be permitted in the National Railways under the cover of the productivity campaign. According to this statement, the President undertook to remove the distrust which exists between labour and management, although it would take time to reorganise this enormous corporation and have it operating effectively. The Government also attaches to its communication a copy of a circular notice issued on 21 October 1971 by the President of the National Railways to all chiefs at head office and at local offices. This circular notice directs that effect be given to the order of the KOROI in the case of the Shizuoka Railway Operating Division. It describes unfair labour practices in general and instructs the recipients of the notices to exercise strict supervision over junior administrative staff in order to prevent any recurrence of acts falling under the heading of unfair labour practices.
20. 117. The statement of the President of the National Railways adds that, on 23 October 1971, disciplinary action was taken against the administrative officials responsible for the unfair labour practices, and steps were taken at every opportunity, such as the training of administrative staff, to prevent such practices. According to the statement, no cases of such practices have since occurred. Therefore, continues the statement, it is considered that " appropriate measures to this effect, such as a clear policy statement accompanied by specific instructions to be implemented at all levels of management ", as indicated in paragraph 81 of the Committee's 132nd Report, have been taken.
21. 118. With regard to the sanctions imposed on workers who have violated the prohibition against direct action, the Government recalls in its communication dated 15 August 1972 what the Committee stated in paragraph 82 of its 132nd Report, namely that it " considers that an inflexible attitude on the application of sanctions which are provided for by law is not conducive to the harmonious development of labour relations ". The Committee had referred, in this connection, to " permanent wage differentials " introduced among workers as a result of sanctions, and continued that " it is to be recalled that the Committee and the Fact-Finding Commission have already suggested to the Government considering whether it might not care to take steps to reduce the rigidity and severity with which disciplinary measures are applied in the public sector ".
22. 119. As regards this aspect, the Government points out that neither of the ILO Conventions Nos. 87 and 98 deals with the right to strike. Therefore, in the view of the Government, the points referred to in paragraph 82 of the 132nd Report do not relate to the application of ILO Conventions, but solely to the interpretation and application of the national laws. In this connection, the Government adds that with regard to the present national legal system, which prohibits direct action by the employees of the public corporations and provides that those who violate this prohibition may be subjected to dismissal or disciplinary measures, the Supreme Court held in a series of cases that such a system was Constitutional from the viewpoint of guaranteeing the interests of national life as a whole.
23. 120. The Government states that it considers it to be unavoidable under Constitutional government that those who resort to direct action in violation of the statutory prohibition, in disregard of the warnings of the government and the authorities, should be subjected to due disciplinary actions in accordance with the provisions of the law. With regard to the question of particular disciplinary actions being too severe, the Government states that it trusts that the authorities concerned are endeavouring to guarantee the appropriateness of the action taken according to the substance of each case. Should there be any complaint about the appropriateness of any particular disciplinary action, adds the Government, such a case should be filed with the competent court.
24. 121. The Government states that in the National Railways direct action is repeatedly resorted to in violation of the statutory prohibition. In a public corporation like the National Railways, which has an important connection with the national life and economy, and in which a large number of disciplinary measures have to be taken against employees, such a situation is not at all desirable. The Government concludes by stating that it hopes that stable labour-management relations will be established on the basis of mutual confidence and co-operation between the National Railways authority and the trade unions concerned.
25. 122. With regard to disciplinary action taken concerning direct action, the National Railways authority, in statements communicated by the Government on 23 and 25 October 1972, points out that the number of cases of direct action has greatly increased in recent years and that legal procedures for the settlement of disputes have been ignored. The National Railways authority attaches to its statement a list of slowdowns and strikes instigated by the KOKURO and the DORYOKUSHA in recent years for the settlement of problems, sometimes, according to the National Railways, for political motives. The statements add that the unions have frequently infringed the law and it has accordingly been impossible that persons resorting to direct action should remain free from the sanctions laid down by the Public Corporation and National Enterprise Labour Relations Law or the National Railways Law.
26. 123. Since April 1972, continue the statements, illegal resort to direct action has taken place daily, causing unprecedented traffic confusion and freight congestion, as well as seriously affecting the national economy. The corresponding illegal acts were committed, according to the National Railways authority, in disregard of the procedures for the amicable settlement of disputes. Efforts to persuade the unions to strive towards the peaceful settlement of disputes have failed. In particular, the DORYOKUSHA, in April 1972, resorted to slowdown action for 25 days in protest against disciplinary action taken against union members who had committed acts of violence, and thereafter repeatedly resorted to slowdown action in protest against the arrest of union members suspected of committing acts of violence. The National Railways authority supplies a table showing that, on 2 and 14 September 1972, notices of disciplinary action were served upon nearly 39,000 members of the KOKURO and the DORYOKUSHA as a result of illegal direct action. This was followed by illegal slowdowns all over the country, causing grave disruption and delay.
27. 124. The National Railways authority statement continues that in particular the DORYOKUSHA union members have, in groups, committed acts of violence against supervisory staff and against employees who are members of unions other than KOKURO and DORYOKUSHA. Detailed statistics of such cases are provided in the statement.
28. 125. The statement points out that the continuation of the wage differential in the case of a person who has suffered disciplinary action is part of the mechanism of the wages system in the railways as adopted by collective agreement. The statement explains that while a person with a good service record is given an annual wage increment in excess of the standard amount, a person with a poor record is given an increment less than the standard amount. This differential, however, is in no way permanent, and, the statement continues, if subsequently the person's service record improves, the wage increment in excess of the standard increment will be granted to him.
29. 126. According to the National Railways authority the question of the wage differential was the key issue during the negotiations concerning wage increments in April 1972. The question was referred to the KOROI for conciliation, and it observed that the disadvantageous wage given to those who had been subjected to disciplinary measures for having resorted to direct action should be remedied to a certain extent. As a result of this observation, continues the National Railways authority, subsequent negotiations between labour and management led to the conclusion of a collective agreement relating to the annual regular wage increment for April 1972. This agreement made more definite the remedial measures against the disadvantageous wage.
30. 127. The National Railways authority states that positive talks have been held with the unions and that agreement has been reached on many problems. On 27 September 1972, an agreement was reached between the authority and both unions concerning the disputes over unfair labour practices, and the disputes over disciplinary action have now been settled.
    • Under this agreement the dispute adjustment committees set up at national and local levels to deal with disputes over the productivity campaign were abolished from 30 September 1972.
31. 128. In its second communication dated 23 October 1972, the Government supplies information concerning the arbitration award made by the KOROI on 27 May 1972 following the wage increase demand made by the KOKURO, the DORYOKUSHA, the Japan Railway Workers' Union and the All-National Railway Facility Workers' Union in April 1972. This award, states the Government, had the effect of raising wages by some 8,000 yen, requiring financial resources of some 75,000 million yen in the current fiscal year, not to mention resources for the regular periodic wage increase.
32. 129. The Government gives a full explanation of the financial situation of the National Railways and the reasons for which implementation of the arbitration award was difficult. In accordance with the Public Corporations and National Enterprise Labour Relations Law, the Government, on 6 June 1972, asked the Diet for a decision on the award and on the same day submitted a Bill to the House of Representatives for a Diet decision. The Government adds that no decision was taken and that the Bill was carried over to the next session for continued deliberation by the House of Representatives.
33. 130. The Government, however, on 23 June 1972, confirmed its policy of implementing the award in full as it had done since 1957. It accordingly decided to submit the National Railway Reconstruction Plan as early as possible to the Diet and to study the means of financing the wage increase awarded.
34. 131. The Government states that, on 1 September 1972, it informed the Diet that the arbitration award would be implemented by providing a long-term loan as an emergency measure, by the National Railways making efforts towards its complete rationalisation, and by establishing the reconstruction plan for the railways at an early date. Thus, states the Government, the arbitration award will soon be implemented in full.

B. B. The Committee's conclusions

1. 132. The Committee notes with interest the additional information supplied by the complainants and the observations supplied by the Government and by the National Railways authority. It notes that the questions which continue to give rise to allegations and comments on the part of the complainant trade unions are the alleged anti-union drive by the National Railways authority, the rationalisation process in the National Railways and the apprehension of the unions that great numbers of workers will become redundant as a result, the prohibition of strikes in public corporations and national enterprises and the consequent disciplinary action which is taken against workers who participate in strikes.
2. 133. The Committee takes note of the allegation made by the complainants that, on 8, 11 and 13 October 1971, executive officials of the National Railways authority made statements which indicated that they had at no time accepted that any instances of unfair labour practices had occurred and that, even if they had occurred, it was only at the more local level of management.
3. 134. In this connection, the Committee would point out that it has already noted the fact that acts amounting to unfair labour practices took place (see paragraph 81 of the 132nd Report). The Committee stressed the importance of an effective and speedy machinery for the examination of complaints of anti-union discrimination in employment as a means of implementing the provisions of Convention No. 98. The Committee also considered that, in the case of national public enterprises, the national authorities should have an additional responsibility in preventing any acts of this nature and should take appropriate measures to this effect, such as a clear policy statement accompanied by specific instructions to be implemented at all levels of management.
4. 135. The Committee notes with interest from the information supplied by the Government that a statement was made by the President of the National Railways with the object of preventing unfair labour practices and that on 21 October 1971 a circular was communicated to all chiefs, including local chiefs, describing unfair labour practices in general and instructing all chiefs to exercise strict supervision to prevent any recurrence of acts falling under the heading of unfair labour practices.
5. 136. As regards the process of rationalisation in the railways, the Committee noted, when it examined this case at its last session (paragraph 80 of its 132nd Report), that in May 1972 several agreements had been concluded between the National Railways authority and the National Railway Workers' Union, which related on the one hand to prior consultation of the trade union organisation in matters of modernisation, mechanisation and rationalisation, and on the other hand to security of employment and the transfer of personnel. The Committee also noted that similar agreements had been concluded with other unions. The Committee expresses the hope that constructive consultation will continue to take place between the parties regarding the rationalisation process and that mutual agreement will be reached on all the issues involved.
6. 137. The Committee also notes with interest that in October 1971 a joint unions management committee was established with a view to the settlement of disputes. According to the complainants, the work of this committee resulted in some improvement in conditions, although the question of disciplinary action remained unsolved. Disciplinary action, the right to strike and wages also appear to have been the subjects of discussion at a Joint Conference of Trade Unions of Public Corporations and National Enterprises and the Minister of Labour, although, according to the complainants, the attitude of the Government on these matters was not favourable to the unions. The Committee notes from the information communicated by the Government that, on 27 September 1972, agreement was reached between the Railways authority and the two unions involved concerning the disputes over unfair labour practices and that the disputes over disciplinary action have been settled. The Committee also notes that all dispute adjustment committees have been abolished. The Committee hopes that negotiations will continue and that the attitude of the parties will continue to be such as to make possible the adjustment of their conflicting interests in an orderly manner.
7. 138. In connection with the question of disciplinary action, the Committee notes that this problem is linked with the right to strike and to engage in other forms of direct action in the public sector. It is clear to the Committee from the information at its disposal that the unions are pledged to continue to pursue their goal of the total restoration of the right to strike for public employees, while the Government continues to be adamant in its view that the absolute prohibition of the right to strike in the public sector should remain. Furthermore, as pointed out by the Fact-Finding and Conciliation Commission in 1966, while the Government tended to treat all direct action as illegal, the unions adopted the converse attitude of assuming such action to be legal. From the latest information available, this would still, to a large extent, appear to the Committee to be the attitude of the parties. The Committee wishes to recall, in this connection, that the Fact-Finding and Conciliation Commission expressed the view that even in areas in which a given utility is so strongly affected with a public interest as to warrant the prohibition of strikes, this is not to say that all other types of concerted action by workers ought to be forbidden."
8. 139. With regard, in particular, to the right to strike, the Committee considers that, since this right is denied to workers in the railways, the arbitration machinery should be speedily implemented and awards should be binding on both sides without any restrictions. The Committee has taken note of the explanations supplied by the Government concerning the steps which are now envisaged to implement the arbitration award made by the KOROI in May 1972, whereby a wage increase was to be granted to railway workers. In this connection the Committee has already indicated, and would repeat, 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 a compulsory arbitration tribunal.
9. 140. The Committee also considers it appropriate to repeat that an inflexible attitude towards the application of sanctions which are provided for by law is not conducive to the harmonious development of labour relations, and to recall the suggestion made by the Fact-Finding and Conciliation Commission that steps might be taken by the Government to reduce the rigidity and severity with which disciplinary measures are applied in the public sector.

The Committee's recommendations

1. 141. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body to draw attention to the considerations set forth in paragraphs 134 to 140 above, and in particular:
   • (a) with regard to the allegations concerning unfair labour practices, to note with interest the information supplied by the Government concerning the measures adopted by the President of the National Railways in order to prevent future practices of this kind (see paragraph 116 above), and to invite the National Railways authority to ensure that measures shall be firmly implemented at all levels in the national railways;
   • (b) with regard to the allegations relating to disciplinary action; (i) to point out once again to the Government that an inflexible attitude on the application of sanctions is not conducive to the harmonious development of labour relations, and that such a situation can arise, in particular, as a result of sanctions introducing permanent wage differentials among workers; and (ii) to recall the suggestion which has been made to the Government on previous occasions that steps might be taken to reduce the rigidity and severity with which disciplinary measures are applied in the public sector; and
   • (c) with regard to the allegations concerning the right to strike, to stress the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden, to the fact that such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented.