Interim Report - Report No 132, 1972

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

1. 30. The complaint is contained in a joint communication dated 1 November 1971, addressed direct to the Director-General of the ILO by the General Council of Trade Unions of Japan (SOHYO), the National Railway Workers' Union (KOKURO) and the National Railway Motive Power Workers' Union (DORYOKUSHA). In a communication dated 26 November 1971, the International Transport Workers' Federation associated itself with the complaint.
2. 31. In a further communication dated 15 December 1971 the General Council of Trade Unions of Japan transmitted additional information in support of the complaint.
3. 32. The complaint and additional information were transmitted to the Government, which sent its observations thereon in four communications dated 9 February, 21 and 22 February, 20 March and 24 May 1972.
4. 33. In a further communication dated 20 April 1972 the General Council of Trade Unions of Japan submitted additional information in connection with the complaint. This additional information was communicated to the Government for its observations on 26 April 1972 and these observations are awaited at present.
5. 34. 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. 35. In their communication dated 1 November 1971 the complainants state that the National Railway Workers' Union (KOKURO), having a membership of 240,000, and the National Railway Motive Power Workers' Union, having a membership of 50,000, are trade unions composed of workers of the Japanese National Railways, a public corporation, and are covered by the Public Corporation and National Enterprise Labour Relations Law.
2. 36. The Dreyer Report, continue the complainants, has had great influence on the guarantee of the right of workers to direct action. In two judgements given on 26 October 1966 and 2 April 1969, the Supreme Court of Japan made it clear that if punishments were to be imposed on the workers who participated in the two strikes waged by the ZENTEI (Japan Postal Workers' Union) and the NIKKYOSO (Japan Teachers' Union), the strikes would require to have been political in nature or accompanied by violence or to have had a serious effect on the way of life of the people. It is therefore wrong in principle to apply the penal provisions of the Postal Service Law against the postal workers who participated in a strike or the Local Public Service Law against teachers who joined a strike. The Supreme Court of Japan has taken note of the repeated recommendations of the ILO and the Dreyer Report and, under the influence of its judgements, the number of arrests and indictments concerning strike action by the plaintiff unions has decreased.
3. 37. Nevertheless, state the complainants, the National Railways authority has, since 1969, exercised discrimination against union members in connection with wage increases, promotion, etc., under the pretext of rationalisation and productivity improvement. The National Railways authority has also, through the senior staff, encouraged the members of the unions to withdraw from them. The complainants cite specific examples where senior members of the staff attempted to influence members of the union (KOKURO) regarding their participation in a strike.
4. 38. The complainants add that following the direct action taken by the unions in protest against such discrimination, and in particular the strike which took place on 20 May 1971, some 25,340 members of the KOKURO and the DORYOKUSHA were subjected to such disciplinary measures as dismissal, suspension, wage cuts and reprimands. Since the unions are paying compensation to the members affected by such disciplinary action the financial loss to the unions has been very considerable.
5. 39. Section 7 of the Trade Union Law, the complainants explain, provides protection against the dismissal of a worker on the grounds that he is a trade union officer and against interference in the formation or management of a trade union. In the event of such action an appeal can be taken to the Public Corporation and National Enterprise Labour Relations Commission (KOROI). Appeal to the KOROI, however, is slow since the members of this body are part time and the number of appeals is large. The fact that KOROI members are part time and have other main occupations means that the Commission is unable to deal promptly with cases of unfair labour practices. This, state the complainants, is not in harmony with the recommendation of the Dreyer Commission that commissions might consist of full-time members in order to avoid undue delay. The KOROI, state the complainants, did deal with certain cases of unfair labour practices concerning the Shizuoka Central Bureau of the National Railways but there are other cases which have not been examined. It did, however, order the National Railways to issue a letter of apology to the unions in respect of interference with the right of the unions to organise. There has been no instance of any senior staff members being punished for unfair labour practices.
6. 40. According to the complainants, under section 17 of the Public Corporation and National Enterprise Labour Relations Law, all direct action is punishable by disciplinary measures. An appeal against such action to the courts, however, involves both time and expense and it is obviously difficult to examine disciplinary actions involving more than 20,000 persons. Law suits have been instituted in the cases of discharged workers but it is not known when these will be heard. In any event, state complainants, the strike in question cannot be said to be less important than strikes in private undertakings. It does not, therefore, fall within the category of disputes prohibited by section 17.
7. 41. Strikes are prohibited in public corporations and the numbers of discharges and cases of disciplinary action against workers violating this prohibition have increased over the past two years. The number of cases following the strike on 19 and 20 May 1971 was the largest ever. This strike, the complainants point out, was held in protest against the unfair labour practices of the National Railways, the authority's insincere attitude in bargaining on wage increases, and the productivity improvement campaign, which was aimed at weakening the KOKURO.
8. 42. Trade union activity has been disturbed as a result of such widespread disciplinary action, which, along with the wage structure prevailing in Japan, has brought about great disadvantages to workers. Over the total period of employment, workers who have lost wage increments as a result of disciplinary action taken against them find that there is a large accumulated difference in the wages of other workers who have not had such action taken against them. According to the complainants, this causes unrest and threatens the livelihood of the members of the unions, some of whom had adopted an indifferent attitude and withdrawn from the two unions concerned.
9. 43. The complainants further allege that the policy of the National Railways authority, under the pretext of being a productivity improvement campaign, is aimed at the disintegration of the two unions by persuading the members to withdraw from them. The unions are opposed to the redundancy programme, which involves the dismissal of 165,000 employees.
10. 44. The Railways authority, allege the complainants, threatened the participants in the strike called by the KOKURO and the DORYOKUSHA that they would suffer a large financial loss, and encouraged them to join the rival union (" Railway Reconstruction Club "), which supports the policy of the Railways authority. Since the beginning of 1970, 40,000 members have withdrawn from the unions as a result of the threat of financial loss and disciplinary action.
11. 45. The complainants add that law suits have been instituted for " invalidation of action " and " preservation of status " in respect of 50 employees who were dismissed (35 members of KOKURO and 15 members of DORYOKUSHA).
12. 46. The rationalisation policy of the National Railways, involving the transfer of a large number of workers, was carried out without consultation and agreement with the unions. At a course held for middle-class railway personnel the National Railways authority criticised the opposition of the unions to this policy. Following the education course the anti-union policy of the authority was clearly displayed and there were many instances of unfair labour practices, of which the complainants cite several examples.
13. 47. The complainants also allege that members of the KOKURO and the DORYOKUSHA were discriminated against in matters of employment and promotion, and cite several specific instances of discriminatory practices against union members. Members withdrew from the unions or did not participate as a result of this, thereby causing much confusion in the administration of the unions.
14. 48. The complainants add that the total number of cases of unfair labour practices taken to the Public Corporation and National Enterprise Labour Relations Commission is 86 in respect of the KOKURO and 67 in respect of the DORYOKUSHA. Moreover, there are 246 cases being prepared in respect of these unions concerning infringements of the right to organise and discrimination in wage increases. The number of cases being so large, it will be impossible to expect decisions at an early date.
15. 49. In their communication dated 15 December 1971 the complainants elaborate the circumstances surrounding the strike which took place in May 1971 and give further examples of alleged unfair labour practices on the part of the National Railways authority.
16. 50. As stated in paragraph 33 above, a further communication dated 20 April 1972 has been transmitted by the complainants and the Government's observations thereon are awaited at present.
17. 51. In its communication dated 9 February 1972 the Government states that, with regard to the dismissals and the disciplinary action taken by the National Railways as a result of the activities of the KOKURO and the DORYOKUSHA in May 1971, the Government had asked the National Railways authority for its observations and that these would be transmitted to the ILO when received.
18. 52. As regards the complaints that there is undue delay in the examination of unfair labour practices, the Government states that members of the KOROI work on a part-time basis since this body is an administrative committee whose most distinct characteristic is the participation of persons of knowledge and experience outside government service. In view of this, the Government contends that the arrangement for the composition of the KOROI is wholly reasonable. Attention is always paid, states the Government, to affording an appropriate and speedy remedy in cases of unfair labour practices. The Government, giving examples of the average time taken by the KOROI to issue orders in cases heard in 1970 and 1971, states that the view that the part-time service of the public interest members accounts for delay does not appear to be justified. At the end of 1971, continues the Government, 15 cases of unfair labour practices were pending before the KOROI, 12 of which related to the National Railways. Agreement has been reached in most of these 12 cases and it is expected, states the Government, that they will be withdrawn in the near future.
19. 53. With regard to the complaint that an effective remedy was not provided in cases of unfair labour practices since no sanction was imposed on the party at fault, the Government explains that the existing system of remedying unfair labour practices is based on the principle of restoring the position which existed prior to the occurrence of the unfair labour practice. In view of the character of present labour-management relations the present system was superior to the now outdated system of imposing a penal sanction on employers who were guilty of an unfair labour practice. The question whether disciplinary action should be taken against a person who had committed an unfair labour practice was one to be decided by the employer, and it was therefore questionable that the KOROI should order such action to be taken.
20. 54. With regard to the productivity campaign, the Government indicates that one of the measures to reconstruct the finances of the National Railways had been the conducting of a productivity education course (since the autumn of 1969) at the central and local levels. During this period, members of the KOKURO and the DORYOKUSHA continued to withdraw from their unions, and the unions involved, claiming that the National Railways were using the productivity drive as a means of splitting the unions, appealed to the Public Corporation and National Enterprise Labour Relations Commission (KOROI) and to the competent court. The unions also acted vigorously against the productivity drive and, according to the Government, thereby aggravated the antagonism between management and labour.
21. 55. Consultation took place between the Minister of Transport and the Minister of Labour, and the latter, though he left the investigation of alleged cases of unfair labour practices to the competent bodies, conducted a hearing on 8 and 9 October 1971 with the President of the National Railways and the leaders of the unions involved. On 22 October 1971, the Government continues, the Minister of Labour requested the Chairmen of the KOKURO and the DORYOKUSHA and the President of the National Railways to hold voluntary talks with a view to settling the dispute. This request, adds the Government, was met and both labour and management manifested an attitude which indicated a willingness to achieve a settlement.
22. 56. On the other hand, continues the Government, as regards the cases involving the Shizuoka Railway Operating Division and the Osaka Railway Operating Division, the KOROI found that there had in fact been instances of unfair labour practices on the part of the National Railways and issued orders enjoining the latter to deliver a statement of apologies to the unions concerned. These orders were accepted by the National Railways and certain disciplinary action was taken against the persons responsible for such practices.
23. 57. The Government states that voluntary talks between labour and management took place and agreement was reached on most of the cases of unfair labour practices brought before the KOROI. In any event, states the Government, the National Railways postponed the courses of productivity education on 29 October 1971.
24. 58. The Government makes reference to the following provisions of the legislation concerning the right to organise and collective bargaining:
    • (i) section 7 of the Trade Union Law, which, by virtue of section 3 (1) of the Public Corporation and National Enterprise Labour Relations Law is applied, mutatis mutandis, to labour relations in the National Railways, prohibits certain acts, including acts of anti-union discrimination and the refusal to bargain collectively, as unfair labour practices;
    • (ii) section 27 of the Trade Union Law, which provides for the investigation of cases of unfair labour practices, is also applied by virtue of section 25 (5) (2) of the Public Corporation and National Enterprise Labour Relations Law to the investigation of cases by the KOROI;
    • (iii) article 28 of the Constitution of Japan guarantees to workers the right to organise, and any acts of infringement of the right to organise would be illegal and invalid under this article, as well as under section 7 of the Trade Union Law.
25. 59. The Government refers also to dismissal and disciplinary measures taken against public employees where they have resorted to direct action in violation of the law prohibiting such action. It states that dismissal or the sanction of disciplinary action in the case of an employee who has violated the law is a matter to be decided by competent bodies such as the courts which can interpret and apply the relevant laws.
26. 60. In this connection the Government makes reference to the following provisions governing National Railways employees:
    • (i) section 17 of the Public Corporation and National Enterprise Labour Relations Law, which prohibits employees and unions from engaging in strikes, slow-downs or any other form of direct action which might hinder the normal operation of the public corporation; any incitement to such action is also prohibited;
    • (ii) section 18 of the same Law, which provides for dismissal in case of violation of the above provision;
    • (iii) section 31 of the Japanese Railway Law, which provides for dismissal, suspension from office, reduction of pay or reprimand in cases where an employee has acted in violation of this Law or of operational regulations, or has failed to carry out or neglected his duties.
27. 61. The Government adds that, according to a judgement of the Supreme Court dated 26 October 1966 (in the case of the Japan Postal Workers' Union of Tokyo Central Post Office), the provisions of section 17 (1) of the Public Corporation and National Enterprise Labour Relations Law prohibiting strikes and other forms of direct action were not in conflict with article 28 of the Constitution, guaranteeing the right to organise and bargain collectively, and that an employee who violated these provisions could not be exempted from civil liability, including dismissal under section 18 of the same Law. The Supreme Court also took a similar line in the case of teachers.
28. 62. In its communication of 21 February 1972 the Government refers to the allegations raised in the complaint presented by the International Transport Workers' Federation. With regard to the complaints made by SOHYO, KOKURO and DORYOKUSHA concerning the labour-management dispute over the productivity drive or productivity education in the National Railways, the Government states that agreement has been reached by the parties and that basically the dispute is on the way to being settled. As regards the further allegations concerning dismissal and the disciplinary measures taken by the National Railways against the unions for having resorted to direct action in May 1971, the Government points out that this matter concerns sanctions under the civil law and explains the procedure available to an employee who is the subject of disciplinary action.
29. 63. In its communication dated 22 February 1972 the Government states that of the 12 cases referred to in its observations of 9 February 1972, seven had been lodged by the KOKURO (National Railway Workers' Union) and five by the DORYOKUSHA (National Railway Motive Power Workers' Union), and that all the seven cases lodged by the KOKURO were withdrawn on 29 January 1972 by the said union and of the five cases lodged by the DORYOKUSHA three were withdrawn on 27 January, 5 February and 18 February 1972 respectively by the said union, which left two cases pending before the Public Corporation and National Enterprise Labour Relations Commission.
30. 64. In a further communication dated 20 March 1972 the Government adds that another case was withdrawn on 2 March 1972 and in its communication of 24 May 1972 it indicates that the last case pending before the KOROI in connection with the dispute which had arisen has also been withdrawn. In its communication of 20 March 1972 the Government also supplies a copy of the observations made by the National Railways on 31 January 1972 concerning the allegations.
31. 65. In their observations the National Railways explain that in May 1971 the National Railway Workers' Union and the National Railway Motive Power Workers' Union resorted to direct action including strikes as an integral part of the spring struggle, whose main object was to win wage increases.
32. 66. At their respective Conventions held in July 1970, the two unions had already decided, in regard to the spring struggle in 1971, to win wage increases by strikes, without having recourse to the dispute settlement procedure through the Public Corporation and National Enterprise Labour Relations Commission-and resorted to direct action in May 1971 in accordance with this policy.
33. 67. Both unions declared as their objects, in addition to the main object of winning an average wage increase of 19,000 yen per worker, opposition to the modernisation and rationalisation of service, the revision of the agreement concerning employment security and the smashing of interference by the authorities with their organisation. On 13 and 14 May 1971 they staged slow-downs and other acts, which they called work-to-rule struggles, at engine depots, tramcar depots, railway stations and other field service units. Moreover, during the three days from 18 to 20 May they staged strikes, slow-downs, etc., at a large number of field service units in various places all over the country.
34. 68. In repeated resort by the unions to direct action during the period from 13 to 20 May, the number of employees who committed illegal acts was very large (22,429 persons deserted their duties). The operation of 5,154 trains was suspended, and that of 3,473 trains was delayed. Thus, the operational management of the National Railways was seriously hampered, and national life was much affected by the heavy traffic congestion and confusion.
35. 69. This resort to direct action not only constituted overtly illegal acts; it also dealt a serious blow to the National Railways, which were on the way to reconstruction after having a huge deficit, and seriously impeded the national life. The National Railways authority, in an effort to settle the labour-management dispute, including the wage increase issue, advised both unions to stop resorting to strikes and instructed employees who were members of either to attend to their duties without taking part in the direct action, warning them that such illegal action could not be immune from disciplinary measures. Both unions, however, resorted to direct action.
36. 70. The National Railways authority adds that not a few employees opposed the unions' policy and the carrying out of direct action, and that a considerable number of members withdrew from the two unions. These decisions to withdraw were freely taken by these members and they were not taken as a result of any interference on the part of the authority with the organisation of the unions. While the National Railways authority had no intention of interfering with the right of the unions to organise, some cases of unfair labour practices did, however, occur in a few places.
37. 71. According to the National Railways, it is true that the number of employees who were dismissed or subjected to disciplinary measures as a result of the repeated direct action in May 1971 was large, but this was due to the fact that the said direct action and the number of employees participating therein was more extensive than at any time in the past.
38. 72. Similarly, as to the point raised by the unions that the number of dismissals and disciplinary measures taken in cases of direct action has been increasing in recent years, this results from the fact that both unions resort illegally to direct action on a large scale and it is not true that it is the policy of the National Railways authority to take more rigid disciplinary action than hitherto.
39. 73. With regard to the unions' contention that their financial burden has increased as a result of assisting the victims of dismissal and disciplinary measures, the National Railways authority states that this is an internal matter for the unions and that the National Railways authority has not used dismissal or disciplinary measures with the intention of reducing the finances of the unions.
40. 74. The National Railways add that, under the prevailing wage system in Japan, a worker's wages increase in proportion to his length of service, with a fixed amount of wage increment every year. While a person with a good service record is given a wage increment in excess of the standard amount, a person with a poor service record is granted a lesser wage increment than the said standard amount. In the case of the National Railways, this wage system has been adopted by an agreement, under which all persons who have been subjected to disciplinary measures receive less than the standard increment regardless of the reasons for the disciplinary action; it is thus not only disciplinary measures adopted for resort to direct action that are reflected in the wages.
41. 75. As regards dismissal and disciplinary measures taken in the case of employees of public corporations, who are prohibited by law from resorting to direct action, when they have resorted to such direct action in violation of the law, the problem is a matter of interpretation and application of national laws. The question whether dismissal or disciplinary action is lawful or not is judged by the competent authorities such as the law court.
42. 76. The National Railways authority asserts that it wished to consider the wage increase problem after it had obtained the co-operation of the unions for the implementation of various measures for the modernisation and rationalisation of the railway service. The problem of wage increase was brought before the Public Corporation and National Enterprise Labour Relations Commission for mediation on 17 May 1971. As there was a fair prospect of settlement of the rationalisation issue at the collective bargaining on 19 May, the National Railways authority expressed the view that it wished to consider the wage problem in comparison with other public corporations, and the dispute was brought to a virtual settlement the following morning. Accordingly, the unions' contention that the National Railways authority delayed the settlement and caused the direct action to continue for hours is not accurate.
43. 77. The Government further states in its observations that the Supreme Court judgements of 26 October 1966 and 2 April 1969 do not support the complainants' argument that strikes aimed at protesting against the management's interference with a union's organisation are not prohibited by section 17 of the Public Corporation and National Enterprise Labour Relations Law.
44. 78. While it awaits the observations from the Government on the additional information communicated by the complainants on 20 April 1972, the Committee considers it appropriate to make some preliminary comments on the allegations and the replies of the Government.

B. B. The Committee's conclusions

1. 79. From the information available it would appear that the following main points are at issue in the present case: (a) acts of anti-union discrimination committed in the National Railways against members of the KOKURO and the DORYOKUSHA during the productivity campaign launched in 1969, (b) sanctions imposed by the Railways authority on workers for participating in direct action including the strike called by these unions in May 1971. This strike was called in support of a wage claim and in protest against the productivity campaign and the alleged acts of anti-union discrimination.
2. 80. The Committee notes that the productivity courses, which lay at the root of some of the problems raised in the complaints, have been suspended. With regard to the productivity campaign in general, which was the cause of serious concern for the unions, the Committee takes note of the information supplied by the Railways authority according to which negotiations had taken place in May 1971 with the trade unions on the rationalisation issue and that there had been a fair prospect of settlement of the questions involved. The Committee also had before it subsequent information, supplied by the Government on 24 May 1972 in reply to observations made by the Committee of Experts on the Application of Conventions and Recommendations in its report of 1972, and dealing with the same question. From this information, it appears that in May 1972 several agreements were concluded between the 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. Agreements of a similar type were also concluded with other unions. The Committee notes this development with interest.
3. 81. With regard to the alleged acts of anti-union discrimination during the productivity campaign, the Committee notes from the information supplied that such acts have in fact been committed and that several cases were submitted to the KOROI. The Committee also notes that subsequently all these cases were withdrawn or settled. While it stresses 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, the Committee considers 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.
4. 82. With regard to the sanctions imposed on workers, the Committee 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. Such a situation can arise, in particular, as a result of sanctions introducing permanent wage differentials among workers, as described by the Railways authority. In this connection, 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.

The Committee's recommendations

1. 83. In all these circumstances, while it draws attention to the considerations set forth in paragraphs 81 and 82 above, the Committee recommends the Governing Body to postpone its examination of this case until the Government's observations on the additional information transmitted by the complainants are available.