Definitive Report - Report No 222, March 1983

Case No 1165 (Japan) - Complaint date: 05-OCT-82 - Closed

1. 153. Complaints concerning violations of trade union rights in Japan were presented on 5 October 1982 by the International Confederation of Free Trade Unions (ICFTU), the Japanese Confederation of Labour (DOMEI) and the National Council of Government and Public Corporation Workers' Unions and on 12 October 1982 by the Public Services International (PSI), the World Confederation of Organisations of the Teaching Profession (WCOTP), the International Federation of Free Teachers Unions, the Japan Teachers Union, the Japan Confederation of National Public Service Employees Unions, the Agriculture Forestry Ministry's Workers' Union, the General Council of Trade Unions of Japan (SOHYO) and the All-Japan Prefectural and municipal workers Union. Further information relating to the complaints was provided by the following organisations: the WCOTP (on 14 October 1982), the DOMEI (28 October 1982 and 8 February 1983), the SOHYO jointly with four of the national complainant organisations (10 November 1982). On 22 November 1982 the Japan Senior High School Teachers' Union presented a similar complaint against the Government of Japan. The Government replied in a communication received by the ILO on 4 February 1983.
2. 154. 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); it has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 155. In their various letters, the complainants allege that the Government has violated the principles of freedom of association by deciding against implementation of the 1982 salary increase recommendation made by the National Personnel Authority (NPA), an independent body which was set up under the National Public Service Law to make recommendations concerning wages as compensation for the lack of the right to bargain collectively and to strike of public servants in Japan. Several of the complainants also allege that the 1981 NPA recommendation was not fully implemented. The WCOTP complains that this measure is particularly unfair to teaching staff, who, in its opinion, should not be covered by the National Public Service Law in any case.
2. 156. The complainants explain the background to the situation as follows: in March 1982 they presented claims for salary increases to be implemented from April 1982 to the NPA, the Government and the local authorities as employers; the Government's response of 14 and 19 April (copies of which are supplied) states that "sincere efforts" will be made to implement this year's NPA recommendations "notwithstanding the tight fiscal situation and other difficulties"; on 6 August the NPA recommended that salaries and wages of national public servants should be increased by 4.58 per cent per person per month, backdated to 1 April 1982; some of the complainants did not consider this a satisfactory increase but urged the Government to implement it speedily and in full; on 24 September the Government - without any consultation with the public service unions - decided to defer indefinitely the recommended salary revision. The complainants supply copies of a statement issued by the President of the NPA in which he deeply regrets the decision as it ignores the fact that the NPA system compensated for the restriction of the trade union rights of public employees. In this connection the complainants stress that, apart from the already-mentioned restrictions on the trade union rights of public service employees, the relevant legislation contains no provisions relating to conciliation or arbitration procedures. Moreover, according to the complainants, the situation is near to impossible as the Government's draft budget of October 1982 reduces wages funds.
3. 157. In conclusion the complainants point out that the Government had, in the past, respected and fully implemented the NPA's recommendations and that a refusal of them now in view of the already existing restrictions on the trade union rights of public servants violates Conventions Nos. 98 and 151.

B. The Government's reply

1. 158. In its communication received on 4 February 1983, the Government states that it firmly maintains the basic policy of respecting recommendations by the NPA - which it considers to be a fully compensatory measure counterbalancing restrictions on the trade union rights of public employees - and has so far made the utmost efforts to implement them. However, it points out that the decision to withhold the recommended wage increase for 1982 is an extremely exceptional measure due to the Government's unprecedentedly critical financial situation.
2. 159. According to the Government, on three occasions the Conference of Cabinet Ministers Concerned With Pay met (6 August and 1 and 20 September 1982) to examine the way the recommendation was to be handled, but the decision was taken on 24 September to withhold its implementation in view of the fact that the national public employees are expected to show their readiness to co-operate in reform during the critical financial situation and in view of the fact that the pay gap between these workers and private sector workers was less than 5 per cent. (The Government points out that pay for its own Cabinet members has not been increased since 1978 and in November 1982 all Cabinet members agreed to return to Treasury 10 per cent of their present salary.) It states that this difficult decision was made after several meetings with the organisations of the workers concerned; 34 took place between 3 March and 4 October according to a list supplied by the Government. The Government confirms that the Diet approved the Government's budget on 25 December 1982, no provision being made for implementation of the NPA's recommendation.
3. 160. As regards the particular complaint of the WCOTP, the Government states that public servants as referred to in Article E of Convention No. 98 are considered in Japan to be those who "benefit from statutory terms and conditions of service" so that public employees in the non-operational sectors, such as teachers, are considered not to be covered by the Convention.
4. 161. The Government presents detailed statistics as evidence of the severe financial situation facing the Japanese nation in 1982, including such problems as massive dependency upon deficit covering bonds and a shortfall of tax revenue. It states that the solution of these problems will, in the long run, secure and improve the standard of living of all workers, including public servants. In addition, the Government states that a system of periodic once-a year pay increments applies to national public employees (except a small proportion such as those who have been subjected to disciplinary punishment) and that in 1982 the increment represented a little over 2 per cent' which almost corresponds to the 2.8 per cent increase in consumer prices.
5. 162. The Government concludes by stressing that it will make the utmost efforts not to repeat such measures and that the 1982 decision does not mean a denial either of the inherent significance of the role or of the system of NPA recommendations.

C. The Committee's conclusions

1. 163. The Committee notes that this case concerns the non-implementation by the Government of a recommendation by the National Personnel Authority to increase, by 4.58 per cent, the wages of national public servants in the non-operational sector of the public service with effect from 1 April 1982. According to the complainants, the failure to implement the recommendation fully and promptly constitutes an infringement of the principles of freedom of association and, in particular, of those guarantees which should be provided where the right to strike and to bargain collectively is prohibited in the civil service or in essential services. For its part, the Government argues that, in conformity with ILO principles, recommendations of the NPA have always been fully implemented in the past, and that every effort will be made to do so in the future. For the year 1982' however, the exceptional decision not to implement the NPA recommendation was necessitated by the existence of a critical financial situation.
2. 164. The Committee considers it appropriate to recall in the present case, as it has done in similar cases concerning Japan, that whenever such basic rights as the right to bargain collectively or to strike in essential services, or in the civil service, are forbidden or subject to restriction - as in the case in question - adequate guarantees, such as speedy and impartial conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented, should be ensured to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests.
3. 165. As regards the category of public servants affected by recommendations of the National Personnel Authority, the Committee notes that, in addition to being denied the right to strike, they do not enjoy any right to participate in any negotiating machinery for the determination of their terms and conditions of employment, including wages. The sole compensatory factor for the denial of these rights would appear to be the existence of the National Personnel Authority and the benefits that the workers enjoy as a result of the implementation of the recommendations of that Authority to increase wages. The adequacy of this compensatory factor, accordingly, depends on the full and prompt implementation of wage increases recommended by the National Personnel Authority, a principle that has been recognised by the Supreme Court of Japan itself. It appears to the Committee that in the past the recommendations of the National Personnel Authority and their subsequent implementation by the Government have provided the workers concerned with compensation for the restrictions placed on their trade union rights.
4. 166. In the present case, the Committee notes that the Government's decision to withhold implementation of the NPA recommendation for salary increases in 1982 was endorsed by the Diet when, on 25 December 1982, a revised budget containing no provision for implementation of the NPA's recommendation was adopted. It therefore appears that no useful purpose would be served in requesting the Government to reconsider its position with regard to this particular recommendation of the NPA.
5. 167. The Committee notes the Government's assurances that it firmly maintains its basic policy of respecting the recommendations of the NPA, that the non-implementation of these recommendations in 1982 was an exceptional measure taken in an unprecedentedly critical state of the national economy, and that the Government intends to do its utmost to avoid the repetition of such measures in the future.
6. 168. The Committee, while regretting that the National Personnel Authority's recommendation has not been implemented in 1982, expresses the firm hope that future recommendations of the NPA will be fully and promptly implemented, thereby ensuring to the public employees concerned a measure of compensation for the restrictions placed on their trade union rights as regards collective bargaining and the right to strike.

The Committee's recommendations

1. 169. The Committee recommends the Governing Body to approve this report and, in particular, the following conclusions:
   • (a) The Committee recalls the principle that whenever such basic rights as the right to bargain collectively or to strike in essential services or in the civil service are forbidden or subject to restriction - as in the case in question - adequate guarantees, such as speedy and impartial conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented' should be ensured to safeguard to the full the interests of the workers thus deprived of an essential means of defending their interests.
   • (b) The Committee notes the Government's assurances that it firmly maintains its basic policy of respecting the recommendations of the National Personnel Authority and that it intends to do its utmost to respect them in the future.
   • (c) The Committee regrets that the recommendation of the National Personnel Authority has not been implemented in 1982 and expresses the firm hope that future recommendations of the NPA will be fully and promptly implemented, thereby ensuring to the public employees concerned a measure of compensation for the restrictions placed on their trade union rights as regards collective bargaining and the right to strike.