Definitive Report - Report No 236, November 1984

Case No 1263 (Japan) - Complaint date: 21-MAR-84 - Closed

1. 259. In a communication of 21 March 1984, the General Council of Trade Unions of Japan (SOHYO), on behalf of the Congress of Public Employees' Unions (KOMUIN-KYOTOH) presented a complaint against the Government of Japan. On 21 March 1984 the International Federation of Free Teachers' Unions associated itself with this complaint. In a communication dated 21 March 1984 the Public Sevices International (PSI), on behalf of its Japanese affiliate JICHIRO, also presented a complaint, as did the World Confederation of Organisations of the Teaching Profession (WCOTP) in a letter dated 28 March 1984.
2. 260. 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. 261. The complainants, in their various letters, allege that the Government has violated the principles of freedom of association by deciding in favour of only partial implementation of the 1983 salary increase recommendation made by the National Personnel Authority (NPA), an independent body which was set up under the National Public Service Law (NPSL) to make recommendations concerning wages as compensation for the lack of the right to bargain collectively and to strike of public servants in Japan [one of the complainants points out that under sections IV and V of that Law the members of the NPA should be of the highest moral character and integrity, in known sympathy with the democratic form of government and efficient administration.] Several of the complainants observe that the 1982 NPA recommendation for salary increases was not fully implemented, a situation which was the subject of an earlier complaint against the Government of Japan. [See 222nd Report, Case No. 1165, paras. 153-169, approved by the Governing Body at its 222nd Session, March 1983.]
2. 262. The complainants explain the background to this situation as follows: in April 1983 they presented claims for salary increase to be implemented from 1 April 1983 to the NPA; the Government's response dated 25 April 1983 of which a copy is supplied, states that "the Government shall make its maximum efforts in good faith for [the 1983 recommendation] implementation" despite the "stringent financial situation; on 5 May 1983 the NPA recommended that salaries and wages of national public servants be increased by 6.47 per cent on average per person per month back-dated to 1 April 1983; some of the complainants did not consider this a satisfactory increase, especially in view of the fact that the 1982 Recommendation had not been implemented, but urged the Government to implement it speedily and in full; on 21 October the Government decided to accord a 2 per cent increase on average and simply notified the unions concerned of this decision without any negotiation or consultation. The complainants supply a copy of a statement, issued on 20 October 1983 by the President of the NPA, in which he deeply regrets the Government's decision as it ignores the fact that the NPA system compensates for the restriction of the trade union rights of public employees. In this connection the WCOTP stresses that, apart from the already mentioned restrictions on trade union rights of public service employees, the relevant legislation lacks provision for negotiations between the public service unions and the public employer or for recourse to an independent body against a recommendation of the NPA or against the way in which the Government responds to a recommendation; it points out that any action by the unions to indicate discontent is outlawed despite constitutional provisions guaranteeing the right to bargain and act collectively. It concludes that none of the provisions laid down in ILO Conventions Nos. 98 or 151 are thus guaranteed. In accordance with the legislation in force, the Government submitted a bill proposing a salary increase of 2 per cent on average - in spite of public service union and opposition political party opposition - which was adopted unilaterally without any substantial deliberation.
3. 263. According to the complainants, this partial implementation of the 1983 NPA recommendation is not acceptable on the following grounds: (i) the public servants whose level of real wages had been substantially lowered by the non-implementation of the 1982 NPA recommendation have again suffered loss in terms of actual income by a unilateral decision; (ii) there is gross discrimination in the Government's treatment of public employees when compared to workers' in the private sector and workers in public corporations and national enterprises whose wage levels are fixed through collective bargaining; (iii) the Government's decision is a denial of its early assertions in the context of the complaints against the non-implementation of the 1982 NPA recommendation in that the Government had stated at that stage that non-implementation "was an exceptional measure taken in an unprecedentedly critical state of the national economy and the Government intends to do its utmost to avoid the repetition of such measures in the future". [See 222nd Report, para. 167.]
4. 264. In conclusion, the complainants request that the NPA recommendations be implemented in full to correct the injustice currently imposed on public employees, that the Government respect the ILO recommendations concerning adequate guarantees which should be ensured whenever basic rights are forbidden or subject to restriction, to safeguard the interests of workers to the full and the Government take appropriate measures to enable the public employees' organisations to participate in decision making since unilateral decisions by government on wages and other conditions of employment are not conducive to the development of harmonious industrial relations.

B. The Government's reply

1. 265. In its communication of 10 October 1984, the Government states that it firmly maintains the basic policy of respecting NPA recommendations - it considers the NPA to be a fully compensatory measure counterbalancing restrictions on the trade union rights of public employees - and has so far made every effort to implement the recommendations in spite of financial difficulties. The Government points out that it made its stand clear to the representatives of the workers' organisations concerned on 4 April 1984, and as regards the NPA recommendation for 1984, it is now examining how to deal with it from the standpoint of this basic policy.
2. 266. According to the Government the ministers and government officials concerned had met on numerous occasions with the workers' organisations concerned to explain to them the unprecedented severe financial situation facing the nation and to hear their opinions. In particular, on the day prior to the decision of the Cabinet Council, the ministers and government officials concerned had a further meeting with representatives of the workers' organisations involved to request them to understand the circumstances in which the full implementation of the 1983 NPA recommendation was rendered difficult. The Government convened a conference of the Cabinet Ministers concerned with pay five times - 5 and 26 August, 9 September and 7 and 20 October 1983. After carefully examining how to deal with the recommendation, taking into account its overall political, economic and social implications, the Government finally made a decision on 21 October 1983 to increase the pay of national public employees by 2 per cent on the average, applicable retroactively to 1 April 1983. It decided in addition that, although no funds were earmarked for the implementation of this pay revision at that time, further efforts should be made to squeeze money from various sources by such means as economising appropriations which had already been curtailed and a greater amount of reduction in the number of national public employees, the Government points out, however, that no dismissal of national public employees has taken place in practice.
3. 267. The Government presents detailed statistics as evidence of the severe financial situation facing Japan in 1983, including such problems as massive dependency upon deficit-covering bonds and limited tax revenue. The Government points out that, against this economic scenario, consumer prices in Japan have been very steady, the annual rates of increase over the corresponding period the previous year being 2.4 per cent for 1982 and 1.9 per cent for 1983. It explains that a system of periodic pay increments once a year applies to national public employees (except a small proportion of people such as those who have been subjected to disciplinary punishment and those who have been absent from work due to illness); this system, although different in nature from a revision of pay scales, has a similar effect thereto and the periodic increment in 1983 averaged approximately 2 per cent. The Government is convinced that, if regular annual increments are taken into account, - the rate of pay increase for fiscal 1983 being almost equal to the increase of the consumer price index - due consideration would be paid to the living conditions of public employees.

C. The Committee's conclusions

1. 268. The Committee notes that this case concerns the alleged failure by the Government to implement in full the recommendation of the National Personnel Authority to increase, by 6.47 per cent, the wages of national public servants in the non-operational sector of the public service with effect from 1 April 1983. The Government, the Committee observes, after considering the recommendation, decided, on 21 October 1983, to increase the wages of national public employees by 2 per cent on average, applicable retroactively to 1 April 1983.
2. 269. According to the complainants, the further failure on the part of the Government to implement fully and promptly the NPA recommendation in 1983 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. The Government, on the other hand, explains in its reply, that the final decision was the result of a national economic situation that was unprecedented in severity, that Government ministers and officials explained the situation to the workers' organisations concerned on numerous occasions and that although no appropriation was available even to meet the 2 per cent granted, no reduction had taken place in the number of national public servants.
   • The Government argues that, having regard to consumer prices in Japan and the system of regular annual increments, it may be seen that due account has been taken of the living conditions of workers.
3. 270. The Committee recalls that when it examined the complaint (referred to by the complainants in the present case) concerning the non-implementation of the NPA recommendation for 1982 (Case No. 1165, 222nd Report of the Committee, paras. 153-169), it pointed out 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.
4. 271. As regards the category of public servants affected by the recommendations of the National Personnel Authority, the Committee notes once again, as it did in Case No. 1165, 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.
5. 272. In Case No. 1165, the Committee noted 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 intented to do its utmost to avoid the repetition of such measures in the future. The Committee accordingly, while regretting that the National Personnel Authority's recommendation was not implemented in 1982, expressed the firm hope that future recommendations of the NPA would 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.
6. 273. The Committee observes, in addition, that the question of partial implementation of the 1983 NPA recommendation was brought to the attention of the Committee of Experts on the Application of Conventions and Recommendations which, in an observation addressed to the Government in 1984, pointed out that while it fully appreciated that, in times of economic crisis or difficulty, governments may judge it necessary to impose restrictions on the normal process of wage determination, nevertheless, in the present case, where public employees in the non-operational sector (i.e. all national and local public employees other than those employed in public corporations or enterprises) are not only denied the right to strike, but whose capacity to bargain is substantially limited, it considered that it was all the more important that the recommendations of the National Personnel Authority were implemented in full. The Committee of Experts expressed the hope that, if the restrictions on the basic trade union rights of such workers were to be maintained, the Government would re-examine the procedures and machinery for the determination of wages and conditions of work in the public service in order to ensure that the guarantees laid down in the Convention might be fully applied to those public servants who came within its scope.
7. 274. The Committee can only express its regret that the recommendation of the National Personnel Authority has again in 1983 not been fully implemented despite the Government's assurances in 1983 that it would do its utmost to respect the NPA recommendations. The Committee must express doubts that the present system of determining terms and conditions of employment in the Japanese public service ensures the confidence of the parties concerned (Article 8 of Convention No. 151). The Committee therefore again draws the Government's attention to its previous conclusions (in Case No. 1165) and to the comments made by the Committee of Experts in 1984 and expresses the firm hope that the Government will be able to establish a procedure for the determination of wages and conditions of work in the public service which will adequately compensate those workers for the basic rights which they presently do not enjoy, and in which the workers may participate in the determination of their terms and conditions of employment.

The Committee's recommendations

1. 275. 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. Given that the NPA recommendations have not been fully implemented since 1981, the Committee must express doubts that the present system of determining terms and conditions of employment in the Japanese public service ensures the confidence of the parties concerned (Article 8 of Convention No. 151).
   • (b) The Committee expresses its regret that the recommendation of the National Personnel Authority has, again in 1983, not been fully implemented. It therefore draws the Government's attention to the conclusions it reached in Case No. 1165 and to the comments made by the Committee of Experts in this connection in 1984 and expresses the firm hope that the Government will be able to establish a procedure for the determination of wages and conditions of work in the public service which will adequately compensate those workers for the basic rights which they do not presently enjoy, and in which the workers may participate in the determination of their terms and conditions of employment.