Effect given to the recommendations of the committee and the Governing Body - Report No 334, June 2004

Case No 1991 (Japan) - Complaint date: 12-OCT-98 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 25. The Committee last examined this case at its June 2003 meeting. It concerns allegations of anti-union discrimination arising out of the privatization of the Japanese National Railways (JNR) which were taken over by the Japan Railway Companies (the JRs). The Committee noted that the Tokyo High Court had ruled in October 2002 that the JRs had a responsibility as employers and that the National Railways Workers’ Union’s (KOKURO) and the All Japan Construction, Transport and General Workers’ Union’s (KENKORO-TETSUDOHONBU) opposition to the privatization plan was a factor in the decision not to rehire some workers, belonging to these organizations, although the High Court did not infer that this constituted unfair labour practices. The Committee urged the Government to pursue its efforts towards finding a fair solution, acceptable to the largest possible number of workers, and requested the Government to provide it with a copy of the decision of the Supreme Court concerning these workers [see 331st Report, paras. 45-53].
2. 26. In a communication dated 31 October 2003, KENKORO states that it has asked various authorities to implement the Committee’s recommendations; the Government’s position throughout has been that nothing could be done as the issue was pending before the Supreme Court. In a communication dated 5 January 2004, KENKORO states that the Supreme Court, on 22 December 2003, issued an unfair ruling on the discriminatory hiring practices of the company. In a majority decision (three-two), the Court relied on a mere formality of the JNR Reform Law providing that the list of employees was to be drawn up by the JNR while the hiring decision was to be taken by the JR Founding Committee on the basis of that list. The Court completely dissociated the two acts (establishment of the list by the JNR; hiring by the JRs) to conclude that even if the JNR discriminated against some union members in establishing the list, the JRs could not be held responsible for that discrimination. This majority judgement totally denies a relief to victims and violates Convention No. 98 which provides that "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment". While the minority opinion clearly disagreed with the High Court that there had not been unfair labour practices, and stated that it "can be assumed that union members had been treated in a discriminatory manner on the sole ground of their affiliation to ZENDORO", the majority decision avoided the issue of anti-union discrimination altogether. Moreover, the Government has failed to implement the Committee’s recommendations while awaiting the Supreme Court’s decision. When the Diet had examined the draft JNR Reform Law, the Government had repeatedly assured that the JRs would be responsible if the JNR treated workers in a discriminatory manner. The Diet also passed a resolution outlawing anti-union discrimination in the hiring of JR employees and the then Prime Minister promised that he would "not let any [JNR] worker become jobless and destitute". None of these commitments have been kept. After the Supreme Court issued its ruling, KENKORO asked the authorities to re-initiate negotiations between the JRs and the unions concerned to find a solution to the dismissal of the 1,047 workers, to no avail. KENKORO requests that the Committee urge the Government to assume its responsibility in finding an early and fair solution, and send a fact-finding mission to Japan.
3. 27. In a communication dated 20 January 2004, KOKURO also comments on the Supreme Court ruling of 22 December 2003. It points out that the majority decision dismissed all the appeals, held that the JRs had no responsibility "as employers" and that if there were discriminatory hiring practices in 1987, this was the JNR’s responsibility. The Court considered that the hirings that took place after the establishment of the JRs were "new recruitments" in respect of which an employer has wide freedom. KOKURO strongly protested this Supreme Court ruling based on a narrow and formalistic interpretation of the JNR Reform Act. The end result is that, in spite of 17 years of proceedings, the various labour relations bodies and the courts could not implement any relief measures for unfair labour practices and protect the right to organize: this demonstrates the shortcomings in the existing mechanism for the protection of the right to organize in Japan.
4. 28. In its communication of 15 April 2004, which includes the full text of the Supreme Court decision, the Government stresses that KOKURO’s and KENKORO’s comments concern the minority opinion of the Supreme Court. However, the Court has finally ruled that the JRs are not liable as employers and has rejected the demands to rehire the workers. Appeals to the Supreme Court are limited to constitutional issues and to violations of judicial precedents or laws. Oral pleadings are not generally held; the fact that a ruling is made with a one-vote margin does not affect its weight since it is the last court of appeal.
5. 29. As regards the first complainants’ argument (i.e. that while the Supreme Court ruling does not deny the judgement of the Central Labour Relations Commission (CLRC) that there were unfair labour practices, it did not implement relief measures in practice and therefore does not protect the right to organize) the Government points out that the Court annulled the CLRC’s relief order since it considered that "even if there were acts of unfair labour practices in the process of selecting candidates, the JRs shall not be liable for these acts as employers". Therefore, the Court did not decide whether or not there were unfair labour practices. It is therefore improper to discuss relief measures since there are no grounds to conclude that there were such unfair labour practices.
6. 30. Concerning the second complainants’ argument (that even if workers were not hired due to anti-union discrimination, there was no framework in place to protect the right to organize in that no relief was provided in the form of rehiring by the JRs) the Government similarly argues that it is not appropriate to discuss the types of relief on the assumption that unfair labour practices existed, since the Supreme Court did not decide that such practices occurred. While the Court denied the JRs responsibility for unfair labour practices, it stated at the same time that "if JNR committed unfair labour practices in making employment lists, JNR or the Settlement Corporation (currently the Japan Railway Construction Transport and Technology Agency, JRTT), which succeeded JNR’s legal status, shall not be exempt from liability as an employer". For the Government, it cannot therefore be said that there is a systemic defect in ensuring the right to organize.
7. 31. As regards the alleged lack of efforts to find a solution, the Government refers to the previously submitted information [see 331st Report, paras. 51-52] showing that it has made every possible effort to find appropriate solutions through: hiring by JRs, including, at a later stage, on a wider area basis; voluntary retirement with special compensation; redeployment in other industries, etc. However, there remained 1,047 people who insisted on getting their original job in their original region; they were finally dismissed by JNR in April 1990 when the Re-Employment Promotion Law expired. In order to achieve a political solution based on humanitarian considerations, the Government convened meetings with the parties on the basis of the Four Party Agreement concluded in May 2000 (which the Freedom of Association Committee has urged the parties to accept). KENKORO did not accept the Agreement and there was disagreement on this issue within KOKURO, which filed another lawsuit against the JRTT. As time passed and no agreement could be found, the Four Party Agreement was ultimately cancelled.
8. 32. The Government concludes that it has made all possible efforts to find a fair and acceptable solution. The workers in question rejected the rather generous re-employment measures by insisting on re-employment by their local JRs without showing any spirit of compromise, relying instead on court proceedings. Following the Supreme Court ruling, it would be extremely difficult for the Government to take any new measure and obtain the consent or understanding of other parties directly concerned, including the current majority railway trade unions, JR SOREN and JR RENGO, which together regroup about 80 per cent of JRs’ employees.
9. 33. The Committee notes all the above information and in particular the Supreme Court ruling of 22 December 2003. Although there were apparently differing views within the Court on the issue of unfair labour practices, the majority decision in effect absolves the JRs of any responsibility as employers in this respect. The Committee observes that it has dealt with this case in some depth since 1998, with two detailed examinations on the merits [318th and 323rd Reports] and three follow-ups [325th, 327th and 331st Reports]. The Committee notes that the various competent administrative, quasi-judicial or judicial bodies called upon to decide the matter held different views on the issue of unfair labour practices, which in itself indicates the complexity of the factual and legal issues at hand. However, the Committee cannot conclude, on the basis alone of the set of circumstances in this case, that the legal mechanism for protection against anti-union discrimination is deficient as a whole. The problem in the present case was compounded by the fact that the lay-offs, dismissals and rehirings occurred in a context of restructuring of the railway industry, with a major staff reduction. Noting that there have been substantial consultations with trade union organizations and that genuine efforts were made over the years to find a solution (first through re-employment measures based on legal avenues; and then on the basis of political and humanitarian considerations) the Committee regrets that no solution acceptable to all workers and organizations concerned could be found, including on the basis of the Four Party Agreement that, at its November 2000 session, the Committee had urged the parties to accept, as it considered that it offered "a real possibility of speedily resolving the issue of non-hiring by the JRs" [see 323rd Report, para. 376].
10. 34. Noting that the Supreme Court has ruled that "if JNR committed unfair labour practices in making employment lists, JNR or the Settlement Corporation (currently the Japan Railway Construction, Transport and Technology Agency, JRTT) which succeeded JNR’s legal status, shall not be exempt from liability as an employer", taking into account the serious nature of the allegations in this case, as well as the serious social and economic consequences that resulted for a large number of workers, the Committee invites the Government to pursue the discussions with all parties concerned in the spirit of political and humanitarian considerations that once prevailed in order to resolve the issues and requests it to keep it informed of developments in this matter.