Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

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

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

1. 128. The Committee last examined this case, which concerns allegations of anti-union discrimination arising out of the privatization of the Japanese National Railways (JNR) taken over by the Japan Railway Companies (the JRs), at its March 2008 meeting. The Committee once again recalled that it had dealt with this case in some depth since 1998, with two detailed examinations on the merits [318th and 323rd Reports] and five follow-ups [325th, 327th, 331st, 334th and 343rd Reports]. Since its first examination, and on each occasion throughout its treatment of this case, the Committee had consistently urged the parties concerned to engage in serious and meaningful consultations with a view to reaching a satisfactory solution to the underlying dispute. In light of its previous recommendations, and moreover in view of the complainants’ expressed desire to seek a settlement to the matters concerned, the Committee, while recognizing the divergence of views between the complainant National Railways’ Workers’ Union (KOKURO) and the JRTT (the Japan Railway Construction Transport and Technology Agency – the legal successor to the JNR), observed that it was apparently not currently possible to bring the parties together with a view to rapidly finding a negotiated solution to these matters that have been pending for two decades. Noting that six cases on the issues concerned were pending, the Committee trusted that the courts would bring a rapid resolution to this long-standing dispute and requested the Government to keep it informed of developments in this respect, and to transmit copies of the court judgements in the various pending cases as soon as they were handed down [see 349th Report, paras 152–164].
2. 129. In its communication of 1 September 2008, the Government provides information on two of the abovementioned cases on the issues concerned. The Government refers, firstly, to the unfair labour practices lawsuit brought by members of the complainant All National Railway Locomotive Engineers’ Union (ZENDORO) against the JRTT. In respect of this case, the complainants had previously indicated that in its decision of 23 January 2008 the Tokyo District Court had recognized that unfair labour practices had been committed by the JRTT, in particular by discriminating against the plaintiffs in drafting lists of candidates for hiring, and had ordered the JRTT to pay 5.5 million yen to each of the plaintiff ZENDORO members as compensation for damages incurred. The complainants further stated that the Tokyo District Court’s decision was nevertheless a problematic one, as the Court had rejected ZENDORO’s core demands of compensation for lost wages and pension benefits, and that the JRTT has appealed the decision to the Tokyo High Court. In its 1 September 2008 communication the Government confirms that, on 23 January 2008, the Tokyo District Court had found that the JRTT discriminated against the plaintiffs in drafting lists of candidates for hiring. The Tokyo District had ordered damages of 5.5 million yen to be paid to each plaintiff, for psychological distress, as well as delay damages of 5 per cent per year as of 1 April 1987, but dismissed the plaintiffs’ claims for compensation for lost wages; the decision had been appealed and was pending before the Tokyo High Court.
3. 130. The Government also refers to the lawsuit brought by KOKURO members against the JRTT. Under the facts of that case, at the time of the reform of the JNR the plaintiffs were not hired by the JNR’s successor companies, the JRs, but instead became employees of the JNR Settlement Corporation (JNRSC). Measures to promote the plaintiffs’ re-employment were undertaken, but after three years had passed without their re-employment, they were dismissed. The plaintiffs assert that their failure to be selected by the JNR as candidates for hiring by JR companies constitutes discrimination on the basis of their membership in the union; they also requested that their dismissal by the JNRSC be declared invalid, that they be recognized as employees of the defendant JRTT, and that the latter pay compensation for unpaid wages. The Government states that on 13 March 2008 the Tokyo District Court dismissed all of the plaintiffs’ claims, finding, inter alia, that: (1) the reform of the JNR did not violate the Constitution; (2) neither the JNRSC nor the defendant JRTT possessed an obligation to ensure the plaintiffs’ employment with the JR companies, and their dismissal by the JNRSC was valid; and (3) the plaintiffs’ right to seek damages for the above discrimination had expired, whether or not the plaintiffs’ failure to be selected by the JR companies as candidates for hiring did not constitute anti-union discrimination. The Government additionally indicates that the plaintiffs have appealed the Tokyo District Court’s decision to the Tokyo High Court.
4. 131. In its communication of 16 September 2008, the Government attaches copies (in Japanese) of the Tokyo District Court’s 23 January and 13 March 2008 decisions.
5. 132. The Committee takes note of the above information. Recalling from its previous examination of the case that a total of six cases on the issues raised were pending before the courts, the Committee observes that although the Tokyo District Court has issued decisions in two of those cases, those decisions have been appealed and are pending before the Tokyo High Court. Recalling once again that it has dealt with this case in some depth since 1998, the Committee once again expresses its hope that the courts will bring a rapid resolution to this long-standing dispute. It once again requests the Government to keep it informed of developments in this respect, and to transmit copies of the court judgements in the various pending cases as soon as they are handed down.