Interim Report - Report No 318, November 1999

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

Allegations: Acts of anti-union discrimination

1. 232. In a communication dated 12 October 1998, the Japanese National Railway Workers' Union (KOKURO) presented a complaint of violations of freedom of association against the Government of Japan. The International Transport Workers' Federation (ITF) associated itself with this complaint in a communication dated 12 February 1999. The All National Railway Locomotive Engineers' Union (ZENDORO) also presented a complaint of infringements of trade union rights in a communication dated 8 December 1998. It submitted additional information in a communication dated 6 January 1999 along with supporting documents.
2. 233. The Government supplied its observations in a communication of 22 April 1999. It provided additional information in a communication dated 6 September 1999.
3. 234. 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. The complainants' allegations

1. 235. In its communication dated 12 October 1998, KOKURO asserts that the Government has violated Conventions Nos. 87 and 98 by failing to fulfil its obligations under Article 11 of Convention No. 87 and Article 3 of Convention No. 98, which oblige countries which have ratified these two Conventions to establish appropriate procedures and machinery to protect the right to organize.
2. 236. KOKURO then proceeds to explain the background to its complaint. It indicates that it is a 53-year-old workers' organization, representing more than 30,000 railway workers who were originally the employees of the Japanese National Railways ("JNR"). The Government decided to split and privatize JNR in 1987 and Japan Railway companies (JR companies), which took over the management responsibility of the railway, were expected to assume the employment of JNR workers.
3. 237. KOKURO adds that the Government had enacted the "Japanese National Railways Reform Law" to carry out its privatization plan. The contractual employment status of JNR workers was stipulated in the Reform Law as follows:
4. (a) The newly established JRs do not succeed the labour contracts signed between JNR and its employees and JRs will recruit workers whom they deem as necessary from JNR employees.
5. (b) The recruitment procedure by the new companies is as follows:
6. -- The JR Establishing Committee submits requirements of employment to JNR.
7. -- JNR draws up a list of names of JNR employees based on the requirements.
8. -- The Establishment Committee selects employees of the new companies from the list.
9. 238. KOKURO contends that when JNR compiled the list, many of its members were excluded. Because of this, 5,037 members were not employed by the new companies. On the other hand, almost all the members of the Japan Confederation of Railway Workers' Unions (JRU), one of the JNR unions, were included in the list and hired by the JRs. KOKURO believed that the JR companies' refusal of employment of its members was an act of discrimination against the union and submitted complaints to local labour relations commissions all over the country, asking for relief orders against these unfair labour practices. Responding to the complaints, the local labour relations commissions concluded successively from 1989 onwards that the JR companies' refusal to hire these workers, based on their organizational status, constituted unfair and discriminatory labour practices and ordered these companies to accord the unhired workers "treatment as if they were hired". (KOKURO points out that as of 1998 there were still 1,047 members subject to these relief orders and who remain unemployed as a result of the discrimination.)
10. 239. Dissatisfied with these orders, JR companies brought cases to the Central Labour Relations Commission for re-examination according to section 27(5) of the Trade Union Law. The Central Labour Relations Commission issued 13 relief orders during the period from 1993 to 1996 which, as the local labour relations commissions did, recognized the existence of anti-union discrimination. In summary, all 13 orders instructed JR companies which took over from JNR to "treat the victimized members as if they were hired" in order to restore the position existing prior to the discrimination. JR companies, however, under section 27(6) of the Trade Union Law, brought the cases to the Tokyo District Court seeking cancellation of these orders. They claimed that these orders were unlawful and wrongful on the grounds that the Central Labour Relations Commission misinterpreted the law and acted beyond its authority.
11. 240. The Tokyo District Court on 28 May 1998, after examining the cases for two to five years, cancelled all 13 orders issued by the Central Labour Relations Commission. The court agreed with the JR companies, saying that the orders were unlawful since the Central Labour Relations Commission had acted beyond its authority when it ordered JR companies to "hire" the members based on a misinterpretation of the law regarding "who was the employer".
12. 241. As a result, KOKURO filed an appeal to the Tokyo High Court together with the Central Labour Relations Commission (chaired by a highly respected jurist of international standing). KOKURO fears, however, that the "excessive legalism" of the High Court, like the District Court, will result in the rejection of the conclusions of the specialized Central Labour Relations Commission. KOKURO stresses that this Labour Relations Commission is a tripartite body similar to the ILO structure. It is not only impartial in industrial relations constitutionally but also respected as an impartial body in practice thereby satisfying the requirements of Conventions Nos. 87 and 98, a fact which was recorded in the report of the Fact-finding and Conciliation Commission on Freedom of Association concerning persons Employed in the Public Sector in Japan (ILO Official Bulletin (special supplement), Vol. XLIX, No. 1, paras. 388-397).
13. 242. KOKURO continues by emphasizing that Japan's Labour Relations Commission system was invented in order to protect trade unions from the breach of the right to organize and to realize good labour-management relations. To pursue these objectives the Labour Relations Commission has a wide range of discretionary powers, such as issuing relief orders in order to restore the position existing prior to the violation of the right to organize. Although it is possible in Japan's legal system to cancel the relief orders by a court judgement in an administrative suit, relief orders should not be cancelled without careful consideration. However, the Tokyo District Court made the orders invalid based on a formalistic and myopic interpretation of the laws. This shows that Japan's legal system to secure the right to organize is not properly established in the light of ILO Conventions Nos. 87 and 98. Since the Labour Relations Commission's relief orders against unfair labour practices can be cancelled by the courts, employers' attempts to cancel the orders by legal means could delay the implementation of these orders for a long period of time. In such a situation, trade union membership decreases dramatically when the Supreme Court eventually does approve relief orders. KOKURO has been victimized by this "delaying tactic" and is in a critical situation. Eleven years have already passed since this discriminatory treatment occurred and it is expected to take in excess of ten years before the final settlement is reached as the case will be examined by the High Court and the Supreme Court. Not only have the victimized members gone through a very difficult time, but KOKURO itself has suffered a lot by losing substantial membership in the past years. If the issue of violation of the right to organize reaches no settlement after ten years, this means that there is virtually no such system to protect the right to organize in Japan.
14. 243. In its communication dated 8 December 1998, the All National Railway Locomotive Engineers' Union (ZENDORO) states that it is a trade union organizing former employees of JNR (now JR companies), as well as workers of JR companies and their related enterprises. It was founded in 1975 and its present membership is 1,000. ZENDORO goes on to explain that the Government enacted the JNR Reform Law in November 1986 and decided to divide and privatize JNR. Since 1 April 1987 JNR was divided into the Railway Companies of Hokkaido, East Japan, Central Japan, West Japan, Shikoku and Kyushu, and Japan Freight Railway Company. These successors took over all the assets, facilities and structures necessary for the railway business from the JNR, and are continuing the same business as JNR. ZENDORO claims that when JNR was divided and privatized, ZENDORO members suffered discrimination in hiring by the new companies because of their affiliation to ZENDORO. Secondly, employed ZENDORO members are still subjected to various discriminatory acts in the new companies.
15. 244. As regards the first issue of discrimination at the time of recruitment, ZENDORO alleges that when JNR management drew up a list of JNR employees who would be hired by JR companies, those who belonged to ZENDORO were not put on the list. The establishment committee of each JR company approved the list and decided to employ those on the list. ZENDORO indicates that although the procedure of employment by JR companies is specified in section 23 of JNR Reform Law, in the case of the Nippon Telegraph and Telephone Corporation (present NTT) and the Japan Tobacco Public Corporation (present Japan Tobacco Inc.) which were privatized around the same time as JNR, all the workers of the two corporations were employed by the new companies. The procedure of employees being taken over from JNR by JR companies at the time of privatization of JNR gave room to JNR and JR companies for choosing employees, and actually it was used as a means to exclude members of ZENDORO and KOKURO (Japanese National Railway Workers' Union) from JR companies.
16. 245. ZENDORO explains that in the JNR there were two conflicting forces over the division and privatization policy: pro-division and privatization forces included the Japan Confederation of Railway Workers' Unions (JCRU) and the Japan Railway Industrial Workers' Union (JRIU), comprised of the Locomotive Workers' Union (DORO) and the Railway Workers' Union (TETSURO), etc.; those who were against it were ZENDORO and KOKURO. The JNR authority disliked ZENDORO and KOKURO for their opposition to the policy and openly urged them to change their position (ZENDORO supplies examples of such situations in documents attached to its complaint). In 1986 when the JNR Reform Bill was submitted to the Diet, the JNR authority pressed all trade unions within it to conclude the "labour-management joint declaration" with an aim to force them to support the division and privatization policy and virtually abandon the rights of trade unions. ZENDORO and KOKURO refused to conclude it. On the other hand, trade unions such as JCRU concluded it at a very early stage. The JNR authority carried out discriminatory acts against the members of ZENDORO and KOKURO on the grounds of their rejection of the declaration. For instance, the JNR authority redeployed 23,000 members of ZENDORO and KOKURO to the "human resources usage centre". This was designed to isolate these union members from other workers, deprive them of railway work and force them to engage in weeding and painting. Furthermore, making the most use of the employment procedure to JR companies based on the JNR Reform Law, the JNR authority persistently threatened the members of ZENDORO and KOKURO to leave their unions by openly saying: "As long as you remain members of these unions, you will not be employed by the new companies." All workers who left ZENDORO got jobs in the new companies. ZENDORO then proceeds to give examples of such specific cases by providing some tables (reproduced below) of the breakdown by union affiliation of workers employed in different locomotive departments under various jurisdictions.
17. (a) Breakdown by union affiliation of the workers of Otaru Locomotive Department employed by the new companies and their ratio
18. ================================================================= Union members Employed by Employment ratio new companies (%) ================================================================= Zendoro 212 53 25 Doro 114 114 100 Tetsuro 2 2 100
19. Note: As of 16 February 1987. =================================================================
20. As of 1 April 1986, Zendoro Otaru branch had 268 members in total. However, by 16 February 1987 their numbers had decreased to 212. During this period, 56 branch members withdrew from Zendoro and 54 of them joined Doro and two others joined Tetsuro. All these 56 members were employed by the new companies.
21. (b) Breakdown by union affiliation of the workers of Naebo Locomotive Department employed by the new companies as well as their ratio
22. Union members Employed by new companies Employment ratio (%)
23. ================================================================= Union members Employed by Employment ratio new companies (persons) (%) ================================================================= Zendoro 283 81 28.6 Kokuro 24 5 20.8 Tetsusanro 12 10 83.3 Doro 169 169 100 Tetsuro 17 17 100 =================================================================
24. Seventy members withdrew from Zendoro Naebo branch. Sixty-seven of them joined Doro, two joined Testuro and one joined Tetsusanro, and all of them were employed by the new companies.
25. (c) Breakdown by union affiliation of the workers of Iwamizawa Locomotive Department employed by the new companies and their ratio
26. ================================================================= Locomotive Union Employed Employment Department members by new ratio companies (persons) (%) ================================================================= Zendoro First LD 160 31 19 Second LD 27 4 15
27. Kokuro First LD 4 1 25 Second LD 6 0 0
28. Tetsusanro First LD 21 19 90 Second LD 58 34 59
29. Doro First LD 105 105 100 Second LD 41 41 100
30. Tetsuro First LD 4 4 100 Second LD 2 2 100 =================================================================
31. Iwamizawa Locomotive Department was divided into two sub-departments: the first department and the second department. In the first department, from July to December 1986, 30 members left Zendoro. Twenty-nine of them, except for one member whose employment by a public corporation had ben decided, 25 joined Doro, two joined Tetsuro and one did not join any union. They were all employed by the new companies except for the one who joined Tetsusanro.
32. In the second department, during the same period, six members withdrew from Zendoro. Three of them, apart from two whose employment by a public corporation had been decided and one who was retiring, two joined Doro and one joined Tetsuro and were all employed by the new companies.
33. (d) Breakdown by union affiliation of the workers of Takikawa Locomotive Department employed by the new companies and their ratio
34. ================================================================= Union members Employed by Employment ratio new companies (persons) (%) ================================================================= Zendoro 80 12 15 Kokuro 0 0 0 Tetsusanro 3 1 33 Doro 56 56 100 Tetsuro 3 3 100 Unorganized 1 0 0 =================================================================
35. In Takikawa Locomotive Department, 11 members withdrew from Zendoro branch. Nine of them joined Doro and two joined Tetsuro, and all were employed by the new companies.
36. (e) Breakdown by union affiliation of the workers of Tomakomai Locomotive Department employed by the new companies and their ratio
37. ================================================================= Union members Employed by Employment ratio new companies (persons) (%) ================================================================= Zendoro 99 5 5 Doro 58 58 100 Kokuro 10 2 20 Tetsuro 4 4 100 Tetsusanro 3 2 67 =================================================================
38. Of Zendoro Tomakomai branch members who withdrew from the union between March and December 1986, 13 joined Doro and were all employed by the new companies.
39. 246. The Diet debate also took up the issue of discrimination by the JNR authority against the members of ZENDORO and KOKURO. JNR President Takaya Sugiura, who later held the position of committee member for the establishment of JR companies, said in the Diet discussion: "Those unions rejecting the declaration are not trustworthy." However, when the law was enacted, the Diet passed a supplementary resolution that "required JR companies to see to it that discrimination depending on the difference of trade unions would not occur".
40. 247. In February 1987 the establishment committee of each JR company approved the list of candidate employees, submitted by JNR, and decided to employ them. The result of employment was characterized by big disparities between different trade unions. For example, in Hokkaido area the rate of those who were employed by the JR Hokkaido and JR Freight to all candidates was 75.1 per cent. However, the employment rate of each trade union was as follows: the rate of JCRU was 99.4 per cent; JRIU, 79.1 per cent; KOKURO, 48 per cent; and ZENDORO, 28.1 per cent. Of 1,012 candidates of ZENDORO, only 284 were employed and 728 rejected, which illustrates the discrimination carried out against ZENDORO members.
41. 248. In April 1987 JR companies refused to employ a total of 7,600 members of ZENDORO and KOKURO nationwide and redeployed them to the JNR Settlement Corporation which took over JNR. In April 1990, the JNR Settlement Corporation dismissed 1,047 members of ZENDORO and KOKURO. ZENDORO complained to the Hokkaido local labour relations commission (LLRC) to request a relief order for unfair labour practices by JR Hokkaido and JR Freight.
42. 249. In March 1989 the HLRC handed down a judgement that JR was in a position to bear responsibility for unfair labour practices leading to the rejection of employment of ZENDORO members. It ordered JR Hokkaido and JR Freight to redress the present situation so that rejected union members "can be treated as employed". Dissatisfied with the order, the JR companies brought the case to the Central Labour Relations Commission (CLRC) for re-examination. They did so even by neglecting the LLRC's order which obliged them to take measures to redress their discriminatory practices. In January 1994 the CLRC issued a relief order similar to that of the LLRC, by recognizing the existence of unfair labour practices, namely discriminatory employment and the consequent responsibilities of the JR companies. It instructed them to follow fair procedures in respect of employment and place ZENDORO union members who were also dismissed by the JNR Settlement Corporation to the position which would have been given if they had been employed in the first place. Alleging the order illegal, the JR companies brought the case to the Tokyo District Court seeking its cancellation in March 1994. The case is pending in court. It is the JR companies' intention to prolong the trial to reach a settlement and dispense themselves from following CLRC orders.
43. 250. The argument of these companies is in short that they assume no responsibility for the practice by JNR management of excluding the union members from the list of names of JNR employees who were to be hired by JR companies, since JNR and JR companies are different legal entities. However, ZENDORO contends that their responsibility is manifestly clear for the following reasons. Firstly, the JR companies entirely succeeded JNR's entire assets, facilities, equipment, and institutional structure necessary for the railway business. Secondly, the then President Sugiura of JNR who worked on the list was posted as a member of the establishment committee of JR companies, which decided which listed workers should be hired by the new companies. Therefore, there is no doubt that the responsibility for the unfair labour practices, namely the exclusion ob ZENDORO members from the list, rests with the JR companies.
44. 251. ZENDORO indicates that, as of 1998, the number of KOKURO and ZENDORO members who were not employed by the JR companies because of their union affiliation and who were dismissed by the JNR Settlement Corporation amounts to 1,047. The unions' members have been fully unemployed for over 11 years. They support their families by working part time and with the help of income of their wives who hold part-time and other jobs. ZENDORO itself has also suffered tremendous damage by losing substantial membership through such anti-union discrimination.
45. 252. ZENDORO points out that it has repeatedly called on the Government to adopt administrative measures to ensure that JR compajies settle the disputes in accordance with the orders delivered by LLRCs. However, the Government has failed to give effective guidelines to the JR companies. Instead of ensuring that all workers were employed by JR companies, the Government had recourse to means called "a new employment". Its object was to eliminate ZENDORO and KOKURO members in the process of the division and privatization of the JNR. This is illustrated by remarks made by forier Prime Minister Yasuhiro Nakasone which appeared in magazines and in public TV stations, who said "we broke up the KOKURO through division and privatization". Thus, the Government not only neglected the unfair labour practices carried out by the JR companies but also itself acted in violation of the relevant ILO Conventions during the period of transition from the JNR to the JR companies. For protection of the workers' right to organize, Article 11 of ILO Convention No. 87 stipulates that "Each Member of the International Labour Organization for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize", and Article 3 of ILO Convention No. 98 states that "Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in the preceding Articles".
46. 253. ZENDORO is of the view that the Labour Relations Commission system in Japan constitutes appropriate machinery to redress situations of violations of the right to organize. However, if employers bring a case to court seeking cancellation of the LRC's relief orders and as long as the case is pending, there is no such regulation to bind the employers for having failed to follow the orders. This enables employers to continue breaching the workers' right to organize by prolonging such a trial period. Moreover, the Government has failed to substantially improve the system of protecting the right to organize by revising existing domestic laws. ZENDORO asserts that this is a clear violation of Conventions Nos. 87 and 98.
47. B. The Government's reply
48. 254. In its communication dated 22 April 1999, the Government explains that the Japan National Railways (JNR) carried out railway transport operations as a public transportation organization on a nationwide basis, but from fiscal year 1964 it started to lose money on these operations. Despite the execution of plans to reform management across several years, the management of the JNR continued to worsen. Under these circumstances, the Provisional Commission for Administrative Reform stated in its "Third Report (Basic Report) concerning Administrative Reforms" of February 1982 that it was a national emergency to recover the economic health of the JNR and that the JNR should be divided and privatized and a Supervisory Committee for the JNR Reconstruction should be established to promote the reforms. In August 1982, a Cabinet decision was made to implement the necessary measures with maximum attention paid to this Report. In July 1985, the Supervisory Committee reported to the Government its "Opinion on the reform of the JNR" which included the split up of the passenger railway section into six regional companies and their privatization by April 1987. The Government responded to this Opinion by submitting a draft Japan National Railways Reform Act and other related draft Acts to the Japanese Parliament (the Diet) and these drafts went through the Diet in November 1986; they were promulgated and enforced in December of the same year. As a result, the passenger railway sections, the cargo sections, and the research and development sections, etc., of the JNR were succeeded by six passenger corporations starting 1 April 1987 (the "succeeding corporations") and the resolution of the long-term debt of the JNR was to be handled by the Japanese National Railways Settlement Corporation.
49. 255. The Government then indicates that the method for hiring staff for the succeeding corporations with the division and privatization of the JNR was regulated under the Japan National Railways Reform Act. The specific provisions in the Act include the following points: (a) the Minister of Transportation would choose the number of employees to be hired by each succeeding corporation from former JNR staff based on a basic plan; (b) the Establishment Committee of the succeeding corporations would submit the labour conditions and the hiring criteria for becoming employees in each succeeding corporation through the JNR; (c) the JNR would confirm the desire of the employee whether or not he/she wanted to become employed by the succeeding corporations and for each one it would select employees from those who desired to be hired in accordance with hiring criteria and place them on a list and submit it to the Establishment Committee; (d) among the JNR employees on the list, those who received notice that they were hired from the Establishment Committee, and were under the employment of the JNR at the time of the abolishment of the Japan National Railways Act, would be employed as an employee of the succeeding corporation.
50. 256. The Government states that, in April 1987, approximately 200,000 were employed by the succeeding corporations, and approximately 7,600 workers who could not find other means of employment were moved to the Japanese National Railway Settlement Corporation. Based on the "Special Measures Act" concerning JNR employees who did not wish to be re-employed and the Promotion of New Employment for the Employees of Japanese National Railways Settlement Corporation, Japanese National Railways Settlement Corporation took special promotional measures for re-employment such as supplementary hiring to the succeeding corporations, the establishment of opportunities for re-employment by requests to related companies, retraining and education, employment placement free of charge, the payment of various types of incentive bonus, etc. However, when the time limit of the special promotional measures for re-employment expired in April 1990, 1,047 employees were laid off.
51. 257. The Government then goes on to explain that during the split up and privatization of JNR, KOKURO and ZENDORO filed complaints to the appropriate organs against all of the Japan Railways (JR) succeeding corporations for discrimination by the JNR against members of the KOKURO and ZENDORO unions in their listings for hiring by the JR companies; they considered this a form of discrimination. They based their cases on section 7 of the Trade Union Law whereby the JNR and the Establishment Committee should be considered a unified entity in reality and therefore should be handled as the same employer. Since the actions of the Establishment Committee were to be retained by the succeeding corporations, these litigants took their case for remedy against unfair labour practices by the JR to 18 prefectural labour relations commissions around the nation. From January 1989 onwards, every case of non-hiring was accompanied by a remedial order from each Prefectural Labour Relations Commission (Chiroi) but all the JR corporations denied the allegations and took their case for review by the Central Labour Relations Commission (Churoi). In the Churoi, there were attempted endeavours to resolve the issues through a settlement proposal in May 1992, but this ended in failure and since December 1993, the orders recognizing the unfair labour practices of the JR companies became more prevalent. The backbone of the Churoi orders were as follows: (a) in the event that there were actions qualified as unfair labour practices in the procedures for hiring employees by the JNR, it was interpreted that the responsibilities should revert to the JR corporations; (b) since at least some of the union members were recognized to have faced unfair labour practices, in the case of those who were unwillfully dismissed from employment with the Japanese National Railways Settlement Corporation and who had declared his/her desire to be hired as an employee in the future, the corporation would have to make a fair selection and was ordered to treat them as if they had been employed since 1 April 1987.
52. 258. In January 1994, all the JR corporations objected to the orders of the Churoi and filed appeals in the Tokyo District Court to cancel these orders. In May 1998, the Tokyo District Court decided that the orders of the Churoi should be cancelled. The decision of the Court stated that: (a) even if there were unfair labour practices by the JNR in the selection of candidates for hiring and the listings thereof, the liability for such an act reverts to JNR as the employer based on section 7 of the Trade Union Law and neither the Establishment Committee nor the JR corporations should bear such liabilities; and (b) in the event that the JNR placed hiring conditions excluding members of the KOKURO, with the intent to discriminate against such union members, if the Establishment Committee knew the intent and actions of the JNR and yet permitted this, the Committee would bear the liability of the unfair labour practices. However, in this case also, the orders for remedy should be limited to the redetermination of whether or not the union member was hired not using the normal selection criteria and the Churoi could not order that members be considered as hired employees. In June 1998, the KOKURO and the Churoi appealed to the Tokyo High Court to cancel the decision of the lower court. Concerning the ZENDORO non-hiring case, it is still pending before the Tokyo District Court. Also, other JR-related cases are still being disputed in courts.
53. 259. The Government goes on to give a brief summary of the Labour Relations Commissions System. It states that the Labour Relations Commissions consist of the Central Labour Relations Commission (Churoi) and the Prefectural Labour Relations Commission (Chiroi). The Churoi is one national committee under the jurisdiction of the Minister of Labour and the Chiroi are established in each prefecture as an organ of those regional governments. The labour relations commissions are organized with the same number of representative members from management, labour and neutral parties and the committees are organs which investigate and adjudicate labour disputes. The procedures for remedy from unfair labour practices begin with filing a complaint from the labour union or the worker to the Labour Relations Commission, which has jurisdiction to that dispute. If the Labour Relations Commission recognizes that there is just reason for the application, it issues a remedial order, and if there is no just reason, it issues a dismissal order. For those who object to the order from the Chiroi, he/she can bring a court appeal to cancel an order or to demand a review, and for those who object to the order from the Churoi, he/she can bring a court appeal to cancel an order by Churoi. The Government considers however the allegation that protection of the right to organize is eroded through the cancellation of the orders of the labour relations commissions by the courts to be without grounds. It points out that article 32 of the Japanese Constitution states that "No person shall be denied the right of access to the courts" and article 76, paragraph 2, stipulates that "no organ or agency of the Executive shall be given final judicial power". These provisions guarantee that all people have equal right of access to independent courts. Therefore, concerning the orders from the labour relations commissions which are executive organs, the guarantee of bringing the dispute to the courts must be recognized, and it is possible that the orders from the labour relations commissions may be overturned. However, this does not mean that necessary and appropriate measures for the protection of the right to organize have not been taken.
54. 260. Furthermore, the Trade Union Law provides for measures to secure the effectiveness of the orders of the labour relations commissions concerning unfair labour practices. In other words, in the event that all or part of an order has been confirmed by the final judgement of the court in an administrative suit, the violators of the final judgement shall be criminally punished (section 28); if the final order of the labour relations commissions is violated, the violators shall be liable to a non-penal fine (section 32). Also, even in cases when the employer files an appeal to cancel an order by the labour relations commissions and the disputes are ongoing, the court can order the employer to follow all or part of the order if there is a complaint from the Labour Relations Commission, until the court decision becomes final (section 27(8), Emergency Orders). If the employer violates the emergency order, he/she shall be liable to a non-penal fine in the same manner as if he/she were violating a final order (section 32). In addition, the Government points out that the new Code of Civil Procedure enacted last year has defined procedures which would speed up the clarification of the disputes and the organization of the evidence, and other allowances have been established to make the concentrated evidence inspection easier. Therefore, a shortening of the time of trial can be expected.
55. 261. The Government then turns to the allegation that it is not effectively guiding the JR corporations, and is neglecting anti-union discrimination. However, the Government contends that it has not neglected the disputes between JR management and labour, but has actively worked towards a solution for them. For instance, directly after the issuance of a Churoi order in January 1994, the Minister of Transportation and the Minister of Labour attempted to solve the disputes between each JR corporation and KOKURO, and in July 1995 the Minister of Transportation proposed the establishment of a negotiating table between the Government, labour and management. Furthermore, in August 1996, the Minister of Labour tried to work with the KOKURO to solve their disputes, but there was a great difference of opinion between the JR management and labour. In any event, the Japan Confederation of Railway Workers' Unions (JCRU), which counts as its membership approximately 40 per cent of JR-related workers, appears to be taking the stance that the non-hiring issue has been solved, and therefore there are conflicting opinions among the unions themselves. The Government adds that in future it will continue its efforts to solve the various issues.
56. 262. Finally, the Government addresses the allegation that the method of hiring employees afresh from JNR to the JR corporations was for the purpose of expelling ZENDORO and KOKURO union members and de facto firing them. However, the reason that the method of hiring afresh was selected with the reform of the Japan National Railways was that, unlike the case of the public corporations which later became JT and NTT, the JNR was under dire financial conditions and it had to resolve to the fastest extent possible the issues of long-term debt and unused assets for JNR reform. In other words, the JNR had to be split up and privatized as a private corporation completely under radically new ideals and start up with a new system. The reason for the method of hiring afresh under the Reform Act was due to the objective that the JNR would be split up and privatized under completely new management ideals and systems which matched each of the regions; this necessitated new decisions for management on the composition of personnel and labour conditions. As such, there was a rational reason to use a method of hiring afresh for the reform of the Japan National Railways, and it was not for the purpose of expelling ZENDORO and KOKURO union members and de facto dismissals.
57. 263. In its subsequent communication dated 6 September 1999, the Government points out that when the orders of the Churoi were cancelled by the Tokyo District Court, the three ruling parties at the time consisting of the Liberal Democratic Party (LDP), the Social Democratic Party (SDP -- among the 137 representatives of the KOKURO Convention, approximately 60 per cent are members of the SDP), and the Sakigake Party initiated consultations to settle the dispute quickly in June 1998. In the same month, the responsible policy-maker of the LDP offered KOKURO, through the SDP, settlement conditions including "the decision by KOKURO to accept the Japan National Railways Reform Act".
58. 264. Having received these conditions, KOKURO held its Provisional National Convention on 18 March 1999, and decided that its policy would be to "make clear that it accepts the Japan National Railways Reform Act". Upon this decision, the LDP (the ruling party) released a "LDP secretary-general statement" on 25 May 1999 that "It is necessary in the future for KOKURO, all the JR (Japan Railways) corporations, government agencies, etc., and other relevant parties to consult with each other towards concrete settlement, and the LDP would like to continue its efforts for an early settlement through encouragement of such consultations, etc.". The Liberal Party (the ruling party) also released its own "secretary-general statement" on the same day, stating that "(our party) wants to actively promote consultations between KOKURO, all the JR corporations, and the government agencies, etc., and strive towards a settlement which can be achieved as early as possible". Furthermore, the SDP issued its own "statement" on the same day, stating that "We warmly welcome the LDP secretary-general statement that represents one step forward towards the solution of the problem by the Government and the ruling parties". Also, the secretaries-general of the six major parties of the Upper House of the Japanese Diet (the Liberal Democratic Party, the Liberal Party, the Democratic Party, the Komeito, the Social Democratic Party and the Japanese Communist Party) requested the chief cabinet secretary that he "handle the situation towards early settlement from a humanitarian viewpoint". Amidst such statements by the political parties, the chief cabinet secretary commented in a press conference on the same day that "the LDP, the Liberal Party, the SDP and others have been working hard at consultations, and the Government would like to continue to exert its efforts to solve the various issues while keeping in touch with the ruling parties". In addition, the Minister of Transport issued a comment that "The Ministry of Transport will continue its efforts if there are steps which should be taken to solve the various issues, while making sufficient contacts with the ruling parties". Furthermore, the Minister of Labour stated that "The Ministry of Labour will make the necessary efforts while making sufficient contacts with the ruling parties and cooperating with the Ministry of Transport". Therefore, in the Government's view there appears to be a new situation evolving towards solution of the dispute through consultations. Moreover, subsequently, the LDP and the SDP have been making efforts towards solution of the issues through consultations demanded by the KOKURO. As for the Government, it will continue to watch the political movements towards a settlement, giving it support and continuing its efforts towards an early settlement.

C. The Committee's conclusions

1. 265. The Committee notes that this case involves two sets of allegations. The first relates to the fact that following the decision to privatize the Japanese National Railways ("JNR") in 1987, the succeeding corporations known as the Japan Railway Companies ("JR companies") did not hire many of the complainants' (KOKURO and ZENDORO) members solely on account of their trade union membership. Moreover, pursuant to the JR companies' refusal to hire these workers, they were redeployed to the JNR Settlement Corporation which subsequently dismissed a large number of them in 1990. The second set of allegations related to the complainants' contention that although the various local labour relations commissions (LLRCs) and the Central Labour relations (CLRC) recognized the existence of unfair labour practices and accordingly issued relief orders to ensure that the JR companies took measures to redress their discriminatory practices, the companies concerned sought to avoid taking such measures by constantly appealing the relief orders. The complainants thereby conclude that for all intents and purposes, there is no effective protection of the right to organize in the Japanese system as it currently functions.
2. 266. The Committee notes that the alleged discrimination at the time of recruitment -- and the subsequent loss of jobs -- arises within the context of the privatization of the JNR. In this regard, the Committee considers that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 935). In the concrete case at hand, the complainants allege that 7,600 workers who were refused employment by the JR companies in April 1987 were members of KOKURO and ZENDORO. The Committee notes that the Government does not refute the allegations that these 7,600 workers were refused employment by the JR companies and redeployed to the JNR Settlement Corporation which subsequently, in April 1990, laid off 1,047 employees. In order to make an informed decision in full knowledge of all the facts on the reasons for which these workers were refused employment by the JR companies, the Committee requests the Government to provide additional information in this regard.
3. 267. The Committee regrets to note that these 1,047 KOKURO and ZENDORO members are still suffering the consequences of the refusal to employ them since they have been unemployed since then and risk being unemployed for a further period of time since according to the complainants, the judicial proceedings can take several more years. In this regard, the Committee notes the Government's statement that it has made attempts in the past to solve the dispute between the JR companies and the workers concerned and that it will continue to pursue its efforts to resolve the issue of the dismissed KOKURO and ZENDORO members. The Committee would therefore urge the Government to actively encourage negotiations between the JR companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated. The Committee requests the Government to keep it informed of any progress made in this regard.
4. 268. Regarding the allegations that the legal system in Japan does not protect the right to organize since relief orders against unfair labour practices which are issued by labour relations commissions can be cancelled by the courts and employers constantly have recourse to the courts in order to delay the implementation of these orders, the Committee notes the Government's contention that this allegation is without any foundation and that in any event, the provisions of the Japanese Constitution guarantee that all people have equal right of access to independent courts. The Committee would make two observations in this regard.
5. 269. First of all, the Committee considers that it is certainly important that a judicial authority be able to judge cases concerning dismissals and their illegality. It considers, however, that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities (see 313th Report of the Committee, Case No.1952 (Venezuela), para. 300). In the situation at hand, the Committee notes that the issue of the dismissals of KOKURO members is pending before the Tokyo High Court and that of the dismissals of ZENDORO members is pending before the Tokyo District Court. The Committee therefore trusts that the decisions handed down will be in line with Convention No. 98. The Committee requests the Government to keep it informed of the outcome of these court proceedings.
6. 270. Secondly, the Committee must stress that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders (or members) dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned (see Digest, op. cit., para. 749). In the case at hand, the Committee observes with concern that there has been an excessive delay in the proceedings concerning KOKURO and ZENDORO members which is due in no small measure to the constant appeals made against the relief orders issued by the 18 local labour relations commissions as well as by the Central Labour Relations Commission, thereby suspending the relief orders in question. The Committee's apprehensions are reinforced in this regard by the complainants' assertion that it might well take another ten years before the proceedings are concluded if the case goes to the Supreme Court. The Committee notes, however, the Government's indication that a new Code of Civil Procedure which was enacted last year has defined procedures which would speed up the clarification of disputes and the organization of the evidence, and that other allowances have been established to make the concentrated evidence inspection easier and therefore a shortening of the time of trial can be expected. The Committee requests the Government to provide the relevant extracts from this new Code of Civil Procedure. The Committee expects that the procedures established by the newly enacted Code will be effective and expeditious so as to guarantee that cases concerning anti-union discrimination contrary to Convention No. 98 are examined rapidly in the future with a view to securing really effective remedies. It requests the Government to keep it informed of any developments in this regard.

The Committee's recommendations

1. 271. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In order to make an informed decision in full knowledge of the facts on the reasons for which the Japan Railway Companies (JR companies) refused to employ a number of KOKURO AND ZENDORO members, the Committee requests the Government to provide additional information in this regard.
   • (b) The Committee urges the Government to actively encourage negotiations between the Japan Railway Companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated; it requests the Government to keep it informed of any progress made in this regard.
   • (c) Recalling that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities, the Committee trusts that the decisions handed down by the courts concerning the dismissals of KOKURO and ZENDORO members will be in line with Convention No. 98. It requests the Government to keep it informed of the outcome of these court proceedings.
   • (d) The Committee requests the Government to transmit the relevant extracts of the new Code of Civil Procedure and expects that the procedures established by the newly enacted Code of Civil Procedure will be effective and expeditious so as to guarantee that cases concerning anti-union discrimination, contrary to Convention No. 98, are examined rapidly in the future with a view to securing really effective remedies; it requests the Government to keep it informed of any developments in this regard.