Effect given to the recommendations of the committee and the Governing Body - Report No 331, June 2003

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

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

1. 45. The Committee last examined this case concerning 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 (JRs) at its March 2002 meeting. The Committee expressed its regret that no real progress had been made, since all the parties had accepted the Four-Party Agreement in May 2000. The Committee urged all parties concerned, to start without delay, serious and meaningful negotiations towards a rapid satisfactory solution, which would ensure that the dismissed workers would be fairly compensated [see 327th Report, paras. 70-73].
2. 46. In a communication dated 5 November 2002, KENKORO-TETSUDOHONBU (formerly ZENDORO, one of the initial complainants) mentions that on 24 October 2002 the Tokyo High Court issued a decision dismissing the appeal it had filed against the Tokyo District Court of 29 March 2000. The complainant states that for the first time, the Tokyo High Court has acknowledged the responsibility of the JRs as “employers” and recognized that the opposition of ZENDORO and of its members to the privatization plans was taken into account and given a considerable weight in the evaluation of workers to be recruited in the new companies; ZENDORO members were thus given low ratings, which resulted in significant disparities in the hiring rates of workers by union affiliation. However, the High Court concluded at the same time that this prejudicial treatment did not constitute an unfair labour practice, which the complainant considers as contrary to Article 1(2)(b) of Convention No. 98 and Article 2 of Convention No. 87. The complainant further states that this disregards the repeated commitments by representatives of the Government and the JNR that there would be no discrimination based on union membership or activities when selecting workers for the new company. KENKORO-TETSUDOHONBU will appeal the Tokyo High Court decision to the Supreme Court. It recalls that more than 12 years have elapsed since ZENDORO members were dismissed by JNR, and that two of the 62 workers concerned have already passed away, which makes an urgent solution ever more necessary. In a further communication of 13 February 2003, KENKORO states that the Government has adopted a wait-and-see attitude and that the lack of serious and meaningful consultations by the Government and the JRs is a major obstacle in the solution of the problem of the non-hiring of its members.
3. 47. In a communication dated 25 December 2002, the National Railway Workers’ Union (KOKURO) indicates that the Four-Party Agreement was annulled on 6 December 2002, as the three ruling parties withdrew unilaterally from it. KOKURO had initially accepted the agreement and the major concessions it entailed, since it was convinced that an early settlement was desirable to provide relief for dismissed workers; KOKURO acknowledges however that a number of its members were opposed to that reversal of policy, and still wanted to pursue the legal responsibility of the JRs. According to KOKURO, the ruling parties had never started their actual settlement work, using as an excuse the existence of a minority opinion in the union. KOKURO still hopes for a negotiated settlement with the JRs and the Government, including at political level if necessary. KOKURO adds that more than 16 years have elapsed since the privatization of JNR, that it was nearly 14 years ago that Labour Commissions issued relief orders in favour of its discriminated members, that 26 of its affected members have already died and that a significant number of the 1,047 KOKURO members affected have passed the retirement age in the JRs. Additional delays will limit the effectiveness of any relief measures that could be decided. In a further communication of 25 February 2003, KOKURO criticizes the High Court judgement which it says contradicts the spirit of the Committee’s recommendations and creates another obstacle to bringing about a satisfactory solution for the parties.
4. 48. In its communication of 28 October 2002, the Government states that the ruling parties considered that the contradictions within KOKURO prevented the possibility of moving forward in the implementation of the Four-Party Agreement and requested that KOKURO resolved these contradictions and have the result accepted by all its members before proceeding any further, failing which they would withdraw from the agreement. While KOKURO adopted some “guidelines” in this respect at its extraordinary (69th) convention on 27 May 2002, internal dissensions remained since, inter alia, some 280 members refused to withdraw their lawsuits against JNR. For its part, the Government believed that the only way left to solve the issue was a political settlement, from a humanitarian point of view. Between April and September 2002, it held 34 meetings with political parties and six meetings with KOKURO, to try to resolve the issues.
5. 49. In its communication of 6 January 2003, the Government mentions that KOKURO held another national (70th) convention in November 2002, where the focus was whether KOKURO could implement the guideline adopted at the earlier convention. However, the outcome of the 70th convention was another guideline which, according to the Government, represented a step back from the previous one. The ruling parties considered that this was unacceptable and that KOKURO had in fact rejected a political solution based on the Four-Party Agreement. Consequently, they decided on 6 December 2002 to abandon that solution, thus annulling the Four-Party Agreement. Since January 2001, the Government met 79 times with political parties, 26 times with KOKURO and four times with the JRs. It considers that it has done all it could do concerning the non-recruitment of the former JNR personnel. As matters stand, there have been no developments concerning the non-recruitment of KOKURO members since the matter is still being litigated in the Supreme Court; as regards the non-recruitment of KENKORO members, the Tokyo High Court dismissed the trade union appeal by concluding that there had been no unfair labour practices in the hiring procedure.
6. 50. In its communication of 10 April 2003, the Government states that ZENDORO’s interpretation of the Tokyo High Court ruling is so simplified as to be misleading. According to the Government, the court held that while ZENDORO members were assessed disadvantageously as to whether or not they were suitable as personnel for the new companies (their staunch opposition to the privatization being taken into account in that respect, as well as their numerous actions in violation of workshop rules, including illegal strikes) it decided that this did not constitute an unfair labour practice. The Tokyo High Court ruling stated that the relevant ZENDORO members were not hired, not because they were members of ZENDORO or for carrying out legal activities as union members, but because they repeatedly engaged in acts against workshop rules including illegal strikes against the JNR privatization and division. These series of acts were taken into account in the hiring process. The Government recalls that there were 17 lawsuits before the Tokyo District Court altogether (16 by KOKURO, one by ZENDORO); the Tokyo High Court has dismissed 15 of the 16 cases appealed, except the ZENDORO appeal mentioned above, where it acknowledged that the JRs had a responsibility as employers but that there were no unfair labour practices. At present, 14 of these cases are pending before the Supreme Court.
7. 51. In the same communication, the Government summarizes the situation and the efforts made at all stages of the reform:
   • – the initial JNR reform called for drastic lay-offs (from 277,000 to 215,000 employees); however, these staff reductions were uneven among regions (one in two employees would be excess in Hokkaido; one in three in Kyushu; one in six in Honshu), coupled with unequal re-employment opportunities in the different regions. To remedy this imbalance, the JNR implemented interregional transfers from 1986, but those who accepted the transfers were mostly TETSURO and DORO members;
   • – the Settlement Corporation made every effort to secure employment for the 7,628 former JNR staff who were not re-employed when the JRs started their operations in April 1987. As a result, 6,581 persons found employment and the other 1,047 refused the Corporation’s offer. The then Ministry of Transport put additional pressure on the JRs to rehire employees. However, because KOKURO and KENKORO insisted on re-employment by their local JRs, the number of employees who applied was lower than expected; ultimately, only 1,606 returned to the JRs as part of the additional hiring opportunities;
   • – in 1992, the Central Labour Relations Commission (CLRC) offered a settlement plan to KOKURO, KENKORO and the JRs. The companies stated that they would examine the plan; the trade unions ignored it;
   • – additional efforts were made towards a political settlement, including the Four-Party Agreement, whose acceptance was recommended by the Freedom of Association Committee, but which was unsuccessful due to the trade unions’ inability to agree, as explained above (internal dissensions within KOKURO; outright rejection by KENKORO).
8. 52. To summarize, the measures for redundant employees was considered one of the most important issues throughout the JNR reform. Out of the 277,000 JNR personnel, about 66,000 chose voluntary retirement or transfer to the public sector. After the reform, for the some 7,600 persons still unemployed, the JNR Settlement Corporation set up a three-year employment measures period with guaranteed salary, training and vocational guidance; as a result, about 6,600 found re-employment. During this period, the JRs hired another 1,606 employees. The 1,047 employees left are KOKURO and KENKORO members who have been insisting on employment by their local JRs, and did not accept the offers made during the three-year employment measures period. These unions have also rejected the offer at the political level on humanitarian grounds. Pushing now for additional measures in favour of these employees would be unfair for the vast majority of employees who have accepted compromises during the reform, and who consider the issue as settled.
9. 53. The Committee notes with concern that there could be no agreement on the implementation of the May 2000 Four-Party Agreement. Without attempting to apportion responsibilities for that failure, the Committee recalls that, at its November 2000 session, it had urged the parties to accept this agreement, as it considered that it “offers a real possibility of speedily resolving the issue of non-hiring by the JRs” [see 323rd Report, para. 376]. The Committee notes that the Tokyo High Court ruled for the first time in its October 2002 decision that the JRs had a responsibility as employers and that KOKURO’s and KENKORO’s opposition to the privatization plan was indeed a factor in the rehiring decisions, although the court stated that this did not constitute unfair labour practices. The Committee emphasizes that the issues at hand are very serious ones in terms of freedom of association principles, i.e. preferential treatment at hiring, and should be addressed by the Government. While noting the numerous efforts made in various fora at all stages of the reform process, the Committee urges the Government and the parties concerned to pursue their efforts towards finding a fair solution, acceptable to the largest possible number of workers; this is becoming increasingly urgent, given that the events date as far back as 1987, and taking into account the indications provided on the numbers of affected workers who have already died or have passed retirement age, which will make whatever solution ultimately found increasingly illusory. The Committee also requests the Government to provide it with a copy of the decisions of the Supreme Court concerning the members of KOKURO and KENKORO.