Effect given to the recommendations of the committee and the Governing Body - Report No 344, March 2007

Case No 2114 (Japan) - Complaint date: 18-JAN-01 - Closed

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

1. 93. The Committee last examined this case, which concerns restrictions on the right to bargain collectively of public employees and the absence of adequate, impartial and speedy conciliation and arbitration proceedings in case of breakdowns in negotiation, at its March 2006 session [see 340th Report, paras 120–123]. On that occasion, the Committee noted the additional information submitted by the complainant, the Okayama Prefectural High School Teachers’ Association Union (OHTU), which recounted several instances of the Government’s continued refusal to engage in meaningful negotiations. The Committee requested the Government to submit its observations on the complainant’s additional information and keep it informed of the measures taken to implement its previous recommendations to promote the development and utilization of collective bargaining machinery, with a view to the regulation of terms and conditions of employment by means of collective agreements for public school teachers [see 329th Report, paras 67–72].
   • New allegations concerning remuneration negotiations
2. 94. The complainant submitted additional allegations of the denial of collective bargaining rights in a communication dated 23 August 2006. The complainant states that, in 2005, the National Personnel Authority and the Okayama Prefectural Personnel Commission (OPPC) issued a report recommending the “revision of the payroll in 2005” to reduce annual wages by an average of 0.1 per cent or approximately 4,000 yen. The said bodies also recommended a review of the remuneration structured, centred on a reduction in wages by an average of 4.8 per cent, or 19,000 yen per month, as well as the introduction of a discriminatory pay raise system. This change would imply a radical change in the wage determination principle, which is based on a comparison between public and private sectors and that had been in operation for about 50 years in Japan. In the report containing these recommendations, the OPPC also mentioned reductions in other types of compensation, including the Educational Allowance for Part-time and Correspondence Courses (EAPCC), the Allowance for Industrial Education (AIE) and compensation for workers on leave.
3. 95. On 21 October 2005, the Okayama Prefectural Education Commission (OPEC) offered the OHTU a proposal that they extend the ongoing independent measure of Okayama Prefecture to reduce wages (a 2.8 per cent reduction in monthly wages and seasonal bonuses for 2004–06, due to financial difficulties) for another three years.
4. 96. At a negotiation session held on 4 November 2005, OPEC seconded the implementation of the recommendations in the OPPC report to reduce the EAPCC, the AIE and compensation for workers on leave. The complainant claimed that OPEC’s “reply” did not comply with the pre-established negotiation rule, but OPEC again proposed these recommendations on 8 November 2005.
5. 97. The complainant indicates that three negotiations took place between OHTU and OPEC on 4, 14 and 21 November 2005, respectively. Over the course of the negotiations, OPEC proposed a wage cut with regard to the revision of the 2005 wage rate, as was recommended by OPPC, and the proposed continuation of the Okayama Prefecture’s independent measure to reduce wages was set aside, though discussions on this matter would continue in the following year. OHTU requested that the OPPC’s wage reduction recommendations not be implemented, and that the time frame and number of meetings for negotiations be expanded; although OPEC extended the time frame slightly it refused to hold more than three meetings. OHTU decided to compromise on this issue as some progress had been made in the discussion of working conditions, and as OPEC had agreed to continue discussion of the most important matter – the review of the remuneration structure – in future negotiations.
6. 98. On 7 February 2006, OPEC made another proposal to the complainant in respect of the review of the remuneration structure. The said proposal was comprised of two main elements: (1) the reduction of wages by an average of 4.8 per cent, or 19,000 yen per month, as recommended by the OPPC; and (2) the introduction of a discriminatory pay raise system which, according to the complainant, is tantamount to a freeze on salaries for aged employees and a wage cut for employees in their twenties, who stand to lose
7. 15 million yen of their lifetime earnings though the wage level as of March 2006 would be secured in the immediate future. The complainant adds that OPEC also proposed to cut the retirement allowance by an average of 7 per cent, or about 1 million yen, in line with the recommendation put forth by the National Personnel Authority and OPPC.
8. 99. Negotiations between the OHTU and OPEC continued on 10 February 2006. On said date the complainant set forth its problems with OPEC’s proposals and strongly requested that they be withdrawn; eventually a compromise was reached, after confirming that OPEC would not immediately introduce an “assessment-based pay raise system” in 2006 and would negotiate with the complainant in respect of that issue.
9. 100. On 17 February 2006 OPEC proposed a review of the remuneration structure for
   • non-clerical workers, such as school affairs technicians. According to the complainant, the proposal aimed to revise the old wage systems, so as to reduce wages by an average of 15,000 yen per month for workers aged 40 years old, and to restrict the “current wage guarantee” to only four years, thus discriminating between teachers and general administrative personnel. On 27 February 2006 the complainant requested, with regard to these employees, that OPEC take measures similar to those for teachers. OPEC refused this request and unilaterally discontinued the negotiation.
10. 101. On 28 March 2006, in response to a proposal made by OPEC six days earlier, the complainant opened negotiations on the “adjustment amount” for the retirement
    • allowance – an issue on which negotiations had been postponed on 10 February 2006. The complainant insisted that OPEC abolish any hasty systematic reforms and hold full discussions on these matters, requesting them to continue negotiations, but OPEC unilaterally ended the negotiation. The complainant states that OPEC had been postponing discussion of the review of the remuneration structure as it was waiting for the policy and notice given by the National Personnel Authority.
    • New allegations concerning an employee assessment system
11. 102. In April 2005, the complainant states that OPEC commenced a trial period of the school personnel assessment system, intended for the staff members in 19 schools in Okayama Prefecture. Over this period OPEC only held “dialogues” with the complainant in which it simply listened to the OHTU’s opinions and ideas. OPEC maintained that the system’s main purpose was to enhance the qualifications and abilities of school staff members and to stimulate school systems. The issue of the assessment results on staff wages would be discussed in the future.
12. 103. Over this same period the complainant asked OPEC to participate in negotiations in accordance with ILO Convention No. 98, the UNESCO recommendations concerning the status of teachers, and section 55 of the Japanese Local Public Service Law. In November 2005 OHTU requested that the assessment system be fully reconsidered so as to take into account its input, to which OPEC stated that it did not deny that the assessment system is a negotiation issue, if its results reflect on wages. Furthermore, OPEC did not deny that they had been practising the special pay raise system, through the “outstanding teacher recommendation”, without negotiating with OHTU. OPEC nevertheless replied that this system would continue to be used. The complainant holds that OPEC has not fundamentally changed this system but merely accepted its requests relating to insignificant details of the system, and has implemented it in all schools since April 2006. On a more general note, the complainant maintains that the Government has shown a disregard for the complainant’s requests throughout their negotiations, thus violating its right to collective bargaining.
    • New allegations respecting the independence of the
    • personnel commissions
13. 104. The complainant states that, on 13 December 2005, it sent an “open letter” to the OPPC, inquiring about the position of the “compensatory organization for the constraint of the basic rights in labour”, a neutral organization that is expected to be fair, impartial and independent. The complainants adds that it had done so because the recommendations and reports issued by OPPC in 2005 had served as the basis for OPEC’s series of proposals for cutbacks in working conditions, contrary to the complainant’s requests. OPPC orally replied to the complainant’s letter on 17 January 2005 by reiterating the principles of “adjustment to social situations” and “equilibrium” to justify the Government’s stance.
14. 105. In a communication of 19 January 2007, the Government reiterates its previous position [see 328th Report, para. 383] on the rights of public school teachers under Convention
15. No. 98, namely that public school teachers are obliged to attend to their duties in the public interest as servants of the whole community, and that, since their salaries and other working conditions are stipulated by by-laws established by the local assembly, which is directly elected by local residents, the law protects the working conditions of public school teachers.
16. 106. The Government also repeats its earlier assertion that the question of whether a certain category of public servant may be excluded from the rights enshrined in Convention
17. No. 98, under Article 6 of the same Convention, should be decided by determining whether they benefit from statutory terms and conditions of service. It adds that this assertion finds support in the conclusions of the Committee themselves, and cites excerpts from previous cases of the Committee to which the Government was a party. For example, as regards Case No. 60, the Government recalls that the Committee found:
    • With regard to the Government’s obligations in the light of its ratification of Convention No. 98, the Committee considers that, by providing in its legislation, first, for negotiation machinery and, second, for the conclusion of collective agreements in respect of government-employed persons other than those benefiting from statutory terms and conditions, the Government appears to have acted in a manner consistent with the stipulations contained in Article 4 of Convention No. 98 cited above. With regard to the persons who do enjoy statutory terms and conditions, that is, persons engaged in the administration and with whom Convention No. 98 does deal specifically, although it is not to be construed as prejudicing their rights or status in any way, the Government, by enabling them to present grievances and representations through their organizations with a view to their being taken into consideration by those responsible for laying down or making recommendations concerning the contents of their statutory terms and conditions, has adopted the principle most usually accepted in other countries with respect to civil servants of this category, whose situation under the law admits of negotiation but not of the conclusion of collective agreements. The Committee considers, therefore, that the Government appears to have acted in a manner consistent with the provisions of Convention No. 98 with respect to the collective bargaining rights of persons employed by the Government and local public bodies [Case No. 60, 12th Report, para. 43, italics added by the Government].
    • The Government also referred to similar arguments and considerations can be found in respect of Cases Nos. 179 [54th Report, para. 179] and 738 [139th Report, para. 174].
18. 107. The Government indicates that sincere negotiations are being carried out with employees’ organizations, including the complainant. In response to the additional information previously submitted by the complainant on several instances demonstrating the Government’s ongoing refusal to bargain collectively [see 340th Report, para. 121] the Government states, with respect to the special retirement pay raise, which the complainant earlier alleged was abolished after insufficient negotiations, that this issue was presented to the complainant on 23 August 2004, and thereafter negotiated on 4, 10, and 25 November, an agreement being reached on the last day.
19. 108. As regards the system for special pay raises for especially outstanding employees, the Okayama Prefectural Education Commission (OPEC) has not established a new pay raise system, but has merely established a commendation system, which it does not consider to be a working condition subject to collective bargaining.
20. 109. Regarding the “Research and Study Council relating to Teacher Evaluation,” the said Council was only set up to prepare a “trial” manual. In the preparation of the “implementation” manual actually used, deliberations were held with the complainant on a total of six occasions and the opinions from these meetings were reflected in said implementation manual. The Government also refutes the complainant’s claim that the teacher evaluation system itself can be considered a working condition subject to negotiation, as it evaluates and records the performance of employees who have worked for a specific length of service under specific working conditions.
21. 110. With respect to the alleged failure of the OPPC to issue recommendations on wage improvement, the Government states that pay improvement recommendations were not issued as they would have concerned temporary pay control measures, whereas the purpose of the recommendations of the Personnel Commission are to indicate the proper salary levels that should be provided. The report by the Personnel Commission states that, “we strongly hope that the conventional level of pay for employees will be secured in accordance with the recommendations, once the conditions are improved”.
22. 111. The Government indicates that negotiations have also been carried out with the Okayama Prefectural Four-Party Joint Labour Council, a body comprised of public service trade unions representing the majority of public servants in Okayama Prefecture and of which the complainant is not a member. The Government additionally refers to an ongoing process of reform to the Civil Service, in the context of which the Special Examination Committee of the Headquarters for the Promotion of Administrative Reform is currently advancing the discussion of the prospective labour–employer relationship, which extends to the fundamental labour rights of public service employees, including local public employees. The members of this Special Examination Committee include persons from employees’ organizations.
23. 112. The Government states finally that, as regards the Committee’s previous recommendations regarding the promotion and development of collective bargaining machinery for public school teachers, this matter has been disposed of by the fact that public school teachers fall within the scope of Article 6 of Convention No. 98, and may therefore be denied the right to bargain collectively.
24. 113. The Committee notes the information provided by the Government. As regards the Government’s contention that the determination of those classes of public servant falling within the scope of Convention No. 98, Article 6 rests upon the question of whether the said public servants’ terms and conditions of employment are provided for by statute, the Committee considers that this interpretation is erroneous. In Case No. 60 [see 12th Report, paras 10–83], paragraph 43 of which is cited above in support of the Government’s claim, the Committee recalls that it had noted that the National Public Service Law (NPSL) applies to civil servants in the regular civil service, who are recruited by examination and whose terms and conditions of employment are prescribed by statute [see 12th Report, para. 39]. The NPSL grants to employees in the regular civil service the right to bargain, but not to conclude collective agreements, whereas all other classes of public servant, whose terms and conditions of employment are not set by statute, enjoy both the right to bargain and conclude collective agreements under the Public Corporation and National Enterprise Labour Relations Law. On that occasion, the Committee had concluded that the denial of the right to conclude collective agreements to employees in the regular civil service did not infringe upon the rights guaranteed under Convention No. 98, as those employees were considered to be public servants engaged in the administration of the State as stipulated by Article 6 of the same Convention [see 12th Report, paras 37–44].
25. 114. The Committee wishes to clarify that its earlier reference in that case to “persons who do enjoy statutory terms and conditions, that is, persons engaged in the administration of the State”, particularly when read in the context of its full conclusions in that case, was simply meant to acknowledge that, under Japanese law, the granting of collective bargaining rights to all public employees except the regular civil service – who are for the purposes of the Convention employees engaged in the administration of the State and, as is the case under Japanese legislation, also employees whose terms and conditions of employment are statutorily provided for – was consistent with Articles 4 and 6 of Convention No. 98. The Committee does not consider that this was meant to suggest that all employees whose terms of employment are provided for by statute qualify for the exemption under Article 6 of Convention No. 98, as the Government contends, and this can be seen from a number of cases decided by it more recently.
26. 115. Indeed, as concerns the scope of Article 6 of the Convention the Committee recalls that it is imperative that the legislation contain specific provisions clearly and explicitly recognizing the right of organizations of public employees and officials who are not acting in the capacity of agents of the state administration to conclude collective agreements. From the point of view of the principles laid down by the supervisory bodies of the ILO in connection with Convention No. 98, this right could only be denied to officials working in ministries and other comparable government bodies, but not, for example, to persons working in public undertakings or autonomous public institutions [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 893]. On this point the Committee is bound to point out that, if any class of public employee could be denied the right to collective bargaining simply by legislating their terms and conditions of employment, Convention No. 98 would be deprived of all of its scope vis-à-vis public employees.
27. 116. As concerns the specific case of public school teachers, the Committee recalls that in its previous treatment of this case it had clearly stated that public school teachers should have the right to bargain collectively [see 328th Report, para. 416]. The right of public school teachers to bargain collectively had in fact been unambiguously set forth by the Committee on other occasions, such as in its treatment of Cases Nos. 2177 and 2183 [see 329th Report, para. 645]. Finally, the Committee recalls that teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, it is important that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98 [see Digest, op. cit., para. 901].
28. 117. The Committee notes that, according to the Government, it had in fact negotiated and reached agreement with the complainant on the issue of the special retirement pay raise. The Government also states that the other matters raised by the complainant in its 2005 allegations lie outside the proper scope of negotiations, and were therefore not pursued, whereas it had continued to negotiate with other workers’ organizations over the terms of their constituents’ employment. The Committee nevertheless notes that the Government has not responded to the complainant’s most recent allegations, which, while indicating that proposals had been made and discussions held on a number of occasions between the OHTU and the OPEC, primarily concern the refusal to engage in meaningful negotiations. It further notes that the Government has not fully implemented its previous recommendations respecting the promotion of collective bargaining machinery and ensuring the impartiality of the personnel commissions [see 340th Report, para. 123]. In light of this, the Committee urges the Government to: (1) take appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation, with a view to the regulation of terms and conditions of employment by means of collective agreements for public school teachers; and (2) take the necessary steps to ensure that the members of personnel commissions are persons whose impartiality has the confidence of the parties concerned. The Committee requests to be kept informed of developments in this regard.