Effect given to the recommendations of the committee and the Governing Body - Report No 329, November 2002

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

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

1. 67. The Committee examined this case at its June 2002 session, where it made the following recommendations [328th Report, para. 416]:
   • (a) The Committee recalls that teachers should have the right to bargain collectively.
   • (b) So far as the impartiality of the personnel commissions are concerned, the Committee requests the Government to take the necessary steps to ensure that the members of personnel commissions are persons whose impartiality commands general confidence and that workers’ organizations have a meaningful voice in the appointment of the members of these commissions; it further requests to be kept informed of developments in this regard.
   • (c) The Committee requests the Government to take the appropriate measures to amend the relevant provisions of the Local Public Service Law so that personnel commissions have the power to give binding decisions with regard to salaries, working hours and other working conditions of local public employees. It also requests the Government to keep it informed of developments in this regard and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
   • (d) The Committee expresses the firm hope that future recommendations of personnel commissions will be fully and promptly implemented.
   • (e) The Committee requests the Government to 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, in conformity with Articles 4 and 6 of Convention No. 98. It asks the Government to keep it informed of developments in this regard.
2. 68. In a communication of 30 August 2002, the Government states that it finds it very regrettable that the Committee refused to adjourn this case and examine it in conjunction with the complaints filed by two other workers’ organizations (Case No. 2177, RENGO; Case No. 2183, ZENROREN) in connection with the current civil service reform, but rather chose to examine it on the merits. The Committee points out that it has already addressed this argument and considered that the present case could be dealt with independently of the issues stemming from said reform, which it said it would address “in the two other complaints concerning specifically and directly said reform” [328th Report, para. 415]. The Committee finds a further justification for having proceeded in this manner in the latest Government’s own statement that “Case No. 2114 was a special case, isolated both in its geographical and chronological context”.
3. 69. The Government further states, as regards recommendation (c), that it is inappropriate for the Committee to request such measures as amendments to domestic law, since that would unduly restrict the administrative discretion of a government. The Committee recalls that: the purpose of its procedure is to promote respect for trade union rights in law and in fact [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 4]; that the matters dealt with by the ILO in respect of working conditions and promotion of freedom of association cannot be considered to be undue interference in the internal affairs of a sovereign State since such issues fall within the terms of reference that the ILO has received from its Members, who have committed themselves to cooperate with a view to attaining the objectives that they have assigned to it [Digest, ibid., para. 3]; and where national laws, including those interpreted by the high courts, violate the principles of freedom of association, it has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO’s technical assistance to bring the laws into compliance with these principles, as set out in the Constitution of the ILO and the applicable Conventions [Digest, ibid., para. 8].
4. 70. As regards the appointment of the members of the personnel commissions (recommendation (b)), the Government reiterates that the commissions are not composed of three parties representing labour or management. Therefore, the Government cannot accept the request that it move to ensure a meaningful voice for labour in the selection process. In this regard, the Committee recalls that in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should appear to be impartial both to the employers and the workers concerned.
5. 71. As regards the right of teachers to bargain collectively (recommendations (a) and (e)), and the need to take appropriate measures to promote the full development and utilization of machinery for voluntary negotiation to regulate teachers’ terms and conditions of employment by means of collective agreements (recommendation (e)), the Government describes, as it has already done, the system of salary recommendations by the personnel commissions and reiterates that the decision to delay full implementation of the recommendations of the commissions was of exceptional measure in order to deal with extraordinary circumstances. The Government states that public school teachers benefit from statutory terms and conditions of service and, as such, are public servants excluded from the application Convention No. 98, under its Article 6. The extent to which public servants are to be excluded from the application of Convention No. 98 should be determined through a judgement on whether they benefit from statutory terms and conditions of service.
6. 72. As there seems to exist in this respect a fundamental misconception, the Committee recalls that the exemption in Article 6 of Convention No. 98 does not apply to teachers, be they employed in public or private schools. As has been stated many times, all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights [Digest, ibid., para. 793]. A distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of Convention No. 98 [Digest, ibid., para. 794]. If this were not the case, Convention No. 98 would be deprived of much of its scope. In this context, the Committee requests once again the Government to 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.