Effect given to the recommendations of the committee and the Governing Body - Report No 346, June 2007

Case No 2139 (Japan) - Complaint date: 19-JUN-01 - Closed

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

1. 82. The Committee last examined this case, which concerns allegations of preferential treatment granted to certain workers’ organizations in the appointment of nominees to the Central Labour Relations Commission (CLRC) and various prefectoral labour relations commissions (PLRC), at its November 2005 meeting. The Committee, recalling the necessity of affording fair and equal treatment to all representative organizations, with a view to restoring the confidence of all workers in the fairness of the composition of labour relations commissions and other similar councils that exercise extremely important functions from a labour relations perspective, had urged the Government to take these principles into consideration when appointing worker members for the 29th term of the CLRC. It had also asked to be provided with the decision of the Tokyo District Court respecting the lawsuit filed by the complainant challenging workers’ appointments for the 28th term of the CLRC [see 338th Report, para. 206].
2. 83. In its communication of 5 January 2007 the complainant, the National Confederation of Trade Unions (ZENROREN), states that on 7 July 2006 the Government issued a public announcement entitled “Nomination of candidates for worker members of the CLRC”, requesting the trade unions that qualify for nominating candidates to the CLRC submit their nominations. The complainant and its affiliates, together with other independent trade unions, submitted a list of three worker member nominees to the CLRC: Mr Horiguchi, Mr Kokobun, and Mr Imai.
3. 84. On 16 November 2006, the Government appointed 15 worker members for the 29th term of the CLRC. None of the candidates backed by the complainant and other independent trade unions were nominated; all of the appointees were individuals nominated by the Japan Trade Union Confederation (JTUC-RENGO). In response, the complainant issued a “protest statement against the biased appointment of worker members for the 29th Session of the CLRC”, which was submitted to the Ministry of Health, Labour and Welfare (MOHLW) the day after the appointments.
4. 85. The complainant states that it held negotiations concerning the appointments with the MOHLW on 19 December 2006. In said negotiations, the MOHLW maintained that persons competent to represent workers’ interests in general were appointed, taking into consideration different factors, including the criteria laid down in 2002 for the selection and appointment of worker members, and that persons competent to represent workers’ interests in general would be appointed fairly and impartially for the 30th term of the CLRC as well. When requested for more information about the selection process leading to the November 2006 appointments, however, the Ministry initially refused to give a reply, stating that it could not disclose the concrete manner in which the appointments were decided, as it was a question of “personnel affairs.” The complainant adds that it had asked for the Ministry’s view on the Committee’s previous recommendations in the present case, to which the Ministry responded that it “respects the ILO recommendation and the composition of the 29th term of the CLRC is the result of its effort to make fair appointments”.
5. 86. The complainant indicates that on 8 November 2006 the Tokyo District Court issued a decision rejecting the complainant’s challenge to the worker member appointments to the 28th Session of the CLRC. A copy of the decision is attached to the communication. In arriving at its conclusions the Tokyo District Court considered, inter alia, the Committee’s recommendation in its 330th Report to take “remedial measures on the occasion of appointments for the 28th term of the CLRC or before that, should worker member positions become vacant in the meantime”, as well as the recommendations formulated by the Committee in its most recent examination of the present case, as set out in its 338th Report. However, the Court interpreted the said recommendations to “merely request measures for establishing criteria for worker members’ appointments, or for correcting the imbalance in their composition from the perspective of restoring the confidence of workers”, and subsequently determined that the appointments to the 28th Session of the CLRC did not violate ILO Convention No. 87. The complainant indicates that it has appealed this decision to the Tokyo High Court.
6. 87. The complainant alleges that on 21 September 2004, the Kyoto General Council of Trade Unions (Kyoto-SOHYO) filed suit against the Kyoto Prefectural Government and the Governor of Kyoto in Kyoto District Court to challenge the exclusive appointment of worker members nominated by RENGO-Kyoto to the 39th term of the Kyoto PLRC (KPLRC). According to the complainant, candidates nominated by RENGO-Kyoto have occupied all worker member posts in the KPLRC since 1989, or eight terms in a row, in spite of the fact that the membership ratio between Kyoto-SOHYO and RENGO-Kyoto is 3:5, so that it could reasonably be expected that at least one of the five worker members be chosen from candidates nominated by Kyoto-SOHYO. On 21 June 2006, the Kyoto District Court dismissed Kyoto-SOHYO’s suit seeking the annulment of worker member appointments to the KPLRC. On 22 September 2006, the composition of the 40th term of the KPLRC was announced; all worker members appointed were again from RENGO-Kyoto nominees.
7. 88. The complainant states that, in Kanagawa prefecture, the worker members for the 35th term of the Kanagawa PLRC appointed in April 2004 were all candidates nominated by RENGO-Kanagawa. On 15 July 2004, the complainant’s Kanagawa subsidiary (KANAGAWA ROREN) and its ten affiliates filed suit in Yokohama District Court to challenge the appointments. The complainant adds that the membership ratio between KANAGAWA ROREN and RENGO-Kanagawa stands at 1:4, so that it could reasonably be expected that at least one of the seven worker members on the Kanagawa PLRC would be chosen from the nominees submitted by KANAGAWA ROREN; nevertheless, the Yokohama District Court dismissed the suit on 28 November 2006.
8. 89. The complainant indicates that all worker members in the Hyogo PLRC have been appointed from JTUC-RENGO nominees for many years as well, and that legal challenges to the appointments had been mounted since the 37th term of the Hyogo PLRC. The complainant’s challenges to the appointments to the 37th and 38th Sessions of the Hyogo PLRC failed to succeed, but a suit against the appointments to the 39th term is currently before the Kobe District court, which is expected to hand down a judgement in March 2007.
9. 90. In a communication of 12 January 2007, the Government states that new members consisting of 15 employers, 15 labour members and 15 government members were appointed to the 29th term of the CLRC on 16 November 2006. As concerns the worker members, persons competent to represent the interests of workers in general were appointed by the Prime Minister based on recommendations made by labour unions, and taking into account various considerations including, among others, the organizational situation of each trade union; as a result, 15 persons recommended by RENGO-affiliated unions were appointed.
10. 91. As concerns the appointment of worker members to PLRCs, the Government indicates that, in January 2005, eight members in various PLRCs were individuals recommended by trade unions affiliated with the complainant. Since that time, new members were appointed in all of the 47 PLRCs, and the number of appointees nominated by ZENROREN for all of the PLRCs remains at eight.
11. 92. The Government indicates that the Tokyo District Court issued an 8 November 2006 decision rejecting the complainant’s challenge to the appointments to the 28th term of the CLRC. In arriving at its decision, the Court found, inter alia, that: (1) the CLRC was an industrial dispute resolution body, as opposed to one charged with elaborating policy, and as such it was not an absolute necessity for it to have different opinions and positions represented by members with different union affiliations; (2) there was no legal provision requiring that a worker member nominated by a particular trade union take part in the examination of a case concerning that particular trade union; (3) the Prime Minister’s appointment of worker members exclusively from JTUC-RENGO nominees cannot be considered to be discriminatory treatment; (4) the recommendations formulated by the Committee in its 330th and 338th Reports merely request measures for establishing criteria for worker members’ appointments, or for correcting the imbalance in their composition from the perspective of restoring the confidence of workers, so that the appointments of worker members to the CLRC cannot be regarded as violating ILO Convention No. 87; and (5) the complainant’s total membership, compared to that of JTUC-RENGO, cannot be regarded as sufficient for obtaining one worker member post, so that the non-appointment of the complainant’s nominees cannot be viewed as an unreasonable decision. The Government adds, in respect of the December 2006 negotiations held between the MOHLW and the complainant, that the complainant had queried whether people might think that the Government appointed some nominees with a particular intention, to which the Ministry replied that it did not have any particular intention.
12. 93. While noting the Government’s indication concerning ZENROREN’s membership in the PLRCs, the Committee notes with regret that, in spite of the recommendations concerning the composition of the CLRC it had formulated in its 330th and 338th Reports, according to the information provided by the complainant and the Government yet again no ZENROREN nominee was appointed to the most recent term of the CLRC. The Committee is, under these circumstances, once again compelled to recall the necessity of affording fair and equal treatment to all representative organizations, with a view to restoring the confidence of all workers in the fairness of the composition of labour relations commissions and other similar councils that exercise extremely important functions from a labour relations perspective [328th Report, paras 444–447] and requests the Government to keep it informed of all measures taken in this regard as concerns the CLRC, as well as the Kyoto, Kanagawa and Hyogo PLRCs.
13. 94. Observing that the complainant has appealed the 8 November 2006 decision of the Tokyo District Court, the Committee requests the Government to communicate a copy of its examination of the case to the Tokyo High Court, and to transmit a copy of the High Court’s decision when it is handed down.