Effect given to the recommendations of the committee and the Governing Body - Report No 350, June 2008

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

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

1. 111. 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 (PLRCs), at its May–June 2007 meeting. The Committee noted with regret that, despite the recommendations concerning the composition of the CLRC it had formulated in its 330th and 338th Reports, no nominees of the complainant, the National Confederation of Trade Unions (ZENROREN), was appointed to the most recent term of the CLRC. It recalled once again 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, and requested 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. Observing that the complainant had appealed the 8 November 2006 decision of the Tokyo District Court, which rejected its challenge to the appointments of the 28th term of the CLRC, the Committee requested the Government to communicate a copy of its examination of the case to the Tokyo High Court and to transmit a copy of the latter’s decision once it was handed down [see 346th Report, paras 82–94].
2. 112. In its communication of 4 October 2007, the complainant states that on 22 June 2007 the Government published an announcement in the Official Gazette entitled “Call for Nomination of Candidates to Fill a Vacancy Following the Death of a Member Representing Workers for the 29th Term of the CLRC” and, in accordance with the provision of article 20-1 of the Enforcement Order of the Trade Union Law, called on eligible trade union organizations to nominate candidates for the vacancy. The National Conference for the Democratization of Labour Relations Commissions, which comprises three organizations – ZENROREN, JUNCHURITSU-ROSO Conference (a coordinating body of independent unions) and MIC union (a mass media, information and culture workers’ union) – together with its affiliated unions decided to nominate Mr Kazuo Imai (Federation of Publishing Industry Workers’ Unions (SHUPPAN-ROREN)) and Mr Takeshi Kokubu (Federation of Construction, Transport and General Workers Unions (KENKORO)) as candidates for the vacant post and submitted these nominations to the Prime Minister.
3. 113. On 12 July 2007 the complainant held negotiations with the Ministry of Health and Labour. In the negotiations it strongly requested the Ministry to correct its unfair appointment practice to comply with the ILO recommendations, particularly those of March 2003. The complainant also submitted a petition to the Ministry asking it to make a fair selection in appointing the CLRC worker member. When asked to explain its view on the appointment of the CLRC members, the Ministry replied that it had so far appointed CLRC members in a fair manner and that it intended to do the same in future, adding that it had always selected the nominees who were appropriate to represent workers’ interests in general. When asked about the ILO recommendations, the Ministry replied that as the ILO had recommended the “fair treatment” of all nominees, its recommendations were already were taken into account in appointment decisions.
4. 114. On 1 August 2007, the Government appointed a RENGO nominee to fill the vacant worker member position in the CLRC, thereby failing to use the opportunity to correct the imbalance in the composition of the CLRC for the current term by having all worker member positions occupied by RENGO nominees; furthermore the Government provided no explanation regarding the nomination process to the nominating organizations.
5. 115. As regards its appeal to the Tokyo High Court of the District Court’s decision, the complainant indicates that it had submitted the ILO’s recommendations as evidence, and that a decision was to be handed down on 5 December 2007. As concerns the PLRCs, the complainant states that: (1) following the 22 September 2006 appointments to its 40th term, all worker member positions in the Kyoto PLRC have been occupied by RENGO Kyoto candidates; (2) RENGO also still monopolized the worker member positions in the Kanagawa PLRC; (3) in Hyogo Prefecture, the complainant had appealed the Kobe District Court’s 13 March 2007 decision respecting its challenge to the appointments to the 39th term of the PLRC – the appeal was pending before the Osaka High Court; (4) in Hokkaido Prefecture, the complainant had filed a lawsuit on 29 May 2007 challenging the appointment of exclusively RENGO nominees to the PLRC.
6. 116. In its communication of 16 January 2008, the complainant states that, on 5 December 2007, the 12th Civil Division of the Tokyo High Court dismissed its appeal of the 8 November 2006 decision of the Tokyo District Court; a copy of the decision is attached to the communication. The complainant further indicates that, on 18 December 2007, it had appealed the Tokyo High Court’s decision in the Supreme Court.
7. 117. In its decision, the Tokyo High Court affirmed the analysis set out in the District Court’s judgement, holding that: (1) as CLRC appointments are left to the sound discretion of the Prime Minister, the appointment of candidates exclusively from RENGO cannot be said to constitute discriminatory treatment and a violation of ILO Convention No. 87; (2) as a dispute resolution body, the CLRC’s nature and function are different from those of a body charged with developing policies. Therefore even if the diversity of trade union affiliations could be a factor to be taken into consideration, it would not be necessary to reflect this precisely in the composition of the CLRC worker members and attempting to do so would pose considerable difficulty; (3) even if considerations of proportional representation suggest that at least three of the complainant’s nominees be appointed to the CLRC, this does not lead to the conclusion that that number of worker members must be the complainant’s nominees; and (4) although the complainant is entitled to question the fairness of the appointments, there is insufficient evidence to suggest that the Prime Minister had overstepped or abused his discretion.
8. 118. In its communication of 21 February 2008, the Government attaches a copy of the Tokyo High Court’s 5 December 2007 decision and indicates that copies of the reports containing the Committee’s 4 previous examinations of the case (Reports Nos 328, 330, 338 and 346) had been communicated to the Tokyo High Court. In respect of the CLRC, the Government states that, in its 1 August 2007 decision to fill the vacancy by appointing a RENGO nominee, it had comprehensively considered various factors to appoint a qualified person suited to represent the interests of labourers in general. It further indicates that on 2 August 2007 a number of members were appointed to the Hyogo PLRC; none of those appointees were nominees of the complainant.
9. 119. The Committee notes with regret that, in spite of its previous recommendations concerning the composition of the CLRC, yet again no ZENROREN nominee was appointed to the most recent term of the CLRC. While noting the Government’s indication that its 1 August 2007 appointment of a RENGO nominee to the 29th term of the CLRC took into consideration various factors, the Committee – observing that three terms of the CLRC have now passed since it first examined this case, without the nomination of any ZENROREN nominees to the CLRC – queries whether the Government has given due consideration to the rationale of its previous recommendation in this context, that is, 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]. The Committee therefore requests the Government to take these principles into consideration when appointing worker members to the next term of the CLRC and those of the Kyoto, Kanagawa and Hyogo PLRCs. Noting further that the complainant has appealed the 5 December 2007 decision of the Tokyo High Court to the Tokyo Supreme Court, the Committee requests the Government to provide the Tokyo Supreme Court with copies of its current and previous examinations of the present case and to transmit a copy of the court’s decision once it is handed down.