Report in which the committee requests to be kept informed of development - Report No 328, June 2002

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

Allegations: Anti-union discrimination preventing a union from fulfilling its duty of representation

1. 417. The National Confederation of Trade Unions (Zenroren) presented a complaint of violations of freedom of association against the Government of Japan in communications dated 19 June and 19 July 2001.
2. 418. The Government forwarded its observations in a communication dated 31 January 2002.
3. 419. Japan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 420. In its communication of 19 June 2001, Zenroren explains that it is one of the Japanese national trade union centres. Established in 1989, it is composed of 22 national industrial federations/unions and 47 local federations, with a total membership of 1.5 million members.
2. 421. Since Zenroren’s inauguration, the Government has nominated only candidates recommended by unions affiliated to the Japanese Trade Union Confederation (Rengo) as worker members of the Central Labour Relations Commission (CLRC) which are appointed by the Prime Minister, and of other national tripartite councils and commissions, while excluding those recommended by Zenroren-affiliated unions. Similar practices have been adopted for the nomination of worker members to local prefectural labour relations commissions (PLRCs), which are appointed by the governors of prefectures, and to local tripartite councils and commissions. As a result, with a few exceptions, Zenroren candidates have been excluded nationwide from these bodies. Furthermore, when two additional worker members were appointed in April 2001 to the CLRC following the creation of independent administrative institutions (IAIs), a candidate recommended by one of Zenroren affiliates (Kokkororen) was not nominated, and the candidates recommended by two Rengo affiliates (Zennorin and Zenrinya) were chosen; as a result, the right to organize and to conclude collective agreements of IAIs’ workers, members of Zenroren and Kokkororen have been violated.
3. 422. As regards appointments to the CLRC, while Rengo and Zenroren have 7,314,000 and 1,036,000 members respectively, all 15 member workers of the CLRC are Rengo members and none is a Zenroren member. In PLRCs, 257 member workers come from Rengo ranks and only three from Zenroren, in spite of the fact that the latter has local centres in all 47 prefectures.
4. 423. As regards appointments to various governmental tripartite bodies, Rengo is represented on 78 out of 151 tripartite councils, and representatives of independent unions are appointed to eight such bodies: for example a union member from the construction sector (Zenkensoren) has been appointed to the Central Construction Industry Council. By contrast, not a single Zenroren member is nominated to any of these tripartite bodies.
5. 424. Concerning the situation in independent administrative institutions (IAIs), Zenroren explains that the Government, as part of the ongoing administrative reform, has created two types of such bodies: "non-specified IAIs" and "specified IAIs". Employees in the former have the right to organize, to bargain collectively and the right to strike. While employees in the latter have the right to organize and to bargain collectively, they do not have the right to strike and are subject to the compulsory arbitration system through the CLRC, which the Government considers as a compensatory measure for the denial of the right to strike. The Government thus decided to increase the number of workers’ representatives on the CLRC. With the support of 24 unions, Zenroren recommended Mr. Kumagai (vice-president of Zenroren and member of Kokkororen’s Central Executive Committee); a Rengo affiliate (Zenteishin) recommended three other workers as joint Rengo candidates. The membership in specified IAIs stands approximately as follows: Kokkororen, 4,500; independent unions, 1,000 (850 of whom recommended Mr. Kumagai); Rengo, 6,500. Again in this case, and although numbers are not significantly different, Mr. Kumagai was not selected, without any reasons being given by the Ministry of Labour, other than "the selection of CLRC members is a matter at the discretion of the administration". That Mr. Kumagai was a victim of discrimination and not selected as worker member of the CLRC can only be explained by the fact that the Government dislikes the activities of Zenroren and its affiliate Kokkororen.
6. 425. The CLRC can be considered as a body responsible for granting remedy to victims of unfair labour practices within IAIs. However, those organizations whose representatives are excluded from the CLRC without any legitimate reason cannot trust it as being a reliable machinery for the protection of their right to organize. Moreover, while the Government considers the CLRC as a compensatory mechanism for the denial of the right to strike, the complainant organization points out that under Article 8 of Convention No. 151 (not ratified by Japan), the settlement of disputes "shall be sought -- through negotiations between the parties or through independent and impartial machinery -- established in such a manner as to ensure the confidence of the parties involved" and that the Committee of Experts has emphasized in its 1996 General Survey that appropriate measures should be taken to compensate restrictions of the right to strike. For the CLRC compulsory arbitration system to function effectively, it is necessary that the unions’ demands be reflected correctly. For instance, the demands regarding wages differ in nature between Zenroren and Rengo affiliates. As a result of the monopolization of Rengo affiliates on the CLRC structure, some workers feel that they cannot expect much the CLRC compulsory arbitration system, which should compensate them for the restriction of fundamental labour rights. This discriminatory selection of workers’ representatives constitutes a serious violation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which threatens the right of workers to organize themselves and conclude collective agreements. In addition, by not presenting the reasons for the non-selection of Mr. Kumagai, the Government has failed to fulfil in good faith the obligations it has accepted as an ILO Member by ratifying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
7. 426. Zenroren adds that the Government’s approach to selecting worker members has changed through the years, in three stages. They were initially chosen in proportion of union membership by groups of tendencies and industries, thus respecting the legislator’s original intention, notably as reflected in the procedures for appointment of members of prefectural labour relations commissions (Notice No. 54 of 29 July 1949). Subsequently, proportional nominations were made according to the four existing labour organizations (Sohyo, Domei, Churitsu-Rohen and Shin-Sanbetsu), to the exclusion of others. Finally, the Government’s attitude changed dramatically after the foundation of Zenroren and Rengo; since November 1989, the Government has nominated exclusively Rengo members and excluded Zenroren members. Various interventions in Parliament did not change the situation, and numerous lawsuits challenging this discriminatory treatment were dismissed by high courts and district courts. This shows that Japan’s laws have not matured yet and that anti-union discrimination by the Government is rampant, contrary to Article 8 of Convention No. 87, which provides that "the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention".
8. 427. As regards the nomination of worker members to different tripartite councils and commissions, Zenroren has requested for ten years, during all spring negotiations, to be included in these bodies, particularly the Central Minimum Wages Council and the Examination Committee of Social Insurance, but its demands have been consistently rejected.
9. 428. In its communication of 19 July 2001, Zenroren reiterates some of its previous arguments and provides: (a) statistical data on the number of complaints of unfair labour practices, the number and percentages of complaints presented to the Tokyo Labour Relations Commission, and the number and percentages of cases of labour dispute arbitration, broken down by confederations; (b) information on the nature of duties, qualifications and performance expected from worker members sitting on labour relations commissions; and (c) excerpts from a debate on this subject in Parliament between the Government and an opposition MP.
10. 429. The complainant organization concludes that the ILO should point out the failure of the Government of Japan to implement its obligations arising out of the ratification of Conventions Nos. 87 and 98, and recommend that it correct the acts of discrimination against Zenroren by nominating worker members to the Central Labour Relations Commission, the prefectural labour relations commissions, and the other governmental tripartite bodies in proportion to the membership by trade union currents and groups, including in the context of the CLRC re-election which will take place in October 2002.

B. The Government’s reply

1. 430. In its communication of 31 January 2002, the Government explains the system of labour relations commissions established under the Trade Union Law. The Central Labour Relations Commission (CLRC) is a national organization mandated to: (1) examine cases of unfair labour practices, and labour disputes in national enterprises and specified independent administrative institutions (specified IAIs); (2) re-examine remedy decisions issued by prefectural labour relations commissions (PLRCs) regarding unfair labour practices in private companies and local public enterprises. The CLRC and PLRCs are independent administrative bodies which exercise the powers prescribed in the various applicable laws, without any control from the minister in charge nor from the governors of prefectures. The legislation provides rules for the composition of commissions, procedures for the selection of members and describes their duties.
2. 431. Labour relations commissions are composed in equal numbers of persons representing employers, workers and the public. Employer and worker members are appointed among those recommended, respectively, by employers’ and workers’ organizations. This aims at ensuring the appointment of candidates familiar in each field and enables the selection of persons suitable to represent the interests of workers and employers in general. However, this system does not seek to represent particular interests of the organization which made the recommendation. Once a person is selected as worker member, he must act in the interest of workers in general, regardless of the opinions or interests of the trade union or affiliate to which he belongs, or which nominated him. The complainant’s views in this respect are based on a misunderstanding of the role of labour relations commissions, and on the false assumption that worker members should advocate the individual interests of workers in individual cases. In fact, while worker members do reflect the interest of workers when examining cases of unfair labour practices, the "interests" in question here are not the individual interests of the trade union lodging the complaint, but those of workers in general. In other words, worker members are expected to act as specialists in labour affairs, impartial to either side or tendency.
3. 432. Concerning the appointment of members of the CLRC, the Prime Minister, upon recommendation by trade unions, appoints persons suitable to represent the interests of workers in general, taking various factors into consideration. These members then exercise their duties with that general interest in mind, and neither for the interests of the specific trade union which recommended them, nor the interests of an individual worker. The courts have confirmed this principle. As regards the appointments made in April 2001 to the CLRC, the Government states that cases concerning national enterprises and those concerning other enterprises are treated by different members appointed on an ad hoc basis, because the rights and circumstances differ; the objective is to manage cases rapidly and properly by designating members who are well informed of the labour relations framework in each type of enterprise. SIAIs fall under the competence of the CLRC because their labour relations are considered similar to those of national enterprises. When SIAIs were established in April 2001, the number of CLRC worker members was increased by two; these two new members deal not only with cases concerning SIAIs but also with those concerning national enterprises. Therefore, the complainant’s allegation is again based on the false assumption that these two new members manage only cases concerning SIAIs.
4. 433. The Government states that members of PLRCs are appointed by the governor of each prefecture, at his own discretion and without intervention from the Prime Minister or the Central Government. The governors’ competence has even been strengthened by Law No. 87 of 2000 on decentralization reform. When giving figures for PLRCs, the complainant merely added the numbers of worker members of PLRCs all over Japan, and based its complaint on the general tendency (incidentally, a person recommended by Zenroren was recently appointed in the Prefecture of Nagano, which brings their total to four, not three as mentioned in the complaint). In Tokyo, which has the largest number of worker members in Japan, three members out of 13 are appointed on recommendations made by unions other than Rengo or Zenroren.
5. 434. As regards the complainant’s arguments based on the procedures for appointment of members of prefectural labour relations commissions (Notice 54 of 29 July 1949), the Government points out that this notice was issued by the Ministry of Labour to provide governors with an interpretation of the law, explaining the various factors to be taken into consideration for the appointment of worker members; it is not an order given to governors to appoint PLRCs’ worker members based on this standard. Governors are independent officials, elected locally, to whom the Central Government can only explain the Trade Union Law; it cannot give them orders or control their decisions.
6. 435. With respect to the alleged failure to appoint Zenroren candidates to various councils and commissions, the Government states that councils are established by law or ordinance to deal with issues that require specialized knowledge. For those councils dealing with labour-related issues, the legislation provides that they shall consist of persons representing the interests of workers, employers and the public; worker representatives are appointed by taking into account the specific objects of each council. In some councils, trade union members may be appointed not by reason of their affiliation, but rather because of their knowledge and experience: for instance, the member of the Central Construction Industry Council mentioned by the complainant was appointed not as representative of workers’ interests, but as a person having the appropriate knowledge and experience. Therefore, the complainant’s argument based on the trend in the total number of members of various councils is inappropriate.
7. 436. As regards the complainant’s argument based on the respective memberships, the Government already explained that the number of members in each workers’ organization is only part of the factors taken into account, but not the only criterion, when appointing worker members to labour relations commissions and other councils. Even then, the figure quoted from the Trade Union Basic Survey is not appropriate because it incorporates public employees in the non-operational sector, whose disputes are not covered by the Labour Relations Commission. According to the Government, the respective memberships in IAIs are approximately as follows: Rengo-affiliated unions, 6,800; Zenroren-affiliated unions, 3,800; other unions, 1,300. The Government adds that the memberships of Rengo and Zenroren-affiliated unions are respectively: 260,000 and 5,950 in national enterprises; and 5,756,952 and 602,833 in other enterprises.
8. 437. Concerning the practical effects of non-appointments of Zenroren candidates, the Government states that the fact that a person recommended by a certain trade union is not appointed to a labour relations commission does not mean that complaints for unfair labour practices submitted by that union will not be entertained; the workers’ rights in this respect are protected irrespective of their affiliation. In the CLRC procedures, no trade union has ever suffered injustice because of its affiliation to Zenroren. As regards the wage decision for the year 2001 concerning national enterprises, both Rengo and Zenroren-affiliated unions applied for mediation; that mediation being unsuccessful, an arbitration award was issued, which granted an amount of ¥60 in addition to the standard 0.05 per cent wage increase. The award was issued and applied uniformly for both Rengo and Zenroren-affiliated unions.
9. 438. The Government concludes as follows:
   • - as regards the appointment of worker members to the CLRC, in accordance with the Trade Union Law, the Prime Minister appointed competent persons to represent the general interest of workers, based on trade unions’ recommendations, by taking various factors into consideration; these appointments were fair and there was no violation of Conventions Nos. 87 and 98. In future, the organizational situation of each trade union will be taken into account as one factor, but future appointments cannot be predicted;
   • - as regards the appointment of worker members to PLRCs, the Government declares that the governors acted in accordance with their mandate and in conformity with the provisions of the Trade Union Law, and that these appointments were made appropriately;
   • - as regards the appointment of members to various councils, where the law provided that workers’ representatives must sit on a certain council, competent persons were appointed in the light of the objects of that body, by taking into account various factors. In future, the Government will continue to appoint members properly on that basis; it is however impossible to predict the affiliations of persons who will be so appointed in the future.

C. The Committee’s conclusions

1. 439. The Committee notes that this complaint concerns allegations by the National Confederation of Trade Unions (Zenroren) that the central and local authorities gave preferential treatment to another workers’ organization (Rengo) by appointing systematically the latter’s nominees as worker members of the Central Labour Relations Commission, the prefectural labour relations commissions and various tripartite local and central councils and commissions, thereby practically excluding Zenroren candidates from these bodies, in spite of the fact that it represents a large number of workers. The complainant alleges that in so doing, the Government acted in a discriminatory fashion, prevented it from fulfilling its representational duties, and that its members’ rights to organize and bargain collectively have been violated. The complainant further alleges that some workers might lose confidence in these bodies, whose functions include adjudicating unfair labour practices at various levels, but where Zenroren nominees are almost absent due to the preferential treatment afforded to Rengo candidates by the Government.
2. 440. The Committee notes that the Government replies in essence: that membership is only one of the factors to be taken into account when making such appointments; that once appointed, worker members act in the general interest of all workers, irrespective of their affiliation; and that, in any event, no trade union or worker ever suffered injustice in CLRC procedures because of their affiliation to Zenroren.
3. 441. The Committee observes that no evidence has been adduced to substantiate the alleged negative consequences that might have been experienced by Zenroren, its affiliated organizations, or their individual members or representatives. The statistics submitted by the complainant on the number of unfair labour practices complaints, broken down by confederation, are not conclusive in this regard. In the one specific and concrete instance mentioned (the wage decision for the year 2001 concerning national enterprises) mediation was requested by Rengo and Zenroren and the supplementary arbitration award was applied uniformly to both. On the basis of evidence submitted, this aspect of the complaint therefore fails.
4. 442. As regards the respective memberships of Rengo and Zenroren, in spite of the sometimes contradictory statements made by the parties (which are probably not deliberate but may be due more to the fact that their figures are based on different data and calculations) the Committee observes that while Rengo clearly has a much larger membership, Zenroren, just as clearly, was chosen by a sizeable number of workers to represent their interests. And the evidence shows an obvious imbalance in the numbers of Rengo and Zenroren worker members appointed to the Central Labour Relations Commission (all 15 member workers come from Rengo ranks), the prefectural labour relations commissions (256 worker members are from Rengo and four only from Zenroren) and various tripartite local and central councils and commissions (Rengo is represented on 78 of 151 councils; Zenroren has no representative).
5. 443. The Committee notes that the Government does not deny that an imbalance exists, but justifies it on the grounds that membership is only one of the factors to be taken into account for such nominations and that, once appointed, worker members represent the general interest of workers irrespective of affiliation. There lies the crux of the matter. The fact that a workers’ organization is debarred from membership of, or seriously under?represented on joint committees does not necessarily imply infringement of the trade union rights of that organization, but for there to be no infringement, the reason for such debarment or under-representation should lie in its non-representative character, determined by objective criteria [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 946].
6. 444. The bodies whose composition is challenged in this instance exercise extremely important functions from a labour relations perspective. It is therefore of the utmost importance that they gain and maintain the confidence of those workers whose rights they are called to arbitrate. The Committee appreciates the Government’s arguments above, but emphasizes that whilst the principles of freedom of association do not require that there be an absolute proportional representation (which might prove impossible, and indeed is not advisable due to the risks of excessive representational fragmentation) the authorities should at the very least make some allowance to recognize the plurality of trade unions, reflect the choice of workers, and demonstrate in practice that fair and reasonable efforts are made to treat all representative workers’ organizations on an equal footing. The Committee recalls that when setting up joint committees dealing with matters affecting the interests of workers, governments should make appropriate provision for the representation of different sections of the trade union movement having a substantial interest in the questions at issue [see Digest, op. cit., para. 944] and that any decisions concerning the participation of workers’ organizations in a tripartite body should be taken in full consultation with the trade unions whose representativity has been objectively proved [see Digest, op. cit., para. 943].
7. 445. The Committee recalls that when a government can grant an advantage to one particular organization, there is a risk, even if such is not the government’s intention, that one trade union will be placed at an unfair advantage or disadvantage in relation to the others, which would thereby constitute an act of discrimination. More precisely, by giving preferential treatment to a given organization, a government may directly or indirectly influence the choice of workers regarding the organization to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organization for occupational, religious, political or other reasons [see Digest, op. cit., para. 303]. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention [see Digest, op. cit., para. 304].
8. 446. The Committee notes with interest that the Government stated in its concluding remarks that, although it is impossible to predict future appointments, the organizational situation of each trade union will be taken into account as one factor. The Committee strongly encourages the Government to pursue this avenue and deepen its reflection in that direction, preferably on the basis of tripartite consultations that would include all representative organizations. The Committee requests the Government to take the above principles into account when embarking in the next rounds of appointments to labour commissions and councils, including the October 2002 exercise at the CLRC, with a view to restoring the confidence of all workers in the fairness of the labour relations commissions system. It requests the Government to keep it informed of developments in this regard.

The Committee's recommendations

1. 447. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to take appropriate measures, based on freedom of association principles regarding the necessity to afford fair and equal treatment to all representative trade union organizations, with a view to restoring the confidence of all workers in the fairness of the composition of labour relations commissions and other councils. It requests the Government to keep it informed of developments in this regard.