Report in which the committee requests to be kept informed of development - Report No 329, November 2002

Case No 2176 (Japan) - Complaint date: 22-FEB-02 - Closed

Allegations: The complainant alleges that the legal provisions against unfair labour practices and anti-union discrimination and their implementation are inadequate.

1. 549. This complaint is contained in communications dated 22 February and 26 March 2002, from the Japan Postal Industry Workers’ Union (YUSANRO).
2. 550. The Government submitted its reply in a communication dated 13 September 2002.
3. 551. 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. 552. In its communication of 22 February 2002, the complainant organization states that it represents workers employed by post offices and related undertakings in Japan. It consists of 101 branches distributed in nine regional offices, and is affiliated to the National Confederation of Trade Unions (ZENROREN).
2. 553. YUSANRO submits that the Central Labour Relations Commission (CLRC), established under the Trade Unions Law, is mandated to implement measures to protect workers’ and trade unions’ right to organize. It is supposed to examine complaints of unfair labour practices by employers and to issue relief orders to protect workers against such practices. However, the CLRC now tends to waste time and spends unnecessary long periods of time, only to vary the orders issued by the Prefectoral Labour Relations Commissions (PLRCs) and issue decisions that are unfavourable to workers. In 1999, the CLRC spent on average four years and one month to hear cases and took as long as five years and one month after the filing of a complaint before issuing a decision. All this time was spent merely to confirm initial decisions issued by PLRCs dismissing workers’ complaints, or to reverse initial PLRCs’ decisions in workers’ favour. The CLRC examination process is a very heavy burden for workers living in local areas far from the capital. Taking into account that long procedures have often resulted, at best in the confirmation of unfavourable decisions, at worst in even more unfavourable decisions, the complainant argues that the CLRC does not fulfil its role and functions, which are to protect workers against unfair labour practices.
3. 554. For instance, on 9 June 1998, YUSANRO filed a complaint of unfair labour practices to the CLRC (Case No. 2-1998) arguing that some actions of the employer, including an unreasonable location for the union office and the forced transfer of the union branch officers, aimed at weakening the union. The CLRC assigned the case to local coordinators for pre-hearing examination, which is supposed to be completed within 30 days of the filing of the complaint, under article 56.3 3) of the CLRC Rules. However, the examination in that case was completed only one year and two months after the filing of the complaint, despite YUSANRO’s repeated requests for speedy hearing. Furthermore, it took the coordinators seven additional hearings to complete the examination, on 13 September 2000. This delayed the whole process and the hearing on the merits, which was finally scheduled to start on 27 March 2002, i.e. three years and nine months after the filing of the complaint. In the meantime, YUSANRO has submitted two requests to the CLRC (30 June 2000, asking for swift completion of the examination; and 8 March 2001, asking that a date be fixed rapidly for a hearing on the merits). It also requested the CLRC to explain the reasons for the long delays between the completion of the pre-hearing examination by local coordinators and the hearing by the CLRC, but has received no satisfactory explanation.
4. 555. These inadequate practices and undue delays cannot be allowed, given the CLRC’s mandate and objectives. When workers who are victim of anti-union discrimination, in violation on Convention No. 98, have to wait more than three years to be heard, it cannot be said that they enjoy adequate protection against such acts. This also leads to the denial of the right of unions to organize.

B. The Government’s reply

1. 556. In its communication of 13 September 2002, the Government states that the CLRC review procedure is part of the unfair labour practices processing system, which is uniform nationwide. In 2000, out of the review proceedings submitted to the CLRC against PLRC orders, 29 have been filed by workers and 35 by employers. On average, there were 1.6 hearings per case heard in 2001, which is not too heavy a burden on workers and employers. The CLRC may vary an initial order of the PLRC for, or against, workers; the complainant is therefore wrong when arguing that the CLRC only makes decisions unfavourable to workers.
2. 557. As regards Case No. 2-1998, the Government states generally that while the CLRC in principle carries investigations and hearings as rapidly as possible, the process can be compared to a trial, and many factors may intervene, such as the complexity of the case, adjustment of schedules, replies of the parties, etc. The pre-hearing examination is a preparatory procedure, which contributes to clarifying the facts and arguments, and promotes discussion between the parties to seek an amicable settlement. Statements, replies and evidence thereon may be submitted, all of which takes time, particularly where complex issues arise, which was precisely the case here: redeployment of 11 union members, non-lease of space for the union at four post offices.
3. 558. Concerning YUSANRO’s argument that one year and two months elapsed between the filing of the complaint and the date of the first examination, the Government points out that the delay under article 56.3 3) of the CLRC Rules may be extended with the consent of the parties, which happens frequently in practice. Here, the complainant participated voluntarily in the procedure even after the 30 day’s delay. In cases involving national enterprises, as in the present case, the CLRC Chairman may appoint “Local Members for Adjustment” (local coordinators) who have a good understanding of the local situation and represent the public interest. In this case, documents were exchanged on no less than nine occasions, from 3 July 1998 to 19 May 1999, including further issues that were added by the complainant on 14 May 1999. It took all this time before the issues could be identified and the investigation date set, after confirmation by the local coordinators.
4. 559. The seven additional pre-hearings criticized by the complainant are due to the complexity of the case, the enormous number of documents, and to delays in submissions of arguments and replies by both the complainant and the employer. The case was handled properly, since the investigation on seven occasions was necessary in preparation for the hearing on the merits. The local coordinators finally clarified the issues in September 2000 and prepared their report, which was notified to the parties on 19 April 2001.
5. 560. As regards YUSANRO’s argument that an additional year elapsed between the completion of the investigation and the CLRC hearing, the Government states that the CLRC considers that amicable settlements are important in cases of unfair labour practices. Since a settlement was possible in this case, such as the leasing of office space after the completion of the local coordinators’ examination, the CLRC tried hard to reach a settlement with the employer, without success however. On 26 October 2001, the parties were notified that the hearing was set on 28 November; it was however impossible to adjust the schedules of the parties and the first hearing took place on 27 March 2002.
6. 561. In summary, the Government contends that CLRC proceedings depend on the particulars of each case, and it cannot be said that the Japanese system of protection against unfair labour practices does not work properly.

C. The Committee’s conclusions

1. 562. The Committee notes that this case concerns allegations that the system of protection against unfair labour practices in Japan is inadequate due to undue delays. YUSANRO supports its allegations by giving the example of a complaint that it had filed in this respect in 1998 with the body responsible for examining such complaints, the Central Labour Relations Commission (CLRC), and which is still unresolved.
2. 563. The Committee cannot but note that the handling of that complaint did take a very long time, since it was filed on 9 June 1998 and the first hearing on the merits was held on 27 March 2002 (a period of three years and nine months). In addition, the Committee takes note of the complainant’s allegation that the CLRC procedure represents a heavy burden for workers living in local areas far from the capital. Furthermore, the Committee has not been informed as to whether other hearings were held, whether the decision has been issued and what was the ultimate result.
3. 564. The Committee notes on the other hand the explanations given by the Government that the delays in this particular case were due to the complexity of the case and the numerous hearings that were necessary as a result, the fact that all attempts were made to settle the case amicably, and that it was difficult to adjust the schedules of all parties, who were both responsible for some of the adjournments. The Committee further takes note of the data given by the Government on CLRC’s activities.
4. 565. However, the Committee recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 741]. The Committee emphasizes in this respect that the longer it takes for such a procedure to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc, to a point where it becomes impossible to order an adequate redress or to come back to the status quo ante. The Committee also takes into account that the employer here is the postal service, with its national public component, subject to at least some government control, including for its deeds in the processing of unfair labour practices complaints. The Committee considers that the procedure is far too slow and inadequate. It therefore requests the Government to ensure, in future, that complaints of unfair labour practices and anti-union discrimination are processed speedily and effectively, and to keep it informed on the outcome of Case No. 2-1998, once it is finalized by the CLRC.

The Committee's recommendations

1. 566. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting that the procedure is far too slow and inadequate the Committee requests the Government to ensure, in future, that complaints of unfair labour practices and anti-union discrimination are processed speedily and effectively, and to keep it informed on the outcome of Case No. 2-1998, once it is finalized by the Central Labour Relations Commission.