Effect given to the recommendations of the committee and the Governing Body - Report No 376, October 2015

Case No 2844 (Japan) - Complaint date: 23-MAR-11 - Closed

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

1. 52. The Committee last examined this case which concerns allegations that the dismissal of workers by Japan Airlines International (JAL) was carried out in such a way as to discriminate against workers who are members of certain trade unions, at its October 2013 meeting [see 370th Report, paras 62–66]. On that occasion, with respect to the lawsuit filed by 146 workers (cabin attendants and flight crews) to request confirmation of the existence of legally binding contracts between themselves and Japan Airlines Ltd (hereafter the company), while noting that the lawsuit was rejected on March 2012 and that the plaintiffs appealed to the Tokyo High Court in April 2012, the Committee requested the Government to keep it informed of the decision of the Tokyo High Court, as well as any follow-up measures taken as a result. With reference to the appeal lodged by the company to the Tokyo District Court concerning the order of remedies of the Tokyo Metropolitan Labour Relations Commission (LRC) whereby it found that the Enterprise Turnaround Initiative Corporation (ETIC) interfered in the management of the Japan Airlines Flight Crew Union (JFU) and the Japan Airlines Cabin Crew Union (CCU) during negotiations in November 2010 and ordered the company to issue a letter of apology, the Committee requested the Government to keep it informed of any outcome to the appeal. Finally, the Committee called for full and frank consultations between the company and the trade unions concerned in the framework of the new recruitment campaign so that views concerning the rehiring of workers following termination for economic reasons would be taken into account.
2. 53. In a communication dated 10 October 2014, the JFU and the CCU regret that the Tokyo High Court declined the claims by the cabin crew and by the flight crew in decisions handed down respectively on 3 and 5 June 2014. In the view of the complainants, the High Court neglected common judicial rules, and gave absolute priority to maintaining the company’s rehabilitation regime backed by the rehabilitation plan. The consequence of such a ruling is that it deprives workers of the right to access to court and it could accelerate job cuts by companies that take advantage of the Corporate Rehabilitation Law. Finally, the complainants consider that the ruling neglected aviation safety since the excessive job cuts have resulted in a massive reduction in the number of experienced workers thus increasing safety incidents.
3. 54. While having made a final appeal, the complainants had expressed the hope that the company would start negotiations in view to resolve the dismissal issues rather than waiting for the trials to be concluded. The CCU and the JFU however observed that while many new cabin attendants had been recruited lately, the company had not made a single offer of reinstatement to the dismissed workers. The complainants urged the Government to implement the Committee’s recommendations regardless of the progress of the trials.
4. 55. In communications dated 15 January and 14 September 2015, the Government confirms that the Tokyo High Court dismissed the appeals lodged by flight crews and cabin attendants dismissed by the company against the June 2014 decisions. The Government states that these had confirmed the need for staff cutbacks and acknowledged efforts made by the company to consult regularly with the trade unions, to apply reasonable and objective criteria for the selection of dismissed staff, and to offer alternatives to the dismissals (such as voluntary retirement programmes). The Government further indicates that the cabin attendants and the flight crew did appeal the rulings to the Supreme Court on 17 and 19 June 2014. In a communication dated 15 April 2015, the Government transmits the views of the company on the dismissal issue. The company refers to the final decision rendered by the Supreme Court in February 2015 where it considered the redundancy lawful and valid. In view of this ruling, the company considers it difficult to rescind the redundancy and to accept the request for reinstatement. Because of the bankruptcy the company had suffered, 5,700 workers left the company, including those who applied for voluntary retirement. It would not be considered fair to make an arrangement to save only some of them, namely 165 workers made redundant, merely because the financial condition and the business performance of the company was improving.
5. 56. The Government further indicates that, as regards the question of consultation between employers and trade unions, it shares the view of the Committee on the importance of full and frank consultations. In order to ensure such consultations, refusal of collective bargaining by employers without due reason is prohibited in Japan as an unfair labour practice and any grievance in this respect may be filed with the Labour Relations Commission (LRC) to seek remedies. If the LRC finds that the employer refused to negotiate without proper reasons, it may order the employer to engage in collective bargaining. Given that the LRC is a quasi-judicial body which decides unfair labour practices independently, the Government considered that it was inappropriate to actively intervene to mediate the issues between labour and management.
6. 57. The company also refers to the numerous negotiation and consultation meetings held with the trade unions concerned during the period under consideration. According to the data provided by the company, between September 2010 and March 2015, it met with the CCU and the JFU 83 and 69 times, respectively. It also met with the largest trade union of the company, namely the Japan Airlines Friendship and Improvement Organization (JALFIO), which confirmed in writing that it provided the union members who were subject to redundancy, necessary information and support for obtaining new jobs. However, it has not received any request for reinstatement from its members.
7. 58. Finally, with regard to the appeal lodged by the company to the Tokyo District Court concerning the order of remedies of the LRC, the Government indicates that on 28 August 2014 the Tokyo District Court rejected the claim of the company, which appealed the judgment to the Tokyo High Court on 9 September 2014. On 18 June 2015, the Tokyo High Court issued a decision rejecting the claim of the company. On 1 July 2015, the company appealed the decision to the Supreme Court and the case is still pending at present.
8. 59. The Committee takes due note of the information provided by the Government and the complainant organizations on the latest developments in the present case. With regard to the order of remedies of the Tokyo Metropolitan Labour Relations Commission, the Committee requests the Government to keep it informed of any outcome to the appeal pending before the Supreme Court. With respect to the lawsuit filed by 146 workers to request confirmation of the existence of legally binding contracts between themselves and the company, the Committee notes that the Supreme Court ruled in final decisions dated 4 and 5 February 2015 that the redundancy was lawful and valid.
9. 60. The Committee also notes the company’s statement following the Supreme Court decision, in particular that it finds it difficult to rescind the redundancy or to accept any request for reinstatement. The company further stated that it would not be considered fair to make an arrangement to save 165 workers made redundant out of 5,700 who left the company merely because the financial condition and the business performance of the company was improving. In view of the latest developments in this case, the Committee once again underlines the importance of maintaining a meaningful dialogue between the company and the trade unions. The Committee observes that there is a difference of opinion between the unions and the employer as to whether there has been true engagement on the matter of redundant workers. The Committee trusts that the company will remain open to discussing this issue with all the unions concerned at the enterprise and notes that the complainant may take the matter to the LRC if it considers that there has been a refusal to bargain collectively in accordance with the law.
10. 61. Lastly, the Committee takes note of the communication dated 5 September 2015, whereby the complainant unions refer to comments made by the Government before the Diet in March–April 2015 calling for union–management negotiations towards the settlement of the dispute, as well as the decision of the Tokyo High Court dated 18 June 2015 in relation to Case No. 369 on unfair labour practice by JAL. The Committee requests the Government to provide its comments thereon.