Informe provisional - Informe núm. 92, 1966

Caso núm. 398 (Japón) - Fecha de presentación de la queja:: 30-ABR-64 - Cerrado

1. 42. The complaint of the Miners' International Federation was presented on 30 April 1964. On 10 May 1964 a complaint was submitted jointly by the General Council of Trade Unions of Japan and the Japan Coal Miners' Union, further information in support of their complaint being forwarded on 15 July 1964. The observations of the Government of Japan on these complaints are contained in a communication dated 17 December 1964. At its meeting in November 1965 the Committee decided to request the Government to furnish further information on certain aspects of the case. The Government did so by a communication dated 1 February 1966.
2. 43. Japan ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on 20 October 1953, and it came into force for Japan on 20 October 1954. On 14 June 1965 Japan ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which will come into force for Japan on 14 June 1966.
3. 44. The different allegations, which are related more particularly but not entirely to the alleged inadequate application in Japan of the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), are considered separately below.

A. A. The complainants' allegations

• Allegations relating to Acts of Anti-Union Discrimination against Officers and Members of the Miike Coal Miners' Union
  • (a) Alleged Discharge of Ten Union Officers
    45. 45 The complainants allege that on 23 August 1963 ten officers of the Miike Coal Miners' Union were dismissed for the following purported reasons. Mr. M. Miyakana, President of the union, was discharged for various acts committed in connection with the Miike coal miners' strike in 1960 and, especially, for having boarded a picketing boat in July 1960, thus impeding the transport of personnel and materials by the Mitsui Mining Company (the employers), for having encouraged illegal picketing activities, and for having impeded the application of an interim decision of the District Court. One or more of these reasons or acts in connection with the leading of illegal strike activities or participation in such activities and in demonstrations and in impeding the carrying on of the work-all in the course of the 1960 dispute-were adduced as grounds for dismissing also Mr. T. Kubota, Vice-President of the union, Mr. S. Haibara, General Secretary, and other leading officials: Messrs. H. Nagata, S. Kamachi, T. Kitaoka, H. Koga, M. Kimura, A. Tsukamoto and M. Matsufuji.
    46. 46 The complainants point out that the discharges took place two years after the commission of the acts referred to, these acts being pleaded as a pretext, whereas the real aim is to destroy the union. They consider the dismissals to run counter to the conciliator's proposals in 1960 that the question of responsibility for the dispute of 1960 should not be pursued. The complainants contend also that the acts committed by the individuals concerned were not illegal but were legitimate trade union activities.
    47. 47 In support of their claim that the discharges are part of a plan to destroy the union the complainants make the following contentions. In the Company's rationalisation programme made known in August 1959, which eventually gave rise to the dispute, provision was made for the dismissal " by nomination " of redundant workers, based on certain criteria. Apart from age, length of service, family responsibilities, etc., two of the criteria listed were " a man whose attitude in daily service could be condemned by the Company " and " a man whose personality is not adaptable to collective life ". It is alleged that in the course of the negotiations on the question the Company hinted that trade union militancy would be an adverse criterion. In fact, say the complainants, 1,200 of the union membership were declared redundant, including 400 of the most active members, regarded as " production disturbers ".
    48. 48 As regards the above cases of alleged unfair labour practice, the Government stated in its communication dated 17 December 1964 that it was unable to judge the merits thereof, this being a matter for the labour relations commissions or the courts. In fact most of the cases referred to above and throughout the complaints were the subject of proceedings pending before labour relations commissions or courts. An application for the maintenance of the status of the ten union officers was submitted to the Fukuoka District Court on l October 1963.
    49. 49 The Committee observed, at its meeting in November 1965, that it had followed the practice in the past of postponing its examination of matters which were the subject of pending national judicial proceedings where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded, and that, in many cases, it had requested governments to communicate the texts of judgments given and the grounds therefor.
    50. 50 The Committee therefore decided to request the Government to be good enough to inform it as to the outcome of the proceedings in the Fukuoka District Court and to furnish a copy of the judgment and of the reasons adduced therein.
    51. 51 In its communication dated 1 February 1966 the Government states that the case is still pending in the Fukuoka District Court. In view of the many complex points involved, 19 oral proceedings were held between 1 October 1963 and December 1965 to complete the listing of legal and factual points at issue. On 25 December 1965 the parties were making preparations for testimony.
    52. 52 The Committee thanks the Government for this information and requests the Government to be good enough to inform it in due course as to the outcome of the pending proceedings in the Fukuoka District Court and to furnish a copy of the judgment and of the reasons adduced therein.
  • (b) Alleged Discharge of 28 Active Union Members
    53. 53 It is alleged that 28 union activists were dismissed on 11 December 1961, on the purported ground of acts committed in the course of the dispute in 1960. Certain of these persons were prosecuted in respect of these acts but all were acquitted except two, whose appeals are pending. Yet, say the complainants, the dismissals have not been cancelled since the acquittals, which in the complainants' view proves that the dismissals were anti-union acts.
    54. 54 The Government stated, in its communication dated 17 December 1964, that an - application for a court decree maintaining the status of those concerned was submitted to the Fukuoka District Court on 20 December 1961.
    55. 55 The Committee, at its meeting in November 1965, decided to request the Government to be good enough to inform it as to the outcome of the proceedings referred to above and to furnish copies of the judgments and of the reasons adduced therein.
    56. 56 In its communication dated 1 February 1966 the Government states that the matter is still pending in the Fukuoka District Court, the larger part of the scheduled examination of evidence having been completed as at 25 December 1965.
    57. 57 The Committee therefore requests the Government to be good enough to inform it in due course as to the outcome of the pending proceedings in the Fukuoka District Court and to furnish copies of the judgments and of the reasons adduced therein.
  • (c) Alleged Discrimination against Union Members in respect of Recruitment, Wages and Work Assignment and Payment of Accident Compensation
    58. 58 Under the rationalisation plan the existing mining schools were closed. With regard to those persons whose training ended in March 1960 the following discrimination is alleged to have been practised. On 29 October 1960 an agreement was signed providing for their employment to be deferred until 1962. On 27 July 1962, it is alleged, 38 of the former trainees who were nominated by a new rival union were all hired as temporary workers, but 19 nominated by the Miike Coal Miners' Union were all rejected; after protests, seven of the latter were hired as temporary employees on 28 December 1962. On 1 April 1963 the 38 first engaged became " direct miners ", but this status, it is alleged, was not accorded to the seven supporters of the Miike Coal Miners' Union.
    59. 59 It is alleged that there is great discrimination in respect of wages paid to members of the Miike Coal Miners' Union and of wages paid to those who leave the union. According to a table furnished by the complainants the average monthly wage of union members in January 1961 was $61 and that of non-union members $66.2, this difference having steadily increased until, in May 1963, the respective figures were $69.6 and $93.9.
    60. 60 The position is aggravated by the system of job evaluation. The team leader evaluates the wage ranking of each member of the team. Before the 1960 dispute this was done smoothly and impartially. Since then, it is alleged, members of a rival union have systematically been rated higher than members of the Miike Coal Miners' Union. The employers, it is alleged, appoint team leaders with little experience if they belong to the rival union and ignore the claims of members of the Miike Coal Miners' Union who have far greater experience and qualifications.
    61. 61 In the case of transport workers in the Yotsuyama mine, it is alleged, members of the Coal Miners' Union with 15 years' experience were paid on 7 January 1964 on the basis of 2.09 "work points ", and members of the new rival union with three years' experience on the basis of 2.24 work points.
    62. 62 Prior to the 1960 dispute, it is alleged, job assignments were determined by union-management consultation pursuant to a collective agreement. Since that time, it is alleged, assignment has been carried out unilaterally by the competent officer of the Company in a manner which discriminates against union members.
    63. 63 The complainants state that Mr. Obuchi, of the "coal-digging survey", was absent through illness from 8 December 1958 to 8 December 1961. On his return, still sick, he was put on heavy manual work, the Company refusing to return him to his original work on the ground that the workshop was full. It is alleged that the chief of the personnel unit and another member of the unit hinted persistently that if he left the Coal Miners' Union and joined the new rival union he could go back to his survey work. He left his union and joined the rival union and the very next day, it is alleged, he was back on his original survey job.
    64. 64 The complainants refer to the case of Mr. T. Kamimura, a coal-cutter with 22 years' experience. It is alleged that he, as a member of the Miike Coal Miners' Union, is employed in the hottest part of the mine on the heaviest work, whereas members of the rival union with less experience can earn twice as much in better conditions. It is alleged that those who transfer to the new union are immediately moved to positions where conditions are better and wages higher.
    65. 65 With regard to the assignment of transport workers in the second shift of Miyaura mine for the period of 4 to 31 January 1964, it is alleged that 95 members of the Miike Coal Miners' Union were assigned to " transport proper " and 395 to odd jobs, whereas 1,321 members of the rival union were assigned to " transport proper " and none at all to odd jobs.
    66. 66 The complainants submit the following table in respect of February, April and May 1964 at the Miyaura mine.
  • Month Total workers Trade union Proper work Odd jobs Higher jobs Workers
• attending adherence recruited
• February .... 1,867 Miike Union ... 243 302 15 28
• Rival Union .... 1 232 0 75 56
• April...... 1,550 Miike Union ... 209 229 1 26
• Rival Union .... 1 023 0 88 56
• May ....... 1,697 Miike Union ... 222 193 11 25
• Rival Union .... 1 178 0 93 55
  67. 67 In January 1964 the dormitory unit at Yotsuyama mine was to be curtailed and some of the workers there to be transferred. On 11 January, it is alleged, Mr. Saruwatari, Chief of Personnel Unit, told one of the Coal Miners' Union members affected, Mr. Miyazaki, that he would have him appointed secretary in charge of a coal-digging unit if he joined the new union; as he would not secede from his old union he was assigned to an inferior job in the drying-room.
  68. 68 In May 1964, it is alleged, at Yotsuyama mine Mr. H. Hirakawa, a 24-year-old member of the rival union with two years' experience, was assigned to proper work 25 times and never to odd jobs and earned $3.69 per day; Mr. N. Takara, a 28-year-old member of the rival union with three years' experience, was assigned to proper work 12 times and twice to odd jobs, earnings $2.31 per day. But Mr. Y. Beri, a 24-year-old member of the Miike Union with three years' experience, was assigned 13 times to proper work and three times to odd jobs, earning $2.23 per day, while Mr. Y. Tokunaga, a 31-year-old member of the Miike Union with eight years' experience, was assigned 18 times to proper work and three times to odd jobs and earned $2.26 per day.
  69. 69 The complainants maintain that safety in the mines has not been improved since the accident in November 1963, and that since April 1964 accidents have begun to increase as a result of increased production. The biggest accident rate is where temperatures are higher and it is precisely to these places, it is alleged, that members of the Miike Coal Miners' Union are assigned, as an act of discrimination against the union.
  70. 70 In their further communication dated 15 July 1964 the General Council of Trade Unions of Japan and the Japan Coal Miners' Union refer to the position of families bereaved by the disaster on 9 November 1963. According to the complainants social security in Japan is inadequate and the employers also try to evade their duty to aid bereaved families and those who are disabled. After the accident the union pressed the Company to find employment for miners' widows and dependants, but it states that little has been done.
  71. 71 It is alleged that in regard to the payment of compensation for bereavement union discrimination is being practised, so that an average of $2,350 is paid where the deceased was a member of the Miike Coal Miners' Union, and of $3,328 or $3,972, as the case may be, where he was a member of one of the two rival unions. Figures are submitted to demonstrate similar discrimination in the case of miners who have been disabled.
  72. 72 As regards the matters referred to in paragraphs 58 to 64 above, the Government stated in its communication dated 17 December 1964 that a complaint of unfair labour practices was filed with the Fukuoka Prefectural Labour Relations Commission on 27 November 1961. An order granting part of the remedy sought was made by the Commission on 31 August 1964. Both sides were dissatisfied and, on 18 September 1964, requested a review by the Central Labour Relations Commission.
  73. 73 The Committee, therefore, decided at its meeting in November 1965 to request the Government to be good enough to inform it as to the outcome of the review proceedings and to furnish copies of the orders of the respective commissions, together with the grounds adduced therein.
  74. 74 With its communication dated 1 February 1966 the Government has furnished the text of the order made by the Fukuoka Prefectural Labour Relations Commission on 31 August 1964 in respect of the matters referred to in paragraphs 58 to 64 above. It states, however, that the review by the Central Labour Relations Commission requested on 18 September 1964 is still pending.
  75. 75 The Committee therefore requests the Government to be good enough to inform it in due course of the outcome of the review proceedings and to furnish a copy of the order of the Central Labour Relations Commission and of the grounds adduced therein.
  76. 76 Also at its meeting in November 1965 the Committee decided to request the Government to be good enough to furnish its observations on the matters referred to in paragraphs 65 to 71 above, which are formulated in the form of detailed allegations in paragraphs 43 to 45 of the complaint dated 10 May 1964 and its relevant annexes and in Chapters I and 11 of the further complaint dated 15 July 1964.
  77. 77 In its communication dated 1 February 1966 the Government states that complaints regarding the matters referred to in paragraphs 65 to 68 above were filed with the Fukuoka Prefectural Labour Relations Commission in December 1964 and are now pending. The Committee therefore requests the Government to be good enough to furnish in due course a - copy of the order made by the Commission together with the reasons adduced therein.
• Allegations relating to Repudiation of Collective Bargaining with the Miike Coal Miners' Union and to Interference with the Union
  78. 78 It is alleged that since the 1960 dispute the Company has consistently refused to negotiate with the union as part of its policy aimed at the destruction of the union.
  79. 79 According to an agreement concluded between the union and the Company on 6 November 1961 the recruitment of " contractors' miners " is to be carried out in " consultation with the union ". Before any agreement had been reached by consultation, it is alleged, the Company recruited contractors' miners in Mikawa mine on 1 February 1962 and in Yotsuyama mine in October 1962.
  80. 80 On 11 July 1963 the Company notified the union of a 6 per cent wage cut as part of the rationalisation programme. It is alleged that all requests for negotiation were refused.
  81. 81 The complainants refer to the question of re-employment of miners affected by the closing of certain pits.
  82. 82 On 28 June 1963, it is alleged, an agreement was signed by the Company and the Mitsui Miners' Federation (the rival union organising the Mitsui-employed miners) according to which 2,200 miners at three pits due to be closed were to be employed in other pits. A similar agreement was signed by the Company with the Federation of Mitsui Mining Company Staff Unions (the rival union for staff personnel). But, it is alleged, when the Miike Coal Miners' Union requested negotiation on the same matter, on 6 August 1963, the Company refused to negotiate with it.
  83. 83 Serious accidents took place in Yotsuyama mine on 28 and 29 August 1963 and on 17 October 1963. It is alleged that all requests for consultation on safety in the pits were refused by the Company.
  84. 84 On 9 November 1963 the Miike mining disaster occurred, which cost several hundreds of lives. After the disaster the union bargained with the Company on the question of compassionate allowances, the situation of bereaved families and consultation of the workers in the taking of safety measures in the future. Yet, on 19 January 1964, when danger manifested itself in another pit and the union lodged a protest, the Company is alleged to have refused all consultation.
  85. 85 All the matters alleged thus far represent, in the view of the complainants, attempts by the Company to disrupt and destroy the Miike Coal Miners' Union.
  86. 86 It is further alleged that, as from 14 September 1961, the Company prohibited propaganda or meetings of the union on the employers' premises and barred entry to union officers in defiance of a memorandum of agreement made on 25 November 1960, and that union officers seeking to have normal communications with their members have been kept out by force.
  87. 87 According to the text furnished by the complainants the memorandum gave effect to the hitherto generally recognised practice according to which union officers had the right to enter company premises to disseminate information to their members when the latter were off duty.
  88. 88 The complainants allege that in the course of the 1959-60 dispute the Company employed gangsters against the union. It is alleged that these gangsters roamed the areas where the miners lived and attacked miners and their families, distributed handbills by helicopter urging the murder of union leaders, drove cars into union picket lines and attacked them with weapons. One unionist, Mr. K. Kubo, was stabbed to death on 29 March 1960 by a gangster named Kazuki.
  89. 89 On l January 1960, it is alleged, the Company distributed printed bulletins to all miners' families during the big dispute, calling upon them to oppose the policy of the union.
  90. 90 Officers of the Company are alleged to have tried to split the union during the dispute by inviting members regarded as malcontents to restaurants and instructing them how to split the union. The Company is alleged to have published a guide book for those used to split the unions. A split in the union took place on 17 March 1960.
  91. 91 Certain of these matters gave rise to proceedings in the Fukuoka District Court. There, on 1 July 1960 a witness, Mr. S. Iwashita, is alleged to have said that on 5 March 1960 he had been invited to a drink at the house of a foreman, Mr. Mizoguchi, who said that a new union would be formed on 13 March and urged him to join it, in which case the Company would pay him 100,000 yen, plus 5,000 yen for every miner he induced to join it. The witness said that Mr. Mizoguchi asked him for an early reply as he had to "report every morning to the Assistant Manager about his gains". Witness T. Miyazuki is alleged to have said that 40 miners were entertained with sake at a restaurant in Yanagawan City. Four critics of the union, including a member of the City Council, were there, as was Mr. Kozakai, Yotsuyama Assistant Pit Manager. On behalf of the Company, which paid for the party, Mr. Kozakai is alleged to have made a speech criticising the union. Of the 40 miners present, said the witness, all but himself were persuaded to join the new union.
  92. 92 With regard to the matters referred to in paragraphs 90 and 91 above, which are the subject of paragraph 38 and Annex 20 of the complaint of 10 May 1964, the Government stated, in its communication dated 17 December 1964, that complaints were filed with the Fukuoka Prefectural Labour Relations Commission on 10 and 12 March 1960. The Commission made an order granting part of the remedy sought on 31 August 1964. Both sides were dissatisfied and, on 18 September 1964, requested a review by the Central Labour Relations Commission.
  93. 93 At its meeting in November 1965 the Committee decided to request the Government to be good enough to inform it as to the outcome of the review proceedings and to furnish copies of the orders of the respective commissions and of the reasons adduced therein. With regard to the matters referred to in paragraphs 78 to 89 above, which are formulated in the form of detailed allegations in paragraphs 22 to 37 and 39 to 42 of the complaint dated 10 May 1964 and in its relevant annexes, the Committee decided to request the Government to be good enough to furnish its observations.
  94. 94 In its communication dated 1 February 1966 the Government, while furnishing a copy of the order made by the Fukuoka Prefectural Labour Relations Commission on 31 August 1964, states that review proceedings are still pending before the Central Labour Relations Commission. The Committee, therefore, requests the Government to be good enough to inform it in due course as to the outcome of the review proceedings and to furnish a copy of the order of the Central Labour Relations Commission together with the reasons adduced therein.
  95. 95 With regard to the matters referred to in paragraphs 78 to 89 above (appearing in paragraphs 22 to 37 and 39 to 42 of the complaint of 10 May 1964 and the relevant annexes), the Government states that jurisdiction is vested in the Labour Relations Commission and the Government is not in a position to judge whether or not these matters constitute unfair labour practices.
  96. 96 It is not clear whether or not the matters referred to in paragraphs 78 to 89 above have formed the subject of applications to the Labour Relations Commission. If they have, the Committee appreciates that the Government does not care to comment on matters which are sub judice and requests the Government, if that be the position, to be good enough to furnish information as to the applications made to the Commission and as to the orders made or to be made. If the matters in question are, as the Government's reply appears to suggest, normally within the jurisdiction of the Labour Relations Commission but have not actually been submitted to the Commission, they cannot be regarded as sub judice but as factual allegations concerning which the Committee must repeat its earlier request to the Government to be good enough to furnish its observations.
• Allegations relating to Lack of Measures for Guaranteeing the Right to Organise
  97. 97 The complainants allege that national machinery which should protect the right to organise and so ensure the application of the provisions of Articles 1, 2 and 3 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), does not function adequately. In this connection the complainants refer to the Law Courts, the Labour Relations Commissions and government organs such as the police, the Labour Standards Inspection Office and the Mine Safety Supervision Bureau.
      • (a) Allegations relating to the Law Courts
      • (i) Alleged Delay in Legal Proceedings
  98. 98 It is contended that lawsuits in respect of matters connected with labour disputes are unduly protracted and place an excessive economic burden on the workers-thus applications by the Miike Coal Miners' Union for temporary decisions by the courts during the 1959-60 dispute were left unresolved for years. The following cases are cited.
  99. 99 Mr. C. Endo, an official of the union's Mikawa branch, was dismissed on 6 April 1959 as a disciplinary measure on account of " workshop struggle ". On 22 April 1959 the Company asked the Fukuoka District Court for an injunction prohibiting his entry to its premises; on 21 April the union had already asked this court for an order to preserve his position. It is alleged that the court ruled in favour of the Company on its application on the same day as it was made but that no ruling on the union's application, filed one day earlier, had been given by 30 November 1963.
  100. 100 Precisely the same sort of thing is alleged, with regard to the same court, in respect of applications filed by both sides immediately after the dismissal on 3 October 1959 of three members of the union's Mikawa branch, Messrs. M. Shimoda, K. Iwashita and J. Hayashi.
  101. 101 As mentioned earlier, 1,200 men were discharged as redundant on 5 December 1959. Following mediation by the Labour Relations Commission most of them agreed to being " retired ". One hundred and sixty-eight of the men fought the case from the outset by applying to the Fukuoka District Court to have their discharge invalidated. By 30 November 1963 no decision had been given by the court.
  102. 102 Two union members, Mr. T. Takayama and Mr. M. Kojo, were dismissed on disciplinary grounds on 13 December 1960. The union applied to the court for an interim order to preserve their position but, it is alleged, the court had not even held its first hearing on the matter by 30 November 1963. The situation is said to be the same with regard to an application filed with the court on 20 December 1961 in respect of the dismissal of Mr. A. Matsuwa on 16 May 1961, an application filed on 30 December 1961 in respect of the dismissal of Mr. T. Hayashimasa on 28 December 1961, and an application filed in February 1962 in respect of the dismissal of Mr I. Tanuguchi on 18 January 1962.
  103. 103 As mentioned earlier, 28 union members were dismissed on 11 December 1961 on the ground of acts committed in connection with the 1959-60 dispute. On 20 December 1961 the union applied to the Fukuoka District Court for a decision. It is alleged that hearings have been held since June 1962 but that, by 30 November 1963, decisions had been given only in three cases.
  104. 104 The complainants allege that in the course of the dispute the courts gave speedy satisfaction to the Company with regard to the applications which it filed, without even giving the union an opportunity to present its arguments, but that when the union made applications it met with delay and frustration.
  105. 105 As regards the various cases referred to in paragraphs 99 to 103 above the Government, in its communication dated 17 December 1964, furnished statistics demonstrating the large numbers of witnesses called, the considerable number of hearings held and the thousands of pages of transcripts of evidence involved in each case. A variety of other reasons also were given for the delays in the hearings of the cases concerned-postponements of hearings at the request of parties, failure to deliver pleas in due time, etc. Thus cases brought by employees were inevitably lengthy. On the other hand, said the Government, applications by the employer were generally easier to dispose of, being limited to some specific issue, such as the prohibition of entry into property, about which there was generally no room for discussion. For a worker to submit evidence in a case of alleged unjustified dismissal took a far longer time. Most cases submitted by employers were heard under an " informal procedure " without the need for oral proceedings. Some of the cases submitted by employees were dealt with likewise within 15 days, but most of them followed the " formal procedure ", with the holding of oral proceedings, and nearly half of them took something like 277 days before being terminated. The Government gave technical details as to how the long duration of a case was contributed to by the detailed procedural rules laid down in the Code of Civil Procedure.
  106. 106 At its meeting in November 1965 the Committee observed that it was not clear from the Government's reply what the present position was with regard to the disposal of the particular cases referred to in paragraphs 98 to 103 above, but it appeared that most of them were still pending. In the circumstances, before expressing its opinion on these particular issues, the Committee decided to request the Government to be good enough to inform it when these particular cases were concluded and to inform it also as to the outcome of the proceedings.
  107. 107 In its communication dated 1 February 1966 the Government states that the applications by Mr. Endo and by Mr. Shimoda and others (see paragraphs 99 and 100 above) were dismissed by the Fukuoka District Court on 2 October 1964, but that appeals to the Fukuoka High Court are pending. The cases referred to in paragraphs 101 to 103 above are still pending in the Fukuoka District Court. In these circumstances the Committee requests the Government to be good enough to furnish copies of the judgments given or to be given by the Fukuoka District Court or High Court, as the case may be.
       • (ii) Alleged Anti-Union Tendency of the Courts
  108. 108 With regard to the prosecution of seven workers under the law for the punishment of violence, the judge of the Kumamoto Court, it is alleged, limited the statements by the accused and their counsel to 30 minutes and limited their time for cross-examining witnesses. The complainants state that one of their counsel, Mr. Yokoyama, criticised an interim decision of the Fukuoka District Court and was fined 30,000 yen by the judge of the Kumamoto Court for contempt of court. The complainants furnish the purported text of the statement in respect of which counsel was fined.
  109. 109 The Government in its communication dated 17 December 1964 furnished very detailed observations on this aspect of the case. It is for the court to decide how far and to what extent each witness shall be examined, and counsel on both sides must comply with its decisions. It would appear that in the particular case cited a whole series of rulings were made by the court with the object of excluding irrelevant evidence and limiting testimony and cross-examination to pertinent facts, which, in turn, led to repeated protests by counsel. According to the observations furnished the various objections and motions by counsel appear to have continued for hours at a time. The particular counsel referred to by the complainants appears to have been fined on the ground that he accused the court, among other things, of political partiality and losing its reason.
  110. 110 It appears to the Committee that the complainants have adduced no evidence either to show that the rulings of the Kumamoto Court in any way infringed trade union rights or, more generally, to substantiate their allegations as to anti-union tendency by the courts.
  111. 111 The Committee, therefore, for the reason indicated in paragraph 110 above, recommends the Governing Body to decide that these particular allegations do not call for further examination.
       • (b) Allegations relating to the Labour Relations Commissions
  112. 112 The complainants allege that the system for the settlement of disputes is ponderous and inflexible. A remedy can usually be effected in an unfair labour practice case by the local Labour Relations Commission concerned, subject to an appeal either to the Central Labour Relations Commission or by administrative suit to a court of law. Administrative litigation adopts a three-court system like the normal judicial system. Thus, say the complainants, the employer is able to use no less than five courts or commissions to delay the proceedings and nullify the attempts of the union to secure a remedy.
  113. 113 Proceedings even before the local Labour Relations Commission itself are alleged to be unduly protracted-according to the complainants the average number of days required merely for the first hearing of an unfair labour practice case was 104 in 1960, 121 in 1961 and 144 in 1962.
  114. 114 In the view of the complainants the Commissions do not understand the meaning of the right to organise. Since November 1959 the Central Labour Relations Commission offered four drafts for a settlement of the Miike dispute by mediation, none of which, in the view of the complainants, contained any remedy in respect of the encroachment of the right to work represented by the dismissal of 1,200 workers which gave rise to the dispute. They criticise the suggestion of the Commission that replacement of discharge by retirement would constitute an appropriate settlement as demonstrating a complete misunderstanding of the dispute. In their view the Commission deviated from its function of mediation by trying to enforce its terms as if it were acting as a compulsory arbitrator, which it was not.
  115. 115 In two of its drafts for a mediation settlement the Commission, say the complainants, proposed that there should be " no further pursuance of dispute responsibility " and that this was one of the clauses on the basis of which the dispute was terminated. Yet, two years later, the Company dismissed ten union officers and 28 members on the ground of acts committed during the dispute thus, in the view of the complainants, violating the mediation settlement. Because of this, on 25 March 1963 the union asked for further mediation by the Central Labour Relations Commission but, it is alleged, the Commission ran away from its responsibilities when the Company made it plain that it would not withdraw from the position it had adopted.
  116. 116 The Government explains that a trade union or worker may choose in unfair labour practice cases between asking the Labour Relations Commission for a remedy or going directly to the courts, in accordance with the Code of Civil Procedure, to seek damages or nullification of dismissal, etc. Either party dissatisfied with a finding of fact and order issued by a Labour Relations Commission can appeal to a court by administrative suit. As the complainants state, it is possible for as many as two Commissions and three courts to be involved.
  117. 117 From 1959 to 1963, states the Government, 82 to 87 per cent of settled cases were settled through withdrawal or compromise, and only 13 to 18 per cent by order of the Commission. It is therefore not fair to judge the time taken to dispose of a case by order without taking account of the fact that the overwhelming majority of cases end in a compromise. In 1963 the average number of days for settlement of a case by order of the Commission or court decision was 323, the average for disposal of a case by withdrawal or compromise being 145 days. The time varies according to the degree of fact-finding; one case in 1963 took seven days, and another took more than 660 days.
  118. 118 In the Miike dispute, declares the Government, there was no element of compulsion in the mediation, as alleged. Conciliation and mediation were accepted voluntarily by both parties. When the proposals referred to by the complainants for the settlement of the dismissal case affecting 1,200 men were made, fruitless conciliation had taken place for nearly a year, a new union had been formed whose members wished to resume work and there was a general desire for some settlement to be reached. But the mediation proposal was in no way one which it was obligatory to accept.
  119. 119 It is true, says the Government, that on 25 March 1963 the Japan Coal Miners' Union asked for conciliation. On 31 July voluntary conciliation took place, but on 7 August the Company gave notice that it refused further conciliation, and on 8 August the union withdrew its request for conciliation. The Government denies, therefore, that there was ever any question of the Commission shirking its responsibilities.
  120. 120 The cardinal points raised by the complainants are that the voluntary conciliation procedure for the settlement of disputes is unduly protracted and that, in the case of unfair labour practice cases, this situation is rendered worse because, if the courts become involved, the resources of no less than three courts and two Labour Commissions may have to be exhausted before a decision is reached. The proceedings are expensive for the unions and workers concerned. There is some difference between the parties as to how long it takes for a case to be determined by a Labour Relations Commission but the Government itself admits that in 1963 an average of 145 days was needed for cases settled by compromise, while cases resulting in an order took 323 days on average.
  121. 121 Certain aspects of these allegations appear to call for consideration in the light of the principles enunciated in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), but it would seem desirable to postpone the formulation of definitive conclusions on this matter until the Committee is ready to submit its recommendations on the case as a whole to the Governing Body.
       • (c) Allegations relating to the Use of the Police in the Miike Dispute
  122. 122 The complainants criticise on various grounds the attitude adopted by the police in the Miike dispute.
  123. 123 On 17 June 1959 a mass meeting was held in protest over the dismissal of Mr. Endo, Chairman of the union's Mikawa chapter. Six deputy supervisors attended the meeting on behalf of the management, one carrying a concealed short-wave radio and accompanied, it is alleged, by a police sergeant.
  124. 124 It is alleged that when the rival union was formed to break the strike, the police made vicious attacks on members and pickets and arrested them for no reason and, as a measure of provocation, made plans to establish a police encampment near a miners' housing area.
  125. 125 The complainants state that during the dispute thousands of police were billeted in the area to prevent the fair development of the dispute and to aid the anti-strike activities of the newly-formed rival union and that, in one instance, the police occupied union premises as housing quarters, in order to prevent the holding of union meetings, and occupied assembly halls normally used by the union with the same object in view. It is alleged also that the police carried on their group training in the area in order to intimidate the workers.
  126. 126 The Government declares, with regard to the issues referred to in paragraph 123 above, that already on 20 April 1959 about 70 union members had entered the mine by force and injured two officials and that on 8 May some 300 members had harassed company officials for six hours. According to the Government the police learned that the union intended, when it negotiated with the Company on 17 June 1959, that about a thousand members should be there. The police sergeant present at the protest meeting on that day had gone there to assure himself that the police would be prepared to act in case of emergency.
  127. 127 The group training by the police, says the Government, was part of their normal programme and not intended as intimidation (see paragraph 125), although there was certainly fear on the part of the police that acts of violence might occur in the vicinity, as they had occurred previously. But the training in question was held in the routine way at the Wajiro Shooting Range. It was also reasonable that, in September 1959, when violence was feared as the result of tension between members of the Miike Coal Miners' Union and those of the rival union, police reinforcements should be drafted to the area.
  128. 128 The Government gives details of various incidents of violence which occurred. It declares that on 28 March 1960 pickets of the old union tried to prevent members of the new union going to work, 51 members of the old union and 150 members of the new union being injured. The Fukuoka District Court issued an order prohibiting interference with men going to work. One thousand seven hundred police were placed in strategic positions to deal with acts of violence. The Government states that at one point on 18 April 1960 some 1,200 members of the old union assaulted police who tried to hold them back from the Mikawa mine main gate and 84 police were injured, six of them seriously. On 20 April 700 pickets of the old union assembled near the main gate of Miyaura mine and 300 more at the rear end set up barbed-wire barricades; the police dispersed some of them and removed the obstacles to let workers enter the mine. The Government accuses members of various acts of violence against the police, including stone-throwing.
  129. 129 Quarters were rented for housing the police reinforcements, including premises owned by the Company. The Government denies the allegation that union premises were occupied by the police.
  130. 130 Altogether, says the Government, 315 persons were prosecuted in the courts for acts of violence, 285 of them being convicted.
  131. 131 From the mass of conflicting evidence before the Committee it is clear that a scene of considerable tension prevailed during the later stages of the Miike dispute by reason of the fact that considerable numbers of members of the old union picketed the mine at a time when some hundreds of members of the new union were attempting to go to work. Because of the violence feared by the authorities unusually large reinforcements of police were drafted to the area concerned. As to the purpose for which and the manner in which the police were used, diametrically opposed views have been expressed by the complainants and the Government. On the basis of the evidence before it, it appears quite impossible for the Committee to express any firm conclusions in full knowledge of all the real circumstances.
  132. 132 In these circumstances the Committee recommends the Governing Body to note that it is not possible for it to reach firm conclusions, in full knowledge of all the circumstances, in respect of the allegations relating to the use of the police in the Miike labour dispute.
       • (d) Allegations relating to the Labour Standards Inspection Office
  133. 133 It is alleged that the Fukuoka Labour Standards Office and the Omuta Labour Standards Inspection Office have failed to take action in respect of many violations of the Labour Standards Law by the Company.
  134. 134 The complainants state that no measures have been taken in respect of the " divided payment " and delayed payment of wages in 1959 and 1963.
  135. 135 The days of the Miike dispute were included in the total working days, the basis for calculating the vacation with pay. In the complainants' view this infringed section 39 of the Labour Standards Law and was contrary to the administrative interpretation given by the Ministry of Labour (Kijunkyoku Hatsu, No. 90, 13 February 1958).
  136. 136 The complainants contend that the Labour Standards Inspection Office has taken no action with regard to an agreement infringing the Labour Standards Law concluded between the new rival union and the Company on 29 June 1963. This agreement, it is alleged, provides for a 6 per cent wage decrease and/or postponement of pay days with no interest becoming payable in respect of the suspended remuneration, these clauses infringing section 18 (4) and (5) of the Labour Standards Law.
  137. 137 It is alleged that work performance rules were revised illegally by the Company as from 15 July 1963 with regard to wage rules, and as from 1 August 1963 with regard to other conditions, the union's demand for negotiation on the matter being rejected. Although illegal, it is alleged, the revised rules were accepted by the Labour Standards Inspection Office.
  138. 138 Reference has already been made to the alleged discrimination in respect of wages paid to members of the Miike Coal Miners' Union and members of the rival union. The Miike Union, it is alleged, asked the Omuta Labour Standards Inspection Office on 19 and 22 April 1961 to investigate this matter, on the ground that such discrimination violated section 3 of the Labour Standards Law, but these demands and also later demands were ignored by the Inspection Office.
  139. 139 The Government agrees that, as a result of wages being paid by two or more instalments in the month, delays in wage payment occurred in 1959 and 1963, but states that on each occasion it ordered the management to correct the situation.
  140. 140 With regard to the allegations relating to vacation with pay (see paragraph 135 above) the Government makes the following observations. Section 39 of the Labour Standards Law provides for the granting of annual leave with pay of from six to 20 days, according to length of service, to workers who have been employed continuously for a year and who have been present for over 80 per cent of the total of working days. In 1960 the strike lasted from 25 January to 29 October. The Law makes no provision as to how annual leave is to be calculated where no work has been performed in the previous year during a strike.
  141. 141 The Government acknowledges that the agreement referred to in paragraph 136 above was in fact concluded. However, says the Government, the agreement made no provision for the administration of workers' deposits by the employer and, therefore, is not considered to infringe section 18 of the Labour Standards Law.
  142. 142 With regard to the revision of work performance rules (see paragraph 137 above), the Government states that this was undertaken by the employers after asking the opinion of the " trade union which is composed of the majority of the workers " at the workplace, as required by section 90 of the Labour Standards Law. The trade union representing the majority, says the Government, was the Miike Coal Mine Workers' New Union. The Government concludes, therefore, that no illegality occurred and that there was no ground for intervention by the Labour Standards Inspection Office.
  143. 143 The Government states that on 19 and 22 April 1961 the Miike Coal Miners' Union did in fact complain that members of the union were discriminated against in respect of wages as compared with members of the new union. Section 3 of the Labour Standards Law-the law in respect of which the Labour Standards Inspection Office is competent - prohibits discrimination in respect of wages or other conditions by reason of " nationality, creed or social status ". Discrimination on the ground of trade union membership is not covered by the Labour Standards Law but constitutes an unfair labour practice under section 7 of the Trade Union Law, in respect of which remedial procedures are provided for under the latter enactment. In the case in question the Omuta and Fukuoka Labour Standards Inspection Offices investigated but found no violation of the Labour Standards Law.
  144. 144 The Committee is not concerned in the present context with the question as to whether the Miike Coal Miners' Union, apparently the union in a minority at the material time, should also have been consulted when employment rules were revised. The allegation before the Committee is that the rules were revised in a manner contrary to the Labour Standards Law and that the Labour Standards Inspection Office failed to take action. It appears, however, that there was compliance with this particular Law, so that the said office had no ground for intervention. Nor is the Committee, in the present context, called upon to pronounce on the question of discrimination as regards wages between members of one union and members of another union, which, if proven, would appear to constitute a violation of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan. Such discrimination is prohibited by section 7 of the Trade Union Law, but the remedial procedures in that event are not within the competence of the Labour Standards Inspection Office. Allegations relating to discrimination of this kind form part of the allegations relating to discrimination examined in paragraphs 58 to 77 above, in respect of which the Committee has already requested the Government either to furnish observations or to provide information as to the outcome of proceedings pending in accordance with the Trade Union Law. In the present context the allegations before the Committee are that a violation of section 3 of the Labour Standards Law occurred and that the Labour Standards Inspection Office failed to act. In this sense the allegations appear to be unfounded. Nor have the complainants furnished proof that the other points raised in the present allegations constituted infringements of the Labour Standards Law calling for intervention by the Office in question.
  145. 145 In these circumstances the Committee considers that, subject to the reservations made in paragraph 144 above, the allegations relating to the Labour Standards Inspection Office do not call for further examination.
       • (e) Allegations relating to the Mine Safety Supervision Bureau
  146. 146 Since the enactment of the Coal Mining Rationalisation Tentative Measure Law in 1959, it is alleged, there has been a tendency to place greater emphasis on production than on safety and this trend has been intensified since the end of the dispute in 1960, thus leading to a great increase in the number of accidents. According to the complainants the accident rate per 1,000 persons who worked was 0.810 in 1958, 0.917 in 1959, 1.403 in 1961 and 1.317 in 1962. Without consulting the union, it is alleged, the Company unilaterally curtailed the time previously allotted to safety meetings and safety education. The union therefore asked the Safety Supervision Bureau on 18 September 1962 to take action but, it is alleged, the Safety Supervision Bureau took no action on this or subsequent requests for guidance on the promotion of safety in the Miike mine.
  147. 147 The complainants allege that the negligence of the Safety Supervision Bureau contributed to the disaster in November 1963 because it had failed to prevent the accumulation of coal dust. It had been the custom, it is alleged, to inform the Company in advance of the visits of mine safety inspectors and of the places they would inspect, so that the Company took care to remove coal dust and ensure the maintenance of safety equipment in those places.
  148. 148 When questions were asked in the competent committee of the House of Counsellors, it is alleged, Mr. Tahara, Director of the Mine Safety Supervision Bureau, at first said that inspections were usually made without prior notice but then admitted he did not know what the position was as regards the Miike mine, while Mr. Fukiuda, Minister of International Trade and Industry, who visited the scene of the accident on 14 November 1963, is stated to have declared that " in future surprise inspection will be ensured " and to have been reported in the Asahi Shinibun of 21 November as having announced that the authorities " have begun consideration in the direction of making surprise inspection the rule ".
  149. 149 A Sohyo-Tanro Study Group investigated the accident of 9 November 1963 during the period 13 to 16 November 1963. According to its findings there were considerable accumulations of coal dust, which were a major element contributing to the accident. Because the Mikawa pit was regarded as a safe pit, it was alleged, the Company neglected safety precautions and coal dust was seldom or never removed, nor were stone-dust barriers and zones set up in accordance with safety regulations, nor was watering practised. After criticising the measures taken by the Company following the disaster, the report of the Study Group alleged that no self-rescue equipment was available to the miners and that, because of the lack of safety education and training, neither the miners nor the overmen even knew what safety routes had to be followed in case of emergency.
  150. 150 The Government agrees that the rate of accidents in the Miike mine increased from 1960 onwards but states that a downward trend began in 1964. The Government states that in April 1962 the Fukuoka Mine Safety and Inspection Division was elevated to the status of a Bureau, its personnel was increased and half of them were allotted to the Miike mine, thus strengthening the inspection force to offer aid and service. The Government goes on to give technical details of the measures against accident (watering, cleaning of coal dust, etc.) from 1962 until the disaster in November 1963 and since that time. As regards inspections, states the Government, sometimes prior notice of inspection has to be provided when it is felt necessary to have mine personnel assembled at a given place at a given time to receive instructions with regard to measures to be taken to ensure safety.
  151. 151 The Committee observes that it is the custom in many industrialised countries to hold consultations and negotiations with the trade unions representing the workers on such matters as safety education and practical means of ensuring safety and of implementing statutory safety regulations in factories, mines and other workplaces where, by reason of the nature of the work, there exists serious or constant danger of accident. But the question of what technical measures should be taken to ensure safety in a coal mine and the determination of the degree of responsibility of employers, statutory inspection authorities and others in respect of an accident are matters outside the competence of the Committee. The Committee could not pronounce upon matters of this kind unless it had before it evidence to the effect that the exercise of trade union rights was involved-as might be the case, for instance, if evidence were submitted showing clearly that an accident took place as the result of infringement of the provisions of a collective agreement. In the present case the Committee has no evidence of this nature before it, but is simply asked to deal with allegations relating to the exercise of its functions by the Mine Safety Supervision Bureau, a matter with regard to which it is not competent to express its opinion.
  152. 152 In these circumstances the Committee considers that, for the reasons indicated in paragraph 151 above, the allegations relating to the Mine Safety Supervision Bureau do not call for further examination.

The Committee's recommendations

1. 153. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to decide, for the reasons indicated in paragraphs 110, 144 and 151 above, that the allegations relating to the anti-union tendency of the courts, to the Labour Standards Inspection Office and to the Mine Safety Supervision Bureau do not call for further examination;
   • (b) to note that, for the reasons indicated in paragraph 131 above, it is not possible for the Committee to reach firm conclusions, in full knowledge of all the circumstances, in respect of the allegations relating to the use of the police in the Miike dispute;
   • (c) to take note of the present interim report of the Committee with respect to the remaining allegations, it being understood that the Committee will submit a further report to the Governing Body when it has received the additional information and observations which it has requested the Government to be good enough to furnish.