Informe provisional - Informe núm. 386, Junio 2018

Caso núm. 2183 (Japón) - Fecha de presentación de la queja:: 15-MAR-02 - Activo

Allegations: At its origin, the complainants had alleged that the reform of the public service legislation was developed without proper consultation of workers’ organizations, further aggravating the existing public service legislation and maintaining the restrictions on the basic trade union rights of public employees, without adequate compensation. Following extensive consultations, they now demand rapid guarantees for their basic labour rights

1. 379. The Committee has already examined the substance of these cases on ten occasions, most recently at its June 2016 meeting, when it presented an interim report to the Governing Body [378th Report, paras 420–466, approved by the Governing Body at its 327th Session (June 2016).
2. 380. The National Confederation of Trade Unions (ZENROREN) (Case No. 2183) and the Japanese Trade Union Confederation (JTUC–RENGO) (Case No. 2177) submitted additional information in communications dated 17 May and 25 August 2017 respectively.
3. 381. The Government sent its observations in communications dated 29 September 2017, 28 February and 23 April 2018.
4. 382. 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. Previous examination of the case

1. 383. At its June 2016 meeting the Committee made the following recommendations [see 378th Report, para. 466].
   • (a) The Committee once again urges the Government to expedite its consultation with the social partners concerned to ensure, without further delay, basic labour rights for public service employees in full respect for the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan, in particular as regards:
     • (i) granting basic labour rights to public servants;
     • (ii) fully granting the right to organize and to collective bargaining to firefighters and prison staff;
     • (iii) ensuring that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures;
     • (iv) ensuring that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and
     • (v) the scope of bargaining matters in the public service.
       • The Committee expects that the necessary legislative amendments will be submitted to the Diet without delay and requests the Government to keep it informed of developments in this regard.
         • (b) The Committee requests the Government to continue to provide information on the functioning of the NPA recommendation system, as a compensatory measure until the basic labour rights are granted to public servants.
         • (c) The Committee requests the Government and the complainant organizations to keep it informed of the results of the appeal to the Tokyo High Court made by KOKKOROREN concerning its lawsuit against the salary cut adopted by the Diet on 25 May 2012.
         • (d) The Committee requests the Government and the complainant organizations to keep it informed of the results of the remaining lawsuits filed by the employees’ unions of a number of national university corporations against the university management for the wage-cut measures.

B. Additional information from the complainants

1. 384. In communications dated 31 May and 25 August 2017 respectively, the ZENROREN and the JTUC–RENGO provided the following information with regard to the pending issues:

Status of the public service reform

1. 385. With regard to the situation of the Public Service Reform, ZENROREN indicates that an affiliate trade union, namely the Japan Federation of National Service Employees (KOKKOROREN), requested the Government on many occasions to engage in concrete discussions towards the establishment of an autonomous labour relations system with the concerned unions. However, the Government’s reply is invariably either that it wished to study the question with caution or that it wished to share views with unions. Consequently, the situation remains unchanged despite recommendations on this issue from the Committee on Freedom of Association for the tenth time in succession.
2. 386. According to JTUC–RENGO, consultations aimed at a resolution of the issue of ensuring basic labour rights for public service employees have made no progress due to negligence and formalistic handling of the matter by the Government. Additionally, the complainant recalls that at the time of deliberations and enactment of the Bill for Partial Amendment of the Act on Remuneration of Officials in Regular Service (190th Ordinary Session of the Diet in 2016), the Cabinet Committees of both the House of Representatives and the House of Councillors adopted a supplementary resolution urging the Government to “Conduct exchanges of views with the staff organizations and make efforts to form an agreement.” Since the inception of the Cabinet Bureau of Personnel Affairs on May 2014, the Government has not engaged in any proactive consultation, including with public service employees’ trade unions. The Minister in charge of national public service employees maintains that since a wide range of issues are involved, he would like to engage in prudent considerations while exchanging views.
3. 387. With regard to the restoration of collective bargaining rights to public service employees, the Action Plan for the Realization of Work Style Reform provides for steps, including for public service employees, to improve conditions for non-regular employment and to correct long working hours. However, in relation to the issue of long working hours and overtime work, a simple request was sent out to government ministries and agencies about the regulation of overtime in accordance with the National Personnel Authority (NPA) guidelines. Moreover, JTUC–RENGO notes that in its Report on Personnel Management of Public Service Employees, submitted to the Diet and Cabinet on 8 August 2017, the NPA observed that a review of work styles, including the correction of long working hours, was a vital issue and giving response to this social situation in the public service is a pressing issue. The NPA did not provide for any measures to alleviate the issue of long working hours, or overtime work. Regrettably, the NPA limited itself to declarations such as “we will actively cooperate with and support the efforts of offices and ministries” or “based on labour legislation for the private sector regarding upper limit regulations, we will proceed with considerations on the kind of effective measures to take”. In the JTUC–RENGO’s view, the issue of long working hours will give rise to a severe systemic disparity in connection with the regulation of overtime between the public sector and the private sector, thus calling further for the restoration of the basic labour rights of public service employees.
4. 388. More generally, JTUC–RENGO notes that the Government is actively engaged in promoting women’s participation and advancement in society (Act on Promotion of Women’s Participation and Advancement in the Workplace, enacted on 28 August 2015) and work style reforms (The Action Plan for the Realization of Work Style Reform, approved on 28 March 2017). These policies and measures relate to working conditions, and while in the private sector they are dealt with through industrial relations, contradictions and limits arise with regard to public service employees.
5. 389. With regard to the NPA recommendation mechanism, which was originally established as a compensation for the restrictions placed on the basic labour rights of public employees, ZENROREN reiterates that this is not functioning properly. In its view, over the last years, the Government is using the NPA recommendation mechanism as a tool for introducing changes which impact unfavourably on working conditions of state personnel. ZENROREN recalls that in 2015, the NPA made recommendations on the flexibilization of working hours named “flex-time system” for state personnel despite the opposition of KOKKOROREN. Therefore, while in the private sector, major changes in working conditions such as flexibilization of working time would require a collective agreement, in the case of state employees who are denied the right to collective bargaining, the Government could implement prejudicial working time flexibilization without engaging in any collective agreement. This results in widespread long hours of work for state employees. Moreover, in 2016, the NPA advised a change in family allowances for state employees, without any consultation with KOKKOROREN. This change is unilaterally applied to about 66,000 people accounting for 45 per cent of the beneficiaries of the allowance.
6. 390. In addition, the Personnel Bureau of the Prime Minister’s Cabinet, established in 2014, has also failed to engage in adequate negotiation or consultation with KOKKOROREN on working conditions of state employees. Presently, the Government is embarking on a new review of retirement allowances and retirement benefits included in pension. It requested the NPA to conduct a survey of the actual situation of retirement benefit in the private sector. However, there has not been any proper consultations with KOKKOROREN in this regard. The union considers that retirement benefits relate to conditions of work and should therefore be part of a collective agreement.

Local public employees

1. 391. With regard to the situation of local public employees, ZENROREN reiterates that these workers in local governments are unable to negotiate on equal footing with the central Government on decisions that impact negatively on their wage or their employment. Instead, they have to comply with extremely unfair consequences of such decisions. Regarding the wage determination of local public employees, ZENROREN recalled that section 24 of the Local Public Service Act provides that it should take into account the living cost and the pay levels of state employees and employees working in other local governments as well as the pay level in the private sector. However, the Government and the Ministry of Internal Affairs, claiming that the wage levels of state employees determined on the basis of the NPA recommendation take into consideration all the relevant factors including the living cost, imposed on the local public employees, the same pay determination system and pay levels applied to state personnel. Consequently, there could be a 20 per cent pay difference among local public employees depending on the locality where they work although they are assigned to similar duties. In addition, the central Government would put a strong pressure on the local governments not to comply with any pay review from Local Personnel Committees (LPCs) which would recommend a pay rise based on the comparison with private sector pay that exceeds the pay rise for state personnel. ZENROREN is of the view that such denial of the LPC recommendation system for local public employees is illustrative of the fact that recommendation systems for public employees are not working at all.
2. 392. Furthermore, ZENROREN argues that there are about 640,000 temporary employees working presently in local governments nationwide, who are assigned to the same duties as the regular employees. In May 2017, the Government introduced to the Diet bills regarding the pay and employment of temporary workers in local governments. These bills are claimed to give temporary workers the right to bonuses and some other allowances, but they are actually aimed at depriving them of their basic labour rights in exchange for these benefits, differentiating between full-time and part-time employees, taking advantage of changes to be implemented in the personnel management system by virtue of the new laws. The bills were drafted on the basis of a report prepared by a small study committee composed of researchers, local government representatives and employees of employers’ organizations, nominated by the Ministry of Internal Affairs and Communications. The committee included a representative of JTUC–RENGO but relevant local public employees’ unions were merely heard and could not negotiate.
3. 393. JTUC–RENGO refers to the enactment, on 11 May 2017, of the Bill on the Partial Amendment of the Local Public Service Act and Local Autonomy Act (submitted to the 193rd Ordinary Session of the Diet). This Bill clarifies the system for appointment of local employees. While it does not go as far as to constitute an overall restructuring of the various issues regarding temporary and part-time employees, such as precarious employment and disparities in conditions with permanent staff, it does however constitute, in the complainant’s view, a beginning towards a resolution of long-standing issues. JTUC–RENGO notes that this legal amendment will allow part-time staff in the special service who have been appointed to perform constant and permanent duties to shift to regular service staff. However, at that time, their basic labour rights would be restricted, as they are for permanent staff. This situation further calls for the urgent restoration of basic labour rights to all public service employees.

Right to organize of firefighters

1. 394. JTUC–RENGO refers to the right to organize of firefighters which it linked to the promotion of women’s participation and advancement in society. It notes the low level of women among firefighters (2.4 per cent as of April 2015) compared to other job categories and acknowledges that in July 2015 the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications proposed to raise the level of women staff among firefighters to 5 per cent by 2026 through the active promotion of women’s participation and advancement in society as an important pillar of the Government’s growth strategy. However, JTUC–RENGO regrets that the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications failed to take into account the fact that the granting of the right to organize is indispensable for the realization of this campaign.
2. 395. JTUC–RENGO further denounces an increasing number of incidents of harassment of firefighters at the workplace, which it held as a direct result of the denial of the right to organize. Since 2015, there have been 19 incidents of outrageous verbal abuse, violence, etc. by staff officials, including fire station chiefs that deviate from work orders. It recalls that one incident led to a suicide. In July 2017, the Ministry of Internal Affairs and Communications and the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications issued a notification on “Measures against Harassment, etc.” to local municipalities and fire defence headquarters proposing the establishment of an internal reporting system, the setting up of consultation desks and the application of equity committees. In JTUC–RENGO’s view, these are nothing more than stopgap measures to cover up the issue of granting of the right to organize to fire defence personnel.

Information on lawsuits

1. 396. ZENROREN recalls that KOKKOROREN filed a lawsuit on 25 May 2012 before the Tokyo District Court that the Law on salary cut adopted by the Diet was invalid and in violation of the Constitution. The point of issue was whether a salary cut that was not based on the NPA recommendation constituted a violation of article 28 of the Constitution that guarantees the basic labour rights of workers to organize, bargain and act collectively. In its decision of 30 October 2014, the district court ruled that the salary cut was indeed constitutional. In its latest communication, ZENROREN regretted that in its decision of 5 December 2016 the Tokyo High Court upheld the ruling of the Tokyo District Court. ZENROREN regretted that the High Court ruling failed to respond to the argument of KOKKOROREN that adopting legislation that provides for cuts in salary that are not grounded on the NPA recommendation, which is to operate as a compensatory mechanism for the denial of basic labour rights of state employees, may undermine the constitutional guarantee on these basic rights contained in the Constitution (article 28). Furthermore, the decision narrowed the requirements for deciding the unconstitutionality of a law by declaring that “a law is unconstitutional when it significantly lacks rationality”. With such an unfair court decision, ZENROREN considers that it is now possible for the Government or the Diet to operate pay cuts for public employees anytime, without waiting for a NPA recommendation.
2. 397. Furthermore, ZENROREN refers to lawsuits filed by eight workers’ unions of national university corporations opposing unilateral reduction of salaries. It informed that the legal actions ended in two state universities and one national institute of technology. ZENROREN is of the view that the courts only accepted the argument of the corporate authorities, hence legitimizing the disadvantageous modification of working conditions. The decisions were incorrect both in respect of the interpretation of the law and the determination of facts and was extremely unfair in dismissing the plaintiffs’ claims. The legal actions are ongoing concerning seven state universities.

C. The Government’s reply

1. 398. In its communications dated 29 September 2017, 28 February and 23 April 2018, the Government provided the following information.

Status of public service reform

1. 399. While acknowledging that basic labour rights of public service employees are, to some extent, restricted, due to the distinctive status and the public nature of the functions, the Government reiterates that public service employees benefit from the NPA recommendation system and other compensatory measures. There are still various concerns and opinions concerning measures for the autonomous labour-employer relations system, including that negotiation costs would increase or that prolonged labour-employer negotiations may affect the execution of operations. However, in line with the Amendment Bill for the Act on Remuneration of Officials in Regular Service established in January 2016, and the supplementary resolution of the House of Representatives Cabinet Committee dated 13 January 2016 calling for “efforts to reach agreements on measures for the autonomous labour-employer relations system, based on Section 12 of the Civil Service Reform Law, gaining the understanding of the people, and hearing from employees’ organizations”, the Government continues to carefully examine these issues by exchanging opinions with employees’ organizations on various topics, in particular each year during spring when the NPA issues its recommendations. The latest topics concern, for example, remuneration, part time employees, the promotion of women’s activities/work–life balance, policies for elderly national public service employees, expanding of the flex-time system and review of family allowance.
2. 400. In reply to the allegations that national public service employees perform long overtime work exceeding the guidelines of the NPA, the Government indicates that in recent years, there has been growing concern about work–life balance and the need for diversified working styles. The NPA issued a recommendation on expanding the flex-time system basically to all employees. In this regard, the Government indicates that the NPA held 216 official meetings with employees’ organizations before the recommendation was issued. In addition to the guidelines of the NPA, various arrangements are being taken within ministries to reduce overtime work. Each year, the Government is promoting the months of July and August as “Work–life Balance Promotion Months”. According to the Action Plan for the Realization of Work Style Reform, decided upon in March 2017, there is a need to work on more effective measures in consideration of private system reforms concerning national government officials, taking also into account the need to secure proper public services.
3. 401. On another issue raised by the complainants, the Government observes that the payment standard for the retirement allowance of national public service employees has traditionally been set at a level which is seen as acceptable by the general public while also comparable to the retirement benefits in the private sector. Cabinet adopted in July 2014 the Basic Policy on Total Personnel Expenses for National Public Service Employees by which: (i) public–private sector comparisons will be earned out roughly every five years; (ii) the comparisons will combine retirement allowance and retirement pension benefits (employer contributions); and (iii) the method for adjusting the standard based on the public–private comparison shall depend on the revision of the retirement allowance payment standard. In reply to allegations that the payment standard for the retirement allowance was compulsorily reduced, the Government maintains that the retirement allowance of national public service employees fundamentally should be the mere reflection of the length of service and the degree of contribution. The Government intends to continue to consult with employees’ organizations when making revision to these allowances.
4. 402. Furthermore, the Government is in disagreement with ZENROREN’s assertion that there is no provision in the State Public Service Act regarding the hiring and working conditions of temporary employees. It recalled in this regard that the laws and regulations regarding national public employees, including the National Public Service Act, are applied to part time employees. Part-time employees are appointed to temporary services on a fixed term basis. A fixed-term employment system was introduced in October 2010 to replace the existing daily based employment system seen as insecure. The Government is working via the personnel management commission board and other government bodies to ensure that all ministries and agencies have a thorough understanding of the intent of the fixed-term employment system as well as the criteria for appropriate hiring and handling of part-time employees. Furthermore, the NPA issued a guideline on the remuneration of part-time employees to the ministries and continues to provide guidance on the appropriate remunerations for part-time employees. In 2016, the Cabinet Bureau of Personnel Affairs carried out a fact-finding survey relating to remuneration and related matters in relation to part-time employees. Based on the outcome of the survey and following discussions on the issue of equal pay for equal work, government ministries and agencies agreed in May 2017: (i) to set base pay in light of the knowledge, skills and experience required to perform the duties; and (ii) to seek to pay an end-of-term allowance to all part-time employees. Additionally, the Government is committed to use fact-finding surveys, any proposed Equal Pay for Equal Work Guidelines, as well as relevant initiatives in the private sectors to facilitate the implementation of such measures.
5. 403. In reply to JTUC–RENGO’s assertion that the NPA system is incomplete as a compensatory measure, the Government recalls that the Supreme Court maintained throughout its judgments that restrictions on the basic labour rights of the public service employees are constitutional, because appropriate measures have been implemented to compensate for the restrictions, in particular the NPA recommendation system. In this regard, it is essential that the NPA’s independence as a third-party authority is strongly guaranteed by law. The National Public Service Act grants the NPA a high-level independence. And while the NPA is established “under the jurisdiction of the Cabinet” and reports to the latter pursuant to the Act, it is fully independent and performing operations without any direction, order or supervision from the Cabinet. Additionally, the Government respects the NPA recommendation system since it implemented the revision of the remuneration system according to the NPA recommendation even after the establishment of the Cabinet Bureau of Personnel Affairs.
6. 404. The Government maintains that it is taking the necessary measures to engage meaningful discussions to achieve the public service reform, while bearing in mind that frank exchanges of views and coordination with relevant organizations are necessary. The Government was committed to continue with such an approach taking into account the recommendations from the supervisory bodies of the International Labour Organization.

Local public service employees

1. 405. With regard to allegations on the growing number of temporary employees and part-time employees in local governments, the Government acknowledges that their number has increased considerably in recent years, and that the actual situation is not necessarily in line with the purpose of the law. Part-time employees whose working conditions are close to those of full-time employees who in general should work under the supervision of their bosses as regular service personnel are now appointed as special service personnel, raising a number of issues in relation to working terms and conditions (confidentiality obligations, benefit of terminal allowance). The Government refers to the enactment in May 2017 of the Amendment Bill for the Act on the Local Public Service and Local Autonomy Act (Act No. 29 of 2017) which secured a more rigid appointment system and a number of benefits to part-time employees such as allowance and access to administrative review, equal to those enjoyed by permanent staff.

Right to organize of firefighters

1. 406. With regard to the right to organize of fire defence personnel the Government recalled the concerns expressed at national and local levels and the comprehensive discussions which led to the revision of the Fire Organization Act and the establishment of in October 1996. The purpose of the Fire Defence Personnel Committee institution is to facilitate communication, heighten the staff’s morale, and consequently contribute to a smooth management of fire department office work. The Government indicates that it is planning a new initiative which includes surveys on how the system is being administered. A questionnaire is being disseminated in all fire defence headquarters, providing to both the management and the staff an opportunity to express their opinions. Based on the outcome of the survey, the Government would consider further improvement of the Fire Defence Personnel Committee system.
2. 407. With regard to the specific allegations in relation to the number of women and the need to promote their participation and advancement among the fire defence personnel, the Government indicates that discussions are ongoing within the Fire Defence Personnel Committees on working conditions and welfare benefits of the personnel, including for women. As a result of the deliberation, facilities and equipment dedicated to females were established, and electromagnetic wave protection aprons for female communication commanders were furnished. Additionally, the Fire and Disaster Management Agency issued since 2015 a notice requesting fire departments to make efforts for the increase of the number of female fire defence personnel and for the promotion of an active role of female personnel, such as expanding the work of female fire defence personnel in all areas, following the concept of right place for the right people. The Fire and Disaster Management Agency is campaigning through various public relations medias (posters and websites) as well as through career seminars for female personnel (eight seminars organized in 2017). Moreover, the Fire and Disaster Management Agency provides financial support for improving specific facilities and equipment at the fire departments. As a result, the number of women fire defence personnel in Japan increased by 361 nationwide from 2015 and is steadily increasing.
3. 408. The Government provided its reply to JTUC–RENGO’s allegations on the growing number of incidents of harassment in fire defence departments, and that the “measures against harassment” notified by the Ministry of Internal Affairs and Communications and the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications in July 2017 are merely stopgap measures to cover up the issue of granting of the right to organize. Recalling that the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications announced a number of measures to be taken against harassment, including clarification of the determination of the fire chief to eradicate harassment, the establishment of a notification system for harassment, stricter disciplinary measures, and trainings, etc., the Government observes that these measures were compiled after a four-month discussion by a working group comprising of experts and on-site personnel. Moreover, the Fire and Disaster Management Agency established a dedicated hotline for consultation by telephone on harassment and held briefing sessions at 14 venues nationwide and urged fire departments nationwide to take necessary measures in response to its announcement. The Fire and Disaster Management Agency continues to supervise the fire departments nationwide in order to make sure that the necessary countermeasures against harassment are implemented.
4. 409. With regard to the right to organize of prison officers, the Government reiterates that the functions of prison guards correspond to those of police forces mentioned in Article 9 of Convention No. 87. The exclusion of personnel in penal institutions from the right to organize is due to the specific nature of their duties, which makes it necessary for these employees to be subject to especially rigid control and strict discipline. Prison guards enjoy pay and working conditions similar to, or better than, those of other administrative employees and the salary scale is the same as that of police officers. Their working conditions are improved under the National Personnel Authority recommendations system. In 1998 for instance, the NPA recommended a new and special rank in the salary scale, taking into special consideration the duties of prison officers, and the amendments were adopted and implemented the same year.

Information on lawsuits

1. 410. With regard to the lawsuit filed by the KOKKOROREN, the Government recalls that in October 2014, the Tokyo District Court determined that given the severe fiscal situation of Japan and the Great East Japan Earthquake, the necessity of the Revision and Temporary Special Measures on Remuneration Law for taking the measure to reduce remuneration for national public service employees could not be denied, and since it cannot be said to be unreasonable legislation making the National Personnel Authority Recommendation unable to fulfil its original function, the Tokyo District Court dismissed KOKKOROREN’s claim. KOKKOROREN appealed to the Tokyo High Court in November 2014, but the Tokyo High Court also dismissed the claim in December 2016. Following the ruling of the Tokyo High Court, KOKKOROREN appealed to the Supreme Court. In its communication of 23 April 2018, the Government indicates that, on 20 October 2017, the Supreme Court dismissed the appeal from KOKKOROREN, therefore the ruling of the Tokyo High Court became final.

D. The Committee’s conclusions

1. 411. The Committee recalls at the outset that it decided to examine these two cases, initially filed in 2002, in conjunction taking into account that they both concern the reform of the public service in Japan and its consequence in terms of realization of freedom of association principles. The Committee notes the additional information from the complainants and the Government in relation to its previous recommendations.
2. 412. With regard to the status of the national public service reform, the Committee notes with concern from the complainants’ allegations that despite repeated requests to the Government to engage concrete discussions towards the establishment of an autonomous labour relations system with the concerned unions, based on the reiterated recommendations from the Committee to expedite such consultations, the Government’s reply is invariably either that it wishes to study the question with caution or that it wishes to share views with unions. Therefore, these consultations which should aim at a swift resolution of the issue of ensuring basic labour rights for public service employees have still made no progress. The Committee notes that the Government refers to the supplementary resolution of the House of Representatives Cabinet Committee dated 13 January 2016 calling for “efforts to reach agreements on measures for the autonomous labour-employer relations system, based on section 12 of the Civil Service Reform Law, gaining the understanding of the people, and hearing from employees’ organizations” and maintains that it continues to carefully examine these issues by exchanging opinions with employees’ organizations on various topics, in particular when the NPA issues its recommendations. The latest topics concern, for example, remuneration, part-time employees, the promotion of women’s activities/work–life balance, policies for elderly national public service employees, expanding of the flex-time system, and review of family allowance. While noting that the Government committed once again to engage meaningful discussions to achieve the public service reform, the Committee nevertheless observes that the issue of the basic labour rights of public servants still remains unresolved despite the time that has elapsed since the Committee first examined these cases in 2002.
3. 413. The Committee deeply regrets that no concrete measures have yet been taken to provide basic labour rights to the public service in order to ensure full respect for the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan. Therefore, the Committee once again urges the Government to engage meaningful consultation with the social partners concerned to ensure, without further delay, basic labour rights for public service employees in line with its previous recommendations. The Committee expects that the necessary legislative amendments will be enacted without delay and requests the Government to keep it informed of developments in this regard.
4. 414. Additionally, the Committee notes the complainants’ specific allegations on various issues at both national and local levels such as working time, wage fixing and the increasing recourse to part-time or temporary employment of public service employees. The complainants hold the matters as a direct result of the denial of the right to organize of public service employees. The Committee notes in particular the indication that the Bill on the Partial Amendment of the Local Public Service Act and Local Autonomy Act enacted on 11 May 2017, which aimed at limiting the use of part-time staff on permanent duties, will now have the effect of increasing the workers stripped of their basic labour rights and thus heightening the urgency of addressing this matter. The Committee also notes the Government’s reply on the issues raised.
5. 415. With regard to the NPA recommendation mechanism, which was originally established as compensation for the restrictions placed on the basic labour rights of public employees, the Committee notes with concern ZENROREN’s allegations that the NPA is subordinated to the Government and that over the last years the Government has used the mechanism as a tool for introducing changes which impact unfavourably on working conditions of public employees. ZENROREN recalls that in 2015, the NPA made recommendations on the flexibilization of working hours for state personnel despite the opposition of KOKKOROREN and which resulted in widespread long hours of work for state employees. Moreover, in 2016, the NPA advised a change in family allowances for state employees, without any consultation with KOKKOROREN. The Committee also notes JTUC–RENGO’s assertion that the NPA system is incomplete as a compensatory measure.
6. 416. The Committee takes note of the reply of the Government recalling that the Supreme Court maintained throughout its judgments that restrictions on the basic labour rights of public service employees are constitutional because appropriate measures have been implemented to compensate for the restrictions, in particular the NPA recommendation system. In this regard, the Government considers essential that the NPA’s independence as a third-party authority is strongly guaranteed by law. The Government recalls that the National Public Service Act grants the NPA a high-level independence. And while the NPA is established “under the jurisdiction of the Cabinet” and reports to the latter pursuant to the Act, it is fully independent and performing operations without any direction, order or supervision from the Cabinet. The Committee once again requests the Government to continue to provide information on the functioning of the NPA recommendation system as a compensatory measure until the basic labour rights are granted to public servants.
7. 417. With regard to the right to organize of firefighters, the Committee notes JTUC–RENGO’s assessment of the low level of women among firefighters (2.4 per cent as of April 2015) compared to other job categories as well as the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications campaign to raise the level of women staff among firefighters to 5 per cent by 2026 through the active promotion of women’s participation and advancement. However, JTUC–RENGO regrets that the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications failed to take into account the fact that the granting of the right to organize is indispensable for the realization of this campaign. The Committee notes the Government’s indication that discussions are ongoing within the Fire Defence Personnel Committees on working conditions and welfare benefits of the personnel, including for women. As a result of the deliberation, facilities and equipment dedicated to women were established or furnished. The Government adds that the Fire and Disaster Management Agency issued a notice in 2015 requesting fire departments to make efforts for the increase of the number of female fire defence personnel and for the promotion of an active role of female personnel, such as expanding the work of women fire defence personnel in all areas. The Agency is campaigning through various public relations medias as well as through career seminars for female personnel (eight seminars organized in 2017). It also provides financial support for improving specific facilities and equipment. As a result, the number of women fire defence personnel in Japan increased by 361 nationwide from 2015 and is steadily increasing according to the Government.
8. 418. The Committee also notes JTUC–RENGO’s concern on the increasing number of incidents of harassment of firefighters at the workplace, which it held as a direct result of the denial of the right to organize. Since 2015 there have been 19 incidents of outrageous verbal abuse, violence, etc. by staff officials, including fire station chiefs that deviate from work orders, and it is recalled that one incident led to a suicide. In July 2017, the Ministry of Internal Affairs and Communications and the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications issued a notification on “measures against harassment, etc.” to local municipalities and fire defence headquarters proposing the establishment of an internal reporting system, the setting up of consultation desks and the application of equity committees. In JTUC–RENGO’s view, these are stopgap measures to cover up the issue of granting the right to organize to fire defence personnel. The Committee notes the Government’s indication that the “measures against harassment” notified by the Ministry of Internal Affairs and Communications and the Fire and Disaster Management Agency of the Ministry of Internal Affairs and Communications in July 2017, included clarification of the determination of the fire chief to eradicate harassment, the establishment of a notification system for harassment, stricter disciplinary measures, and trainings, etc. The Government observes that these measures were compiled after a four-month discussion by a working group comprising of experts and on-site personnel. A dedicated hotline for consultation by telephone on harassment was established and briefing sessions were organized at 14 venues nationwide in order to make sure that the necessary countermeasures against harassment are implemented.
9. 419. The Committee strongly encourages the parties to pursue their ongoing efforts with a view to achieving a consensus on granting the right to organize and to collective bargaining to firefighters.
10. 420. With regard to the right to organize of prison officers, the Committee notes that the Government reiterates that the functions of prison guards correspond to those of police forces mentioned in Article 9 of Convention No. 87. In this regard, the Committee refers to the comments of the Committee of Experts on the Application of Conventions and Recommendations concerning the application of Convention No. 87 by Japan (2018 Report) which, recalling that the fact that some prison officers are authorized by virtue of the law to carry a weapon in the course of their duties does not mean that they are members of the police or armed forces, requested the Government, in consultation with the national social partners and other concerned stakeholders, to take the necessary measures to ensure that prison officers other than those with the specific duties of the judicial police may form and join the organization of their own choosing to defend their occupational interests. The Committee requests the Government to keep it informed of any progress made in this regard.
11. 421. Furthermore, the Committee takes note of the information provided both by the Government and by ZENROREN on the outcome of the lawsuit filed by KOKKOROREN against the salary cut. ZENROREN recalls that KOKKOROREN filed a lawsuit on 25 May 2012 before the Tokyo District Court. The point of issue was whether a salary cut that was not based on the NPA recommendation constituted a violation of article 28 of the Constitution that guarantees the basic labour rights of workers to organize, bargain and act collectively. In its decision of 30 October 2014, the district court ruled that the salary cut was indeed constitutional. In its latest communication, ZENROREN regretted that in its decision of 5 December 2016 the Tokyo High Court upheld the ruling of the Tokyo District Court and that the High Court ruling failed to respond to the argument of KOKKOROREN that adopting legislation that provides for cuts in salary that are not grounded on the NPA recommendation, which is to operate as a compensatory mechanism for the denial of basic labour rights of state employees, may undermine the constitutional guarantee on these basic rights contained in the Constitution (article 28). Furthermore, the decision narrowed the requirements for deciding the unconstitutionality of a law by declaring that “a law is unconstitutional when it significantly lacks rationality”. ZENROREN considers that this decision now makes it possible for the Government or the Diet to operate pay cuts for public employees anytime, without waiting for a NPA recommendation. The Committee takes note of the Government’s indication that following the ruling of the Tokyo High Court, KOKKOROREN appealed to the Supreme Court. It further notes that, on 20 October 2017, the Supreme Court dismissed the appeal, therefore the ruling of the Tokyo High Court became final.
12. 422. Furthermore, the Committee notes the information provided by ZENROREN on lawsuits filed by eight workers’ unions of national university corporations opposing unilateral reduction of wages. It informed that the legal actions ended in two state universities and one national institute of technology. ZENROREN is of the view that the courts only accepted the argument of the corporate authorities, hence legitimizing the disadvantageous modification of working conditions. The decisions were incorrect both in respect of the interpretation of the law and the determination of facts and was extremely unfair in dismissing the plaintiffs’ claims. Noting the indication from the complainant that the legal actions are ongoing concerning seven state universities, the Committee requests the Government and the complainant to keep it informed of the results of the remaining lawsuits at the other state-run universities.

The Committee’s recommendations

1. 423. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to engage meaningful consultation with the social partners concerned, without further delay and in line with its previous recommendations, to:
     • (i) grant basic labour rights to public servants;
     • (ii) fully grant the right to organize and collective bargaining to firefighters. The Committee strongly encourages the parties to pursue their ongoing efforts with a view to achieving a consensus on granting the right to organize and to collective bargaining to firefighters;
     • (iii) fully grant the right to organize and to collective bargaining to prison staff. In this regard, the Committee requests the Government to keep it informed of any progress made in consulting with the social partners and other concerned stakeholders on measures to ensure that prison officers other than those with the specific duties of the judicial police may form and join the organization of their own choosing to defend their occupational interests.
     • (iv) ensure that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures;
     • (v) ensure that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and
     • (vi) determine the scope of bargaining matters in the public service.
   • The Committee expects that the necessary legislative amendments will be enacted without delay and requests the Government to keep it informed of developments.
   • (b) The Committee once again requests the Government to continue to provide information on the functioning of the NPA recommendation system, as a compensatory measure until the basic labour rights are granted to public servants.
   • (c) The Committee requests the Government and the complainant organizations to keep it informed of the results of the remaining lawsuits filed by a number of workers’ unions of national university corporations opposing unilateral reduction of wages.