Rapport définitif - Rapport No. 142, 1974

Cas no 745 (Japon) - Date de la plainte: 22-FÉVR.-73 - Clos

117. Various trade union organisations have presented a series of complaints containing allegations concerning the violation of trade union rights in the public sector in Japan. Nine of these cases were examined by the Committee at its 65th Meeting (November 1973) and its considerations thereon are to be found in paragraphs 95-335 of its 139th Report, approved by the Governing Body at its 191st Session (Geneva, November 1973).

1. 117. Various trade union organisations have presented a series of complaints containing allegations concerning the violation of trade union rights in the public sector in Japan. Nine of these cases were examined by the Committee at its 65th Meeting (November 1973) and its considerations thereon are to be found in paragraphs 95-335 of its 139th Report, approved by the Governing Body at its 191st Session (Geneva, November 1973).
2. 118. The remaining allegations are very similar to those in the cases mentioned above and must be considered in the same context of developments in industrial relations in the public sector in Japan, as described in paragraphs 97 to 103 of the 139th Report. In this connection it is particularly important to recall the deliberations and recommendations of the Advisory Council on the Public Service Personnel System which are described in that report.
3. 119. The Committee noted such developments with interest and examined each of the various allegations against the background of the recommendations of the Advisory Council. As mentioned in paragraph 103 of the 139th Report, the purpose of the Committee's examination is not only to point out any possible anomalies which may exist in labour relations in the public sector, but rather, and above all, to contribute through its recommendations to the establishment of an atmosphere of confidence and mutual understanding in Japan and to a solution of the existing problems by means of a system of adequate standards and procedures.
4. 120. The complaints examined in the present report were submitted by the General Council of Trade Unions of Japan (SOHYO) jointly with the following trade unions on the dates indicated: the Japan Senior High School Teachers' Union (NIKKOKYO) on 22 February 1973 (Case No. 745); the All Japan Federation of Municipal Transport Workers' Unions (TOSHIKOTSU) on 25 April 1973, with the support of the International Transport Workers' Federation in a communication dated 11 July 1973 (Case No. 753); and the All Japan Water Supply Workers' Union (ZENSUIDO) on 25 April 1973 (Case No. 755).
5. 121. These complaints were transmitted to the Government which forwarded its observations thereon in communications dated 14 August 1973, with additional information transmitted on 15 October 1973 and 8 January 1974.
6. 122. 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. A. The complainants' allegations

• Allegations relating to Disciplinary Sanctions on Strikers
• Cases Nos. 745, 753 and 755
  123. 123 On this issue the allegations and replies are very similar to those analysed in detail in the 139th Report, and reference can be made to that document. In substance, the complainants allege that they had to engage in strikes and other acts of dispute in order to improve their salaries and conditions of work, even though such acts are prohibited by the laws which govern employment in the public sector in Japan. It is alleged that the public authorities have engaged in ever increasing impositions of disciplinary sanctions on workers who have been involved in acts of industrial dispute. These sanctions cause particular hardship, the complainants state, because of the permanent effects which they have on remuneration, and the complainants describe these effects in detail.
  124. 124 The Government takes the position that public service personnel have a duty to serve the people, and because of this the law forbids strikes in such services. If union members insist on breaking the law, the Government argues, then it is only natural that they should be punished, and the types of sanctions imposed (dismissal, suspension, wage reduction and reprimand) are only those provided for by the appropriate legislation. On the issue of permanent economic disadvantages caused by disciplinary sanctions, the Government states that these arise from the present wage structure in Japan. Further, with respect to the motives underlying the strikes, the Government states that these are often politically motivated. In this connection the Committee wishes to recall that it has already expressed the view in previous cases that strikes of a purely political nature do not fall within the scope of the principles of freedom of association.
  125. 125 With regard to the substance of the allegations, the Committee recalls, as in its 139th Report (paragraph 122), that it has repeatedly stated that the right of workers and their organisations to strike is generally recognised as a legitimate means of defending their occupational interests, and that where this right is restricted or even prohibited in the civil service or in essential services there should be adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. In the opinion of the Committee, the restriction or prohibition should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards should be fully and promptly implemented.
  126. 126 The public servants on behalf of whom the complaints have been lodged enjoy no right to strike. Nevertheless the Local Public Service Law, which is applicable to certain categories of those public servants, contains no provisions relating to conciliation and arbitration in disputes. In these circumstances, the Committee recommends the Governing Body to draw attention to the principles and considerations set forth above.
  127. 127 As concerns the disciplinary sanctions imposed on strikers, the Committee wishes to state once again that it is not convinced that the imposition of sanctions must be regarded as inevitable whenever a strike takes place. The Committee has already pointed out that a flexible attitude in the application of sanctions is more conducive to the harmonious development of labour relations and it recommends the Governing Body to recall the suggestions made to the Government concerning the application of disciplinary sanctions, in particular as regards the permanent disadvantages in remuneration which result from the application of such sanctions on strikers, as well as the detrimental consequences on the careers of the workers concerned which may ensue.
• Allegations relating to Anti-Union Practices
• Case No. 745 (Senior High School Teachers)
  128. 128 The NIKKOKYO alleges that some of its members have been subjected to harassment in the form of transfers and describes seven cases in the Hokkaido Prefecture. In several cases this has involved separation of married couples and transfers of local union leaders and activists without any consultation with the local union. The complaint cites in particular the situation in Muroran Sakae Senior High School, where each year for four consecutive years the local union branch leader was transferred.
  129. 129 The NIKKOKYO further contends that the education authorities are using compulsory "research meetings" as pretexts for anti-union speeches while they refuse to recognise research meetings arranged by the union as valid exercises in educational research. At one such compulsory meeting organised by the Shiga Prefectural Board of Education the Deputy Chief of the Teaching Personnel Section of the Board is quoted as telling those present: "Trade unions of sound judgement are now withdrawing from the SOHYO one after another." On the other hand, teachers have been disciplined for not attending these meetings as well as for attending research meetings sponsored by the NIKKOKYO and the NIKKYOSO (the Japan Teachers' Union).
  130. 130 The Government explains that since 1965 the Hokkaido Board of Education has been implementing a new policy of personnel transfers based on a desire to promote frequent interchange between urban and remote areas, avoidance of stationing of teachers who are close relatives in the same school and preventing "stagnation of personnel administration" by reallocating staff members who have been in one school for more than ten years. All the cases cited by the complainants are explained in terms of this new policy and, in Muroran Sakae, for instance, it happened that every one of the union leaders had at least ten years' service in the same school.
  131. 131 As regards research meetings, the Government explains that the educational authorities in Japan attach great importance to in-service training for teachers. The research meetings are thus compulsory because they form a vital part of their professional training. As to anti-union statements alleged to have been made at one of the meetings by the Deputy Chief of the Teaching Personnel Section in Shiga Prefecture, these, the Government explains, have been quoted out of context. The union's own "research meetings" are closely integrated with union activity and affairs, and cannot be recognised by the authorities as official in-service training. Although, therefore, union members are free to organise and participate in such union research meetings, they cannot expect to be paid while so engaged (section 55-2(6), Local Public Service Law). Similarly, if attendance at such meetings involves dereliction of duty, teachers who participate are naturally sanctioned according to law.
  132. 132 The Committee takes note of the allegations and the replies of the Government thereon. It notes that the description of the facts and the views expressed by the parties are to a large extent contradictory and it would be difficult for the Committee to reach a conclusion on the matters raised. However, the Committee wishes to set forth certain general considerations in connection with these matters.
  133. 133 As regards personnel transfers the Committee would like to point out that the principle that a worker or trade union official must not suffer prejudice by reason of his trade union activities does not necessarily imply that the fact that a person holds a trade union office confers on him immunity from transfer irrespective of the circumstances. Nevertheless, it is clear that a deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities. In this respect the Committee would express the hope that any transfer which may take place will not be discriminatory or constitute an anti-union act.
  134. 134 With respect to "research meetings" the Committee notes the Government's statement that these form an integral and necessary part of the continuing professional training of teaching personnel. Nevertheless, since such gatherings are compulsory the Committee would suggest that the authorities in charge should be mindful of this fact and take care to avoid statements which might be deemed to be anti-union in nature and as having an intimidating effect upon those who are obliged to be present.
  135. 135 More generally, the Committee wishes to stress once again that complaints of anti-union practices should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.
  136. 136 In these circumstances, the Committee recommends the Governing Body to draw attention to the considerations set forth in the preceding paragraphs and to invite the Government to ensure that no anti-union interference takes place against senior high school teachers in Japan.
• Allegations concerning Refusal to Bargain Collectively
• Case No. 745 (Senior High School Teachers)
  137. 137 The complainants allege that in spite of repeated demands, the local Boards of Education refuse to engage in collective bargaining respecting personnel problems such as transfers. The complainants allege further that although its members are employed by local or prefectural boards of education, many of the actual working conditions of teachers including salaries, hours of work and personnel allocations are, if not determined, at least heavily influenced by the ministry of Education. Nevertheless the latter continues to refuse to negotiate with the NIKKOKYO
  138. 138 On this issue the Government replies that section 55 of the Local Public Service Law provides that only on working conditions of employees can there be negotiations and that matters such as personnel transfers and appointments are not considered to come within the category of working conditions, but are matters "affecting the management and operation of the service and not allowed to be the subject of negotiation. The Government points out that it is not the Ministry of Education but the local Boards of Education which employ NIKKOKYO members, and claims that in consequence any collective bargaining between the Ministry and the NIKKOKYO would be improper. It states at the same time, however, that in fact NIKKOKYO is often consulted on matters respecting the formulation of Ministry policy and appends to its communication a table showing that during 1973 there were twelve meetings between the NIKKOKYO and senior Ministry personnel, usually dealing with pay and working conditions.
  139. 139 As regards the allegations concerning the level of collective bargaining, the Committee notes that collective bargaining properly so called cannot take place at the national level, but that there have been frequent discussions at this level between the Ministry and the NIKKOKYO. The Committee wishes to recall its view that, whatever the level at which collective bargaining takes place, the workers should be entitled to choose as they wish the organisation which shall represent them in the negotiations.
  140. 140 As regards the allegations on refusal to bargain on certain matters, the Committee would like to recall the view expressed by the Fact-Finding and Conciliation Commission in paragraphs 229 and 2231 of its Report that the application of provisions such as section 55(3) of the Local Public Service Law, referred to by the Government, may give rise to grave difficulties in practice. The Commission continued: "There are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment. It must be recognised, however, that there are many questions which affect both management and operation and conditions of employment." The Commission then gave examples of personnel strength and personnel transfers.
  141. 141 The Committee recommends the Governing Body to draw the attention of the Government to the above considerations in relation to the scope of matters to be covered by collective bargaining and to express the hope that the authorities concerned will always be guided, in the determination of the scope of matters properly appertaining to "management and operation" which are excluded from collective bargaining, by principles of good faith and reasonableness.
• Allegations relating to the Right to Strike
• Case No. 753 (Municipal Transport Workers)
  142. 142 The TOSHIKOTSU is a federation of transport workers' unions which are organised by workers in municipally owned and operated public transport enterprises in the urban areas of Japan.
  143. 143 The union points out that public transportation in Japan is assured for the most part by privately owned companies and that municipal public transport accounts for only a fraction of the total service in each metropolitan area. Thus, say the complainants, a strike in the private sector is much more seriously disruptive and causes greater hardship to the public than one staged by public employees. Nevertheless the latter do not have the right to strike whereas in the private sector the right to take strike action exists.
  144. 144 The union alleges that the salary level of its members is extremely low and that there is great consternation amongst workers concerning the reorganisation and rationalisation programmes initiated by the local authorities and supported by the Central Government. These have, it is alleged, brought about lay-offs of large numbers of people and another result is that once a locality becomes a designated area far rationalisation of its transport services, there can be no raise in wages granted without the approval of the Minister of Autonomy (responsible for local government). This in turn has allegedly led to a widening gap in salaries between public and private transport workers. For all these reasons the complainants feel that they must be able to go on strike to defend their interests.
  145. 145 The Government replies that local public transport services, consisting mainly of buses, underground railways and trams, constitute a key sector of the urban transport network and alone carry some 11 million persons per day. In typical metropolitan centres such as Tokyo, Yokohama, Nagoya, Kyoto, Osaka and Kobe, a considerable number of passengers are transported by the local public enterprises and hence the role of these enterprises is very significant. In Nagoya and Kyoto, for example, the percentages of passengers carried by the local public enterprises are 54.3 per cent and 43.0 per cent respectively, while in the other cities, according to the Government, the percentage is approximately 30 per cent. Thus strikes in this sector would cause serious public inconvenience.
  146. 146 The role of the local public transport enterprises is particularly important in the bus services, the Government explains. These services account for some 60 per cent of the total operations of the enterprises. Public buses carry 86.1 per cent of the population using the bus services in Nagoya, the percentage in Kyoto is 83.8 per cent, and even in Tokyo itself, they account for 42.4 per cent. Thus, in the opinion of the Government, local public enterprises may be said to be more important than private operations, and this is particularly true of such major centres as Sapporo City (66.1 per cent), Sendai City (78.3 per cent), Akita City (73.2 per cent) and Kagoshima City (92.0 per cent). The Government points out also that these public transport services cover not only city centres but the suburbs as well, and in many cases constitute the sole means of transport for the people in the community.
  147. 147 The Government states also that-the problem of the right to strike is not dealt with by International Labour Conventions Nos. 87 and 98, and is therefore entirely an internal issue for the Government of Japan. Under section 11(1) of the Local Public Enterprise Law, strikes by local public employees such as the TOSHIKOTSU members are absolutely prohibited.
  148. 148 The Government also claims that in the process of rationalisation of the industry the Government has ensured that there have been sufficient labour-management negotiations and alleges that as a result "there has not occurred any situation in which legitimate rights are infringed". Also, the Government states that local public enterprise employees' salaries are raised yearly to keep pace with upward changes in the cost of living (since 1967 the raises have averaged roughly 10 per cent per year) and although there are sometimes delays in the implementation of such salary adjustments, this is because of the particularly precarious financial position of some of the local transport enterprises. In such cases when the raises are implemented, they are made retroactive to the date of recommended adjustment. The Government points out also that the pay level of local public enterprise employees is higher than that of municipal employees in regular administrative positions.
  149. 149 The Committee has always taken the view that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. It has, considered, as a general principle, that the right to strike of workers and their organisations is generally recognised as a legitimate means of defending their occupational interests, but it has also indicated that, where the right to strike is restricted or prohibited in certain essential undertakings or services in the strict sense of the term, adequate protection should be given to the workers to compensate them for the limitations thereby placed on their freedom of action with regard to disputes affecting such undertakings or services.
  150. 150 More particularly, in a previous case relating to Japan, the Committee recommended the Governing Body to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because their interruption may cause public hardship and those which are not essential according to this criterion.
  151. 151 In the present case the Committee notes that, while publicly owned local transport enterprises do not account for the whole of transport services in Japan's larger municipalities, they, nevertheless, in the light of the figures provided by the Government, constitute a key sector in the urban transport network. It would therefore not appear that significant strike action could take place in these local public transport enterprises without resulting in serious public hardship.
  152. 152 The Committee therefore recommends the Governing Body to draw attention to the principles and considerations set forth in paragraphs 149 to 151 above.

The Committee's recommendations

1. 153. As far as the individual issues raised by the complainants are concerned the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to disciplinary sanctions on strikers, to draw attention to the considerations and principles expressed in paragraphs 125 to 127 above and to recall the suggestions made to the Government concerning the application of disciplinary sanctions, in particular as regards the permanent disadvantages which result from the application of such sanctions on strikers, as well as the detrimental consequences on the careers of the workers concerned which may ensue;
   • (b) with regard to the allegations relating to anti-union practices, to draw attention to the consideration set forth in paragraphs 133 to 135 above and to invite the Government to ensure that no anti-union interference takes place in the senior high schools in Japan;
   • (c) with regard to the allegations concerning refusal to bargain collectively, to draw the attention of the Government to the considerations set forth in paragraph 140 and to express the hope that the authorities concerned will always be guided, in the determination of the scope of matters properly appertaining to "management and operation", which are excluded from collective bargaining, by principles of good faith and reasonableness;
   • (d) with regard to the allegations concerning the right to strike of workers in the municipally owned and operated public transport enterprises, to draw attention to the principles and considerations set forth in paragraphs 149 to 151.
2. 154. As far as the cases as a whole are concerned, the Committee recommends the Governing Body to express the hope that the Government will adopt the appropriate measures in accordance with the recommendations of the Advisory Council on the Public Service Personnel System, and that it will take into account the principles and considerations expressed by the Committee in the present Report.