Rapport définitif - Rapport No. 187, Novembre 1978

Cas no 792 (Japon) - Date de la plainte: 05-JUIN -74 - Clos

1. 69. The joint complaint of the General Council of Trade Unions of Japan (SOHYO), the Japanese Teachers' Union (NIKKYOSO), the International Federation of Free Teachers' Unions (IFFTU) and the World Confederation of Organisations of the Teaching Profession, is contained in a communication addressed to the Director-General dated 5 June 1974. Additional information in connection with the complaint was contained in three joint communications from SOHYO and NIKKYOSO dated 2 and 31 July 1974 and 15 April 1975. Information was transmitted by SOHYO in a communication dated 28 January 1975. The complaint was supported by the World Federation of Teachers' Unions in a communication addressed directly to the ILO.
2. 70. The complaint and additional information were transmitted to the Government which forwarded its observations thereon in six communications dated 17 October 1974, 30 January 1975, 17 March 1975, 21 April 1975, 24 September 1975 and 20 October 1978.
3. 71. 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

1. 72. At its meeting in November 1975 the Committee, at the request of the complainant organisations, adjourned its examination of the case. At each of its meetings since November 1975 the Committee has adjourned its examination of the case, having been requested to do so by the complainants.
2. 73. By a communication from the WCOTP dated 17 March 1978 the Committee was informed that NIKKYOSO wished the complaint to be considered at the earliest possible opportunity. In the circumstances, and particularly in view of the time that had elapsed since the complaint was presented, the complainant organisations were invited to transmit, if they so wished, any further or more recent information that might be relevant to the case, it being understood that any information received would, in accordance with the established procedure, be transmitted to the Government for observations.
3. 74. By a further communication on behalf of SOHYO and NIKKYOSO dated 24 April 1978 the complainants informed the Committee that they had no further information to submit concerning the case.
4. 75. The Government, which was also requested to transmit any additional observations concerning the complaint, transmitted observations in a communication dated 20 October 1978.
   • Allegations of the complainants
5. 76. The complainants stated, that on the first day of the strike undertaken by NIKKYOSO on 11 April 1974 the police and the Public Procurator's Office of Japan conducted a planned and coordinated wave of searches and seizures on a massive scale throughout the country. The complainants gave detailed information concerning raids made on 964 places all over the country including NIKKYOSO headquarters, 12 prefectural Teachers' Union headquarters, private houses of union leaders, etc. The complainants added that in addition to the seizure of more than 26,000 documents and other articles numerous union members - more than 17,000 in all - were requested to appear at police stations or at the Public Procurator's office and/or to offer information concerning the strike. By 1 June, added the complainants, 20 union officers had been arrested.
6. 77. The strikes conducted by NIKKYOSO, which furnished the pretext for this activity, were of one day and two hours' duration respectively and were carried out as part of the joint Spring Struggle of the Japanese Labour Movement. The aims of the teachers, as those of the entire struggle, were of an industrial and social nature, not a political one. As decided by the two co-ordinating Committees, the over-all Shunto-Kyoto (Joint Struggle Committee for the Spring Struggle), composed of 158 unions and 8.2 million union members, and, within Shunto-Kyoto, Komuin-Kyoto (Joint Struggle Council of Public Service Workers' Unions) with 32 unions and approximately two million union members, the joint demands were: to stop inflation and to assure the standard of living of low wage earners and the aged; wage increase of not less than 30,000 (in view of the past year's price increase of 26.3 per cent) and the establishment of a minimum wage system; stabilisation of employment and prevention of unemployment; restoration of the right to strike;, shortening of working hours; drastic improvement of pension system and improvement in compensation for accidents in the course of duty.
7. 78. In addition to these unified demands, NIKKYOSO went on strike for the following claims: wage increase of not less than 40,000 (a higher figure in absolute terms than the common demand, representing a similar percentage increase); discontinuing of disciplinary sanctions against strike participants; improvement of conditions of work for teachers, including lowering of textbook and other charges.
8. 79. The unions in Komuin-Kyoto decided to call a one-day strike on 11 April 1974 and half a day's strike on 13 April 1974. In the case of NIKKYOSO, this latter strike was only of two hours' duration.
9. 80. The complainants pointed out that at the climax of the Spring Struggle on 11 April 5.45 million workers in 99 national unions were on strike. Not only were the aims of the NIKKYOSO strike the same legitimate ones as those of the other unions: their participation in industrial action was in fact more restrained than that of the other sectors. Yet, stated the complainants, NIKKYOSO alone was singled out for attention by the police.
10. 81. The complainants added that in connection with the restoration of the right to strike in the public sector, the Government has promised "reconsideration" and "discussions" of the problem and a plethora of dilatory Councils have served as successive pretexts for a refusal of legislative reform.
11. 82. Thus, continued the complainants, the Government first set up the Council on the Public Service Personnel System (Koseishin) in October 1965 in order to inquire into this problem. The deliberations of the council were, however, extremely tardy. Since the Government would not take any measures during this time on the pretext that the problem was being deliberated in the Council, the problem was neglected. Meanwhile the authorities applied massive disciplinary sanctions again and again against the strike actions of workers in the public sector which caused severe economic disadvantages to those disciplined. This had, as a matter of course, become an important factor in the deterioration of labour-management relations. Although the Report of the Fact-Finding and Conciliation Commission on Freedom of Association, in 1965, had recommended relief of sanctions in order to improve labour-management relations, the Government and the authorities concerned have, on the contrary, intensified disciplinary sanctions since then.
12. 83. Accordingly, stated the complainants, Komuin-Kyoto and Korokyo were compelled to go on strike in the 1973 Spring Struggle for the revision of the laws which ban strikes by workers in the public sector and for the promotion of solutions to problems resulting from past sanctions. As a result of the strike in 1973, an agreement was concluded between the Government and union representatives as follows: (a) the parties anticipated that the Council on the Public Service Personnel System would soon issue its conclusions and that the parties would respect the Council's recommendations; (b) the parties would continue to discuss the question of restoration of deferred pay increases resulting from past disciplinary actions, etc.
13. 84. In September of the same year the recommendations of the council on Public Service Personnel Systems were published, and the Japanese Government set up the Liaison Council concerning the Problems of Civil Servants to implement these recommendations. Even after this, continued the complainants, the Government failed to set forth any concrete plans or give a target date for the revision of the existing legislation. On the contrary, the Government and the authorities concerned did not make any sincere proposals for solutions of the past cases of punishment and rather intensified disciplinary sanctions. In particular, the Ministry of Education called a joint meeting of prefectural superintendents of education and chairmen of prefectural boards of education on 30 August 1973, and urged the prefectural boards of education to take severe disciplinary measures against those members of NIKKYOSO who took part in the strike in April of the same year. Consequently, the prefectural boards of education carried out mass punishments of the teachers who went on strike. The complainants, in this connection, supplied statistics showing that sanctions, involving suspension, reduction of wages, cautions, etc. were imposed on more than 50,000 teachers, and some 76,000 teachers received warnings, although in this latter case no immediate economic loss was involved. The complainants pointed out that there was not the slightest change in the severe punishment policy of the Government following the 139th Report of the Committee on Freedom of Association, which suggested a reconsideration of punishment and economic disadvantages.
14. 85. According to the complainants, the public service workers of Japan were thus placed in circumstances in which they could not put their trust in the sincerity of the Government. This is why Komuin-Kyoto and Korokyo were forced to carry out a strike once again in the spring of 1974 to press the Government to tackle positively the problems of the right to strike of the workers in the public sector and of the disciplinary measures taken against them in the past. Their demand consisted of the following three points: (a) that the Government should clarify its basic position in regard to the recognition of the right to strike, and set a deadline for reaching conclusions on the issue; (b) that the Government should not take disciplinary measures or punitive actions against the present strike action; (c) that the Government should compensate for the actual losses involved in past punishments.
15. 86. The above strike compelled the Government to take a somewhat more positive attitude- towards labour, and, at the very same time as it raided offices of NIKKYOSO on 11 April the Government adopted the policy of trying to put an end to the strike by making certain concessions. It was thus agreed between the Government and labour: (a) that a Council of Cabinet Ministers concerned would be set up to strive for the solution of the question of the right to strike of the workers of the three public corporations and five rational enterprises; (b) that an effort would be made by the Council to reach conclusions as soon as possible and (c) that the trade union rights of non-industrial public servants would be studied further by the Liaison Council on the Problems of Civil Servants.
16. 87. Following this agreement, Shunto-Kyoto, after confirming that it would strongly protest against the police search of the NIKKYOSO offices, and would continue a resistance struggle against that action, called off, on 13 April 1974, the unified strike which was started on 11 April.
17. 88. The complainants claimed that the strike actions of NIKKYOSO and other members of Komuin-Kyoto were part of the exercise of legitimate trade union rights in the pursuit of legitimate trade union aims. The fact that the police raid was restricted only to NIKKYOSO, although its strike was staged as a part of the united action of Komuin-Kyoto and that the disciplinary actions for 1973 mentioned above were particularly harsh upon NIKKYOSO members, indicated, stated the complainants, that the Government's direct aim was to weaken the teachers' organisation.
18. 89. According to the complainants, it was on the basis of the provisions of Section 1, Article 37 and Paragraph 4, Article 61 of the Local Public Service Law that the police search of the offices of NIKKYOSO, and the arrest of the union officials in connection with the strikes organised by the union took place.
19. 90. The complainants alleged that section 1, Article 37 of the Local Public Service Law categorically prohibits all strike action by local service personnel, and Paragraph 4, Article 61 of the same law stipulates that those who conspire, agitate and instigate strikes or plot these actions shall be liable to imprisonment of not more than three years or to a fine of not more than Y100,000. The past records of indictment show that the actions of union leaders in issuing strike directives and conveying the same to the rank and file union members of their organising activities are regarded as instigation and the organising of activities as planning instigation. Consequently, one can be arrested, indicted and punished simply for issuing and conveying strike directives or mapping out the plans for organising activities. This police search of the offices of NIKKYOSO, also, was based on the charges that the leaders of NIKKYOSO and its 12 affiliated prefectural teachers' unions issued directives for strikes carried out on 11 and 13 April or conveyed the directives to the rank and file union members.
20. 91. However, stated the complainants, such a punitive provision was an extremely unreasonable one, infringing upon the rights of labour unions, and the Japanese Government itself had been refraining, during the past eight years, from invoking this provision. The last search and indictment made on the basis of this provision was the 1966 case involving NIKKYOSO and there had not been a single instance of search or indictment under this provision ever since. To this extent, continued the complainants, it was thought that an improvement could be discerned in the vexed industrial relations situation of the Japanese public service, and that though the law still provided for such criminal sanctions (and the associated repressive practices such as police raids and arrests), nevertheless in practice a more enlightened view was being taken.
21. 92. The complainants added that there had also been grounds for optimism in the interpretation of the law by the Japanese Supreme Court. On 2 April 1969 the Supreme Court ruled on the cases involving the Tokyo Metropolitan Teachers' Union and the National Administration of Justice Workers' Union that the categorical banning of strikes by public service personnel and the categorical punishment of such actions as instigation may conflict with the Constitution of Japan and hence that Paragraph 4, Article 61, of the Local Public Service Law and Paragraph 17, Section 1, Article 110 of the National Public Service Law should be strictly restricted, and punishment limited to instigation and similar actions related to strikes which are especially considered highly illegal because of the possible grave influence upon the life of the people. It was with this judgement in the background, stated the complainants, that the Government, as stated earlier, refrained for a period of time from invoking Paragraph 4, Article 61, of the Local Public Service Law.
22. 93. However, continued the complainants, the Supreme Court subsequently reversed this judgement and ruled on 25 April 1973 in the case of the National Agriculture and Forestry Workers' Union that the categorical banning of strikes by public service personnel and the categorical punishment of instigation and similar actions are not unconstitutional, thus revoking its own interpretation of the restricted application of the provision in question.
23. 94. The complainants alleged that the latest search of the offices of NIKKYOSO was considered to be based on this change in precedent, and according to the new judgement, all strike actions by public service personnel, regardless of the degree of influence upon the life of the people, would be invariably threatened with such punishment, and such actions as issuing strike directives would be liable for penal punishment. According to the complainants, the new judgement would make it all the more clear that Paragraph 4, Article 61, of the Local Public Service Law was hardly compatible with the guarantee of trade union rights: for the lesson of the last few years, both the empty proposals for discussions of reform of the law and the aborted move towards a more liberal interpretation of the law, must be that it is the law itself whose existence may at any time be reactivated, which lies at the bottom of the denial in Japan of the trade union rights guaranteed by International Labour Conventions Nos. 87 and 98.
24. 95. The complainants concluded that the facts mentioned above constituted the following infringements upon trade union rights:
    • (i) The imposition upon workers, who participated in strikes, of such severe penalties as imprisonment of not more than three years, or fines of not more than Y100,000, under the provisions of Section 1, Article 37 and Paragraph 4, Article 61, of the Local Public Service Law constitutes a violation of trade union rights.
    • (ii) The Japanese Government and the Supreme Court of Japan (in the ruling of 25 April 1973) took the view that the existing legislation, which provides for punishment not of the act of carrying out a strike but of the various acts in the preparatory stage of the strike, did not constitute a violation of trade union rights. However, stated the complainants, it was obvious that the existing law (Paragraph 4, Article 61, of the Local Public Service Law), which punishes conspiring, agitating and instigating of strikes as well as the "plotting" of these acts, is a violation of trade union rights as it includes the internal activities of trade unions in the objects of punishment. It was, stated the complainants, a direct imposition of punishment on the freedom of expression of trade union members, leaders and labour unions and was an infringement upon an essential element of trade union rights.
    • (iii) The search of numerous union offices, the seizure of documentary evidence, the requests to a large number of union members to appear for questioning by police and the arrest of many union officials by virtue of the existing legislation constituted, according to the complainants, infringements of the trade union rights of NIKKYOSO whether those officials were eventually found guilty or not guilty in court (which would be in several years time). While trade unions could not claim immunity from search as regards general crimes, the police raid in question was made on the basis that trade union activities themselves are a crime, and as it was being carried out in such an extensive and thoroughgoing manner, its infringement upon the potential trade union activities of NIKKYOSO was very serious indeed. Therefore, the complainants alleged, the police search and arrests in question constituted an infringement of trade union rights of NIKKYOSO whether the search had been made with a warrant or not, and whether or not those arrested would be tried in accordance with the law.
25. 96. In a further communication of 31 July 1974 the Complainants supplied information on what they referred to as "the development of the situation since our presentation of the case on 6 June 1974, the attitude of the Government regarding the development and the tendency of public opinion, etc."
26. 97. The complainants alleged that Nikkyoso President Makieda was arrested on 11 June 1974. Twenty-one arrested were released after two to five days' detention, but indictments were brought on 13 June against the following four leaders: Motofumi Makieda, President of NIKKYOSO, Takao Masuda, President of Tokyo Metropolitan Teachers' Union; Nobuho Inoue, President of Saitama Prefectural Teachers' Union; and Keiji Sato, President of Ivate Prefectural Teachers' Union. According to the indictments the acts of NIKKYOSO and its affiliated union leaders, in deciding to carry out a strike in accordance with the will of the overwhelming majority of members and in issuing a directive for this purpose constituted a violation of Section 1, Article 37, of the Local Public Service Law which is punishable under Paragraph 4, Article 61, of the same law, and Article 61 of the Penal Code. The full text of the indictment was transmitted by the complainants. This showed, the complainants alleged that those provisions made the perfectly ordinary acts of union leaders objects of punishment, without questioning whether the acts consequently provoked serious public inconvenience or not.
27. 98. The complainants further alleged that the Government observations made at the 59th Session of the International Labour Conference (June 1974) threw light upon the political nature of the recent oppression. The Government had stated, continued the complainants, that education was as important as national undertakings and it was, therefore unjustifiable that NIKKYOSO had carried out strike. The complainants added that they fully admitted the importance of educational work and it was duly on this recognition that they had staged a strike. The complainants recalled the fact that paragraph 84 of ILO/UNESCO Recommendation concerning the Status of Teachers recognises the right to strike of teachers and that it indicates that no discrimination should be granted regarding the right to strike between teachers and other workers.
28. 99. The Government insisted, stated the complainants, that the recent strike undertaken by NIKKYOSO was a political and scheduled strike. However, continued the complainants, the following reasons showed that the strike was, in any sense, reasonable: (i) the aims of the 11 April strike were, as was clarified in the complaint, based on the demands of Shunto-Kyoto, those of Komuin-Kyoto and those of NIKKYOSO, the specific contents of which were stated in the complaint, and (ii) looking over the whole process since the decision of demands until the discontinuation of strike after negotiations, it was evident that to call the strike a scheduled strike was absolutely groundless.
29. 100. The complainants added that the Government representatives had stated that NIKKYOSO had carried out the strike in disregard of the fact that teachers were granted the special preferential treatment - treatment to ensure much higher salary increase to teachers than to other public service workers. However, added the complainants, what the Government called "special preferential treatment" was far from making the strike unnecessary. In the first place, even with this special treatment, the wages of educational public service employees had been lower than public service employees in general. In the graph transmitted by the complainants the wages of teachers after 37 years of age (15 years of service) were shown to be lower than other public service employees before the application of special treatment in March 1974. After the application of the special treatment for teachers' salaries, the difference was reduced as was shown in the graph, but was still, according to the complainants, left lower than that of other public service employees.
30. 101. The complainants further stated that as the wages of educational public service employees were determined by linking with those of public service employees in general, it was natural that teachers, together with public service employees, demanded wage increase to equal the price rise under such circumstances since prices rose by 26.3 per cent (as of February this year).
31. 102. The complainants referred to the understanding concluded between the Government and labour sides to call off the strike on 13 April 1975 and stated that the Government insisted that the problem had been settled within the country. However, continued the complainants, the fact that in practice the indictment against trade union leaders had been brought showed that infringements upon trade union rights had been continuing. The complainants maintained that a series of arrests and indictments could not take place if the Government had the will to settle the problem within the country.
32. 103. In a further communication dated 28 January 1975 SOHYO supplied information that the educational authorities of six prefectures, encouraged by the Government, had imposed sanctions on a number of teachers for their participation in the strike of 11 April 1974. According to the complainants a total of 15 persons had been suspended from duty, approximately 26,000 reprimanded, and 354 had suffered wage cuts.
33. 104. Finally, in a communication dated 15 April 1975, the complainants transmitted further information concerning the situation of the trial in which Mr. Makieda, President of the Japan Teachers' Union is accused, as well as additional statistical information on the position of disciplinary sanctions as at 31 March 1975. This information showed that, between September 1974 and March 1975, some 78 persons had been suspended, 599 had suffered wage reductions, and some 130,000 had been reprimanded or had received warnings.
    • Reply of the Government
34. 105. The Government, in its reply dated 16 October 1974, stated that the Japanese Teachers' Union (NIKKYOSO) had called a strike on 11 April 1974, proclaiming its intention to attain a number of political objectives, such as regaining the right to strike, as part of a series of concerted action by the Joint Spring Struggle Committee which was constituted by SOHYO and other labour organisations. An estimated 320,000 (430,000 according to NIKKYOSO) at about 24,000 schools among the elementary and lower and upper, secondary schools, totalling around 35,000 throughout the country, took part in the strike. Most of the schools were forced to close, to delay the commencement of classes, or suspend them halfway through the day. The strike, continued the Government, was of the largest scale ever seen in the history of education in Japan, and had an enormous and serious impact on school education, which is to play a vital role in bringing up and fostering the next generation.
35. 106. The Government went on to state that NIKKYOSO proclaims in its code of ethics and action programmes that the mission of teachers and the aims of education should be to realise a socialistic society, and that young people should be brought up as champions of a socialist society. In addition, continued the Government, NIKKYOSO defines itself as "a people's organisation which is to struggle against the capitalist class and the Government siding with it and which supports anti-monopolistic and class conscious labour movements". Taking such a basic position, continued the Government, NIKKYOSO had totally opposed government policies relating to education and other fields and repeatedly resorted to strike actions and other acts of dispute on this account. Thus, stated the Government, it might be more proper that NIKKYOSO should be called, in the light of its character and activities, not so much a trade union as a political organisation.
36. 107. In addition, the Government pointed out that, following the strike on 11 April, NIKKYOSO staged a two-hour strike in the early morning of 13 April 1974 with the intention of regaining the right to strike and of combating inflation, and another hour-long strike on the morning of 23 May under the political slogan "Opposition to the enactment of the Assistant School Principal System Institution Bill" as well as with the object of protesting against criminal investigations in the case of NIKKYOSO.
37. 108. Under the laws of Japan, continued the Government, public employees (nearly all of the NIKKYOSO members are local public employees) are granted the right to organise and the right to bargain collectively but are prohibited from committing acts of dispute. Punitive provisions are not applied to persons who have simply participated in an act of dispute; it is only conspiracy, instigation or incitement leading to commitment of a banned act of dispute or an attempt to perform such an action - i.e. those actions which constitute a prime and driving force of illegal acts of dispute - that are prohibited and liable to criminal punishment in case of violations.
38. 109. The Government stated that the foregoing legal system in Japan had not been found to conflict with the Japanese Constitution; its Constitutionality was confirmed by a judgement of the Grand Bench of the Supreme Court on 25 April 1973. It was, therefore, quite a natural consequence for the Government of Japan as a law-governed State to take punitive actions, in accordance with the provisions of relevant laws, against those who have conspired or incited other persons to commit illegal acts of dispute.
39. 110. According to the Government, the strike staged by NIKKYOSO on 11 April, among others, should be regarded as a strike not falling within the scope of the principles of freedom of association, not only in the light of its unprecedented large scale and its serious impact, but also on account of its having been systematically organised in accordance with a programme of action determined at its regular Convention which met at Maebashi City in July 1973, nearly a year before, and in which it had been decided that a 24-hour strike should be called in the course of spring labour struggles in 1974. It was furthermore a strike of a political nature carried out to achieve such goals as the recapture of the right to strike and the prevention of inflation, which neither central or local educational authorities could do.
40. 111. In addition to the recapture of the right to strike and the prevention of inflation, the Government stated that a "big pay raise" was also one among the aims of the strike called by NIKKYOSO on 11 April. It was obvious, however, added the Government, that this particular aim was virtually insignificant. In this connection, the Government explained the system and practices relating to pay revisions for public employees in the non-operational sector in this country. Pay revisions for national and local public employees (including public school teachers) in the non-operational sector were effected by amending the relevant laws or by-laws to bring them into line with recommendations by the National Personnel Authority (hereinafter referred to as "NPA") or a prefectural personnel commission. In other words, funds for the pay of national or local public employees in the non-operational sector came from the tax revenues of the State or the local public body concerned and all their conditions of service were to be determined by the legislature, namely the Diet or local assembly, taking into account political, financial, social and other considerations in a rational manner and after deliberation in accordance with the rules governing a democratic nation, which contrasted sharply with the determination of the wages of employees at private enterprises by way of meeting their claim to a share in business profits. The Government added that the recommendations of the NPA and prefectural personnel commissions were made, normally in the summer or autumn, on the basis of the results of a survey of pay revisions effected in the private sector.
41. 112. Under such a system and practice relating to pay revisions as described above, it would be obviously meaningless, contended the Government, for national and local public employees in the non-operational sector to call strikes in spring aiming for higher pay. Furthermore, the Government, recognising the vital importance of education to the future of the nation, had submitted to the Diet a "Special Measures Bill for Securing Educational Personnel of High Calibre for Compulsory Education schools with a view to Maintenance and Improvement of School Education" (hereinafter referred to as the "Special Measures Bill for Securing. Educational Personnel") which provided that better salaries were to be paid to school-teachers than to public employees in general in order to secure educational personnel of high calibre. This Bill had been passed and became law on 22 February 1974. The new lam was hailed by almost the whole nation with much expectation and warm support. As a result, continued the Government, the salaries of school-teachers were raised by 10 per cent retroactive to January 1974, on top of the ordinary pay increases (the sizes of which were 15.4 per cent in 1973 and 27.6 per cent in 1974) following a NPA's recommendation for public employees including school-teachers. Moreover, effective as from January 1975, a special pay raise of the same size as that for 1974 was to be awarded to school-teachers, and necessary budgetary measures had been taken for this purpose. The Government explained that funds required for the 10 per cent special pay raises effected in January 1974 and to be effective from January 1975 under the Special Measures Law for Securing Educational Personnel were expected to total about 300 billion - a special pay increase totalling 400,000 per teacher per annum.
42. 113. In conclusion, the Government stated that the average salary of a school-teacher (in the seventeenth year of service) was to increase as much as 57.4 per cent or by around 1,090,000 (about $3,900) per annum in a brief period extending a little over one year from December 1973 to January 1975 (out of Y1,090,000, Y400,000 represents the special pay raises provided under the Special Measures Law for Securing Educational Personnel). Thus, stated the Government, it was clear that NIKKYOSO's demand for a "big pay raise", which was made as an aim of its strike called on 11 April this year, proved entirely irrelevant both procedurally and in substance.
43. 114. The Government explained that, in the light of the foregoing circumstances, police and other criminal investigation authorities had conducted a series of searches to collect evidential materials, on the evening of 11 April and thereafter, for the purpose of clarifying the criminal responsibility of those who committed such acts as conspiring and inciting other persons to practise prohibited acts of dispute. Each search was instituted on a formal warrant issued beforehand- by a judge, in accordance with the provisions of the Constitution of Japan and the Criminal Procedure Code laying down strict and due process clauses. The police and other criminal investigation authorities sought interviews with school-teachers involved and obtained necessary information from those teachers who voluntarily responded to their request for interview in conformity with the procedures specified in the Criminal Procedure Code.
44. 115. In addition, stated the Government, the request for cooperation in the investigation of this case, made by the police and other criminal investigation authorities to school-teachers involved, in accordance with the provisions of relevant laws, had nothing to do with their arrest. It was left entirely to the free discretion of each teacher whether or not be might accede to such a request for co-operation, and even if he turned it down, there was no danger of his being reprimanded as a consequence. In the course of seeking co-operation from teachers, every possible precaution was taken so as not to impair their human rights or disturb their actual teaching at each school involved, nor to intervene in any improper way in NIKKYOSO's union activities.
45. 116. In reality, however, police and other criminal investigation authorities failed to receive co-operation from many school-teachers involved because, before calling the strike, NIKKYOSO anticipated searching operations by the authorities after the strike and already instructed each of the prefectural teachers' unions as to how to deal with such operations. Thereupon, the police and other criminal investigation authorities, as a last resort, arrested 21 leaders in NIKKYOSO headquarters and other offices in compliance with rigid due process clauses contained in the Constitution of Japan, the Criminal Procedure Code and other relevant laws and regulations. All of these persons were released after being detained for a few days; four of them were later prosecuted and are now under trial at Tokyo, Urawa and Morioka district courts respectively.
46. 117. The Government contended that the above-mentioned provisions of the Constitution of Japan, the Criminal Procedure Code and other relevant laws and regulations in this country, regulating the search of union offices and the arrest of unionists, were fully in conformity with ILO principles on freedom of association. The Government emphasised that, in a law-governed country, it was all too natural that the police and other criminal investigation authorities as law-enforcement organs should investigate crimes in pursuance of formal procedures as specified by the Constitution and relevant laws, which should be regarded as a matter of a purely domestic nature that was irrelevant to the infringement of NIKKYOSO's trade union rights.
47. 118. The Government stated that it was prepared to forward to the Committee further detailed information which would justify its observations. At the same time the Government drew attention to the fact that all of the previously arrested leaders of NIKKYOSO, including the four accused persons, had already been discharged and were not under any sort of physical restraint whatsoever (these executive officers of NIKKYOSO were now free in carrying on union activities) and that, since the four accused persons were now due to be tried by the district courts, judgment in these cases should be left to the courts.
48. 119. On 13 March 1975 the Government transmitted additional observations on the allegations which had been made. The Government explained that the pay level of teachers was actually higher at all stages than that of other categories of public employees as a result of the pay rise which was implemented in January 1974. In addition, and with regard to the court proceedings involved in the case the Government explained that in the Tokyo district court the first hearings took place on 18 November and 23 December 1974. In the Urawa district court the first hearing took place on 16 December 1974 and the second was scheduled for 6 March 1975. In the Morioka district court the first hearing took place on 20 December 1974 and the second was scheduled for 14 February 1975.
49. 120. The Government explained that public employees, including educational public employees, were granted the right to organise and the right to bargain collectively with the authorities concerned under Articles 108-2 and 108-5 of the National Public Service Law, and Articles 52 and 55 of the Local Public Service Law. They were, however, prohibited from resorting to strikes or any other form of industrial action (paragraph 2, Article 98 of the NPS Law, and paragraph 1, Article 37 of the LPS Law). Participants in industrial action, continued the Government, were not subject to penal sanctions, although they might be liable to administrative disciplinary action (Article 82 of the NPS Law and Article 29 of the LPS Law). It was only those who conspired, instigated or incited industrial action, or attempted to do so who were subject to penal sanctions under the law.
50. 121. The Government went on to explain that it was a Constitutional right of workers to organise, to bargain collectively and to act collectively including taking strike action, but that these rights as regards public employees were naturally subject to restrictions in the common interests of the people as a whole, especially since resort by public employees to industrial action results in the stagnation or deterioration of their public service and this in turn might have a serious impact on the common interests of the people. These principles and restrictions, stated the Government, had been upheld by the Supreme Court in a judgement rendered on 25 April 1973 which concerned strike action taken by the All-Agricultural and Forestry Workers' Union. This judgement - of which a copy was supplied by the Government - had upheld the view that a ban on industrial action and acts of incitement thereto, as well as providing for the punishment of such acts did not constitute a violation of the Constitution of Japan.
51. 122. The Government added that the Advisory Council on the Public Service Personnel System, established in 1965 to study the fundamental matter of labour relations in the public service, in September 1973, had issued its recommendations, and an Inter-Ministerial Conference on Public Employees' Problems had at once been set up with a view to adopting measures to implement the recommendations. When the issue of the right to strike developed into a major controversy in the spring offensive of 1974, the Government decided to set up a Consultative Conference of cabinet ministers concerned with Public Corporations and National Enterprises.
52. 123. The Government pointed out that NIKKYOSO had consistently followed an extreme leftist course in the labour movement of post-war Japan. As part of its method of satisfying its claims, NIKKYOSO had repeatedly filed complaints with the ILO and had launched a strike on a national scale almost every year since 1966. The Government added that the major goals in these strikes had been political ones calling for the right to strike, prevention of inflation and opposition to the passage of the Bill for the Institution of the Assistant School Principal System.
53. 124. According to the Government, the 1974 strike had been first planned at the regular Convention of the union held in 1972 at Akita City and reconfirmed at its Convention held in July 1973 at Maebashi City. The strike had accordingly been a premeditated one.
54. 125. The Government went on to give a detailed explanation of the criminal procedure in Japan and the guarantees accorded to the accused in such cases, and provided detailed information in connection with the procedures followed in the case of the search of the premises of the Japan Teachers' Union and the arrest of 21 suspects consequent upon the strike which took place in April 1974.
55. 126. In its communication of 21 April 1975 the Government stated that, where school personnel, who were public employees, took part in a strike, it was the responsibility of the Ministry of Education to advise the boards of education concerned to take proper disciplinary action against such personnel so that the general public might know who were to be blamed for the misconduct. The Government also provided details concerning the number of teachers affected by disciplinary sanctions as at 31 March 1975, viz. 82 suspended, 604 whose pay was reduced, and some 150,000 reprimanded or warned. The Government added that the cases of the four officials of NIKKYOSO who were arrested were still pending.
56. 127. Further observations and information were transmitted by the Government in a communication dated 24 September 1975. The Government stated that the criminal cases involving NIKKYOSO were being examined in a fair and appropriate manner following the rigid procedures stipulated in the Constitution of Japan and the Code of Criminal Procedure. In this connection, the Government supplied information on the hearings which had taken place to date in Tokyo District Court (against the Tokyo Metropolitan Teachers' Union), the Urawa District Court (against the Saitama Prefectural Teachers' Union) and the Morioka District Court (against the Iwate Prefectural Teachers' Union). Further hearings in these three cases had been scheduled to take place between September and December 1975.
57. 128. As for the disciplinary measures taken against the teachers who had participated in the strike of April 1974, the Government pointed out that 320,000 teachers actually took part in the strike and more than half of those disciplined were only given warnings which were not accompanied by any substantial disciplinary sanction. The Government stated that it had been giving due consideration to avoiding too rigid disciplinary action while at the same time endeavouring to apply the law properly. In reply to the allegation that punishment by reprimand results in the postponement of the annual wage increase, the Government stated that the delay in regular pay raises should not be considered as being a direct result of disciplinary action. The regular pay raise, added the Government, was not delayed only in cases where persons had been reprimanded for having participated in strike action, but also in cases where their job performance was, as a whole, rated as inferior as a result of their having been subjected to disciplinary measures, irrespective of the reasons. It was a principle in the Japanese system that the pay of a public employee should be raised on the basis of a proper assessment of his job performance.
58. 129. In its addition observations, communicated on 20 October 1978, the Government points out that this case concerns a matter of judicial procedure and there is no question that the authorities intended to commit a breach of trade union rights. The Government adds that the four trade unionists are free to engage in trade union activities. Mr. Makieda, President of NIKKYOSO, for instance, was elected President of the General Council of Trade Unions of Japan (SOHYO) in August 1976 and, at the international level, was elected President, in July 1978, of the World Confederation of Organisations of the Teaching Profession.
59. 130. The trials of the four trade unionists, continues the Government, are taking place in a fair and appropriate manner according to the procedures laid down in Japanese law. The Government supplies information according to which, in the Tokyo District Court, 35 hearings have taken place since the date of the prosecution; in the Urawa District Court 31 hearings have taken place; and in the Morioka District Court 27 hearings have taken place.
60. 131. The Government goes on to repeat that the strike staged by NIKKYOSO was one that was systematically organised in pursuance of a pre-arranged programme. The Government provides details of salary improvements since January 1974 and points out that the level of pay for teachers has become much higher than the level of pay of public employees in general.
61. 132. In spite of salary improvements, continues the Government, NIKKYOSO has resorted to strike action on a number of occasions since April 1974. These have lasted for one hour at least to one half-day at most. They have been resorted to, claims the Government, with a view to participating in the Spring offensive for higher wages in the private sector or against the establishment of a system of senior teachers with the aim of improving the organisation of the teaching staff of schools.

B. B. The Committee's conclusions

1. 133. The Committee notes that the complaint in the present case concerns the action taken by the Government following a strike, which took place on 11 April 1974, involving 34 prefectural teachers' unions affiliated to the Japan Teachers' Union (NIKKYOSO) which participated in a one-day strike and 11 prefectural teachers' unions which carried out a one-hour strike. This was part of the 1974 Joint Spring Offensive of the Japanese labour movement in which some 5.45 million workers in 99 national unions participated in strike action on 11 April 1974. As far as NIKKYOSO was concerned, it appears that approximately 400,000 of its members went on strike for one day on 11 April and for two hours on 13 April 1974. From the information available it seems to the Committee that the main purpose of this strike was the restoration of the right to strike, although substantial salary increases, proposals concerning inflation, disciplinary sanctions, etc., were amongst the matters on which the strike was based.
2. 134. As a result of the strike the Government, in application of the provisions of section 1, Article 37, and paragraph 4 of Article 61 of the Local Public Service Law, as well as Article 61 of the Penal Code, proceeded, following a widespread search of the union's premises throughout the country, to arrest 21 officials of the union, including the President of NIKKYOSO, Mr. Makieda. After two to five days' detention these persons were released but charges were brought against four of them, including Mr. Makieda, under the above-mentioned provisions for having instigated local public service employees to take part in a strike, particularly by issuing directives to members of the union for this purpose. The four persons concerned are presently at liberty and their cases are being dealt with by the ordinary courts. The Committee notes from the latest information transmitted by the Government that, although a large number of hearings have taken place in the respective courts, no judgements have been handed down in these cases.
3. 135. The Committee, on many occasions in the past, has recalled that as regards public officials, recognition of the principle of freedom of association does not necessarily imply the right to strike. The Committee has, however, emphasised the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. It has also pointed out that such restrictions should be accompanied by adequate, speedy and impartial 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, once made, should be fully and promptly implemented.
4. 136. The unions concerned in the present case, namely the Japan Teachers' Union (NIKKYOSO) and its constituent or affiliated unions, are governed by the Local Public Service Law under which the right to strike is denied. Nevertheless, the Local Public Service Law contains no provisions relating to conciliation and arbitration of disputes. The Committee accordingly recommends the Governing Body to draw attention to the principles set forth in the preceding paragraph.
5. 137. The Committee has in the past expressed the view that trade unionists accused of political or criminal offences or acts should be speedily brought to trial before an impartial and independent judicial authority. In view of the fact that no judgements have yet been handed down in the cases concerning Mr. Makieda and his colleagues, who were charged with offences in June 1974, the Committee would recommend the Governing Body to express the hope that these cases will be terminated as expeditiously as possible and to request the Government to transmit the judgements and the grounds adduced therefor.
6. 138. With regard to the disciplinary action which has been taken against the participants in the strike of 11 April 1974 (viz. suspension, reprimand, wage cuts), the Committee notes that the Government's latest communications more or less confirm the information concerning the number of persons who have suffered disciplinary action contained in the last communication of the complainants. As regards disciplinary action and, in particular, the arrest and subsequent proceedings taken against certain of the persons who are said to have incited the strike, the Committee would point out that such action on the part of the authorities is clearly provided for by law against public service personnel who actively instigate or incite strike action. The Committee is of the opinion that having regard to the fact that strike action is prohibited by law as regards this category of workers, the imposition of administrative disciplinary sanctions, on as in the present case, the arrest and prosecution under the ordinary law of persons who instigate or incite local public service personnel to strike, cannot be said to be violations of the principle of freedom of association.
7. 139. The Committee, however, has in other cases concerning public service personnel in Japan, pointed out that it is not convinced that the imposing of sanctions must be regarded as inevitable whenever a strike takes place. Moreover, the Committee considers that the massive scale on which police intervention was ordered in the present case, and the ultimate arrest and prosecution of certain leaders of NIKKYOSO, although being strictly within the law, constituted the rigid type of disciplinary action which, in the view of the Committee, is not conducive to the harmonious development of labour relations. It notes, however, with interest, the Government's statement that it has been giving due consideration to avoiding too rigid disciplinary action while at the same time endeavouring to apply the law properly. In these circumstances, the Committee recommends the Governing Body to draw attention to the considerations set forth in this and the preceding paragraph and, noting with interest the Government's statement concerning the application of disciplinary sanctions, to recall the recommendations made on a number of previous occasions to the Government concerning the application of disciplinary sanctions, in particular as regards the permanent disadvantages in remuneration which may 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.
8. 140. The Committee notes with interest from the information supplied by the Government that, in May 1974, an inter-Ministerial Conference on Problems in the Public Service was appointed to determine what measures are necessary to implement the recommendations concerning fundamental problems in labour relations affecting public employees and public corporation employees issued by the Advisory Council on the Public Service Personnel System in September 1973. It notes, in particular, from a report submitted by the Government to the Committee of Experts on the Application of Conventions and Recommendations in February 1977, that the Inter-Ministerial Conference on Problems in the Public Service had, up to that time, held more than 50 meetings since September 1973 and was actively studying the implementation of the points contained in the report of the Advisory Council on the Public Personnel System. The Committee recommends the Governing Body to note this development and to express the hope that the continued study of problems of labour relations in the public service at the national level will soon lead to steps being taken, both in law and in practice, to give effect to the recommendations made in the first place by the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan and also to the recommendations made subsequently by the Committee on Freedom of Association and the Governing Body.

The Committee's recommendations

1. 141. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (i) with regard to the right to strike of persons employed n public or essential services to draw attention to the i principles set forth in paragraph 135 above; and to draw the attention of the Government to paragraph 136 above concerning the absence in the Local Public Service Law of procedures for the settlement of disputes;
   • (ii) to note that an Inter-Ministerial Conference is continuing to examine what measures are necessary to implement the recommendations issued by the Advisory Council on the Public Service Personnel System, and to express the hope that the continued study of the labour relations problems in the public service at the national level will soon lead to steps being taken both in law and in practice to give effect to the recommendations made in the first place by the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan and to the recommendations made subsequently by the Committee on Freedom of Association and the Governing Body;
   • (iii) to draw attention to the principle contained in paragraph 137 above concerning the trial of trade unionists by the courts; to express the hope that the cases against Mr. Makieda and his colleagues will be terminated as expeditiously as possible; and to request the Government to transmit the judgements in these cases together with the grounds adduced therefor;
   • (iv) with regard to disciplinary sanctions, to draw attention to the considerations set forth in paragraphs 138 and 139 above, and, noting with interest the Government's statement that it has been giving due consideration to avoiding too rigid disciplinary action, while at the same time endeavouring to apply the law properly, to recall the recommendations made on a number of previous occasions to the Government concerning the application of disciplinary sanctions; and
   • (v) to request the Government to keep the Committee informed of developments as regards the foregoing matters, and in particular of the position in the trial of Mr. Makieda and his colleagues.