Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 323, Novembre 2000

Cas no 1991 (Japon) - Date de la plainte: 12-OCT. -98 - Clos

Allegations: Acts of anti-union discrimination

1. 327. The Committee examined the substance of this case at its November 1999 meeting when it presented an interim report to the Governing Body (see 318th Report, paras. 232-271, approved by the Governing Body at its 276th Session (November 1999)).
2. 328. ZENDORO provided additional information in a communication dated 12 April 2000. The Government furnished its observations in communications dated 7 February, 19 April, 13 June, 15 September and 24 October 2000.
3. 329. 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. 330. The Committee had noted that this case involved two sets of allegations during its previous examination thereof. The first related to the fact that following the decision to privatize the Japanese National Railways ("JNR") in 1987, the succeeding corporations known as the Japan Railway Companies ("JR companies") did not hire many KOKURO and ZENDORO members solely on account of their trade union membership. Moreover, pursuant to the JR companies' refusal to hire these workers, they were redeployed to the JNR Settlement Corporation which subsequently dismissed a large number of them in 1990. The second set of allegations related to the complainants' contention that although 18 local labour relations commissions (LLRCs) and the Central Labour Relations Commission (CLRC) recognized the existence of unfair labour practices and accordingly issued relief orders to ensure that the JR companies took measures to redress their discriminatory practices, the companies concerned sought to avoid taking such measures by constantly appealing the relief orders. The complainants thereby concluded that for all intents and purposes, there was no effective protection of the right to organize in the Japanese system.
2. 331. More specifically, the Committee had noted that the alleged discrimination at the time of recruitment - and the subsequent loss of jobs - arose within the context of the privatization of the JNR. In the case at hand, the complainants had alleged that 7,600 workers who were refused employment by the JR companies in April 1987 were members of KOKURO and ZENDORO. The Committee had noted that the Government did not refute the allegations that these 7,600 workers were refused employment by the JR companies and redeployed to the JNR Settlement Corporation which subsequently, in April 1990, laid off 1,047 employees. In order to make an informed decision in full knowledge of all the facts on the reasons for which these workers were refused employment by the JR companies, the Committee had requested the Government to provide additional information in this regard.
3. 332. Furthermore, the Committee had regretted to note that these 1,047 KOKURO and ZENDORO members were still suffering the consequences of the refusal to employ them as they were still unemployed and risked being unemployed for a further period of time since according to the complainants, the judicial proceedings could take several more years. In this regard, the Committee had noted the Government's statement that it had made attempts in the past to solve the dispute between the JR companies and the workers concerned and that it would continue to pursue its efforts to resolve the issue of the dismissed KOKURO and ZENDORO members. The Committee had therefore urged the Government to actively encourage negotiations between the JR companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned were fairly compensated.
4. 333. Regarding the allegations that the legal system in Japan did not protect the right to organize since relief orders against unfair labour practices which were issued by labour relations commissions could be cancelled by the courts and employers constantly had recourse to the courts in order to delay the implementation of these orders, the Committee had considered that while it was important that a judicial authority be able to judge cases concerning dismissals and their illegality, it had also considered that it was the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which had been freely ratified and which must be respected by all state authorities, including the judicial authorities. In the situation at hand, the Committee had noted that the issue of the dismissals of KOKURO members was pending before the Tokyo High Court and that of the dismissals of ZENDORO members was pending before the Tokyo District Court. The Committee had therefore trusted that the decisions handed down would be in line with Convention No. 98.
5. 334. Finally, the Committee had stressed that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies could be really effective. In the case at hand, the Committee had observed with concern that there had been an excessive delay in the proceedings concerning KOKURO and ZENDORO members which was due in no small measure to the constant appeals made against the relief orders issued by the 18 local labour relations commissions as well as by the Central Labour Relations Commission, thereby suspending the relief orders in question. The Committee had noted, however, the Government's indication that a new Code of Civil Procedure which had been enacted the previous year had defined procedures which would speed up the clarification of disputes and the organization of the evidence, and that other allowances had been established to make the concentrated evidence inspection easier and therefore a shortening of the time of trial could be expected. The Committee had requested the Government to provide the relevant extracts from this new Code of Civil Procedure.
6. 335. At its November 1999 session, in light of the Committee's interim conclusions, the Governing Body approved the following recommendations:
7. (a) In order to make an informed decision in full knowledge of the facts on the reasons for which the Japan Railway Companies (JR companies) refused to employ a number of KOKURO and ZENDORO members, the Committee requests the Government to provide additional information in this regard.
8. (b) The Committee urges the Government to actively encourage negotiations between the Japan Railway Companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated; it requests the Government to keep it informed of any progress made in this regard.
9. (c) Recalling that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities, the Committee trusts that the decisions handed down by the courts concerning the dismissals of KOKURO and ZENDORO members will be in line with Convention No. 98. It requests the Government to keep it informed of the outcome of these court proceedings.
10. (d) The Committee requests the Government to transmit the relevant extracts of the new Code of Civil Procedure and expects that the procedures established by the newly enacted Code of Civil Procedure will be effective and expeditious so as to guarantee that cases concerning anti-union discrimination, contrary to Convention No. 98, are examined rapidly in the future with a view to securing really effective remedies; it requests the Government to keep it informed of any developments in this regard.
11. B. The complainant's additional information
12. 336. In a communication dated 12 April 2000, ZENDORO indicates that the Tokyo District Court, on 29 March 2000, handed down a decision that cancels the relief orders previously issued by the Central Labour Relations Commission (CLRC) for the victims of unfair labour practices. This court decision denies the responsibility of the Japan Railway Companies ("JR companies") for unfair labour practices in the case of employment discrimination against ZENDORO members. ZENDORO points out that the Committee on Freedom of Association, in November 1999, adopted interim recommendations concerning Case No. 1991, stating, inter alia, "the Committee trusts that the decisions handed down by the courts concerning the dismissals of KOKURO and ZENDORO members will be in line with Convention No. 98". The recent decision of the Tokyo District Court, however, clearly runs counter to the Convention. ZENDORO then goes on to explain why.
13. 337. First of all, ZENDORO contends that the court's interpretation that the discrimination which occurred at the time of recruitment against ZENDORO members does not constitute an unfair labour practice is wrong. Section 7, item 1, first paragraph of the Trade Union Law of Japan prohibits employers from "discharging or otherwise treating in a disadvantageous manner a worker by reason of such a worker being a member of a trade union, or having tried to join or organize a trade union, or having performed proper acts of a trade union". This legal provision corresponds to Article 1, paragraph 2(b), of Convention No. 98: acts calculated to "cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours". The CLRC decided that refusal of employment by the JR companies on the ground of union affiliation constituted disadvantageous treatment based on union affiliation. This correct interpretation of Convention No. 98 and section 7, item 1, of the Trade Union Law is that disadvantageous treatment based on union affiliation throughout the process of employment, from recruitment to dismissal, is prohibited. An overwhelming majority of the Japanese labour law society supports this interpretation of the Convention and the law. The decision of the Tokyo District Court, however, adopted a more restrictive interpretation of the abovementioned legal provision, stating that, in general, rejection by an enterprise of hiring workers based on their union membership does not constitute an unfair labour practice in so far as it concerns the case of new recruitment since "freedom of hiring" should be guaranteed to the employer and that section 7, item 1, does not prohibit disadvantageous treatment by reason of union membership at "recruitment". This conclusion contained in the Tokyo District Court decision is an interpretation that clearly contradicts Convention No. 98.
14. 338. ZENDORO adds that, concerning the recruitment procedure of workers by the JR companies, it was confirmed on several occasions during the course of the parliamentary deliberations on the Japan National Railways Reform related bills that candidates for hiring should not be treated unfavourably because of their union affiliation. The Tokyo District Court decision acknowledges the fact that the Japanese Parliament's additional resolution adopted at the same time as the JNR Reform Laws, as well as the replies given by the Minister of Transport during the parliamentary deliberation clearly illustrate that one of the intentions of the legislature was to prevent that, when selecting candidates to be hired, those workers who belonged to the unions that had accepted the JNR reform were given priority over the workers who belonged to the unions that opposed the reform. The Tokyo District Court decision, however, on the ground that this legislature's intention was not formally inscribed in any specific provisions of the Reform Laws, developed an astonishingly formalistic interpretation of these laws and concluded that the discrimination by the JR companies in recruitment and hiring of employees did not constitute an unfair labour practice.
15. 339. ZENDORO further points out that the discrimination at the time of recruitment in question occurred during the process of the privatization and division of the Japan National Railways carried out according to the JNR Reform Laws. The Tokyo District Court decision, however, excessively emphasizes the fact that the discrimination at the time of recruitment occurred during a process, which was determined by specific laws, namely the JNR Reform Laws. On the grounds that these laws provide that Japan National Railways is responsible for selecting candidates among its employees, the decision concluded that the JR companies were not responsible for any discriminatory selection made by the JNR nor for the refusal of employment by the JNR on the basis of union affiliation resulting from that selection. The Tokyo District Court decision thus denies the responsibility of the JR companies for unfair labour practices, without referring to the reasons why the ZENDORO members were refused employment by the JR companies. The decision does not at all touch upon the reason for refusal of employment, i.e. whether or not the workers were refused employment on the basis of their union affiliation, and denies the responsibility of the JR companies on the sole ground of the formalities regarding the division of the JNR into private companies.
16. 340. Finally, section 7, item 1, second paragraph, of the Japanese Trade Union Law prohibits "setting the non-affiliation with any trade union or withdrawal from the union as conditions of hiring". This legal provision corresponds to Article 1, paragraph 2(a), of Convention No. 98: acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership. The Tokyo District Court decision admits that this particular provision can be applied to the new recruitment made by the JR companies. It also recognizes that, if the JNR has added discriminatory conditions against trade union members when setting conditions of recruitment by the JR companies and if this has resulted in the non-employment of union members, the JR companies are to be held responsible for unfair labour practices.
17. 341. ZENDORO contends that the Tokyo District Court decision has been made in complete disregard of ILO Conventions and workers' right to organize themselves in unions, with the pre-set intention of denying the responsibility of the JR companies for unfair labour practices which occurred during the process of division and privatization of the JNR under the national policy. ZENDORO indicates that it is determined to appeal against the decision and win a favourable judiciary decision. However, as the Committee has rightly indicated, with the cancellation of the orders issued by the CLRC, it will certainly take a long time until the judicial settlement of the case. Given the very difficult conditions of the complainants, it must be said that the recent decision of the Tokyo District Court has increased the responsibility of the Japanese Government for settling the case. In addition, as the court decision invokes the governmental replies made during parliamentary deliberations and the provisions of the JNR Reform Laws as reasons for the denial of the responsibility of the JR companies, it can be said that, in a sense, this fact itself confirms the responsibility of the Japanese Government in settling the case. Meanwhile, ZENDORO has repeatedly requested the Government to observe the Committee's recommendations and make efforts to promote negotiations between the unions and the JR companies. To date, however, the Government has not made any effort to solicit the JR companies to hold negotiations with the unions. ZENDORO therefore wishes to request the Committee on Freedom of Association to issue recommendations to the Government for promoting an early settlement of the present case.
18. C. The Government's reply
19. 342. In a communication dated 9 February 2000, the Government indicates first of all that in order to understand the reasons for which the Japan Railway Companies (JR companies) refused to employ a number of KOKURO and ZENDORO members, it is necessary to explain the background to the reform of the Japan National Railways (JNR). The JNR started to run deficits from 1964 and the situation kept on deteriorating. The reason why the JNR's managerial condition deteriorated to such a catastrophic state was that it could not cope appropriately with the changes in the environment of the railway business, and that it continued its style of old-fashioned management. Given such a situation, the Supervisory Committee for the JNR Reconstruction reached the conclusion that the only way to reconstruct the businesses managed by the JNR was to divide the managerial scale into appropriate business units, eliminate government involvement as much as possible through privatization, and allocate the employees efficiently to aim for private enterprise level productivity. It was under this policy that the JNR reform was to be carried out. Hence, regional division and drastic lay-offs became the essentials of the JNR reform. It is necessary to note the fact that the number of employees had to be reduced from about 277,000 at the beginning of 1986 to about 215,000.
20. 343. In August 1985, the Government established the Employment Measures Headquarters headed by the Prime Minister and assisted by the Minister of Transport and the Minister of Labour and others. In December, the Cabinet adopted the "Basic Policy on JNR Redundant Employees Re-employment Measures". The Government thereby announced that it would make national efforts to secure re-employment of the JNR employees. Specifically, it strongly requested public sector entities such as government agencies and local public entities as well as general industrial circles to hire the employees and enacted a law including a provision to pay special benefits to voluntary retirees. It hence took all imaginable measures. The JNR itself also took diverse measures for its employees such as dispatch to private enterprises, "wide-area transfers" and acceptance by JNR affiliates.
21. 344. Regarding wide-area transfers, the Government explains that the JNR's railway business was to be divided up into seven companies based on regions. However, as for the JR Hokkaido and the JR Kyushu companies whose cash flow had been expected to deteriorate, the numbers to be hired had to be limited from the beginning. For this reason, it was found that if the division and privatization was implemented according to the report of the Supervisory Committee for the JNR Reconstruction, one in two personnel would be in excess in Hokkaido and one in three in Kyushu. Moreover, Hokkaido and Kyushu had less re-employment opportunities in private enterprises so that elimination of regional imbalances between the scale of redundant employees and employment opportunities became an important issue. For this reason, the JNR implemented "wide-area transfers" from 1986 to recruit transferees from Hokkaido to Tokyo, Nagoya and other regions from eastern Japan and from Kyushu to the western Japan regions, mainly Osaka. Such transfers were very trying for the employees as they had to leave the area where they were used to living and sell homes, etc. However, more employees than expected cooperated and the project produced great outcomes. Nevertheless, most of the personnel who accepted this transfer belonged to TETSURO (Railway Workers' Union) or DORO (Locomotive Workers' Union) and the members of KOKURO and ZENDORO which opposed the reform of the JNR were uncooperative (table 1).
22. Table 1. The number of those transferred over a wide area (April 1985-March 1987)
23. ================================================================= KOKURO ZENDORO DORO TETSURO Others ================================================================= Transferees 653 0 1 791 561 813
24. Union members 165 400 2 400 31 400 28 700 49 000
25. Percentage 0.4%(1) 0 6%(15) 2%(5) 2%(5) =================================================================
26. Notes: The union members are rough figures as of April 1986. Parentheses: each union's figure when the KOKURO's percentage is converted into 1. "Others" includes non-union members and managers.
27. 345. At present, the JR Soren (Japan Confederation of Railway Workers' Union) constituting about 40 per cent of all JR employees takes the position that the "non-hiring issue has been solved". It points out that the reason for this is that there are many people who wanted to be re-employed by their local JRs at the time of the reform but who accepted wide-area transfers by cooperating with the reform. These people could not accept that the persons who failed to cooperate with the reform would be re-employed by their local JRs as they wished even though some ten years have passed. The JR Rengo (Japan Railway Trade Unions Confederation), also constituting about another 40 per cent of the personnel, takes a similar position.
28. 346. The Government goes on to explain the JR companies' hiring criteria. These criteria were determined by the Establishment Committee of each succeeding corporation. They mainly consisted of the following three points:
29. - those under the age of 55 as of 31 March 1987;
30. - those healthy enough to execute duties;
31. - those suited for the operations of the new company in view of their service records in the JNR.
32. Among these, "service records in the JNR" were to be assessed comprehensively and fairly based on the knowledge, skills and aptitude for jobs and the daily service records based on materials such as the personnel control records. KOKURO and ZENDORO claim that as a result of discrimination on the basis of the labour union to which one belonged, the hiring rates of their members were lower compared to those belonging to other unions in some regions. The reason for this is believed to be that many of KOKURO/ZENDORO members had some problems with their service records such as absence from work without notice, etc. That is, if the selection were to be made objectively and fairly based on such service records, the rate at which the KOKURO/ZENDORO members would be hired had to be low to some extent. It is believed that the JNR did not intentionally discriminate against KOKURO/ZENDORO members.
33. 347. The Government acknowledges that the nationwide hiring rates by unions show that those of KOKURO members are low compared to those of other unions. However, figure-wise, over 80 per cent of KOKURO members were hired (table 2). In view of the fact that many of the members of this union continued to be employed by their local JRs (Hokkaido and Kyushu), there is a view that this re-employment figure is not so low (table 3). On the other hand, as regards ZENDORO, the nationwide hiring rate of its members was about 60 per cent (table 2). A main factor is believed to be the following: about 60 per cent of ZENDORO members lived in Hokkaido (which is over five times that of other unions' rate; table 3). In spite of this, they persisted with employment by their local JR. Hokkaido produced the greatest number of redundant employees among all areas so that the number to be hired by the JR Hokkaido had to be lower. Given such a situation, if ZENDORO, which had many members in Hokkaido, persisted with employment by their local JR, their hiring rate had to be low. Furthermore, ZENDORO had alleged that in five locomotive departments within Hokkaido (Otaru, Naebo, Iwamizawa, Takikawa and Tomakomai) the hiring rate for union members of DORO and TETSURO by the local JR was 100 per cent, whereas the hiring rate for union members of ZENDORO was remarkably lower (318th Report, para. 245). The Government points out that this discussion does not take into consideration employees who accepted the wide-area transfers. In other words, 895 union members of DORO and TETSURO accepted wide-area transfers from Hokkaido to Honshu in cooperation with the JNR reform. (On the other hand, none of the ZENDORO members accepted wide-area transfers.) Considering that almost all JNR employees wished to be employed by their local JR, naturally those employees who accepted wide-area transfers should be taken into account when calculating the hiring rate of the local JR. However, in its calculations, ZENDORO excluded many of those not employed by the local JR and included the figures of those who accepted wide-area transfers, and concluded that the hiring rate of union members of DORO and TETSURO to the local JRs was 100 per cent. Therefore, it has to be said that ZENDORO's calculations were manipulated.
34. Table 2. The number hired by JRs and those moved to the Settlement Corporation
35. ================================================================= KOKURO ZENDORO TETSUDOROREN Others =================================================================
36. Hired by JRs (a) 36 000 1 200 127 000 36 500
37. Moved to the 8 400 800 6 300 7 500 Settlement Corporation (b)
38. Union members 44 400 2 000 133 300 44 000 (a)+(b)
39. Hiring rate by JRs 81% 60% 95% 83% (a/a+b) =================================================================
40. Notes: (a) is as of 1 April 1987, (b) is as of 1 May 1987. (a) and (b) are approximate. "TETSUDOROREN" was established in February 1987 by combining TETSURO, DORO and others. "Others" include non-union members and those of TETSUSANRO.
41. Table 3. Ratios of Hokkaido members to all union members
42. ================================================================= KOKURO ZENDORO DORO TETSURO ================================================================= Hokkaido members 17 800 1 400 3 600 100
43. All union members 165 400 2 400 31 400 28 700
44. Percentage 11% 58% 11% 0% =================================================================
45. 348. The Government then proceeds to explain the relationship between Establishment Committees for the JRs and JNR. The relationship between the Establishment Committees and the JNR in terms of the hiring procedure is clearly stipulated in section 23 of the JNR Reform Act (Annexes I and II). The said provision prescribes for the Establishment Committees to recruit the employees (subsection 1) and to make notification regarding their hiring (subsection 3). As is clear, the recruitment and hiring of the employees of the succeeding corporations were to be carried out under the responsibility and authority of the Establishment Committees. However, the JNR authorities kept the career, service records and other data of the JNR employees to be hired. In addition, the recruitment of personnel and the confirmation of their desires, etc. had to be carried out in a short period and in a massive work volume. It was therefore decided that the JNR would carry out these operations and prepare the lists of candidates on this basis (subsection 2) instead of the succeeding corporations (JRs). Therefore, the preparation of the lists by the JNR was carried out under its authority and responsibility, and it is not possible to place any responsibility for the act of list preparation by the JNR on the JRs.
46. 349. The Government further stresses the absence of essential identity between the JNR and the JRs. ZENDORO points out the fact that "the JR companies entirely succeeded JNR's entire assets, facilities, equipment and institutional structure necessary for the railway business", as the reason for which the JRs must be held responsible for the unfair labour practices carried out by the JNR (318th Report, para. 250). However, section 22 of the JNR Reform Act prescribes that "each succeeding corporation shall take over the rights and obligations of the JNR which have been prescribed by the transfer plan in the way as prescribed therein at the time of establishment of the respective succeeding corporations". Therefore, the JRs had taken over from the JNR only those assets and liabilities related to the railway business "on a restricted basis" according to the transfer plan. It must be noted that all other JNR assets and liabilities (long-term liabilities amounting to US$243 billion and land and other assets for their repayment) were transferred to the JNR Settlement Corporation (reference 1). Also, from the viewpoint of the type of corporations, while the JRs are stock companies (commercial companies) established for profit, the JNR Settlement Corporation is a public corporation like the JNR. This is the major difference between the JNR and the JRs (reference 2).
47. ================================================================= Reference 1
48. -- Section 15, JNR Reform Act
49. When the Japanese National Railways transfers its businesses to the succeeding corporations, the national Government shall transfer the Japanese National Railways to the Japanese National Railways Settlement Corporation. It shall have the Settlement Corporation carry out the operations to dispose the assets and liabilities not transferred to the succeeding corporations. It shall also provisionally have it carry out operations to promote the re-employment of its employees.
50. -- Section 2, Supplementary Provisions, Japanese National Railways Settlement Corporation Law
51. The Japanese National Railways shall become the JNR Settlement Corporation upon enforcement (i.e. 1 April 1987) of the provision of section 2 of the Supplementary Provisions of the Reform Act. (The rest omitted.) =================================================================
52. ================================================================= Reference 2
53. -- Section 2, Japanese National Railways Act
54. The Japanese National Railways shall be a public corporation. It is not a commercial company as prescribed by the provisions of article 35 of the Civil Code or the Commercial Law related to commercial companies and other corporations. =================================================================
55. 350. The Government goes on to explain at length the employment measures taken by the JNR Settlement Corporation, as well as the state of re-employment of JNR employees in the process of the reform of the JNR (Annex III). The 7,628 persons who were not re-employed when the JRs started in April 1987 were to become JNR Settlement Corporation employees and re-employment measures were taken for them by the JNR Settlement Corporation for three years. There is a view that, while as many as 1,047 KOKURO and other union members were finally dismissed by the JNR Settlement Corporation and that they and their families have been forced to undergo a hard living until today, this is because they never responded to the additional hiring by the JRs and the generous re-employment measures taken by the JNR Settlement Corporation and had chosen this path intentionally. The following paragraphs make this point clear by adding some information on the additional hiring undertaken by the JRs and the re-employment measures taken by the JNR Settlement Corporation. The Government adds that ZENDORO's claim that "all of the 7,600 workers who were refused employment by the JRs in April 1987 were members of KOKURO and ZENDORO" (318th Report, para. 266) is false because over 1,000 of them were TETSUDOROREN and other union members.
56. 351. When the JR companies started, the numbers hired by the JR Hokkaido and the JR Kyushu were more or less as initially planned. However, the other JR companies hired less than what was initially planned. As a consequence of this, the Ministry of Transport requested the JR companies to additionally recruit, and through cooperation by the JR companies, additional hiring was carried out four times. In the first recruitment that started from May 1987, one month after the JRs started, the JR East offered jobs for "about 7,000" which amounted to almost all of the employees requiring re-employment. When the other JR companies were included, the job offers exceeded 13,000. In the second wide-area additional hiring carried out in December 1988, the companies did not prescribe any recruitment limits so that, in reality, they recruited any number. These additional hirings were designed to relieve former JNR employees who desired to remain in the railway business and could not be employed by the JR Hokkaido or the JR Kyushu for reasons of capacity. Therefore, unlike the case of "newly recruiting employees", without preparing a list of candidates, anyone who applied could be employed by the JRs. In fact, all employees, including KOKURO and ZENDORO members who really wanted to be employed were hired. However, KOKURO/ZENDORO persisted in seeking employment by their local JRs under the policy from the JNR days of "opposition to the reform of the JNR" and "reversion to the original region and position", so that the number who applied did not reach what had been expected initially. In the final analysis, only 1,606 returned to the JRs by making use of these additional hiring opportunities (90 per cent of these were KOKURO/ZENDORO members (table 4)).
57. Table 4. The number of those additionally hired
58. ================================================================= KOKURO ZENDORO TETSUSANRO TETSUDOROREN Other Total ================================================================= 1 036 401 127 8 34 1 606
59. (65%) (25%) (8%) (0.5%) (2%) =================================================================
60. Notes: TETSUSANRO is the union split from KOKURO in February 1997. Parenthesis are ratios of each union's members additionally hired to the total.
61. 352. Additionally, for the unemployed, the JNR Settlement Corporation strove to secure employment through all kinds of methods, such as by seeking opportunities not just in the public sector, but in the private industrial circles as well, and by actively visiting companies. For the unemployed, it provided employment consultation on a daily basis, arranged for job offers based on each individual's desires, and implemented education and training for acquiring the knowledge, skills and qualifications necessary for employment. The average number of the employment consultation sessions amounted to 74 times per person and 34 jobs were offered per person. Hence, the re-employment measures taken were very generous both system-wise and institutionally. As a result, 6,581 persons excluding the 1,047 found employment and amicably left the JNR Settlement Corporation (see Annex III). In April 1990, upon completion of the JNR Settlement Corporation's employment measures operations, the 1,047 persons who were still not employed were dismissed by the JNR Settlement Corporation. Regarding these 1,047 persons, ZENDORO claimed that "these 1,047 KOKURO and ZENDORO members are still suffering" (318th Report, para. 251). However, in reality, they had many opportunities to find employment and stabilize their living conditions by utilizing various opportunities such as the additional hirings by the JR companies and employment measures promoted by the JNR Settlement Corporation. Moreover, 96.5 per cent of these 1,047 persons were concentrated in Hokkaido and Kyushu where the re-employment was extremely difficult. However, they persisted with the policy of "reversion to the original region and position" (521 persons in Hokkaido and 489 in Kyushu). In other words, it is necessary to note that the 1,047 union members have fallen into the present state partly because KOKURO and ZENDORO executive committees have been placing the highest priority on the union policy of "opposition to the reform of the JNR" and "reversion to the original region and position".
62. 353. The Government then indicates that the main developments pursuant to the dismissal of the 1,047 persons by the JNR Settlement Corporation in April 1990 are as described in the Committee's interim report (318th Report, paras. 257, 258, 261, 263 and 264). The Government provides additional information on several opportunities for resolution that existed during this period. First of all, on 28 May 1992, the Central Labour Relations Commission (CLRC) proposed a solution (Chairman Ishikawa's proposal) to the JRs, KOKURO and ZENDORO. Regarding this proposal, Mr. Okuda, then Minister of Transport, released a comment that "both sides are expected to examine positively the possibility of a settlement without insisting on past contentions and principles". Also, Mr. Kondo, then Minister of Labour, released a comment that "while labour and management may have their own positions, I also would like to request strongly that labour and management settle this issue quickly and amicably based on the proposal". In response, Mr. Sumita, then President of JR East, released a comment that while the proposal had many problems, the company would like to examine if it could cope in some form with the proposed employment measures. In contrast, KOKURO released its chairman's statement that "today's proposal entirely ignored the orders issued by the 17 Prefectural Labour Relations Commissions and must be said to be unfair. We cannot accept the proposal". ZENDORO also released its chairman's statement that "ZENDORO has demanded full settlement based on the Prefectural Labour Relations Commissions' orders and reinstatement of the 1,047 to their local JRs but these were not accepted so that we cannot accept the proposal at all. The proposal ignores the keen pleas of the dismissed, and their families, who have no choice but to find employment in their local JRs. The proposal is to abandon the powers and roles of the Central Labour Relations Commission as an agency to benefit workers". Finally, in June 1992, KOKURO submitted a reply to Chairman Ishikawa that "we cannot accept the proposal. As a condition for solving the non-hiring issue, we will continue to demand an apology for the unfair labour practices, and demand that our local JRs employ all of the persons covered by the remedial orders retroactively to 1 April 1987". Hence, unfortunately, the prospects of the settlement based on Chairman Ishikawa's proposal melted away. In view of the circumstances in those days, there was a possibility for the JRs and the unions to at least negotiate a settlement of the problem based on Chairman Ishikawa's proposal. The fact was that KOKURO and ZENDORO unilaterally rejected the proposal without examining it at all.
63. 354. The Government then describes the efforts made towards reaching a political settlement. On 28 May 1998, in relation to the non-hiring issue involving KOKURO, the Tokyo District Court rendered a judgement which supported the JR's claim, and cancelled the CLRC's order that had more or less acknowledged KOKURO's contentions. In view of the fact that the court decision rejected the KOKURO claim, the then three ruling parties (the Liberal Democratic Party, the Social Democratic Party and the Sakigake Party), genuinely pushed for a political solution to this problem such as by proposing to the union side that it negotiate with the JR companies in order to reach a realistic solution. Amid such movement, in its Provisional Convention held on 18 March 1999, KOKORO organizationally adopted "approval of the JNR Reform Act" which had been the greatest bottleneck in starting the negotiations. Along with the Liberal Party, the Liberal Democratic Party informally put together the specific conditions for the JRs and KOKURO to start negotiations (such as for KOKURO to acknowledge that the JR companies were not legally responsible). These specific conditions were put into a document "Start of KOKURO-JR companies' negotiations" (Annex IV), and continued adjustments were made for the commencement of negotiations with the Social Democratic Party coordinating for KOKURO. However, in June 1999 an incident occurred in which the KOKURO executive committee sent this document to its local organs thus making it public. Also, in the KOKURO Regular National Convention held in August of the same year, the executive committee said it wanted to "press for settlement through negotiations by breaking through the present situation through political party negotiations" based on the policy adopted in the 18 March Provisional Convention that organizationally adopted "approval of the JNR Reform Act". However, criticism of the executive committee erupted in relation to the progress report after the approval of the JNR Reform Act, and that revealed intra-KOKURO conflict of opinions regarding this issue with some members demanding revocation of the policy that approved the Reform Act. In view of such movements within KOKURO, the related parties such as the LDP and the JR developed suspicions about whether KOKURO truly intended to settle the issue. This created a fissure in the relationship of trust being constructed between the union and the political parties concerned, and the positive mood that was growing in anticipation of the commencement of negotiations subsided.
64. 355. In conclusion, the Government asserts that KOKURO and ZENDORO should understand that the time has come for them to flexibly examine more realistic solutions. In starting the negotiations with the JRs also, KOKURO needs to stick with the policy of approving the JNR Reform Act adopted in the March 1999 Provisional Convention. This problem has been continuing for some ten years and the Government hopes for a settlement as quickly as possible. But the Government had done everything that it could have done according to the legal system related to the reform of the JNR, and that seeking for a solution in line with "reversion to the original place and position" demanded by the unions would be to reject this legal system itself. Given the facts that the hiring procedure and system based on the JNR Reform Act are not in violation of the Constitution of Japan and the ILO Conventions, and that the Supreme Court has ruled that the JRs are not responsible for the acts carried out by the JNR in relation to the said procedure, in solving this problem, the Government believes that the only recourse is a political solution from a humanitarian viewpoint. Fortunately, the Social Democratic Party is now taking the initiative in coordinating KOKURO opinions and continuing discussions with the LDP on the conditions and time for restarting negotiations. The Government hopes that these inter-party discussions will produce outcomes towards solving the problem.
65. 356. With regard to the Committee's second recommendation that efforts be made by the Government in order to encourage negotiations between the JRs and unions (318th Report, para. 271(b)), the Government provides the following information. Moves to settle this issue have been discussed mainly through deliberations between the ruling Liberal Democratic Party and the Social Democratic Party. The Government explained details of the Committee's recommendations to both parties. Furthermore, after the recommendations were adopted on 18 November 1999, the Government held discussions with KOKURO on 3 December 1999, and ZENDORO and ZENROREN (National Confederation of Trade Unions to which ZENDORO is affiliated) on 7 December 1999. In addition, on 26 November a meeting between ZENDORO, ZENROREN and the Minister of Transport, Mr. Nikai, was held to try to reach an early settlement of this issue. Then a meeting between KOKURO and the Minister of Labour, Mr. Makino, and a meeting between KOKURO and the Minister of Transport, Mr. Nikai, were carried out on 27 December. Furthermore, the Ministry of Transport summoned all JR companies on 28 November 1999 to explain the significance of the Committee's recommendations and discussed future measures to resolve the issue. Hence, deliberations for starting discussions between the unions and the JRs are being energetically carried out between the Liberal Democratic Party and the Social Democratic Party, which continue to modify conditions for starting negotiations between both parties by receiving opinions from KOKURO and the JRs with respect to the contents of a document mentioned earlier entitled "Start of KOKURO-JR companies' negotiations" (Annex IV).
66. 357. Moreover, KOKURO stated in policies at a regular conference in August 1999 that it would promote its requests for settlement by the Government. Furthermore, after receiving the Committee's recommendations, KOKURO held a conference to report on the recommendations on 9 December. In the conference, Mr. Miyasaka, Secretary-General, stated that "the basic course for settlement was to urge the Government to settle the issue politically. Firstly, we should try to break the present deadlock mainly through deliberations between the Liberal Democratic Party and Social Democratic Party and then try to press the Government to settle it through discussions". Consequently, in KOKURO, a move to encourage an amicable settlement through deliberations between the political parties is taking place.
67. 358. However, according to the Government, one of the factors that makes settlement of this issue difficult is the serious conflict between unions within the JR companies that had agreed to the Japan National Railways Reform and KOKURO and ZENDORO that opposed it. The JR Rengo (77,000 persons, approximately 40 per cent of the total number of union members, major unions of four corporations including the JR Central, JR West, JR Shikoku and JR Kyushu) and the JR Soren (Japan Confederation of Railway Workers' Union, incorporating 75,000 persons, approximately 40 per cent of total union members, major unions of the JR East, Hokkaido and Freight) which agreed with the shift from JNR to the JRs, are not very flexible on this issue as illustrated in comments made by both chairmen (reference 3).
68. ================================================================= Reference 3
69. -- Comments by Mr. Kadono, chairman of the JR Rengo at a regular convention in June 1999
70. "As the JR Rengo has insisted, we express our expectation that an early settlement will be made from a social and humanitarian viewpoint. However, the Government and the Liberal Democratic Party are once again questioning the intentions of the Kokuro in approving the reform act, suggesting that the policies of Kokuro remain vague. If the Kokuro approves the concept of the Japan National Railways Reform Act and pursues internally the establishment of sound labour-management relations, reliability cannot be obtained within and from outside companies until privatization is actually realized, and organization names and characteristics are reformed according to the reform divided into seven companies."
71. -- Comments by Mr. Shibata, the chairman of the JR Soren at a Regular Convention in June 1999
72. "We have been consistent in insisting that the 'non-hiring' issue has already been solved and the problem of the 1,047 persons should be addressed outside our company. We call on the Government to stop the unfairness between 70,000 persons who have cooperated with the reform of the JNR and are apt to hold out stubbornly." =================================================================
73. 359. Another obstacle to early resolution of this problem lies in the disagreement within KOKURO. As mentioned earlier, KOKURO's policy is to "clarify that it approved the Japan National Railways Reform Act" at a provisional convention on 18 March 1999. On the other hand, at a regular convention in August of the said year, opinions requesting the withdrawal of already-established policies, such as "approval of the Act" were presented. For example, one individual commented "if we approve the Japan National Railways Reform Act, we give up our fighting channels which will lead to a crash of the Labour Relations Commissions System. We need to create a situation by not approving the Act". There were also counter arguments. For example, "the topic of whether or not the JRs bear responsibility for unfair labour practice is now being discussed, so things cannot move forward. Therefore it is important to carry out the negotiations towards an amicable settlement mainly through a return to the local JRs, monetary compensation and the normalization of labour-management relations". From such circumstances, it is clear that various opposing opinions exist on the method of achieving a settlement, even within KOKURO. Consequently, many are of the view that this will become a major stumbling block in reaching a settlement.
74. 360. With regard to the judiciary, the Government points out that besides the cases of non-hiring of KOKURO/ZENDORO members, there are other cases pertaining to the interpretation of section 23 of the JNR Reform Act. Thus, judgements pertaining to the "Doro Chiba non-hiring case" and the "Kokuro Akita reshuffling case" were issued by the Supreme Court on 17 December 1999. Since this is the first time the Supreme Court has handed down judgements on the interpretation of section 23 of the JNR Reform Act, it appears that these judgements will have a major influence on a series of lawsuits pertaining to non-hiring cases presently pending at the courts. With respect to the "Doro Chiba case", which is related to the non-hiring of union members of the Doro Chiba (Chiba Railway Locomotive Engineers' Union) at the start of JRs, the Supreme Court completely supported the original judgement (reference 4) and rejected the union's claims. Furthermore, in the Kokuro Akita reshuffling case, KOKURO had a dispute with the JR East concerning the injustice of employee reshuffling by the JNR immediately before the division and privatization of the JNR. A judgement similar to the Doro Chiba case was issued in this case. Moreover, with regard to "Doro Mita (Mito Railway Locomotive Engineers' Union) reshuffling case," which is similar to the Kokuro Akita reshuffling case, on 27 January 2000, the Supreme Court judged in favour of the JR East, supporting the Tokyo High Court judgement which states that the JNR and the Establishment Committees are legally different subjects.
75. ================================================================= Reference 4
76. Dora Chiba case: Tokyo High Court judgement (23 May 1995)
77. (1) There are no legal grounds to the assertion that essential identity exists between the JNR and the JRs.
78. (2) Since the act of screening candidates conducted by the JNR is exclusively the authority and responsibility of the JNR, the JNR does not assist in the screening of candidates belonging under the authority of the Establishment Committees.
79. (3) Although the Establishment Committees have the authority and responsibility to select candidates by screening a list of registered persons, the Committees did not have the authority to hire JNR employees who were not registered on lists.
80. (4) The JRs do not have any reason to bear responsibility for actions of the JNR. Furthermore, the non-hiring was a justifiable act in accordance with the Japan National Railways Reform Act. Consequently, there is no reason to put responsibility on the JRs for unfair labour practices. =================================================================
81. 361. Finally, with regard to the Committee's last recommendation (318th Report, para. 271(d)), the Government attaches to its reply the relevant extracts of the new Code of Civil Procedure which was enforced on 1 January 1998. According to statistics of the Supreme Court, the average trial periods for already settled first-instance lawsuits in the district courts before and after enforcement of the new Code of Civil Procedure are as follows:
82. ================================================================= 1989 1996 1997 1998 (in months) (in months) (in months) (in months) ================================================================= First-instance civil regular lawsuits 12.4 10.2 10.0 9.3
83. Labour cases (civil suits) 22.4 15.6 15.4 13.0
84. Labour cases (administrative suits) 41.8 28.8 30.8 21.4 =================================================================
85. Note: Labour cases (civil suits) are regular civil suits such as a claim for payment of wages; whereas, labour cases (administrative suits) are administrative suits such as a suit for cancellation against disciplinary punishment of civil servants or a suit for cancellation against a remedial order made by the Labour Relations Commission. Moreover, the average trial periods for cases concerning all administrative lawsuits in 1998 was 11.2 months for a review by a Court of Appeals and 9.9 months for a higher appeal (the last instance) respectively.
86. 362. In a communication dated 19 April 2000, the Government points out that the Tokyo District Court handed down its judgement on 29 March 2000 as regards the cases of non-hiring of ZENDORO members. The Government recalls that this decision follows a lawsuit filed by JR Hokkaido and JR Freight seeking annulment of the remedial order made by the CLRC in February 1994. This remedial order concerned unfair labour practices in the non-hiring of ZENDORO members and JR Hokkaido and JR Freight were ordered to rehire them through a fair selection process. The Tokyo District Court agreed with these two JR companies and cancelled the CLRC's order. The CLRC filed an appeal against this decision to the Tokyo High Court on 11 April 2000. The Government adds that other trials concerning the non-hiring issue by the JRs of KOKURO members are proceeding.
87. 363. In a communication dated 13 June 2000, the Government provides detailed observations in respect of ZENDORO's most recent communication dated 12 April 2000, which deals with the decision of the Tokyo District Court of 29 March 2000 cancelling the relief orders previously issued by the CLRC for unfair labour practices against ZENDORO members. First of all, the Government addresses ZENDORO's claim that the decision of the Tokyo District Court adopted a more restrictive interpretation of section 7, item 1, of the Trade Union Law, by stating that rejection by an enterprise of hiring workers based on their union membership does not constitute an unfair labour practice as far as it concerns the case of new recruitment since "freedom of hiring" should be guaranteed to the employer and that section 7, item 1, does not prohibit disadvantageous treatment by the reason of union membership at "recruitment". The actual judgement, however, states as follows:
88. According to the meaning of the latter part of item 1 of section 7 of the Trade Union Law, the Establishment Committee is not allowed to violate the worker's rights to bargain collectively by presenting discriminatory criteria at recruitment, even though the Committee has the freedom of hiring. If discriminatory hiring criteria, in which members of the union in favour of JNR reforms are given priority over members of the union against the reforms, are presented and outwardly expressed, these criteria are not permitted due to the infringement of the right for members of the union against the reforms to bargain collectively.
89. Therefore, according to the Government, this judgement indicates that some cases of discrimination at recruitment would possibly constitute an unfair labour practice. Consequently, the assertion of ZENDORO that "this does not constitute an unfair labour practice as far as it concerns the case of new recruitment" and "this conclusion clearly contradicts ILO Convention No. 98" is incorrect.
90. 364. Regarding ZENDORO's claim that the Tokyo District Court decision developed an astonishingly formalistic interpretation of the JNR laws, and concluded that the JR companies were not responsible for any discriminatory selection made by the JNR nor for the refusal of employment by the JNR on the basis of union affiliation resulting from that selection, the Government replies that this assertion is incorrect. What the judgement actually states is, in the hiring criteria prescribed by the Establishment Committees, only the criterion "those suited for the operations of the new companies in view of their service records in the JNR" may be applied in a discriminatory manner against union members. But this criterion is meant to encompass those candidates whose service records were not inferior to the general working standards and other merits in the JNR; hence the application of this criterion does not necessarily result in the selection of candidates to be hired that is discriminatory against union members. Consequently, it cannot be said that discriminatory treatment was taken as a result of the JNR's application of this criterion. The judgement further states that, of the series of procedures for hiring the JR's employees, an act taken by the JNR for the recruitment of employees can be regarded as an act taken by the Establishment Committees. The Establishment Committees, therefore, bear the responsibility for unfair labour practices in the event that the JNR added the discriminatory conditions of recruitment against the union members, even though the Establishment Committees did not prescribe the discriminatory hiring criteria against union members. However, according to the court, there was insufficient evidence to indicate that the JNR added discriminatory conditions of recruitment against union members.
91. 365. The Government then goes on to agree with the complainants' claim that the Tokyo District Court decision recognizes that, if the JNR had added discriminatory conditions against trade union members when setting conditions of recruitment by the JR companies and if this had resulted in the non-employment of union members, then the JR companies are to be held responsible for unfair labour practices. The Government points out, however, that the District Court, after having examined in depth ZENDORO's "claims", found that there was insufficient evidence to substantiate the existence of discriminatory recruitment conditions.
92. 366. With regard to ZENDORO's assertion that, given the very difficult conditions of the complainants, the recent decision of the Tokyo District Court has increased the responsibility of the Japanese Government for settling the case, the Government responds that ZENDORO should examine more realistic solutions in this regard. Hence, instead of giving priority to the policy of "reversion to the original place and position", ZENDORO should examine more realistic ways of addressing the problem. Finally, regarding ZENDORO's claim that the Government has not made any effort to solicit the JR companies to hold negotiations with the unions, the Government indicates that it has taken all necessary steps in accordance with the JNR Reform Laws. Now, from a humanitarian point of view, it has no choice but to seek a political solution to the said problem.
93. 367. In its communication dated 15 September 2000, the Government states that consultations between the political parties in an attempt to restart negotiations between the JRs and the complainants, and which had been described in the Government's earlier replies, have borne fruit. In effect, on 30 May 2000, an agreement was reached between the ruling majority parties, including the Liberal Democratic Party (LDP) and the Social Democratic Party (SDP), which coordinates KOKURO's opinions, on "overcoming the non-hiring issue by the JRs" (hereinafter "the Four Party Agreement" reproduced in Annex V). The Government points out that the Four Party Agreement was the result of efforts made at the political level to resolve this issue from a humanitarian point of view. With the conclusion of the Four Party Agreement, the Government indicates that both the LDP and the SDP have made public statements concerning this issue (see Reference 5).
94. ================================================================= Reference 5
95. -- Statement by the LDP
96. "We consider that this Agreement is a large step towards a solution of this issue which has become prolonged over such a long period of time. It is important that the parties concerned implement the points established in this Agreement in a steady manner. The LDP also wishes to continue its efforts towards a speedy solution of this issue. Furthermore, the LDP strongly desires that the KOKURO continue its efforts even more, with a new determination towards a speedy solution of this issue".
97. -- Statement by the SDP
98. "We strongly desire that with this Agreement, we should now consider the past as history. We should not miss this chance for an early settlement of this issue through the initiation of concrete deliberations between the various parties in a serious manner. The SDP requests that KOKURO confirm the contents of today's Agreement with the convening of the Provisional National Convention in a prompt manner and that it establish normal and democratic labour-management relations with each JR company". =================================================================
99. 368. As regards the reaction of KOKURO to this Agreement, the Government indicates that a meeting of the Central Executive Committee was convened on 29 May 2000. The Executive Committee came to the firm understanding that this issue could be solved within a political framework and accepted the Four Party Agreement in the belief that if it were not accepted, a political solution would become more distant. Based on this Agreement, the Executive Committee convened a Provisional National Convention on 1 July, and confirmed in an institutional decision that "the JRs do not bear legal responsibility". However, during the course of the Convention, there were some union members who opposed the guidelines of the Executive Committee. Hence, the Four Party Agreement was not accepted and the Convention had to be adjourned. Regarding ZENDORO's position on this issue, the Government indicates that it did not clarify its position for or against the Four Party Agreement during the course of its periodic assembly held from 26 to 28 August 2000. According to the Government, however, KOKURO is recognized as having a lot of influence over ZENDORO which is awaiting the former's final decision on this issue.
100. 369. In its most recent communication of 24 October 2000, the Government states that a vote was held among KOKURO members from 26 to 29 September 2000 to determine the level of acceptance of the Four Party Agreement. According to the announcement of the Central Executive Committee, 98.3 per cent of the 23,635 members qualified to vote cast ballots, with 13,033 (55.1 per cent) voting in favour of the agreement, 8,511 (36 per cent) voting against, 1,140 (4.8 per cent) undecided and 401 (1.7 per cent) abstaining; 550 votes (2.3 per cent) were either invalid or left blank. The Central Executive Committee stated that "as a result of the one vote referendum, these results hold a significant meaning showing the will of all the union members. At the 67th Periodic Conference to be held on 28 and 29 October, the results of the one vote referendum will be reported on, and an Activity Guideline will be proposed, and we will determine that a speedy resolution in the political arena to the JR labour-management struggles, including the JR non-hiring cases, should be obtained. To all those who are trying to reach a resolution, such as persons concerned in politics and Government, we shall repeat the determination of a speedy and total resolution in the political arena". The Government states that at the 67th Periodic Conference, the recognition of the acceptance of the Four Party Agreement should be sought.
101. 370. With respect to the cases concerning the non-recruitment of KOKURO members pending before the Tokyo High Court, the Government informs the Committee that KOKURO requested the Court to postpone handing down its decision in order to allow time for resolution in the political arena, which KOKURO believed could be jeopardized if the Court pronounced on the matter. As a result, the Tokyo High Court decided to delay giving judgement until 8 November 2000.

D. The Committee's conclusions

1. 371. During its previous examination of this case, the Committee had noted that the allegations related to the fact that, following the decision to privatize the Japanese National Railways ("JNR") in 1987, the succeeding corporations known as the Japan Railway Companies ("JR companies") did not hire many KOKURO and ZENDORO members solely on account of their trade union membership. The Committee had further noted that the Government did not refute the allegations that approximately 7,600 workers were refused employment by the JR companies and redeployed to the JNR Settlement Corporation which subsequently, in April 1990, laid off 1,047 employees. In order to make an informed decision on the reasons for which these workers were refused employment by the JR companies, the Committee had requested the Government to provide additional information in this regard.
2. 372. The Committee takes note of the new and detailed information submitted by the Government in this regard in its communication dated 9 February 2000. The Committee notes the Government's statement that, when the "Basic Policy on JNR Redundant Employees' Re-employment Measures" was adopted in December 1985, the Government undertook to make national efforts to secure re-employment of the JNR employees concerned. The Government adds that the JNR itself also took diverse measures for its employees such as dispatch to private enterprises, wide-area transfers and acceptance by JNR affiliates. However, in spite of all the above measures, the Government acknowledges that 7,628 persons were not re-employed when the JRs started in April 1987 and went on to become JNR Settlement Corporation employees (see Annex III). The Committee nevertheless notes the Government's first contention that not all of these 7,628 workers were KOKURO and ZENDORO members as alleged by ZENDORO (see 318th Report, para. 266) because over 1,000 of them were TETSUDOROREN and other union members (TETSUDOROREN was established in February 1987 by combining the Railway Workers' Union (TETSURO) and the Locomotive Workers' Union (DORO), which supported the privatization policy). Furthermore, the Committee takes note of the Government's statement that, although the nationwide hiring rates of KOKURO members (80 per cent) and ZENDORO members (60 per cent) were lower compared to those of other unions (see table 2 of the Government's reply), a main factor is believed to be as follows below.
3. 373. According to the Government (as well as the complainants' previous submission (318th Report, para. 243)), the JNR's railway business was divided into seven companies based on regions - the railway companies of Hokkaido, East Japan, Central Japan, West Japan, Shikoku and Kyushu, and Japan Freight. However, according to the more recent information provided by the Government, the members to be hired by the JR Hokkaido and the JR Kyushu companies had to be limited from the beginning since these companies' cash flow was expected to deteriorate. Hence, it was found that if the division and privatization of JNR was implemented according to the report of the Supervisory Committee for the JNR Reconstruction, one in two personnel would be in excess in Hokkaido and one in three in Kyushu. For this reason, the JNR implemented "wide-area transfers" to recruit transferees from Hokkaido to Tokyo, Nagoya and other regions from eastern Japan and from Kyushu to the western Japan regions, mainly Osaka. The Government points out that, although such transfers were very trying for the employees concerned, more employees than expected cooperated. Nevertheless, most of the personnel who accepted this transfer belonged to TETSURO or DORO, and KOKURO and ZENDORO members who opposed the JNR reform were uncooperative.
4. 374. The Committee notes in effect that, out of the total number of those transferred, 6 per cent of DORO members, 2 per cent of TETSURO members and 2 per cent of non-union members and managers accepted wide-area transfers whereas only 0.4 per cent of KOKURO members and none of the ZENDORO members accepted such transfers (see table 1 in the Government's reply). The Committee further notes the Government's statement that many KOKURO and ZENDORO members persisted in being employed by their local JRs (Hokkaido and Kyushu), but that re-employment in these two regions was extremely difficult and that these two regions therefore produced the greatest number of redundant employees among all areas. Given the limited number of personnel to be hired in Hokkaido and Kyushu, it was only natural that the hiring rate of KOKURO and ZENDORO members, who refused transfers to other regions unlike other union members, had to be lower. More specifically, as regards ZENDORO's allegation that in five locomotive departments within Hokkaido (Otaru, Naebo, Iwamizawa, Takikawa and Tomakomai), the hiring rate for union members of DORO and TETSURO by the local JR was 100 per cent, whereas the hiring rate for union members of ZENDORO was remarkably lower (318th Report, para. 245), the Committee notes the Government's reply that this allegation does not take into consideration employees who accepted the wide-area transfers. The Committee notes in effect that the discrepancy in the hiring rates of the respective union members is largely due to the fact that a large number of DORO and TETSURO members (895) were hired by the new companies because they accepted wide-area transfers from Hokkaido to Honshu in cooperation with the JNR reform, whereas none of the ZENDORO members accepted wide-area transfers.
5. 375. For all the abovementioned reasons, the Committee notes that according to the new information provided by the Government one of the main reasons for which a larger number of union members other than those from KOKURO and ZENDORO were hired by the JR companies was that the former accepted the JNR scheme of wide-area transfers to other regions which the latter did not (or did so to a smaller extent). Inasmuch as KOKURO and ZENDORO members insisted on being re-employed by the new companies in the original region and position and other union members did not, it cannot be said that the issue of anti-union discrimination arises in that context since it appears to the Committee that a larger number of DORO and TETSURO members were hired by the JR companies (though not necessarily their local JRs) due to their willingness to accept wide-area transfers to other regions and not because of their union affiliation; conversely, a larger number of KOKURO and ZENDORO members were not hired by the JR companies, especially those in Hokkaido and Kyushu, because a larger number of them refused wide-area transfers to other regions. The Committee is reinforced in its views by the fact that, of the 7,628 workers (of whom 6,600 were KOKURO and ZENDORO members) who were not re-employed when the JRs started in April 1987, 6,581 workers found employment subsequently, either by making use of additional wide-area hiring opportunities by the JRs (1,606 workers, 90 per cent of whom were KOKURO/ZENDORO members returned to the JRs; see table 4 in the Government's reply), or through other re-employment measures taken by the JNR Settlement Corporation. The Committee notes that, of the 1,047 KOKURO and ZENDORO members who were dismissed by the JNR Settlement Corporation in April 1990 (see Annex III), 96.5 per cent were concentrated in Hokkaido and Kyushu (521 persons in Hokkaido and 489 in Kyushu).
6. 376. That being said, the Committee would nevertheless recall its previous recommendation to the Government to actively encourage negotiations between the JR companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the 1,047 workers concerned were fairly compensated in view of the fact that they were still suffering the consequences of being unemployed since April 1990 (see 318th Report, paras. 267 and 271(b)). In this respect, the Committee notes the Government's statement that it has taken various measures to resolve the issue, including holding discussions with KOKURO, ZENDORO and the JR companies in order to encourage an amicable solution through deliberations between the Liberal Democratic Party (LDP) and the Social Democratic Party (SDP). The Committee observes that ruling majority parties and the SDP are responsible for setting the conditions to the start of negotiations between the complainants and the JRs which are set out in a document entitled "Start of KOKURO-JR companies' negotiations" (see Annex IV). The Committee also notes from the Government's most recent communication that consultations between the ruling majority parties (including the LDP) and the SDP have resulted in the adoption of a Four Party Agreement on 30 May 2000. The Committee notes with interest that the contents of this Agreement (reflected in Annex V) would appear to set out conditions aimed at encouraging negotiations between the JR companies and the complainants, with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated, as recommended by the Committee during its previous examination of this case (see 318th Report, para. 271(b)). Considering that this Four Party Agreement offers a real possibility of speedily resolving the issue of non-hiring by the JRs, the Committee would urge all parties concerned to consider accepting this Agreement; it requests the Government to keep it informed of any progress made in this regard.
7. 377. As regards the Committee's previous recommendation trusting that the decisions handed down by the courts concerning the dismissals of KOKURO and ZENDORO members will be in line with Convention No. 98 (318th Report, para. 271(c)), the Committee notes from the additional information provided by ZENDORO that the Tokyo District Court, on 29 March 2000, handed down a decision that denies the responsibility of the JR companies for unfair labour practices in the case of employment discrimination against ZENDORO members. According to ZENDORO, this decision clearly contradicts Convention No. 98. This is because the correct interpretation of Convention No. 98 and section 7, item 1, of the Trade Union Law of Japan is that disadvantageous treatment based on union affiliation throughout the process of employment, from recruitment to dismissal, is prohibited. An overwhelming majority of the Japanese labour law society supports this interpretation of the Convention and the law. The decision of the Tokyo District Court, however, adopted a more restrictive interpretation of the abovementioned legal provision, stating that, in general, rejection by an enterprise of hiring workers based on their union membership does not constitute an unfair labour practice in so far as it concerns the case of new recruitment since "freedom of hiring" should be guaranteed to the employer and that section 7, item 1, does not prohibit disadvantageous treatment by reason of union membership at "recruitment". According to ZENDORO, this conclusion contained in the Tokyo District Court decision is an interpretation that clearly contradicts Convention No. 98.
8. 378. The Committee notes, however, that the Government rejects ZENDORO's interpretation of the court ruling. In the Government's view, what the court decision actually states is that under the terms of section 7 of the Trade Union Law, the Establishment Committee of a JR company is not allowed to violate the worker's right to bargain collectively by adding discriminatory criteria at recruitment, even though the Establishment Committee has "freedom of hiring". If such discriminatory hiring criteria were applied, in which members of the union in favour of JNR reforms were given priority over members of the union against the reforms, then these discriminatory criteria would not be allowed because they would constitute an unfair labour practice.
9. 379. In view of the differing interpretations given to the Tokyo District Court decision on this point by ZENDORO and the Government, the Committee would merely recall that the protection against acts of anti-union discrimination provided for in Convention No. 98 guarantees protection at all times against acts of anti-union discrimination: at recruitment and during the period of employment, including the time of work termination.
10. 380. As regards ZENDORO's allegation that the Tokyo District Court developed an astonishingly formalistic interpretation of the JNR laws and concluded that the JR companies were not responsible for any discriminatory selection made by the JNR nor for the refusal of employment by the JNR on the basis of union affiliation resulting from that selection, the Committee notes that the Government disputes this allegation. According to the Government, what the judgement actually states is that, in the hiring criteria prescribed by the Establishment Committees of the JRs, only the criterion "those suited for the operations of the new companies in view of their service records in the JNR" may eventually be applied in a discriminatory manner against union members. However, since this criterion is meant to apply to candidates whose service records are on par with the general working standards in the JNR, the court ruled that it could not be said that discriminatory treatment was taken as a result of the JNR's application of this criterion. According to the Government, the judgement further states the Establishment Committees bear the responsibility for unfair labour practices in the event that the JNR added discriminatory recruitment conditions against certain union members, even if the Establishment Committees did not prescribe such discriminatory hiring criteria. However, according to the Tokyo District Court, there was insufficient evidence to indicate that the JNR had applied such discriminatory conditions of recruitment against certain union members. The Committee notes in effect that ZENDORO agrees with this interpretation of the court decision in the latter part of its submission wherein it states that the Tokyo District Court decision admits that section 7, item 1, second paragraph of the Trade Union Law can be applied to the new recruitment carried out by JR companies. This provision prohibits "setting the non-affiliation with any trade union or withdrawal from the union as conditions of hiring". The Committee notes that, according to ZENDORO, the court decision also recognizes that, if the JNR has added discriminatory conditions against trade union members when setting conditions of recruitment by the JR companies and if this has resulted in the non-employment of union members, the JR companies are to be held responsible for unfair labour practices.
11. 381. The Committee notes that, while the Tokyo District Court has handed down a decision in respect of the issue of the non-recruitment of ZENDORO members, the issue of the non-recruitment of KOKURO members is still pending before the Tokyo High Court. The Committee notes further that according to the latest information from the Government, the Tokyo High Court decided to delay giving judgement until 8 November 2000. The Committee requests the Government to keep it informed of the outcome of the ruling by the Tokyo High Court.
12. 382. Finally, during its previous examination of this case, the Committee had recalled that effective and expeditious procedures were necessary in processing cases of anti-union discrimination with a view to securing really effective remedies. In this regard, the Committee had noted the Government's indications that a new Code of Civil Procedure had defined procedures which would speed up the clarification of disputes and the organization of evidence, and that other allowances had been established to make the concentrated evidence inspections easier so that a shortening of the trial period could be expected (see 318th Report, para. 270). The Committee had requested the Government to provide the relevant extracts from this new Code of Civil Procedure. The Committee takes due note of this information provided by the Government (see Annex VI). It also takes note of the statistics provided by the Government in its reply on the average trial periods for already settled first-instance lawsuits in the district courts before and after enforcement of the new Code of Civil Procedure.

The Committee's recommendations

1. 383. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges all parties concerned to accept the Four Party Agreement adopted on 30 May 2000 which sets out conditions aimed at encouraging negotiations between the Japan Railway Companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated; it requests the Government to keep it informed of any progress made in this regard.
   • (b) The Committee recalls the principle that the protection against acts of anti-union discrimination provided for in Convention No. 98 guarantees protection at all times against acts of anti-union discrimination: at recruitment and during the period of employment, including the time of work termination.
   • (c) Noting that the issue of the non-recruitment of KOKURO members is still pending before the Tokyo High Court, the Committee requests the Government to keep it informed of the outcome of the decision of the Tokyo High Court.

Z. Annex I

• Japanese National Railways Reform Act (Law No. 87, 4 December 1986)
• (Employee of succeeding corporations)
• Section 23. (1) The Establishment Committees (or the succeeding corporation if this corporation is one designated by the Minister of Transport as per the provision of subsection 1 of section 11) (hereinafter referred to as "Establishment Committees, etc.") of the succeeding corporations shall recruit employees by presenting each corporation's labour conditions and hiring criteria to JNR's employees through the JNR.
  2. (2) When the labour conditions and the hiring criteria are presented to its employees as per the provision of the preceding section, the Japanese National Railways shall confirm the desires of its employees to be employed by the succeeding corporations. For each succeeding corporation, the Japanese National Railways shall select the persons to become succeeding corporations' employees, from those who have indicated the desire to become their employees, in accordance with hiring criteria of the succeeding corporations in the same section, and put them on lists and submit them to the Establishment Committees, etc.
  3. (3) Among the Japanese National Railways employees on the lists as per the preceding section, those who received the notice of the hiring from the Establishment Committee, etc., and who are employees of the Japanese National Railways upon enforcement of the provision of the Supplementary Provisions of subsection 2, are hired as employees of the succeeding corporations upon its establishment.
  4. (4) The items to become the contents of the labour conditions to be presented as per the provision of subsection 1, the method of presentation as per the provision of the same subsection, the method of confirming the employees' desires as per the provision of subsection 2, and other matters necessary to enforce the provisions of the preceding three sections shall be prescribed by the Ministry of Transport Ordinance.
  5. (5) With relation to hiring of employees of the succeeding corporation (excluding corporations designated by the Minister of Transport as per the provision of subsection 1 of section 11) the acts carried out by the Establishment Committee of the succeeding corporations and the acts carried out on the Establishment Committee of the relevant succeeding corporations shall be considered as acts carried out by and on the succeeding corporations, respectively.
  6. (6) When an employee of the Japanese National Railways becomes an employee of a succeeding corporation as per the provisions of subsection 3, he is not paid the retirement allowance based on the Law of Lump Sum Payment on Retirement for National Public Employees (Law No. 182 of 1953).
  7. (7) When a succeeding corporation is to pay a retirement allowance upon retirement of its employees to whom is applied the provision of the preceding subsection, it shall regard the employees' term of service at the Japanese National Railways as that at the succeeding corporation.
• Annex II The scheme of section 23 of the Japanese National Railways Reform Act
• Table not reproduced
• Annex III State of re-employment of Japanese National Railways employees
• Table not reproduced
• Annex IV
• Start of the KOKURU-JR companies' negotiations
  1. 1 For the KOKURU (National Railway Workers' Union) and the JR companies to start negotiations, it is necessary for the KOKURO to accept the following points.
  1. (1) The KOKURU must recognize that the JR companies are not legally responsible for the non-hiring issue. In its negotiations with the JR companies, it is to talk about the solutions (hiring afresh) from a humanitarian viewpoint apart from the non-hiring issue on condition that the labour-management relationship should be soundly constructed.
  2. (2) Since this is a labour-management issue, the negotiations are to be carried out between the parties concerned. There will be no government-labour-management negotiations.
  3. (3) By watching the progress of the negotiations, the KOKURO is to withdraw the suits at least related to the Japanese National Railways reform which were brought until the JR companies were established, at an appropriate time.
  4. (4) The JR companies' counter parties are to be the KOKURO's area headquarters. However, in the case of JR Freight, the counter party may be the KOKURO headquarters since there are no corresponding area headquarters.
  2. 2 If the above conditions are satisfied, the Liberal Democratic Party and the Liberal Party will request the JR companies to start the negotiations with KOKURO and to examine the situation from a humanitarian viewpoint.
  3. 3 This issue also involves monetary compromise in court between KOKURO and the Japan Railway Construction Public Corporation (former Japanese National Railways). This issue will be discussed by the Liberal Democratic Party, the Liberal Party and the Social Democratic Party by watching the progress of the KOKURO-JR companies' negotiations.
• Annex V
• The Four-Party Agreement on overcoming the non-hiring issue by the JRs
  30. 30 May 2000
• The Liberal Democratic Party (LDP)
• The Komei Party
• The Conservative Party
• The Social Democratic Party (SDP)
  1. 1 Concerning the non-hiring issue by the JRs, the LDP, the Komei Party, the Conservative Party and the SDP confirm their efforts towards an early settlement of this issue from a humanitarian point of view, within the following framework:
  2. 2 The KOKURO recognizes that the JRs bear no legal responsibility in this matter. This recognition shall be determined at the Provisional National Convention.
  3. 3 Having received such a decision by the National Convention of KOKURO, the three items of "Employment", "Withdrawal of Law Suits", and the "Payment of Reconciliation Compensation" shall be implemented according to the following procedures:
     • (a) The majority parties request of each JR company to initiate deliberations within each area headquarters of KOKURO and to take into consideration the maintenance of employment of KOKURO union members from a humanitarian viewpoint.
     • (b) The SDP requests of KOKURO that the lawsuits regarding the JNR Reforms, at least from the time of initiation of the JRs, shall be withdrawn in a rapid manner after the institutional decision stated in 2 above.
     • (c) The majority parties and the SDP shall consider the positioning, the amount and the procedure of the payment of the Reconciliation Compensation, etc.
  4. 4 Based on the aforementioned guidelines, the majority parties and the SDP shall cooperate in a mutual manner towards the settlement of this issue.
• Annex VI
• The relevant extracts of the Code of Civil Procedure
• * Since the new Code of Civil Procedure enacted in 1996 has 400 provisions in all, the Government has only provided an extract of the main provisions which shorten the time of trial.
  1. 1 Provisions concerning arrangement proceedings of point at issue and evidence
• Subsection 1: Preliminary oral argument
• Article 164 (Commencement of preliminary oral argument)
• The court may, upon determining it necessary to arrange points at issue and evidence, conduct preliminary oral argument under the provisions of this subsection.
• Article 165 (Confirmation of facts which should be proven, etc.)
  1. 1 The court shall confirm with the parties the facts which should be proven by the following examination of evidence at the end of the preliminary oral argument.
  2. 2 The presiding judge may, upon determining it proper, cause the parties to submit a document which summarizes the conclusions of the arrangement of points at issue and evidence in the preliminary oral argument at the conclusion thereof.
• Article 166 (Conclusion by non-appearance of party, etc.)
• In cases where a party does not appear on the appointed date, or does not submit a preliminary document or offer evidence within the period designated in accordance with the provisions of article 162, the court may conclude the preliminary oral argument.
• Article 167 (Advancement of offensive or defensive measures after conclusion of preliminary oral argument)
• A party who advanced offensive or defensive measures after the conclusion of preliminary oral argument shall, if the adversary party requests, explain to the adversary party the reason why such measures could not have been advanced before the conclusion of preliminary oral argument.
• Subsection 2: Preparations for argument proceedings
• Article 168 (Commencement of preparations for argument proceedings)
• The court may, upon determining it necessary for conducting the arrangement of points at issue and evidence, after hearing opinions of the parties, refer the case to preparations for argument proceedings.
• Article 169 (Date set for preparations for argument proceedings)
  1. 1 Preparations for argument proceedings shall be conducted at a date which both parties are able to attend.
  2. 2 The court may admit such persons, as deemed proper, to listen to the proceedings. However, with regard to a person whom a party has requested to attend, unless it deems that there exists danger of causing hindrance to the conduct of proceedings, the court shall admit such person to listen.
• Article 170 (Acts of litigation, etc., in preparations for argument proceedings)
  1. 1 The court may cause the parties to submit preliminary documents.
  2. 2 On a date set for the preparations for argument proceedings, the court may render decisions with regard to the offering of evidence or any other decisions which may be rendered on an occasion other than a date set for oral argument, and examine documents (including articles prescribed in article 231).
  3. 3 In cases where a party resides in a remote place or in any other cases the court determines proper, the court may, after hearing opinions of the parties, and in accordance with the provisions of the Rules of the Supreme Court, conduct proceedings on a date set for the preparations for argument proceedings by means which enable the court and both parties to communicate simultaneously by transmission and reception of voice; provided that this shall apply only to cases where one of the parties appeared on such date.
  4. 4 The party who did not appear on the date referred to in the preceding paragraph and who was involved in the proceedings referred to in the paragraph shall be deemed to have appeared on such date.
  5. 5 On the date referred to in paragraph 3, the party in the preceding paragraph may not withdraw the suit, compromise, or abandon or acknowledge the claim. However in cases where the party has submitted a document stating that the party abandons or acknowledges the claim, this provision shall not apply to the abandonment or acknowledgement of the claim.
  6. 6 The provisions of articles 148 to 151 inclusive, article 152, paragraph 1, and articles 153 to 159 inclusive, 162, 165 and 166 shall apply mutatis mutandis to preparations for argument proceedings.
• Article 171 (Preparations for argument proceedings by commissioned judge)
  1. 1 The court may have commissioned a judge to conduct preparations for argument proceedings.
  2. 2 In cases where a commissioned judge conducts preparations for argument proceedings, such judge performs the duty of the court and presiding judge under the provisions of the preceding two articles (except for the preceding article, paragraph 2). However, adjudication with regard to the objection prescribed by article 150 as applied mutatis mutandis in article 170, paragraph 6, shall be rendered by the court before which the suit is pending.
  3. 3 A commissioned judge who conducts preparations for argument proceedings may render decisions with regard to the entrustment of investigations under the provisions of article 186, the request for an expert witness, and the request for transmission of document (including articles referred to in article 229, paragraph 2, and article 231).
• Article 172 (Cancellation of decision referring to preparations for argument proceedings)
• The court may, upon determining it proper, upon motion or upon its own authority, cancel a decision referring to preparations for argument proceedings. However, in cases where both parties so motion, it shall cancel the decision.
• Article 173 (Statement of conclusion of preparations for argument proceedings)
• The parties shall state the results of preparations for argument proceedings in oral argument.
• Article 174 (Advancement of offensive or defensive measures after conclusion of preparations for argument proceedings)
• The provisions of article 167 shall apply mutatis mutandis to a party who advanced offensive or defensive measures after the conclusion of preparations for argument proceedings.
• Subsection 3: Preparatory proceedings by document
• Article 175 (Commencement of preparatory proceedings by document)
• In cases where a party resides in a remote place or in any other cases deemed proper, the court may, after hearing opinions of the parties, refer the case to preparatory proceedings by document (this shall mean proceedings to arrange points at issue and evidence by submittal of preliminary documents, etc., without the appearance of the parties).
• Article 176 (Measures, etc., of preparatory proceedings by document)
  1. 1 Preparatory proceedings by document shall be conducted by the presiding judge. However, in a high court they may be conducted by a commissioned judge.
  2. 2 The presiding judge or a commissioned judge in a high court (in the following paragraph referred to as "the presiding judge, etc.") shall designate the period prescribed in article 162
  3. 3 The presiding judge, etc., may, upon determining it necessary, hold a conference with both parties, regarding matters relating to the arrangement of points at issue and evidence or any other matters which are necessary for the preparations for oral argument, by means which enable the court and both parties to communicate simultaneously by transmission and reception of voice in accordance with the provisions of the Rules of the Supreme Court. In such cases a court clerk may be caused to record the results of the conference.
  4. 4 The provisions of articles 149 (except for paragraph 2) and 150, and article 165, paragraph 2, shall apply mutatis mutandis to preparatory proceedings by document.
• Article 177 (Confirmation of fact which should be proven)
• The court shall, on the date set for oral argument after the conclusion of preparatory proceedings by document, confirm with the parties the facts which should be proven by the subsequent examination of evidence.
• Article 178 (Advancement of offensive or defensive measures after conclusion of preparatory proceedings by document)
• With regard to a case in which preparatory proceedings by document had concluded, a party, who on the date for oral argument advanced offensive or defensive measures after the statement of matters which are written in the document referred to in article 165, paragraph 2, as applied mutatis mutandis in article 176, paragraph 4, or the confirmation under the provisions of the proceeding article had been made, shall, if the adversary party requests, explain to the adversary party the reason why such measures could not have been advanced before such statement or confirmation.
  2. 2 Provision concerning concentrated examination of evidence
• Article 182 (Concentrated examination of evidence)
• To the extent possible, examination of witnesses and the parties themselves should be made in concentration after conclusion of the arrangement of points at issue and evidence.
  3. 3 The revision of the system of asking for explanation
• Article 149 (Authority to ask for explanation, etc.)
  1. 1 The presiding judge may question the parties or require them to present evidence on matters of fact and law, on a date set for oral argument or an occasion other than such date, in order to clarify the relationships involved in the litigation.
  2. 2 An associate judge of the panel may take the measures prescribed in the preceding paragraph after so informing the presiding judge.
  3. 3 The parties may ask the presiding judge to make any necessary questions on a date set for oral argument or on an occasion other than such date.
  4. 4 In cases where the presiding judge or an associate judge of the panel has taken measures on an occasion other than the date set for oral argument in accordance with the provisions of paragraph 1 or 2 relating to matters which tend to cause a considerable change on the offensive or defensive measures, the judge shall notify the adversary party of the contents thereof.
• Article 151 (Disposition for explanation)
  1. 1 The court may take the following dispositions in order to clarify the relationships involved in the litigation:
     • (i) order the appearance of a principal party or the legal representative of the principal party on a date set for oral argument;
     • (ii) have a person, who manages or assists in business for a party and who is deemed proper by the court, make statements on a date set for oral argument;
     • (iii) order the production of such items as documents concerning the litigation, documents referred to in the litigation and other articles which are in the possession of the parties;
     • (iv) retain documents and other articles produced by a party or a third person at the court;
     • (v) inspect or order an expert opinion;
     • (vi) entrust investigations.
  2. 2 The provisions concerning the investigation of evidence shall apply mutatis mutandis to the provisions for inspection, expert opinions and entrustment of investigations provided for under the preceding paragraph.
  4. 4 The introduction of the principle of advancing offensive or defensive measures at the appropriate time
• Article 156 (Time for advancing offensive or defensive measures)
• Offensive or defensive measures shall be advanced at the appropriate time in accordance with the progress of the litigation.
  5. 5 Others
  1. (1) Examination by means of communication by transmission and reception of images, etc.
• Article 204 (Examination by means of communication by transmission and reception of images, etc.)
• In cases where a witness who resides in a remote place is examined, the court may, in accordance with the provisions of the Rules of the Supreme Court, examine the witness by means which enable persons at a distance to communicate, each being able to recognize the state of the other by transmission and reception of images and voice.
  2. (2) Special provisions concerning large-scale suit
• Article 268 (Examination of witness, etc., by commissioned judge)
• With regard to a case relating to a large-scale suit (this means a suit which has considerably many parties and considerably many witnesses or parties themselves to be heard), if the parties have no objection, the court may have a commissioned judge hear witnesses or the parties themselves in the courthouse.
• Article 269 (Constitution of panel)
  1. 1 In a district court, with regard to a case referred to in the preceding article, a ruling that the trial and adjudication be conducted by a panel comprised of five judges may be rendered by such panel.
  2. 2 In cases referred to in the preceding paragraph, three or more assistant judges may neither simultaneously join the panel, nor become the presiding judge.
• Provisions are extracted from "The bilingual edition of Code of Civil Procedure and Rules of Civil Procedure".
• "The bilingual edition of Code of Civil Procedure and Rules of Civil Procedure"
• Published by the Hosokai Foundation Translated by Masatoshi Kasai, Assistant Professor of Kyoto University