Rapport intérimaire - Rapport No. 329, Novembre 2002

Cas no 2183 (Japon) - Date de la plainte: 15-MARS -02 - Actif

Allegations: The complainants allege that the upcoming reform of the public service legislation, developed without proper consultation of workers’ organizations, further aggravates the existing public service legislation and maintains the restrictions on the basic trade union rights of public employees, without adequate compensation.

1. 567. The complaint in Case No. 2177 is contained in communications dated 26 February and 25 March 2002 from the Japanese Trade Union Confederation (JTUC-RENGO) and the RENGO Public Sector Liaison Council (RENGO-PSLC). It was supported by: the International Confederation of Free Trade Unions (ICFTU) on 27 February 2002; Public Services International (PSI) on 1 March 2002; the International Transport Workers’ Federation (ITF) on 7 March 2002; the International Federation of Building and Wood Workers (IFBWW) on 12 March 2002; Education International (EI) on 18 March 2002; and the International Federation of Employees in Public Services (INFEDOP) on 27 March 2002.
2. 568. The complaint in Case No. 2183 is contained in a communication dated 15 March 2002 from the National Confederation of Trade Unions (ZENROREN) and the Japan Federation of Prefectural and Municipal Workers’ Unions (JICHIROREN).
3. 569. The Government submitted its reply concerning both complaints in a communication dated 16 September 2002.
4. 570. 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

• Case No. 2177
  571. 571 In their communication of 26 February 2002, the complainants JTUC-RENGO and RENGO-PSLC allege that past ILO reports have clearly established that the existing public service system in Japan infringes Conventions Nos. 87 and 98 and is not consistent with international labour standards. However, the Japanese Government has consistently ignored the ILO recommendations. Quite the contrary, the current reform process of the public service, contained in the General Principles for Civil Service System Reform adopted by Cabinet on 25 December 2001 (hereafter the “General Principles for Reform”) will further aggravate the situation, since the authority of the Government in personnel management matters will be greatly expanded, while the restrictions on basic trade union rights of public employees are to be maintained.
  572. 572 Japan’s labour legislation has not basically changed since the end of the Second World War, when the National Public Service Law (NPSL) was enacted, which strictly restricted basic trade union rights of public employees. Other laws enacted later to cover other public employees also severely restricted their basic trade union rights to varying degrees, as follows:
• Category Right to organize Right to bargain collectively Right to strike
• National public service employee Administrative/clerical workers Legalized excluding the personnel in the police and Maritime Safety Agency Not legalized Not legalized
  • Non-clerical workers, including the personnelin the IAIs* Legalized Legalized Not legalized
• Local public service employee Administrative/clerical workers Legalized excluding the personnel in the police and fire defence Not legalized, only Gentleman’s agreement without any bargaining power Not legalized
  • Non-clerical workers Legalized Legalized Not legalized
• * IAIs: the independent administrative institutions.
  573. 573 The ILO supervisory bodies have repeatedly criticized that legislation and practice and made recommendations. For instance, the 1965 Fact-Finding and Conciliation Commission on Freedom of Association made critical comments on issues like: the indiscriminate and total ban of the right to strike (“Dreyer” Report, Summary of findings and recommendations, paragraphs 19 and 24); definition of managerial personnel (ibid., paragraph 54); restrictions on bargaining rights of administrative and clerical employees (ibid., paragraph 60); full-time officers with public employee status (ibid., paragraph 63).
  574. 574 As the Government kept ignoring these recommendations, several public sector trade unions filed complaints in 1972 and 1973 with the Freedom of Association Committee concerning the denial of the right to organize of personnel in the Fire Department, Penal Institutions and Maritime Safety Agency. While pointing out that the right to organize and the right to strike are different matters, the Committee stated that firemen should have the right to organize [139th Report, Case No. 737, para. 180]. The Committee also recommended that the legislation be changed to enable local public employees to establish organizations of their own choosing [op. cit., paras. 170-171] and commented on the restrictions on bargaining rights of administrative and clerical employees [op. cit., para. 334]. In 1983, public sector trade unions filed further complaints with the Committee against the Government’s failure to implement the recommendation made by the National Personnel Authority concerning a pay increase for public employees; the Committee regretted this action and expressed the firm hope that these employees would enjoy some measure of compensation from the restriction placed on their collective bargaining rights and their right to strike [222nd Report, Case No. 1165, para. 168], a recommendation which it later reiterated [236th Report, Case No. 1263, para. 274].
  575. 575 In its 1983 and 1994 General Surveys, the Committee of Experts on the Application of Conventions and Recommendations has developed a series of principles, with which the Japanese public service legislation does not conform, in particular as regards: the scope of managerial exclusions; the restrictions on political activities; the indiscriminate and total prohibition of the right to strike; the penal and administrative sanctions against strikers.
  576. 576 A number of conclusions of the Conference Committee on the Application of Standards included similar comments, acknowledged that these restrictions on the trade union rights of public employees in Japan were inconsistent with the ILO standards and recommended that the situation be remedied. As recently as June 2001, the Conference Committee has commented on the right of freedom of association of various public employees, including fire-fighting staff, and expressed the hope that a bona fide dialogue would take place with the relevant trade unions as regards the latter’s right to associate (ILC, 2001, 89th Session, Provisional Record No. 19, Part Two, p. 2/46). All the above shows that Japan’s public service legislation has been subject to strong and repeated criticisms from various ILO supervisory bodies, but that the Government has failed to take any measures to rectify the situation.
  577. 577 The complainants submit that the General Principles for Reform infringe ILO Conventions even further. These principles are based on a previous Cabinet decision (1 December 2000) on the “General Principles for Administrative Reform”. As regards the most important issue, i.e. the labour relations regime in the public sector, the Government neglected the strong demands of the complainants that international labour standards be complied with. On the contrary, the Government proceeded unilaterally and, on 25 December 2001, the Cabinet adopted the General Principles for Reform, which violate freedom of association principles as regards both procedure and contents.
  578. 578 Concerning procedure, the Government had committed itself at the 2001 International Labour Conference to “sincerely negotiate and consult with the organizations concerned” following which the Conference Committee on the Application of Standards asked the Government “to promote social dialogue with the relevant trade union organizations in the public service”. However, the Government went ahead unilaterally without negotiating or consulting with the trade unions, which clearly violates the recommendations of the Conference Committee and Convention No. 87.
  579. 579 As regards substance, the Government again ignored ILO recommendations and trade unions’ demands and decided that “the current restrictions placed on the fundamental labour rights of public workers shall be maintained, while ensuring adequate compensatory measures”. However, the General Principles for Reform provide that the personnel management power of the National Personnel Authority (NPA) is to be drastically reduced, while those of the Cabinet and each Minister are to be greatly strengthened. The Government is thus attempting to further reduce the NPA recommendation system, which is already inadequate, as pointed out by the Freedom of Association Committee in its 236th Report.
  580. 580 The complainants attach to their complaint the text of the General Principles and a chronological description of the process, which can be summarized as follows:
• – May 1997: establishment of the Public Service System Research Council (where trade unions were represented), mandated to advise the Prime Minister on the reform of the public service;
• – March 1999: the Council makes its basic recommendations and continues its work;
• – unsatisfied with the Council’s recommendations, the Government establishes its own study group, whose work led Cabinet, in December 2000, to adopt the General Principles for Administrative Reform, including a policy to “drastically reform the national public service system”;
• – December 2000: establishment of the Administrative Reform Promotion Bureau, headed by the Prime Minister, with its secretariat within Cabinet;
• – March 2001: the Government decides to go ahead with its reform framework;
  26. – 26 June 2001: the Government announces its “Basic Outline for Civil Service System Reform”;
  25. – 25 December 2001: Cabinet decision embodying the “General Principles for Public Service System Reform”.
• The complainants submit that they intervened many times at each stage during that process, asking that their views be reflected in the final outcome, without any success however, which shows the lack of meaningful consultations and negotiations.
  581. 581 In their additional communication of 25 March 2002, the complainants give several examples of freedom of association violations in the public service, under the National Public Service Law (NPSL), the Local Public Service Law (LPSL) and the National Enterprises and Specified Independent Administrative Institutions Labour Relations Law (NELRL).
  582. 582 As regards the right to organize:
• – the staff of penal institutions, of the Maritime Safety Agency and firefighters, are still denied the right to organize, 36 years after Japan’s ratification of Convention No. 87, in spite of repeated criticisms by the ILO supervisory bodies. At present, 186 organizations regrouping 11,500 firefighters are united under the National Fire-fighters Association (NFA) created in August 1977; in spite of all its efforts, the NFA has been prevented from establishing an independent organization due to legislative obstacles and interference from the authorities. The system of Fire-Defence Personnel Committees has been established six years ago; where such committees exist, they have contributed to improving the working environment, but they are still insufficient due to the lack of cooperation of authorities and there are still many problems to solve; and there are a considerable number of workplaces where such committees have not been set up and problems are even worse;
• – the registration system is a major obstacle to form organizations, tantamount to the denial of the right to organize without prior authorization; for instance, some 18,000 administrative and clerical staff who have been transferred to “independent administrative institutions” (IAIs) became covered by the NELRL and had to resign from the organizations they belonged to; as regards local public employees’ unions, the requirement that an independent union should be established for each local government, or public corporation, has the effect of fragmenting unions;
• – the scope of managerial personnel is too wide and often decided unilaterally, which decreases the potential membership of organizations; the complainants give the example of the locality of Oouda-cho (Nara Prefecture) where such an unduly enlarged interpretation virtually crippled the union management, which was almost driven to dissolution;
• – the existing legislation prevents the free election of full-time officers, since it is left at the employer’s discretion;
• – political activities are totally banned, and punished with criminal penalties;
• – public employees do not enjoy the same legal protection as private sector workers against unfair labour practices, as they are excluded from the Labour Relations Commission system.
  583. 583 With respect to the right to bargain collectively:
• – unions representing administrative and clerical employees (at the local level) may negotiate basic working conditions, embodied in a written agreement; however, such agreements do not bind the parties as they are not recognized by law, nor work in practice under the statutory system of wage control;
• – the scope of negotiation matters is unduly restrictive, as an extensive interpretation is given to the “matters concerning administration and operation”, which in practice often excludes subjects closely related to working conditions.
  584. 584 Concerning the right to strike:
• – the Government has enlarged the scope of essential services and considers that all public employees in the national and local public services, and in public enterprises as “public servants engaged in the administration of the State”, thus totally and indiscriminately prohibiting their right to strike;
• – workers who do not respect the prohibition to strike face heavy criminal and administrative sanction.
  585. 585 As regards compensations for the restrictions on fundamental labour rights of public employees:
• – the National Personnel Authority (NPA) system has failed to fulfil the compensatory function it was supposed to accomplish; since 1997, a situation has developed where agreements reached by labour and management are not implemented, partially or totally, due to the decisions of local assemblies to override these agreements. For instance: in 1997, the recommendation was not implemented during a full year for employees in designated posts; in 1999, a pay raise recommended for administrative personnel in higher grades was not implemented; in 2000, the recommended revision of pay scale was not implemented and the gap between the private and public sectors was partly filled by increasing family allowances;
• – in municipalities, labour and management negotiate under the LPSL and agreements are submitted to local assemblies for decision; since 1997, several agreements have been partly revised or totally rejected, in 1997 (Urasoi City, Okinawa Prefecture), 1998 (Yamato-cho, Miyagi Prefecture; Okahara-mura, Kumamoto Prefecture) and 1999 (Araka ward, Tokyo Prefecture; Takada machi, Fukuoka Prefecture);
• – while some working conditions may be negotiated in national enterprises, wages are subject to the decision of government and financial authorities. Since the law came into force, there has not been a single case where wage negotiations were settled voluntarily and it has always been necessary to resort to the Central Labour Relations Commission; but, although awards bind the parties, they must be approved by the Cabinet and sometimes by the Diet, as in a recent case concerning the postal service and forestry workers.
  586. 586 To summarize, the complainants have strongly protested against the General Principles for Reform and have requested that the Cabinet’s decision be withdrawn, without any success. The Government is proceeding with its intentions to revise the national and local public service laws, based on the General Principles for Reform, which constitute serious violations of freedom of association, in particular Conventions Nos. 87 and 98. The amendment bills are to be drafted in December 2002 and presented to Parliament in 2003, where they will be passed by the ruling coalition. If the amendments are adopted as proposed, this infringement of ILO principles would lead to a serious situation not only for public servants in Japan, but also in other Asia and East Asia countries, and for the ILO in terms of maintaining respect for international labour standards worldwide.
• Case No. 2183
  587. 587 In its communication of 15 February 2002, the National Confederation of Trade Unions (ZENROREN) explains that it is one of the Japanese trade union national centres, with 22 industrial federations, 47 local organizations and a total membership of 1,470,000 members. Its affiliates JICHI-ROREN, ZENKYO and KOKKO-ROREN together represent 530,000 public service workers, at various levels.
  588. 588 ZENROREN’s allegations concern essentially the same issues as in Case No. 2177, revolving around the Cabinet decision on the General Principles for Reform. The complainant states that it is only a few days before that decision was made that the trade unions concerned were informed that the current restrictions on fundamental labour rights of public employees would be maintained, including the total prohibition of the right to strike and restrictions on collective bargaining. This shows that the Government has not made all necessary efforts to “negotiate and consult with the organizations in good faith” contrary to its public commitment in this respect at the 2001 International Labour Conference, and to the recommendations adopted in this respect that same year by the Conference Committee which “expressed the hope that the Government would hold a bona fide dialogue with the concerned trade unions” and “urged the Government to undertake efforts to encourage a social dialogue with the concerned trade union organizations of the public sector”.
  589. 589 In addition, the contents of the intended reform as outlined in the Cabinet document mainly concern general administrative categories of public employees; reforms concerning other categories of state employees, as well as municipal employees and teachers have not been examined at all. In spite of this, the Government has declared that the current restrictions will be maintained across the board for all public employees. Moreover, the Government has made clear that it will introduce a bill for local service reform along with amendments to the NPSL in 2003.
  590. 590 When adopting the “Basic design” in June 2001, the Government had stated that it would consider the existing labour rights restrictions during the re-examination process. KOKKO-ROREN and other public employees’ unions accepted this proposal and requested that negotiations and consultations be held separately on conditions of work, including the wage determination system, with the complete restoration of labour rights as their basic demand. Many sessions of negotiations and consultations were held but no progress could be achieved as the Government maintained that “the question of basic labour rights is to be solved politically”. This shows that the Government has decided the status quo on existing restrictions regardless of the different existing systems.
  591. 591 The Reform Plan makes no mention of the following points which are still at issue, in spite of repeated criticisms from ILO supervisory bodies:
• – restriction on the right to freedom of association of fire-fighting personnel;
• – exclusion from the subjects of negotiation of certain items on the grounds that they are “administrative or management matters” or “out of jurisdiction”, resulting in the restriction on the right to collective bargaining imposed at the discretion of the public authorities;
• – the frequent violations of basic labour rights by the Government and local municipalities: the Government and municipal authorities often disregard the salary recommendations issued by the NPA and the Local Personnel Committees on the grounds of “financial reasons”, or decide unilaterally to decrease the levels of pay for public employees;
• – the refusal to include workers’ representatives in the composition of the NPA and the Local Personnel Committees;
• – continued restrictions by the Government on the rights of state employees by extending the definition of “public employees who are involved in the state administration”.
  592. 592 After Japan had ratified Convention No. 87 in 1965, the Government declared that it would continue to examine the so-called “three remaining tasks” of the “Civil Service System Reform Council” (right to organize of firefighters; methods of arbitration in case of breakdown of negotiations; penal sanctions). A Liaison Council on Civil Servants Problems was set up in 1973 to examine these issues, but was dissolved in 1997 without making any positive conclusions. The Japanese Government has repeatedly stated that the reform of civil service, this time, is a drastic one.
  593. 593 The General Principles provide expressly that “the Cabinet and chief ministers will manage the personnel and organizational affairs with mobility and flexibility”. For this, “the institutional role of each chief minister will be clearly defined as ‘competent personnel manager’ who designs and manages the personnel and the organization on his/her own judgement and in his/her own responsibility”. In addition, the Cabinet will “actively exercise its function of designing and elaborating plans regarding the personnel administration”. In this connection, the General Principles propose to revise the functions of the NPA, which is an attempt to reduce its present function into a mere “ex post fact control”. When it has to explain the rationality of the restrictions on fundamental labour rights, the Government has always invoked the existence of the National Personnel Authority as a compensatory measure. However, the substance of the current civil service system reform as it is presented in the General Principles means diminution of functions and jurisdiction of the NPA on the one hand, and the extension of the jurisdiction of the Government and ministries regarding personnel management on the other. There is also a risk that the compensatory function of the NPA, whose insufficiency has been criticized for many years by public employees’ unions, will be further reduced.
  594. 594 The reform as it is presented in the General Principles could also lead to the extension of the sphere of competence of the Government and ministries in deciding the working conditions of the personnel, including the introduction of an individualized pay system based on the abilities and results achieved by each individual worker. ZENROREN and other public service unions therefore have demanded the Government to examine the restoration of the basic labour rights. In addition, they have asked for an examination of a new civil service system, taking into account the governmental statement at the Diet sessions that the restrictions on the basic labour rights and the compensatory function of the NPA go together and cannot be separated. However, as indicated above, the Government has unilaterally declared the status quo on workers’ right restrictions and has not responded to the demands on workers’ organizations. While trying to reduce the compensatory function of the NPA, the Government refuses to take up the question of restricted fundamental labour rights. Given the contents of the General Principles for Reform, the public employees’ unions fear that the civil service system reform will lead to further violation of basic labour rights.
  595. 595 The Government has stated that the reform of different systems concerning conditions of work of public employees will be implemented by the Administrative Reform Promotion Bureau of the Cabinet according to the basic plan presented in the General Principles for Reform. However, half of the members of this Bureau have been transferred from the NPA: this is the result of the Government’s demand for “cooperation of the NPA” formulated in the “Basic Outline”. It is also stressed that “further cooperation of the NPA” is called for in implementing the civil service system reform; this suggests that the compensatory function of the NPA will be made impotent and will exist actually in name only. The civil service system reform, if implemented under the principle of determining working conditions by law which the Government maintains, could mean nothing but changes in working conditions such as change in criteria for pay determination. To promote this kind of reform while maintaining the restrictions on the basic rights that should be guaranteed to workers to protect their interests and reduce the role of the NPA that should compensate such restrictions, constitute a violation of the ILO Conventions Nos. 87 and 98 and reflects the disrespect of the basic labour rights by the Government.
  596. 596 In its communication complementing ZENROREN’s allegations, the Japan Federation of Prefectural and Municipal Workers’ Unions (JICHIROREN) essentially takes up similar arguments, as applied to the situation of local employees, and confirms the lack of meaningful negotiations and consultations.
  597. 597 According to JICHIROREN, the General Principles for Reform clearly express the Government’s intention to restructure the system governing local government employees along with the system governing national government employees; its basic position is to maintain the restrictions on fundamental labour rights including the total ban of strike and the restriction of the right of concluding collective agreements (which would be accorded only to those who work for local public enterprises and similar activities). JICHIROREN has serious apprehensions and reservations at the industry-wide organization of municipal workers. The General Principles greatly reduce fundamental labour rights, by reducing the authority of the NPA (which the Government says is a third-party organization functioning as a compensatory body), and enlarging its authority for the restrictions of the employer of public service workers in the decision-making system of wages and working conditions.
  598. 598 For instance, the Government has alleged that the total ban on strike and restrictions on the right of collective bargaining of local public employees does not violate Convention No. 87, because the “Local Personnel Committees” have a compensatory function. But, in fact, in the past and at present, there are no such Local Personnel Committees set up in the overwhelming majority of municipalities such as cities, towns and villages except prefectures and ordinance-designated cities. This proves that the assertion of the Government is groundless.
  599. 599 The General Principles for Reform are based on the idea of restructuring national government employees. The document provides as regards local public employees that “based on the spirit of the local autonomy, ... necessary changes are to be brought in accordance with the reform of the national government employees’ system”, but no consideration has been made for special problems of local government employees; neither consultations nor negotiations with the trade unions concerned on the modifications of public employees’ system were carried out; neither hearings, nor consultations with the heads of the local governments and other related persons were held at all. Notwithstanding, the document maintains that the restrictions on the fundamental labour rights of the local public employees should be maintained.

B. The Government’s reply

• General
  600. 600 In its communication of 16 September 2002, the Government gives general explanations on fundamental labour rights of public employees, which do indeed suffer some restrictions, due to the distinctive status and the public nature of the functions performed, in order to guarantee all the people’s common interests. The public service legislation in Japan is based on this idea. Salaries, working hours and other working conditions for national public employees in the non-operational sector are under the deliberation right of the budget and legislative power of the Diet, because of the distinctive status of public employees who are ultimately employed by the people and whose salaries are paid by tax revenues. However, public employees have, as workers, specific rights that must be guaranteed, and benefit from compensatory measures, including the NPA recommendation system, etc. Concretely, compensatory measures for the restrictions on fundamental labour rights are: a guarantee of status; working conditions determined by law; the recommendation system; a procedure for requesting administrative measures on working conditions and filing objection to disadvantageous treatment, etc. Thus compensatory measures for the restriction of fundamental labour rights are systematically guaranteed. For the same reasons, salaries and other working conditions for local public employees in the non-operational sector are under the deliberation right of the budget and authority to enact ordinances of the local assemblies. The Personnel Commissions fulfil the same functions as the NPA and the governor, the local assemblies and other administrative organs have the obligation to carry out appropriate measures, as required, so that working conditions are in line with general circumstances in society. According to the Government, the Supreme Court ruled as regards national public employees (25 April 1973, Agriculture and Forestry case) that compensatory measures counterbalancing the restrictions on their fundamental labour rights are systematically guaranteed. For employees of national enterprises, etc., the right of association and the right of collective bargaining (including the right to conclude agreements) are granted; however, the right to strike is not.
  601. 601 Within that general background, the Government has initiated in recent years various reforms, including the Central Government Reform, with a view to setting up an administrative system to meet demands of the new era. At the same time, there was a call in the general public for reform of public corporations, the civil service system and other administrative organizations and systems. In response, the Cabinet adopted the General Principles for Administrative Reform, where particular importance was attached to reform of public corporations, public interest corporations and the civil service. The Administrative Reform Promotion Bureau was set up in the Cabinet secretariat to play an active part in this process, which included a review of the public service personnel system. The Promotion Bureau eventually produced a “Basic Outline for Reform” and the “Plan for Civil Service Reform” was adopted by the Cabinet on 25 December 2001. The Promotion Bureau continues its work on details of the Plan; the amendments to the NPSL will be submitted to the Diet by the end of 2003 and the new system could be introduced in fiscal year 2005. RENGO’s assertion that the Cabinet secretariat has no authority to plan, design or review the public service system is incorrect, since that power derives from article 12.2 2) of the Cabinet Act.
  602. 602 As regards the alleged lack of consultations on the Framework for Civil Service Reform, the Government points out that this document, by nature, was not meant to be discussed with employees’ organizations and was only a general preliminary plan for coordination between Cabinet and the Government. On the other hand, the Basic Outline adopted later in the process by the Promotion Bureau did present the outline of the new civil service system and the issues that needed to be examined; it was adopted after 27 sessions of negotiations, totalling 14 hours. Therefore, this was not the result of a one-sided decision.
  603. 603 The General Principles for Reform indicate the direction of the legislation. Before adoption, there were 77 sessions of negotiation and consultation totalling 66 hours. The restrictions on fundamental labour rights are an extremely important matter; the authorities needed time to examine this issue; this is why the policy in this respect was only presented to employees’ organizations on 18 December 2001. It should be noted that, prior to developing and deciding that policy, the Government explained its views and held discussions with employees’ organizations, where it indicated that the restrictions on fundamental labour rights would have to be maintained. The Government thus considers that the discussions, consultations and negotiations were conducted in good faith and that RENGO’s allegations in this respect are not founded.
  604. 604 Regarding the alleged substantive problems with the contents of the reform, the Government points out that: “Fully taking into account concerns about maintaining a stable and continuous public service, the impact on the life of Japanese people and other relevant considerations, the current restrictions placed on the fundamental labour rights of public workers shall be maintained, while ensuring adequate compensatory measures.” The document also provides that “the NPA will continue to be properly involved in matters relating to the setting of work conditions, e.g. salary”. This reflects the Government’s intention to maintain an adequate system to compensate for the restrictions. It is fully aware of the importance of this issue and has thoroughly considered it during the process. However, it did not result in a change to the present restrictions. For the Government, the NPA compensatory measures have been functioning appropriately, taking ILO principles into account; for instance, working conditions of public employees have been maintained at the same level as in the private sector.
  605. 605 The Plan aims to identify clearly the responsibilities and authority of each minister so that they could adequately fulfil their duties, but the NPA compensatory measures will be maintained; the planned reform will never lower these. While the Government recognizes the ILO’s views on fundamental labour rights, it considers that these issues should be addressed taking into consideration the specifics of each country, such as its historical and social background. In view of current public opinion towards public employees in Japanese society and other individual circumstances the Government needs to be careful in addressing the issues.
  606. 606 As part of the process of administrative reform, public undertakings are being transferred to the private sector via the establishment of Independent Administrative Institutions (IAIs), in order to separate policy planning from policy execution. Since April 2001, the operation of some national undertakings (e.g. national museums, art museums, research institutions) has been transferred to 57 IAIs, where the right to conclude agreements is similar to the situation prevailing in national enterprises. As of 1 January 2002, 16,564 persons worked for IAIs, and more will be gradually transferred (statistics centres, national hospitals and sanatoriums, etc); as the transfer of policy execution to IAIs increases, so will the number of public employees having the right to conclude agreements.
  607. 607 Regarding RENGO’s allegation on the transfer of NPA staff, the Government states that about half of the staff of the Administrative Reform Promotion Bureau comes from the NPA. They are assigned to perform tasks as staff of the Promotion Bureau, so this does not affect the independence of the NPA.
  608. 608 The General Principles provide that the Local Public Service System will be reviewed in accordance with the reform of the National Public Service System, respecting the principle of local autonomy, while fully taking into account actual circumstances faced by local governments. Given that fundamental labour rights are the same for all public employees, whether they work at national or local level, the Government has decided that the current restrictions would also be maintained for local employees.
  609. 609 Further details of the Plan are currently being examined and the amendments are discussed within the Government. Amendments to the national and local public service laws will be submitted to the Diet by the end of 2003.
• Specific allegations
  610. 610 Turning to the specific allegations submitted in the context of both complaints, the Government denies them all, or considers that they do not raise any problem in terms of ILO Conventions or of principles of freedom of association.
  611. 611 As regards the scope of exclusion of managerial personnel, the Government states that the NPSL prohibits managers and similar categories of employees to join the same organizations as rank-and-file employees, due to potentially conflicting interests. The decision is made by a neutral third-party body (the National Personnel Authority, the Personnel Commission or the Equity Committee) on the basis of the job duties, which the Committee of Experts has recognized as acceptable. Under an administrative circular of 21 June 1966, deputy directors are considered as managerial employees. The particular case at the Prefecture of Oouda-cho, raised by RENGO, is currently before the courts. The Government therefore considers that there is no problem in this respect.
  612. 612 With respect to full-time union officers, the Government explains that employees’ organizations can freely appoint employees or non-employees as their officers; public employees are allowed to engage exclusively in the affairs of their organization with the approval of the responsible authority. In practice, leaves of absence are granted to serve as full-time union officers, unless it hinders the operation of service. The duration of service as full-time officer has been fixed at seven years by the National Personnel Authority, which the Committee of Experts has recognized as acceptable (observation 1994, Convention No. 98). The Government therefore considers that there is no problem in this respect.
  613. 613 On the denial of the right to organize to firefighters, the Government provides an extensive statement, from the 1965 discussions and exchanges on this issue, to the 1995 decision to establish Fire-Defence Personnel Committees, and the present situation. The system of Fire Defence Personnel Committees guarantees the participation of employees in the determination of working conditions. It has been established in all fire defence headquarters by 1 April 1997 and operates properly. For instance:
• – in 2001, meetings were held in 664 fire stations (71.4 per cent) and 4,912 opinions have been examined; in most of the other locations the need was not felt to hold a meeting;
• – since the system was implemented, almost 5,000 working conditions items have been examined each year;
• – about 40 per cent of the items examined have been found appropriate for implementation (41.8 per cent in 2001);
• – in Kuwana City, the committee, made up of 14 members, met three times in 2000; 27 opinions were presented, 12 of which were found “appropriate for implementation”;
• – in Shiraoi Town, the committee, made up of six members, met twice in 2000; 12 opinions were presented, all of which were found “appropriate for implementation”;
• – the Government continued to distribute information brochures on the system to all firefighters (160,000 copies) and provides advice at training courses, in order to promote the smooth application of the system at each fire station.
• In summary, the Government considers that the Fire-Defence Personnel Committees are functioning smoothly in line with the spirit of the system, and that RENGO’s allegations in this respect are without merit.
  614. 614 Regarding the denial of the right to organize to the Japan Coast Guard and employees of penal institutions, the Government states that coastguards actually perform police functions at sea and that they can be assimilated to police personnel under Convention No. 87, which the Committee of Experts has accepted [1973 observation, Convention No. 87]. Relying on Cases Nos. 60 and 179 [12th and 54th Reports of the Committee on Freedom of Association], the Government considers that, given the special nature of their functions, the same reasoning should be applied to employees of penal institutions.
  615. 615 Concerning the registration system of employees’ organizations, the Government states that the system in place is used to verify that employees’ organizations are authentic, independent and democratic, and not to discriminate against them in their negotiating capacity. Local employees are allowed to organize beyond the local level and organizations may join federations and confederations. The registration system does not have the effect of subdividing trade unions. The Government therefore considers that there is no problem in this respect.
  616. 616 As regards political activities, the Government states that the activities of employees’ organizations should mainly aim at maintaining or improving working conditions. Public employees at national and local level are prohibited from conducting certain political activities, under articles 102 of the NPSL and 36 of the LPSL respectively, to avoid undue politicization and maintain the neutrality of the public service. The Supreme Court of Japan has confirmed the constitutionality of these prohibitions. The Government therefore considers that there is no problem in this respect.
  617. 617 As regards limits on negotiation rights of public employees in the non-operational sector, the Government declares that national and local public employees in the non-operational sector are allowed to negotiate but that they do not have the right to conclude collective agreements. Matters “of operation or management” are not negotiable (article 108.5.3 of the NPSL; article 55.3 of the LPSL) but “working conditions which may be affected by the handling of matters of operation or management” are subject to negotiation.
  618. 618 As regards the alleged Government’s intervention in negotiations of public employees in the operational sector, the Government states that under article 8 of the National Enterprises and Specified Independent Administrative Institutions Labour Relations Law (NELRL), matters “of operation or management” are not negotiable but if a specific matter of operation or management affects working conditions, it may be subject to negotiation.
  619. 619 As regards public servants engaged in the administration of the State, the Government considers that this should depend on whether the employees concerned benefit from statutory terms and conditions of service. According to the Government, this derives from the discussions at the ILC when Convention No. 98 was adopted, and from previous decisions of the Freedom of Association Committee [12th Report, para. 43; 54th Report, para. 179; 139th Report, para. 174]. The Government adds that public employees in the operational sector have the right to bargain collectively, including the right to conclude collective agreements. Therefore, no problem exists in this respect in the application of Convention No. 98.
  620. 620 As regards the indiscriminate and total prohibition of the right to strike, the Government states that some restrictions are justified due to the distinctive status and public nature of the duties performed, an approach confirmed by the Supreme Court of Japan. However, public employees benefit from compensatory measures, including the NPA Recommendation System. While recognizing the ILO views in this respect, the Government considers that it should take into account the specifics of each country, such as its history and the tradition of labour relations in the public service. In addition, the duties of public employees covered by the NELRL involve services and operations that have a public component, since the failure to perform them could have seriously adverse effects on national life and social and economic stability. Public employees working in national enterprises and specified independent administrative institutions, like public employees in the non-operational sector, do not have the right to strike, but they have the right to negotiate and to conclude collective agreements. The compensatory measures for the prohibition of strikes have been considered acceptable by the ILO [Dreyer Report, paras. 2144, 2145].
  621. 621 As regards penal and administrative sanctions for violations of the strike prohibition, the Government states that since national and local public employees are legally prohibited from striking, disciplinary sanctions may properly be taken against those who participate in strikes in violation of this prohibition. Each authority concerned decides whether a sanction is warranted, and which one is appropriate, in view of particular circumstances. As regards public employees in the non-operational sector and employees of national enterprises and specified independent administrative institutions, penal sanctions, including imprisonment, are imposed only to those who conspire, instigate or incite other employees to strike, and not to those who simply participate. The Government’s practice in this respect conforms with principles of the Freedom of Association Committee [187th Report, paras. 135, 138].
  622. 622 As regards the recommendations of salary cuts, and the partial or non-implementation of recommendations of the NPA and the Personnel Commissions, the Government states the following:
• – the function of the NPA recommendations is to secure an appropriate salary level for public employees by adjusting it to general conditions of society, as a compensatory measure for restrictions of their fundamental rights. In April of each year, the NPA compares salaries paid in the private and public sectors and makes adjustment recommendations on that basis, both to secure the understanding of the general public and to maintain stable labour-management relations. The NPSL provides that revisions of 5 per cent or more (upward or downward) must be submitted to the Diet and Cabinet. The Government firmly maintains its policy of respecting the NPA recommendations. The partial or non-implementation of recommendations from 1982 to 1985 were exceptional measures due to social, economic and fiscal conditions, and public opinion; since 1986 the recommendations have been fully implemented. The fact that the 1999 and 2000 recommendations did not allow filling completely the gap between the public and private sectors is not an indication that the NPA system has lost its compensatory function for public employees. Rather, it is due to specific circumstances: in 1999, the salaries of high-ranking officials were not raised as had been the case in 40 per cent of private companies; in 2000, the salary gap between the public and private sectors was unusually small that it was technically difficult to make adjustments and it was decided instead to increase family allowances, to advantage employees with dependants most affected by successive cuts in bonus payments;
• – concerning local public employees, article 14 of the LPSL provides that local public bodies shall take measures to adapt working conditions, including salaries, to the general conditions of society, by considering such factors as the cost of living, salaries of State and other local public and private employees (as in the case of national public employees, local public employees may face pay cuts, to adapt salaries to those of private sector workers). A system of Personnel Commissions has been set up for that purpose. Where Personnel Commissions exist, local public bodies have made every effort to implement their recommendations; where there is no Personnel Commission, local public bodies have also made every effort to revise salary scales on the basis of NPA recommendations. In some cases, however, it was not possible to give effect to the pay raises, due to the local financial situation. Even in such cases, pay raises are postponed for a certain period rather than suppressing them altogether; this kind of measure has been taken only in a small number of cases. The Supreme Court of Japan has ruled that this does not mean that Personnel Commissions do not only fulfil their compensatory function. The Government therefore considers that the system for determining salaries has been functioning satisfactorily for many years;
• – as regards the specific examples given by RENGO concerning the alleged failure of the compensatory system, the Government states that these were cases where the local public bodies considered that pay increments were not immediately possible in view of economic, fiscal and financial circumstances; their implementation was postponed for a certain period. As of April 1999, there were 3,299 local public bodies; the examples given by RENGO represent only a small fraction of those; most local public bodies have in fact implemented the recommendations of the NPA or the Personnel Commissions.
  623. 623 As regards the non-application of legal provisions on unfair labour practices to public employees in the non-operational sector, the Government states that public employees in the non-operational sector have the right to organize and to participate in their activities to improve working conditions (article 108-2 of the NPSL; article 52 of the LPSL); these laws also protect them against unequal treatment or discrimination for these reasons (article 108-7 of the NPSL; article 56 of the LPSL). No unfair labour practices, such as refusal to negotiate, take place in practice.
  624. 624 As regards the neutrality and impartiality of NPA commissioners and members of the Personnel Commissions and Equity Committees, the Government states the following:
• – the NPA is a neutral and impartial administrative commission, composed of three commissioners, but not a tripartite body; commissioners enjoy a guarantee of status comparable to that of judge (they may not be dismissed except in limited cases specified by the NPSL, under an open impeachment procedure initiated by the Diet); commissioners must be at least 35 years old, have the highest moral character and integrity, respect democracy, have a sound judgement and an extensive knowledge of personnel administration; during the five previous years, they must not have occupied an influential political position, or have been candidate for elective public office; and no two commissioners can be members of the same political party, or graduates from the same university;
• – because they must have an expert and neutral point of view, members of Personnel Commissions and Equity Committees also have to fulfil strict legal requirements: they must have a high moral character, a solid understanding of local autonomy, democracy and personnel administration; two of the three members must not belong to the same political party; and they are subject to limitations of political activity; Personnel Commissions and Equity Committees are not tripartite bodies but are appointed by elected governors, upon consent of assemblies representative of residents. Therefore, they do not represent the interests of employees or of local public bodies, but are rather selected in view of their neutrality and impartiality to both workers and employers.
  625. 625 As regards compensatory measures for restrictions on fundamental labour rights in local public bodies other than Prefectures and designated cities, the Government reiterates in essence the information and arguments mentioned above regarding the non-implementation of recommendations of the NPA and Personnel Commissions, adding that local public bodies that do not have Personnel Commissions must set up Equity Committees, which have similar functions. The Supreme Court has ruled that these bodies have the necessary structures to secure the interests of public employees’ working conditions, from a neutral point of view (case of Iwate Prefecture Teachers’ Union, May 1976).
  626. 626 As regards the system of arbitration and rulings for national enterprises and specified independent administrative institutions, the Government states that collective bargaining takes place on working conditions and collective agreements may be concluded. In national enterprises, where wages and benefits are connected to state budget expenditures, some limitations are imposed on the effect of collective agreements: the approval of the Diet is therefore required. By contrast, no limitations are imposed on agreements or arbitration rulings for specified independent administrative institutions because their budget is not subject to the Government’s prior screening.
  627. 627 Finally, as regards the inter-ministerial conference on public employees’ problems, which ZENROREN says has been abolished in 1997, the Government states that it has in fact not been abolished and is still in operation; it met last on 30 July 2002.

C. The Committee’s conclusions

• General
  628. 628 The Committee notes that the allegations in this case concern the current and upcoming reform of the public service in Japan, as well as the procedure and methods used to plan and develop it. To support their allegations the complainants RENGO and ZENROREN give concrete examples of past situations which, in their view, demonstrate that the existing system is not functioning properly and that, as the Government intends to maintain some major features of this system, the same problems will not only continue but will be aggravated due to new difficulties arising from that reform. The Committee further notes that it has already examined some of these issues, the legislative aspects of which have been referred to the Committee of Experts on the Application of Conventions and Recommendations. Other aspects have been dealt with in earlier ILO reports and documents (including the Fact-finding and Conciliation Commission, the so-called “Dreyer Report”) or have been the subject of deliberations and recommendations in other ILO forums, including the Committee on Application of Standards of the International Labour Conference. Taking into account the bulk of documents and arguments submitted by both sides, the Committee finds it necessary at the outset to refocus the issues at hand and their respective importance in terms of freedom of association principles, in order to have a meaningful discussion.
  629. 629 Firstly, the Committee emphasizes that, even though the complaints give examples of past or alleged violations of freedom of association, the first and foremost issue in the present complaints is the reform plan as embodied in the General Principles (See Annex 1, which reproduces the table of contents of the reform, and the Preamble and “Basic concept” which expose its underlying philosophy and rationale). Rather than going back at length on all individual issues, many of which it has already examined in the context of previous complaints, the Committee will therefore focus its attention to the major aspects of this reform and recall principles that apply, as well as relevant ILO Recommendations made earlier in this respect. The Committee sincerely hopes that this approach will provide a renewed opportunity for social dialogue.
  630. 630 Secondly, as the Government has mentioned several times that account should be taken of national circumstances, such as the history of labour relations in the public service, the social and economic context, etc., the Committee points out that while it always considers such factors when examining a complaint, freedom of association principles apply uniformly and consistently among countries. When a State decides to become a member of the ILO, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 10] and all Governments are obliged to respect fully the commitments undertaken by ratification of ILO Conventions [Digest, ibid., para. 11].
  631. 631 Thirdly, the Committee notes that the Government has relied repeatedly on decisions of the Supreme Court of Japan to justify its position that some legal provisions are justified (e.g. prohibitions to organize, to strike) or that national or local institutions are appropriate (e.g. NPA, personnel commissions, equity committees). The Committee recalls that where national laws, including those interpreted by the high courts, violate the principles of freedom of association, it has always considered within its mandate to examine the laws in question and provide guidelines to bring them into compliance with the principles of freedom of association, as set out in the ILO Constitution and the applicable Conventions [Digest, ibid., para. 8].
• The contents of the reform
  632. 632 Concerning substantive issues, while it is too early to ascertain the actual contents of the amending provisions of the NPSL and the LPSL, and even less how the new system will be applied in practice, the Committee may express its views on the current provisions and situation, inasmuch as the Government intends to carry them into the future legislation. The Committee notes that the reform plan is an ambitious one, as shown by the table of contents, but that the Government has explicitly stated its firm intention to maintain some of the major features of the existing system, including the prohibition to organize for some categories of workers, the absence of collective bargaining rights for the majority of public employees, the existing institutions and methods of compensation for workers whose fundamental labour rights are restricted and a total prohibition of the right to strike.
• Right to organize
  633. 633 As regards the right to organize, the Committee recalls that all public service employees should, like private sector workers, be able to establish organizations of their own choosing to further and defend the interests of their members [Digest, op. cit., para. 206] with the sole possible exception of armed forces and police, as indicated in Article 9 of Convention No. 87, an exclusion which should be defined in a restrictive manner. Fire service personnel and prison staff should therefore enjoy the right to organize [see to the same effect, Freedom of association and collective bargaining, General Survey, 1994, ILC, 81st Session, 1994, para. 56]. While noting the Government’s observations on Fire-defence personnel committees, the Committee recalls that this issue has been outstanding since 1965, has been the subject of several unambiguous recommendations of this Committee and the Committee of Experts, and of numerous discussions in other ILO forums, including the debate in the Conference Committee on Application of Standards at the 2001 International Labour Conference. Despite the Government’s view that the fire?defence personnel committees are functioning smoothly, the evidence submitted here shows that they are not in place everywhere and, where they exist, there are still problems. The bottom line is that fire-fighters in Japan are not allowed to organize freely, and that representative organizations keep requesting the granting of that right. Recalling, once again, that the right to organize and the right to strike are two distinct matters, the Committee urges the Government to amend its legislation in this respect so that fire-defence personnel and prison staff may establish organizations of their own choosing.
• Registration of workers’ organizations
• without prior authorization
  634. 634 RENGO cites the example of 18,000 administrative and clerical staff who were transferred to IAIs and thus became covered by the NELRL and had to resign from the unions to which they belonged; it also mentions the situation of local public employees’ unions, where one independent union must be established for each local government, which has the effect of fragmenting union. RENGO argues that the registration system is therefore a major obstacle to form organizations, tantamount to a denial of the right to organize without prior authorization. The Government replies that the system in place is used to verify that employees’ organizations are authentic, independent and democratic, and that local organizations may join federations and confederations.
  635. 635 As regards organizations of local employees, the Committee recalls that it has already examined this issue in 1974, in the context of a series of complaints against Japan [Cases Nos. 737-744, 139th Report, paras. 95-220] and concluded that the “effect of the registration system is to perpetuate the horizontal and vertical subdivision of local public employees’ organizations into small units, as already pointed out by the Fact-Finding and Conciliation Commission”. Considering that an excessive fragmentation of trade unions is likely to weaken them and their action in defence of workers’ interests, the Committee can only reiterate this view and recommends that the appropriate amendments be adopted, as part of the legislative reform, to allow public employees at local level to establish organizations of their own choosing without being subject to measures tantamount to prior authorization.
  636. 636 As regards the 18,000 employees transferred to IAIs, the evidence submitted does not indicate whether, upon transfer, they were prevented from joining organizations of their own choosing without prior authorization. The Committee therefore requests the Government and RENGO to provide further information in this respect.
• Scope of exclusion of management personnel
  637. 637 As regards the exclusion of management personnel from bargaining units, RENGO alleges that the scope of managerial exclusions is too wide and often decided unilaterally; it gives one example (Oouda-cho, Nara Prefecture) where this had the result of virtually destroying the union. The Government replies that such decisions are made by neutral third-party bodies on the basis of job duties and that the case concerning the situation at Oouda-cho is before the courts.
  638. 638 The Committee recalls that it is not necessarily incompatible with the requirement of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interests; and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers, by depriving them of a substantial proportion of their present or potential membership [Digest, op. cit., para. 231]. In addition, legal provisions which permit employers to undermine workers’ organizations through artificial promotions of workers constitute a violation of freedom of association principles [Digest, op. cit., para. 233]. On the basis of evidence submitted regarding the Oouda-cho case, the Committee is not in a position to appreciate whether this case is an isolated one or reflects a generalized problem. The Committee notes however that this situation started on 4 July 1997 when the local authorities promoted the President, Vice-President and General Secretary of the union to positions of assistant chiefs, and that the Equity Commission suspended the union’s registration in May 1998, and cancelled it on 1 February 1999. The union brought a lawsuit which is still pending before the courts. The Committee therefore brings the Government’s attention to the above principles regarding managerial exclusions and emphasizes that these decisions should be made by bodies which are not only neutral but considered as such by all concerned. Noting with concern that in Oouda-cho, the trade union’s registration was cancelled and that more than five years have elapsed since the beginning of that dispute, the Committee strongly hopes that this proceeding will be completed soon and requests the Government to keep it informed of the decision once it is issued.
       • Full-time union officers
  639. 639 The complainant RENGO alleges in this respect that the decision to grant workers the status of full-time union officer while keeping their public employee status is left at the discretion of the employer. The Government replies that in practice, leaves of absence are granted to workers to serve as full-time union officers, unless it hinders the operation of service, and that the NPA has fixed at seven years (non-renewable) the duration of service as full-time union officer. The Committee recalls that freedom of association implies the right of workers to elect their representatives in full freedom [Digest, op. cit., para. 350] and that it should be left to the unions themselves to set the periods of term of office [Digest, op. cit., para. 359]. The Committee therefore recommends that the appropriate amendments be adopted, as part of the legislative reform, to allow public employees’ unions to set themselves the term of office of full-time union officers, so that the right of workers to elect their representatives in full freedom be recognized in law and in practice.
• Right to strike
  640. 640 Concerning the right to strike, the Government reiterates its stand that the general prohibition is justified due to the distinctive nature and duties of public employees. It intends to maintain this blanket strike interdiction for public employees in the future legislative framework.
  641. 641 The Committee recalls, amongst its numerous principles on the right to strike, that this right is a fundamental right of workers and their organizations, and that public servants should enjoy it, with the following possible exceptions: members of the armed forces and the police, public servants exercising authority in the name of the State, workers employed in essential services in the strict sense of the term, or in situations of acute national crisis. Workers who may be deprived of this right or have it restricted, and therefore lose an essential means of defending their interests, should be afforded appropriate guarantees to compensate for these prohibitions or restrictions, e.g. adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented. In addition, workers and union officials should not be penalized (and in this particular instance, face the heavy criminal and administrative sanctions currently applicable) for carrying out legitimate strikes. See the principles elaborated in this respect [Digest, op. cit., paras. 473?605]. The Committee therefore requests the Government to amend its legislation, as part of the reform process, to bring it into conformity with these principles.
• Collective bargaining
  642. 642 The allegations in this respect concern: the categories of workers not entitled to bargain collectively; the excessive restrictions on the scope of bargaining; the inadequate compensatory measures for the bargaining restrictions; and the unsatisfactory implementation of recommendations made by the competent bodies.
  643. 643 The Committee notes that some allegations in these respects are common to both complaints, that other allegations are submitted by either one of them, but not the other(s), and that the Government’s observations sometimes cover the former, sometimes the latter, and sometimes both. Rather than going in minute detail into each and every allegation, the Committee, here too, will recall its main principles, inasmuch as they are germane to the allegations.
  644. 644 As regards the categories of workers that are deprived, partially or totally, of the right of collective bargaining, the Committee recalls that this is a fundamental right of workers, that it should be recognized throughout the private and public sectors, with the sole possible exception of the armed forces and the police and public servants engaged in the administration of the State. A distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions: only the former category can be excluded from the scope of Convention No. 98 [Digest, ibid., para. 794]. The Committee of Experts has also emphasized that the mere fact that public servants are white-collar employees is not in itself conclusive of their qualification as employees engaged in the administration of the State; if this were not the case, Convention No. 98 would be deprived of much of its scope [General Survey, ibid., para. 200]. To sum up, all public service workers, with the sole possible exclusion of the armed forces and the police and public servants directly engaged in the administration of the State, should enjoy collective bargaining rights. The Committee therefore requests the Government to amend its legislation, as part of the reform process, to bring it into conformity with these principles.
  645. 645 As regards ZENROREN’s allegation (Case N° 2177) that the planned reform mainly concerns general administrative categories of public employees and that the case of other public employees (e.g. municipal employees and teachers) has not been examined, the Committee points out that the above principles are applicable to them as well. As regards more particularly teachers, the Committee refers to its recent decision concerning the Okayama high-school teachers [Case No. 2114, 328th Report, paras. 371-416] where it pointed out that teachers should have the right to bargain collectively, and to its follow-up comments in the introduction of the present report.
  646. 646 Concerning the scope of bargaining, the Committee notes that both RENGO and ZENROREN submit that the matters excluded from negotiation are much too wide. They add that the reform provides that more working conditions will be determined by law, which means further deterioration in future. The Government replies that matters of “operation or management” in both the operational and non-operational sectors (without explaining what these categories include) are not negotiable but that working conditions that may be affected by matters of operation or management may be negotiated. The Committee recalls that while certain matters clearly appertain primarily or essentially to the management and operation of government business and can therefore be reasonably regarded as outside of the scope of negotiation, some other matters are primarily or essentially questions relating to conditions of employment and should not be regarded as falling outside the scope of collective bargaining [Digest, ibid., para. 812]. The Committee requests the Government to engage in dialogue on this issue with trade unions in the context of the reform.
  647. 647 As regards the issue of compensatory measures for public sector workers whose basic labour rights are restricted, both RENGO and ZENROREN complain about the inadequacy of the present system (the incomplete or late implementation of recommendations made by the competent bodies at national or local level), the reduced role assigned in future to the NPA and the corresponding extension of government and cabinet powers under the reform plan; they also point out that there are no local personnel commissions set up in the overwhelming majority of cities, towns and villages. The Government states, as explained in the Preamble of the General Principles, that a drastic reform of the public service is necessary to meet new challenges and to adapt it to the changing circumstances and demands of society; as regards those instances where the recommendations of the NPA or local bodies were not implemented, the Government submits that these were not the majority of cases, that when such situations arose they were due to severe fiscal and financial circumstances and, in any event, that the recommendations were not disregarded completely but that their implementation was only postponed.
  648. 648 The Committee should first point out that it is part of the Government’s executive responsibility to decide whether it wishes to initiate and implement a reform of the civil service, what body it wants to entrust with that task, whether it wishes to shift more responsibilities on cabinet and ministers for management and personnel matters, and whether it wants to transfer some duties and functions hitherto executed by the public service to private or semi-public entities. However, it is clearly within the Committee’s mandate to examine whether, in proceeding with such a reform, the Government acts in conformity with freedom of association principles that have been recalled above as regards workers who should be entitled to bargain collectively. As regards compensatory measures for other workers, the Committee notes from the General Principles that the Government intends to maintain the same type of system and to reduce the role of the NPA. The Committee recalls that it has repeatedly expressed its views on this exact issue as concerns Japan [see, for instance, 139th Report, para. 122; 142nd Report, para. 125; 222nd Report, para. 164; 236th Report, para. 270; to quote only a few instances dating back 20 years or more] and expressed its doubts that the method of determination of terms and conditions of employment ensured the confidence of the parties concerned. The Committee pointed out several times, and recalls once again here, that whenever such a basic right as the right to bargain collectively in the civil service is forbidden or subject to restrictions, adequate guarantees, such as speedy and impartial arbitration procedures in which the parties can take part at every stage and in which the awards, once made, are fully and promptly implemented, should be put in place to safeguard fully the interests of the workers thus deprived of an essential means of defending their occupational interests. As the Committee had pointed out as early as 1974, steps could be taken to ensure that the various interests are fairly reflected in the numerical composition of the commissions, and to consider also the advisability of providing that each of the parties concerned shall have an equal voice in the appointment of members of the commissions [139th Report, para. 162]. According to the evidence submitted, it does not appear that the situation has changed significantly in recent years, and the Committee has some difficulty understanding how the General Principles address these fundamental issues. The Committee therefore requests the Government to amend its legislation, as part of the reform process, to bring it into conformity with the above principles.
• Unfair labour practices
  649. 649 The Committee notes the contradictory statements of the complainants (who state that the public service employees do not enjoy the same protection as private sector workers as regards unfair labour practices) and the Government. It requests them to provide further information on the law and practice in this respect.
• The consultation process
  650. 650 The Committee notes that the positions of the complainants and the Government are completely at odds on this issue. RENGO states for instance that it has repeatedly made known its opposition to the maintenance of the restrictions on fundamental labour rights and expressed its dissatisfaction with the compensatory measures, but that its views were never taken into account, as shown by the current text of the General Principles which maintains the status quo; ZENROREN and JICHIROREN hold similar views. The Government states for its part that the initial document was never intended to be discussed with workers’ organizations, and that the following ones have indeed been discussed with them: 27 sessions for a total of 14 hours in the case of the Framework for Civil Service reform; 77 sessions for a total of 66 hours as regards the General Principles. The Government adds that the document on General Principles was only presented to workers’ organizations seven days before its adoption by the Cabinet because the authorities needed time to examine this important issue.
  651. 651 The Committee recalls that it has generally emphasized the importance that should be attached to full and frank consultations taking place on any questions or proposed legislation affecting trade union rights [Digest, op. cit., para. 927]. More particularly, it has often drawn the attention of governments to the importance of full and detailed consultations before the introduction of draft legislation affecting collective bargaining and conditions of employment [Digest, op. cit., paras. 930-931]. In addition, where a government seeks to alter bargaining structures in which it acts actually or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned; such consultations imply that they be undertaken in good faith and that both partners have all the information necessary to make an informed decision [Digest, op. cit., para. 941]. As acknowledged by the Government and explicitly mentioned in the Preamble of the General Principles, the planned reform of public service is a drastic one; it would therefore seem all the more important that meaningful consultations be held in good faith when proceeding to such a major reform, the first in some 50 years, which is going to affect large numbers of public employees. Based on the evidence and arguments adduced, the Committee is bound to conclude that whilst a number of meetings were held, the views of representative organizations of public employees, at national and local levels, might have been listened to but were not acted upon. For all practical purposes, the Government maintains that the present system is in conformity with Conventions and principles on freedom of association, that the restrictions on fundamental rights are appropriate in view of the special status and duties of public employees, that the existing compensatory measures function properly, in short that the status quo should prevail. As regards the Government’s argument that the document on General Principles was only presented to workers’ organizations seven days before its adoption by the Cabinet because the authorities needed time to examine this important issue, the Committee points out that this matter is equally, if not more, important for workers’ organizations, which would have needed more time to study the Government’s position and table constructive counter-proposals. While recognizing that there comes a time when decisions have to be made, the Committee considers that it would be beneficial for all concerned, and for the development of stable and harmonious professional relations in the public sector, that full, frank and meaningful consultations be held on the rationale and substance of the public service reform, with a view to obtaining a larger consensus on the subject. In these circumstances, and taking into account that the legislative amendments are to be presented to the Diet by the end of 2003, the Committee strongly recommends that the Government launch rapidly such wide consultations with all parties concerned, with a view to amending the legislation and bringing it into conformity with freedom of association principles. It also recalls to the Government that the technical assistance of the Office is available should it so desire.

The Committee's recommendations

1. 652. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Government should reconsider its stated intention to maintain the current restrictions on the fundamental labour rights of public employees.
   • (b) The Committee strongly recommends that full, frank and meaningful consultations be held soon with all parties concerned on the rationale and substance of the public service reform to obtain a wider consensus on the subject, and with a view to amending the legislation and bringing it into conformity with freedom of association principles. These consultations should notably address the following issues, concerning which the legislation and/or practice in Japan are in violation of the provisions of Conventions Nos. 87 and 98:
   • (i) granting fire-defence personnel and prison staff the right to establish organizations of their own choosing;
   • (ii) amending the registration system at local level, so that public employees may establish organizations of their own choosing without being subject to measures tantamount to prior authorization;
   • (iii) allowing public employees’ unions to set themselves the term of office of full-time union officers;
   • (iv) granting public employees not directly engaged in the administration of the State the right to bargain collectively and the right to strike in conformity with freedom of association principles;
   • (v) as regards workers whose collective bargaining rights and/or right to strike may be legitimately restricted or prohibited under freedom of association principles, establishing appropriate procedures and institutions, at national and local level, to compensate adequately these employees deprived of an essential means of defending their interests;
   • (vi) amending the legislation so that public employees who exercise legitimately their right to strike are not subject to heavy civil or criminal penalties.
   • (c) The Committee requests the Government and RENGO to inform it as to whether the 18,000 employees transferred to independent administrative institutions were able to establish or join organizations of their own choosing without prior authorization.
   • (d) The Committee requests the Government to provide it with the court decision concerning the case at Oouda-cho (Nara Prefecture).
   • (e) The Committee also requests the Government to engage into meaningful dialogue with the trade unions concerning the scope of bargaining matters in the public service.
   • (f) The Committee requests the Government and the complainants to provide further information on the prevailing law and practice as regards the procedure of redress for unfair labour practices.
   • (g) The Committee requests the Government to keep it informed of developments on all the above issues and to provide copies of the proposed legislative texts.
   • (h) The Committee recalls to the Government that the technical assistance of the Office is available should it so desire.
   • (i) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Z. Annex

• [Extracts; unofficial translation]
• General Principles for Public Service Reform
• CONTENTS
• I. Realization of adequate personnel and organizational management
• in the entire government .......................................................................................................
  1. 1 Basic concept ..................................................................................................................
  2. 2 Direction for new personnel and organizational management
• for the entire government ...............................................................................................
  1. (1) Law stipulating clearer rules concerning personnel and
• organizational management ...................................................................................
  2. (2) Realigning the functions of the Cabinet and the independent organ .....................
  3. 3 Realigning the Cabinet’s functions and those of the independent organ in
• the concrete system ......……...........................................................................................
  1. (1) Recruitment of employees .....................................................................................
  2. (2) Allocation of staff, human resource development and codes of conduct ..............
  3. (3) Matters relating to working conditions ..................................................................
• II. Summary of the New Public Service System
  1. 1 Construction of a new personnel system ........................................................................
  1. (1) Introducing a competence-based grading system ..................................................
  2. (2) Establishing a new appointment system based on competence-based grading......
  3. (3) Establishing a new salary plan which reflects competence,
• responsibility and achievement ..............................................................................
  4. (4) Introducing a new evaluation system based on the assessment
• of competence and achievement ............................................................................
  5. (5) Setting organizational objectives and establishing a code of conduct ...................
  6. (6) Devising a mechanism to develop human resources...............................................
  7. (7) Introducing a mechanism to systematically foster staff as candidates
• for executive officers in the central government.....................................................
  8. (8) A new personnel system for senior executive staff members .................................
  9. (9) Considerations for developing the competence and initiative of
• public employees ..................................................................................................
  2. 2 Securing diverse human resources ..................................................................................
  1. (1) Reviewing the recruitment examination system......................................................
  2. (2) Securing personnel from the private sector ............................................................
  3. (3) Active use of open recruitment ...............................................................................
  4. (4) Expanding recruitment and promotion of women ..................................................
  3. 3 Establishing appropriate outplacement rules ....................................................................
  1. (1) An approval system and conduct regulations regarding the outplacement
• to profit-making companies .......................................................................................
  2. (2) Rules regarding the outplacement to special
• corporations, etc. ........................................................................................................
  3. (3) Rules regarding the outplacement to public utility
• corporations ................................................................................................................
  4. (4) Disclosure system regarding outplacement status in general .....................................
  5. (5) Reviewing the retirement allowance scheme .............................................................
  4. (4) Expanding recruitment and promotion of women .....................................................
  4. 4 Improving organizational performance ...............................................................................
  1. (1) Mobile and flexible management of organizations and staff size ..............................
  2. (2) Creating National Strategy Staff ...............................................................................
  3. (3) Reducing overtime work, etc. ....................................................................................
• III. Future schedule for reform ...........................................................................................................
  1. 1 Guideline on how to reform the national public service system, etc. ..................................
  1. (1) Timetable for enacting the relevant laws ...................................................................
  2. (2) Review on public employees other than those in regular service ..............................
  2. 2 Reform of the local public service system its timetable .....................................................
• General Principles
• for
• Public Service System Reform
• (decided by the Cabinet on 25 December 2001)
• Tentatively translated into English by
• International Policy Division,
  • JTUC-RENGO
• Japan is currently under severe conditions, as its continuous economic growth came to an end, and it is now forced to find diverse national values within constrictions of available resources.
• We are faced with many difficult challenges related to problems such as an accumulation of large fiscal deficits and social security problems. We cannot spare even a moment before embarking on exploring the right direction to our future. Under such circumstances, the total quality of government’s policies as they are planned and executed is under strict scrutiny.
• In recent years, the central government has placed a new priority on administrative reforms and promoted them actively by implementing a new set up in the Ministries of the central government as well as enhancing the Cabinet functions.
• However, public workers who support the organization and operation of public administration are stringently criticized for having become less reliable on policy planning capability, sticking to precedent-based practices, and lacking in cost consciousness and service-oriented attitude.
• In order to realize public administration which truly caters to the needs of the people, it is essential to radically reform the attitude and behaviour of public employees and it is important to review the public service system which largely influences the attitude and behaviour of public employees.
• In reviewing the public service system, it is necessary to aim to greatly improve the government’s performance, while striving to ensure the expertise, neutrality, efficiency, continuity and stability required for public services. It is also essential to secure the personnel who can immediately respond to administrative needs, to create an environment where public workers can demonstrate their full abilities while competing with each other, and to allow organizational structures to be flexibly and quickly restructured to become optimum for current needs. Further, it is important for public employees, who are the foundation of public administration, to be able to perform their jobs with a high sense of mission and fulfilment, by trying to improve their capabilities and choosing from diverse career paths, while securing the trust of the people.
• Thus, it is now required to design the system from the standpoint of “What is the public administration expected by the people and truly essential to the people?”.
• On the basis of such a perspective, the proposed public service system reform holds as its basic concept the realization of public administration geared to the needs of the people and aims to reform the very basis of administration by drastically reforming the public service system from the standpoint of the people.
• At the same time, comprehensively taking into consideration how to assure stable and continuous public services and how reforms are to affect the life of Japanese people, the current restrictions placed on the fundamental labour rights of public workers shall be maintained, while ensuring adequate compensatory measures.
• I. Realization of adequate personnel
• and organizational management
• in the entire government
  1. 1 Basic concept
• In order to meet the needs of the times, to formulate comprehensive and strategic policies from the national perspective and to provide administrative services responsively and efficiently, it is essential that the Cabinet and the Ministries responsible for administrative management should adequately manage personnel and organizational matters.
• The government is now faced with problems: inflexible policies are unable to meet administrative requirements which have become complex and sophisticated and the administrative system now suffers from institutional fatigue causing inefficient work performance. These problems are partly due to the fact that the government’s ministries have failed to manage personnel and organizational matters actively and responsibly because they are short of clear sense of personnel management.
• In an environment where administrative requirements have become complex and sophisticated, calling for mobility in administrative operations, the government has introduced new mechanisms for information disclosure and policy assessment, etc. to shift the direction of public administration towards performing administrative operations transparent and clearly accountable to the people, so that correct policy judgment can be maintained without deferring problems.
• However, the current personnel and organizational management framework which requires prior and detailed checks for individual cases partly restricts the mobility with which each competent Minister performs administrative tasks utilizing human resources, etc. Furthermore, the Cabinet must formulate adequate policies in order for each competent Minister to be able to manage personnel matters in a way meeting the practical needs of administrative tasks. In actuality, however, it is difficult to say that the Cabinet has fully performed this responsibility, as it is largely dependent on the independent organ.
• Therefore, it is required that the framework of personnel and organizational management for the entire government be reorganized so that, under a system open to the people, the Cabinet responsible to the Diet, which represents the people, and the competent Ministers, who comprise the Cabinet, can actively and responsibly perform tasks involving personnel management of public employees, who support public administration, while securing the neutrality and equity of personnel administration. It is also necessary that the prior and detailed institutional restrictions placed by the central personnel administrative bodies must be reviewed and that the Cabinet and competent Ministers will manage personnel and organizational affairs with mobility and flexibility.
• On the other hand, under the present circumstances where the fundamental labour rights are restricted for public employees, it is necessary to provide for a framework to assure proper treatment of public employees.
• With an awareness described above and from the standpoint of drastically reforming the public service system, a new framework shall be constructed to realize adequate personnel and organizational management for the entire government.
  2. 2 Direction for new personnel and organizational management for the entire government
  1. (1) Law stipulating clearer rules concerning personnel and organizational management
• With a grand principle of having public workers placed under democratic control, the framework of the new public service system must be legally stipulated. Therefore, how public workers should be, the purpose of personnel system, the framework and other important standards shall be clearly stipulated by law.
  2. (2) Realigning the functions of the Cabinet and the independent organ
  1. 1 Clarifying the active responsibility and authority of each competent Minister who will be designated as the person competent for Personnel Management
• Each competent Minister shall realize mobile and efficient operations of administrative tasks through adequate and flexible personnel and organizational management, fully and fairly utilizing the human resources in the administrative organizations within his or her jurisdiction.
• In order to realize this, each competent Minister shall be clearly designated as the Person Competent for Personnel Management, who, with his or her own judgment and responsibility, shall design and operate personnel and organizational affairs within his or her jurisdiction.
• The Person Competent for Personnel Management shall actively and responsibly be in charge of personnel management in general as provided by law, and shall perform flexible organizational management through managing the matters concerning the organization and staff size to be made elastic by the proposed reform as well as through active position management.
• Each Ministry shall strengthen the bureaux in charge of personnel and organizational matters in order to implement adequate and flexible personnel and organizational management.
  2. 2 Strengthening the Cabinet’s function of policy
• planning and comprehensive coordination of
• personnel administration
• From the standpoint of being jointly accountable to the Diet which represents the people, the Cabinet shall, under democratic control, deal responsibly with designing and planning policies regarding the public service system.
• The Cabinet shall actively perform its function to formulate policies regarding personnel administration by drafting bills and enacting ordinances as delegated by law and shall lay rules necessary for the Person Competent for Personnel Management to manage personnel and organizational matters appropriately and flexibly. Secondly, the Cabinet shall be able to request the National Personnel Authority to act concretely to review the matters as delegated to the National Personnel Authority regulations by law, with a view to securing appropriate administrative management. Due consideration shall be paid to the relationship between the Cabinet and the National Personnel Authority in designing the new system.
• Thirdly, the Cabinet shall have a strengthened function to coordinate in a comprehensive manner the personnel management conducted by the Person Competent for Personnel Management, so as to maintain integral personnel administration.
  3. 3 Protecting the interests of personnel and ensuring
• the neutrality and equity of personnel administration
• by the independent organ
• The National Personnel Authority, from the standpoint of protecting personnel’s interests and ensuring the neutrality and equity of personnel administration, shall state its opinions as required to the Diet and the Cabinet, and stipulate the National Personnel Authority Rules as delegated by law. Further, the National Personnel Authority shall continue to be involved in setting working conditions such as salary.
  4. 4 Relief system
• In order to deal properly with cases where public employees suffer from disadvantages regarding personnel management, proper grievance measures to be taken by the Person Competent for Personnel Management shall be studied and the relief measures by the National Personnel Authority shall be improved and reinforced, so that public service employees suffering from disadvantages shall be entitled to fair and adequate relief measures to be taken by the National Personnel Authority.
  3. 3 Realigning the Cabinet’s functions and those of the independent organ in the concrete system
• According to (2) above, the functions of the Cabinet and those of the independent organ in the concrete system shall be realigned.
  1. (1) Recruitment of employees
• In order to secure employees who meet the practical needs of administration, the Person Competent for Personnel Management shall play a central role in recruitment. The Cabinet shall plan and formulate policies regarding the recruitment system and ensure smooth recruitment of human resources required by each Ministry.
  2. (2) Allocation of staff, human resource development and codes of conduct
• In order for the Person Competent for Personnel Management to perform swift and efficient management of administration in matters within his or her jurisdiction, he or she shall appoint personnel to appropriate positions, foster human resources by training and other means, adequately manage employees’ observance of service regulations including their observance at the time of retirement. The Cabinet shall plan and formulate policies regarding the personnel management system required for personnel allocation, human resource development and service regulation management conducted by the Person Competent for Personnel Management and perform necessary coordination in order to assure standardized personnel management.
• From the point of view of protecting employees’ interests and securing the neutrality and equity of personnel administration, the National Personnel Authority shall carry out, according to a predetermined clear standard, ex post checks such as issuing recommendations for improving personnel administration practices to the Person Competent for Personnel Management.
  3. (3) Matters relating to working conditions
• Under the principle of democratic fiscal system and statutory working conditions, the National Personnel Authority shall be involved in matters relating to working conditions. The National Personnel Authority shall design the salary standard, make recommendations to the Diet and the Cabinet and express opinions to the Diet and the Cabinet on the number of employees for each competence grade which will determine the staff size. In addition, the National Personnel Authority shall be able to make each Ministry act flexibly through standardization of working conditions and ex post checks.