Rapport définitif - Rapport No. 336, Mars 2005

Cas no 2315 (Japon) - Date de la plainte: 03-JANV.-04 - Clos

Allegations: The complainant organization alleges that it is denied the right to bargain collectively on the ground that it is not registered with the Personnel Commission of the local authority in Higashiura-cho

1. 540. The complaint is contained in a communication from the Aichi School Community Union (ASCU) dated 3 January 2004.
2. 541. The Government replied in communications dated 29 October 2004 and 21 January 2005.
3. 542. Japan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• . The complainant’s allegations
  543. 543 In its communication dated 3 January 2004 the complainant indicates that ASCU is a trade union organized by teachers of elementary, junior high and high schools in Aichi Prefecture. It was formed in March 1989 and registered in April of the same year as a trade union at the Personnel Commission of Aichi Prefecture, in accordance with the provisions of article 53 of the Local Public Service Law. ASCU is not an affiliate of a national trade union.
  544. 544 The complainant alleges that local boards of education and school principals deny it the right to collective bargaining on the ground that it is not registered with the local authority of Higashiura-cho in the Aichi Prefecture. In particular, the complainant states that in April 1997, Itsuo Suzuoki, the present Chairman of ASCU, took his post as teacher at Seibu Junior High School, in the town of Higashiura-cho in Chita-gun, Aichi Prefecture. He joined the ASCU in March 1998. In April 1998, ASCU made a request to the principal of Seibu Junior High School for collective bargaining pursuant to article 55 (Negotiations) of the Local Public Service Law, in order to negotiate on matters pertaining to the working conditions of employees. The principal refused to enter into collective bargaining, on the ground that ASCU was not a trade union registered at the Personnel Commission of the local authority in Higashiura-cho. As of August 2003, ASCU has made some 20 requests for collective bargaining which have been refused by the principal of the Seibu Junior High School on the same grounds. In the meantime, the Board of Education of Higashiura-cho and the Board of Education of Aichi both refused to direct the principal to engage in collective bargaining with ASCU, on the ground that ASCU was not a trade union registered at the Personnel Commission of the local authority in Higashiura-cho. In August 2000, ASCU filed a lawsuit against the Higashiura-cho local governing body, as superintendent of the principal of the school. In July 2001, the Nagoya District Court rejected the plaintiff’s claim on the ground that the principal was under no obligation to engage in collective bargaining because ASCU was not a trade union registered at the Personnel Commission of the local authority in Higashiura-cho. An appeal to the Nagoya High Court was similarly dismissed. In May 2003, ASCU appealed to the Supreme Court where the case is still pending.
  545. 545 The complainant considers that the decision of the Nagoya High Court violates Article 2 of Convention No. 87 because it makes a distinction between registered and unregistered trade unions with regard to local government employees’ right to collective bargaining.

B. The Government’s reply

1. 546. In its communications dated 29 October 2004 and 21 January 2005, the Government indicates the facts of the case as follows. The complainant is an employees’ organization formed by teachers at elementary, junior high and senior high schools in Aichi Prefecture and has been registered with the Personnel Commission of Aichi Prefecture. When the complainant proposed collective negotiations to the principal of Nishibe Junior High School at Higashiura-cho in Aichi Prefecture, the principal refused because ASCU is not an employees’ organization registered with the Equity Commission of the local authority in Higashiura-cho. The ASCU expressed dissatisfaction with this and decided to bring action for damages against the local governing body of Higashiura-cho before the Nagoya District Court. The lawsuit was dismissed in July 2001. The ASCU then appealed against the ruling to the Nagoya High Court but the appeal was dismissed in February 2003. The complainant then appealed the matter to the Supreme Court, which dismissed the appeal in a final ruling of 28 September 2004.
2. 547. The Government further indicates that registration is aimed to verify that an organization is democratic, and the provisions of the Local Public Service Law provide that the local authorities shall be obliged to affirmatively respond to a proposal for negotiations made by an employees’ organization which has been registered with the Personnel Commission or Equity Commission. On the contrary, the local authority is not obliged to accept a proposal for negotiations made by an employees’ organization which has not been registered, even if the said employees’ organization is registered with the Personnel Commission or the Equity Commission of another local government. Whether a local authority accepts a proposal for negotiations made by a non-registered employees’ organization is a matter of discretion and not a legal obligation. Nevertheless, local authorities should, generally speaking, make every effort to respond to a request for negotiation. The Local Pubic Service Law does not prevent non-registered employees’ organizations from negotiating with local authorities, as the provisions concerning negotiation procedures do not exclude non-registered organizations. Moreover, all employees’ organizations have capacity to negotiate with the authorities, whether they are registered or not.
3. 548. The Government adds that although the specific claimant in this case is the sole member of the ASCU (the complainant) who belongs to the Higashiura-cho office and cannot by himself form an employees’ organization in the Higashiura-cho office, under the provisions of the Local Public Service Law, a local public employee can request administrative measures to improve employees’ working conditions, such as working hours, to the Equity Commission. The Government finally notes that the principal and vice-principal of Seibu Junior High School have been regularly discussing with the complainant (for example, more than 30 times between April 1999 and March 2000). The Board of Education of Higashiura-cho also met with the complainant on 25 August 2000.

C. The Committee’s conclusions

1. 549. The Committee notes that this case relates to allegations that the complainant is denied the right to bargain collectively on the ground that it is not registered with the Personnel Commission of the local authority in Higashiura-cho.
2. 550. The Committee notes that the facts of this case are as follows. Since April 1998 the principal of Nishibe Junior High School at the Higashiura-cho municipality in Aichi Prefecture has been refusing repeated calls by the complainant to engage in collective negotiations on the ground that the complainant is not an employees’ organization registered with the Personnel Commission of the local authority in Higashiura-cho although it is registered with the Personnel Commission of the Aichi Prefecture. The Boards of Education of Higashiura-cho and Aichi both refused to direct the principal to engage in collective bargaining with the complainant on the abovementioned grounds. Nevertheless, meetings were held according to the Government between the complainant and the school administration as well as the Board of Education of Higashiura-cho. The complainant initiated court action against the Higashiura-cho local governing body but its lawsuit and a subsequent appeal were dismissed by the Nagoya District Court and the Nagoya High Court respectively. The complainant then appealed the matter to the Supreme Court, which rejected the appeal in a final ruling of 28 September 2004.
3. 551. The Committee notes that according to the complainant the decision of the Nagoya High Court (prior to the Supreme Court’s final ruling) violated Article 2 of Convention No. 87 because it made a distinction between registered and unregistered trade unions with regard to local government employees’ right to collective bargaining.
4. 552. The Committee notes that according to the Government, registration, which is a system to verify that an employees’ organization is democratic, must take place with the Personnel Commission or the Equity Commission of the local authority in which such employees’ organization seeks to engage in collective bargaining. Under the Local Public Service Law the local authorities are obliged to affirmatively respond to a proposal for negotiations made by an employees’ organization which has been registered. On the contrary, the Local Pubic Service Law does not prevent non-registered employees’ organizations from negotiating with local authorities. Nevertheless, local authorities should make every effort to respond to a request for negotiation. The complainant has only one member in the Higashiura-cho locality and thus cannot form an employees’ organization in the Higashiura-cho office. Under the provisions of the Local Public Service Law, a local public employee can individually request administrative measures to improve employees’ working conditions, such as working hours, to the Equity Commission.
5. 553. The Committee understands from the above that the present chairman of the complainant who is a teacher at Seibu Junior High School, is the sole member of the complainant in the Higashiura-cho locality. Thus, he cannot register an employees’ organization by himself in the Higashiura-cho office. As a result, the employer (i.e. the principal of Nishibe Junior High School) has discretion to decide whether to accept the complainant’s invitation to negotiate and in any case, the refusal to do so cannot be considered as unreasonable. In light of the above, the Committee considers that this case does not call for further examination.

The Committee's recommendations

1. 554. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.