Rapport intérimaire - Rapport No. 378, Juin 2016

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

Allegations: At its origin, the complainants had alleged that the reform of the public service legislation was developed without proper consultation of workers’ organizations, further aggravating the existing public service legislation and maintaining the restrictions on the basic trade union rights of public employees, without adequate compensation. Following extensive consultations, they now demand rapid guarantees for their basic labour rights

1. 420. The Committee has already examined the substance of these cases on nine occasions, most recently at its June 2014 meeting, when it presented an interim report to the Governing Body [372nd Report, paras 328–375, approved by the Governing Body at its 321st Session (June 2014)].
2. 421. The National Confederation of Trade Unions (ZENROREN) (Case No. 2183) submitted additional information in a communication dated 18 June 2015.
3. 422. The Government sent its observations in a communication dated 26 January 2016.
4. 423. Japan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 424. At its June 2014 meeting the Committee made the following recommendations [see 372nd Report, para. 375].
   • (a) The Committee urges the Government to take the necessary measures, without further delay, in consultation with the social partners concerned to ensure basic labour rights for public service employees in full respect for the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan, in particular as regards:
     • (i) granting basic labour rights to public servants;
     • (ii) fully granting the right to organize and to collective bargaining to firefighters and prison staff;
     • (iii) ensuring that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures;
     • (iv) ensuring that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and
     • (v) the scope of bargaining matters in the public service.
       • The Committee expects that the necessary legislative amendments will be submitted to the Diet without delay and requests the Government to keep it informed of developments in this regard.
         • (b) The Committee requests the Government and the complainant organizations to keep it informed of the results of the lawsuit filed by KOKKOROREN, as well as of the lawsuits concerning the unilateral cut at the “Workmen’s” Health and Welfare Organizations and those filed by the employees’ unions of a number of national university corporations against the university management for the wage-cut measures.
         • (c) The Committee requests the Government to provide detailed information on the functioning of the National Personnel Authority in the current context and any proposals for its revision.

B. Additional information from the complainants

1. 425. In a communication dated 18 June 2015, ZENROREN asserts that while the Government continues to maintain the reform of the public service personnel system as an important task for the national administration, it disregards the Committee’s recommendation on this matter, in neglecting the restoration of the basic labour rights of public service employees even as a subject for its study.
2. 426. According to ZENROREN, the legislation on the partial revision of the National Public Service Law, which was adopted on 11 April 2014, had a serious problem in relation with the basic labour rights of public service employees. Through this revision, broad powers over the decision of labour conditions have been transferred to and concentrated on the Cabinet Bureau of Personnel Affairs, including the power so far held by the National Personnel Authority (NPA) to decide or revise the grade-based quota of posts, the discretion on planning of appointments, examinations and trainings, the personnel administration and the management of mechanism and quota of posts of the Ministry of Internal Affairs and Communications, uniform control of newly established leading posts, and basic policy on the total personnel expenditures. For the national public service workers whose constitutional basic labour rights are unfairly restricted, the transfer of the compensatory function of the NPA, which concerns the decision of salaries and working conditions, to the very organ of the employer amounts to the deprivation of the right itself.
3. 427. While such a powerful organ of the employer was set up, the basic labour rights are referred to in a supplementary resolution of the Cabinet Committees of both Upper and Lower Houses, which says that for an autonomous labour-management relations system, “necessary exchanges of opinion with staff organizations concerned should be conducted and reaching agreements pursued”. However, according to ZENROREN, neither the Government (the Cabinet Bureau of Personnel Affairs) nor the ruling parties have shown any posture to sincerely face up to the provision of article 12 of the Basic Labour Law or of the Supplementary Resolution.
4. 428. Furthermore, on 7 August 2014, the NPA issued a recommendation which included the “Comprehensive Review of the Salary System”. It would cut the pay standard by 2 per cent on average (maximum 4 per cent for older workers) and to review the pay rate of area allowances and covered areas by using the margins from the pay cut (namely to expand the gap between areas). The Government also adopted a Cabinet decision on 15 November 2013 on the “treatment of the pay revision of the public service workers” according to which
   • as regards the national service workers’ salary, the government will come to grips with a drastic reform of the pay system, such as: (i) making a review of the national public service workers’ pay in view of reflecting the local salary standard in the public service workers’ salaries; (ii) reviewing the pay structure of the higher age staff, taking account of the pay gap between public and private sectors particularly for those in late 50s, and (iii) more accurately reflecting the abilities and performances in the treatment, and will effectuate it in the fiscal 2014. To this end the Government requests from the NPA that it will work out concrete measures without delay.
5. The recommendation of the NPA mentioned above was made precisely according to the content of this decision.
6. 429. ZENROREN is of the view that all the developments cited above demonstrate that the NPA is no longer a third-party organ independent from the Cabinet, but subordinated to the employer, the Government, and that its recommendation system is not functioning as a compensatory measure for the restriction of the basic labour rights. While the power to decide or revise the grade-based quota of posts was transferred to the Cabinet Bureau of Personnel Affairs, article 8 of the pay law was amended to include that the “opinion of the NPA should be taken into consideration when the grade-based quota of posts is set up or revised.”
7. 430. The complainant expresses its concern that the Government, eager to promote the reduction of the payroll of the public service workers, is placing pressure on the NPA without adequately securing the compensatory function for the restriction of the basic labour rights. As a consequence, the task of restoring the basic labour rights is left neglected and the public service workers remain deprived of their rights without any compensatory measures. The situation is getting serious since the Government is presently under pressure to further consolidate the power of the employer.
8. 431. The complainant adds that the ruling party’s present draft amendment to the Constitution of Japan proposes to add to the description of the basic labour rights (in article 28) an item specifying “the right of the public servants can be restrained in whole or in part” while no consideration is made to the restoration of the basic labour rights. Given the stable majority secured by the Government through the last general elections, the move towards amendment may be accelerated and, thus, legally revise the working conditions of public servants for the worse.
9. 432. The complainant is concerned about the spillover effect of the pay cut to workers of municipality services and independent administrative agencies pursuant to the cases of national public service employees. This spillover effect has spread and, as of October 2013, according to the Ministry of Internal Affairs and Communication, a reduction of salaries based on the “request” from the Government has been conducted in 1,069 local government units (59.8 per cent of total). ZENROREN raises serious concern that as the result of the request made by the national Government to local governments to reduce wages of their public service staff without due consultation with workers unions and in disregard of the recommendations of local personnel committees, similar wage cuts are being carried out in a number of local governments. In Izumisano City, Osaka Prefecture, since the present mayor took office in 2011, the wage of the public service workers has been reduced by 8 to 13 per cent. The collective bargaining session regarding the charging of the union’s office space which had been offered for free for the last 36 years and the check-off of the union fee was unilaterally terminated by the city and charging was forced through. The union side made claims for remedy before the Osaka Prefectural Labour Relations Commission on six points. To date, two out of these six points have been recognized as unfair labour practices by the Commission. In Kamakura City, Kanagawa Prefecture, in September 2014, labour-management negotiations reached an agreement regarding the wage reduction on some 100 city workers by an average of over 10 per cent, to carry out an interim measure to ease the impact of drastic change over the period of six years. However, the city assembly unilaterally adopted the resolution to introduce the reduction without such a transitional measure, which led to the wage cut made effective immediately. At present, the workers’ union of the city is filing a claim for remedy before the Prefectural Labour Relations Commission. The complainant observes that, as shown in the above, under the circumstances where the determination of working conditions based on collective bargaining is not recognized by law, there are many cases of wage reduction and serious infringement of rights of local public service workers.
10. 433. Furthermore, with regard to the ruling of the Tokyo District Court on the claim by the Japan Federation of National Service Employees (KOKKOROREN) that the salary cut law is invalid and in violation of the Constitution, the complainant indicates that the court held 12 hearings in total and concluded the case on 17 July 2014. In its decision dated 30 October 2014, the District Court ruled that the pay cut forced in disregard of the recommendation of the National Personnel Authority, made in compensation for the restriction of the basic labour rights of Government employees, did not violate article 28 of the Constitution. The complainant expresses its concern that the court decision did not even recognize the government’s negligence of sincere negotiations with KOKKOROREN as violation of the obligation. Instead, the Court justified the anti-Constitutional decision of the Government and the Diet to cut salaries and unjustly ruled to turn down all claims by the plaintiffs. The District Court ruled that the pay cut of the case under examination did not violate ILO Conventions: “neither 1LO Convention No. 87 nor Convention No. 98 is such that guarantees the right of collective bargaining of the national service employees”, and “it cannot be ruled as violation of these Conventions that the Prime Minister did not submit to the Diet a pay bill that reflected the NPA’s recommendation or that the parliamentarians adopted the provisional exemption law on revising the pay system.” While such interpretation already raises serious concern, the ruling also set a much smaller limit to the Government’s obligation to conduct negotiations with national service employees’ unions in the event that the pay is reduced without having a recommendation from the NPA. Worse, while admitting the lack of substantial consultations between the Government and KOKKOROREN, the District Court gave weight to the documents presented in formality and the number of the negotiations registered to turn down all claims of the plaintiffs. Consequently, since the ruling is so erroneous both in the interpretation of the Constitution and related laws and in terms of determination of facts, KOKKOROREN appealed the case to the Tokyo High Court on 13 November 2014.
11. 434. ZENROREN refers to the claim for relief measures to unfair labour practice before the Labour Relations Commissions regarding the unilateral reduction of bonuses made by the management of Rosai (OSH) Hospitals in disregard of working rules. Rosai Hospitals are run by the Japan Labour Health and Welfare Organization (the Organization), an independent administrative agency, set up in different parts of Japan. Following four investigations and four hearings, on December 2013, the Kanagawa Prefectural Labour Relations Commission concluded in an Order that: “Unilateral disadvantageous modification without due negotiations is unacceptable” and “The act of the Organization is regarded as unfair dominating intervention which could weaken the bargaining power of unions and debilitate them.” The Commission thus strongly denounced the unfair labour practice of the Organization. The Organization, challenging the decision, filed a claim before the Central Labour Relations Commission, calling for the re-examination of the case and the repeal of the Order. According to the complainant, so far three investigations have been carried out by the Central Labour Relations Commission and the complainant union in that case, Rosai Hospital Workers’ Union (ZENROSAI), calls for a rapid resolution.
12. 435. The complainant recalls that eight workers’ unions of national university corporations have filed lawsuits opposing unilateral reduction of salaries. In the earliest case filed by the Faculty and Staff Union of Japanese Universities, ZENDAIKYO, so far nine oral proceedings have been held, where the arguments of both sides were made clear. The main claims of the plaintiff unions of eight universities are: (i) it is unfair that the management unilaterally terminated collective bargaining sessions and forced through the wage reduction; (ii) it is unfair that no management effort has been made, including the attempt to reduce the rate of wage cuts; and (iii) it is unfair that the Government (Ministry of Education, Culture, Sports, Science and Technology), in the name of a “request”, actually ignored the principle of autonomy of labour relations and university autonomy, imposed a virtual wage cut and conducted the reduction of the management expenses grants to the universities. The arguments of the defendant national university corporations are as follows: (i) the wage cut was unavoidable since it was imposed by the national government; (ii) the salary reduction was not unfair as it was conducted based on appropriate proceedings; and (iii) the cut in personnel expenses was essential in dealing with the reduction of the management expenses grant from the Government, therefore it was not unfair. The ruling on the case filed by ZENDAIKYO was given on 21 January 2015, and that by the union of Fukuoka University of Education was given on 28 January 2015. Both judgments turned down all the claims by the plaintiffs.
13. 436. The judgment of the case filed by ZENDAIKYO, while admitting that the disadvantage suffered by the individual plaintiffs by the wage reduction was significant and impacted the life of the plaintiffs as well as education and higher education of their children, gave undue focus on the different responsibility on the National Institute of Technology from other profit-making businesses, and thus easily recognized the high level of necessity of the wage reduction. Regarding collective bargaining, the court only accepted the argument of the employer and unilaterally shifted the responsibility of terminating the collective bargaining sessions onto the union, thus legitimizing the disadvantageous modification of working rules. In the complainant’s view this ruling was incorrect both in respect of the interpretation of labour laws and the labour contract act and the determination of facts, and was extremely unfair in dismissing the plaintiffs’ claims. The complainant also expresses its concerns over the ruling on the case of Fukuoka University of Education which dismissed the claims by stating that the disadvantage suffered by the plaintiffs was only temporary and not to be overestimated.

C. The Government’s reply

1. 437. In its communication dated 26 January 2016, the Government recalls that measures for the autonomous labour–employer relations system set forth in article 12 of the Civil Service Reform Law were incorporated in the four civil-service-reform-related bills that were dropped due to dissolution of the House of Representatives on November 2012. However, since various opinions were expressed by the employer and the worker sides regarding measures for the autonomous labour–employer relations system, they were not incorporated in the Amendment Act of the National Public Service Law, etc., established in April 2014. However, in planning the Amendment Bill of the National Public Service Act, etc., the Government had numerous meetings with relevant trade unions, including the Alliance of Public Service Workers Unions (APU) and KOKKOROREN affiliated to ZENROREN.
2. 438. In reply to the comments from ZENROREN alleging that
   • broad powers over the decision of labour conditions have been transferred to and concentrated in the Cabinet Bureau of Personnel Affairs, including the power so far held by the National Personnel Authority (NPA) to decide or revise the grade-based quota of posts, the discretion on planning of appointments, examinations and trainings, the personnel administration and the management of mechanism and quota of posts of the Ministry of Internal Affairs and Communications, uniform control of newly established leading posts, and basic policy on the total personnel expenditures,
3. the Government specifies that the Amendment Act of the National Public Service Law, etc. includes the following elements: (i) the NPA continues to have authority over affairs related to ensuring fairness in appointment of national public service employees; (ii) because the fixed numbers of officials in each grade of the salary schedules (described as “the grade-based quota of posts” by ZENROREN) are linked to officials’ working conditions and since there were numerous indications from many fields on the need to ensure good working conditions, the provision was added that the Prime Minister will fully respect the opinions of the NPA that are submitted from the perspective of ensuring officials’ working conditions when deciding and revising the fixed numbers of officials in each grade of the salary schedules. It also refers to authority besides that related to appointment and the fixed numbers of officials in each grade of the salary schedules, but these areas are to be controlled by the Cabinet Bureau of Personnel Affairs as necessary personnel management systems in order to better promote the Government’s human resources strategy for national public service employees and are to be independent of compensatory measures for restrictions placed on basic labour rights; (iii) the Amendment Act of the National Public Service Law, etc., was planned based on the current restrictions placed on basic labour rights of national public service employees and the NPA recommendation at the core of a compensatory measure for restrictions placed on basic labour rights has not been changed in any way. This is in reply to ZENROREN’s assertion that national public service workers whose constitutional basic labour rights are unfairly restricted are deprived of the right for compensatory measures by the transfer of the compensatory function of the NPA, which concerns the decision of salaries and working conditions, to the very organ of the employer; and (iv) the Government is willing to respect NPA recommendation, which is a compensatory measure for restrictions placed on basic labour rights. A Cabinet Decision of 25 July 2014 – formulated after the enactment of the Amendment Act of the National Public Service Act, etc. – clarified the Government’s commitment: “The basic stance concerning remuneration is to respect the NPA recommendation” in the “Basic Policy on Total Personnel Cost for National Officials”. Therefore, in the Government’s view, ZENROREN’s assertion is unreasonable.
4. 439. As for measures for the autonomous labour–employer relations system, during the deliberations in the Diet regarding the Amendment Bill of the National Public Service Law, etc., the Minister in charge of Civil Service Reform stated on November 2013 in the House of Representatives Cabinet Committee that as there are various indications about measures for the autonomous labour–employer relations system and they have not yet gained the understanding of the people the Government has to continue to examine measures for the autonomous labour–employer relations system carefully.
5. 440. With regard to the granting of basic labour rights, the Minister in charge of Civil Service Reform stated on October 2014 in the House of Representatives Cabinet Committee that it was necessary for the Government to continue to examine carefully these issues since granting the right to conclude collective agreements to national public service employees may have an adverse effect on the operations of public services due to prolonged labour-employer negotiations and the fact that negotiation costs may also increase, leading to confusion in the public opinion. Furthermore, granting the right to strike to national public service employees would result in a stagnation of public services and adversely affect the lives of the public, consequently causing a loss of confidence in public services.
6. 441. Based on the establishment of the Amendment Act of the National Public Service Law, etc., the Cabinet Bureau of Personnel Affairs is taking charge of article 12 of the Civil Service Reform Law, which takes measures to make the autonomous labour–employer relations system open to the people. The Cabinet Bureau of Personnel Affairs has been conducting an exchange of opinions with employees’ organizations as necessary regarding various issues including measures for the autonomous labour–employer relations system, and the Cabinet Bureau of Personnel Affairs shall continue to promote mutual understanding through the exchange of opinions in the future. In this regard, the Minister in charge of civil service reform clearly stated such position of the Cabinet Bureau of Personnel Affairs in the House of Councillors Cabinet Committee on November 2014. Therefore, the Government considers that ZENROREN’s assertion that “neither the Government nor the ruling parties, however, have shown any posture to sincerely face up to the provision of article 12 of the Basic Labour Law or of the Supplementary Resolution” is untrue.
7. 442. Furthermore, with regard to the fixing of a number of officials in each grade of the salary schedules, the Government indicates that these numbers are the upper limits of the numbers of national public service employees that can be set to a given grade in the salary schedule when the employer decides the grade of the employees. The authority of the NPA to decide and revise the fixed numbers of officials in each grade of the salary schedules was transferred to the Cabinet Bureau of Personnel Affairs in the Amendment Act of the National Public Service Act, etc. In order to implement an efficient and effective operational system quickly and flexibly in response to the Cabinet’s important policy issues and changes in demand for administrative services. However, when the Prime Minister decides and revises the fixed numbers of officials in each grade of the salary schedules, the opinion of the NPA – submitted from the perspective of ensuring officials’ good working conditions – should be “fully respected.” In fact, after enactment of the Amendment Act of the National Public Service Act, etc., the Cabinet Bureau of Personnel Affairs has decided and revised the fixed numbers of officials in each grade of the salary schedules according to the opinions submitted by the NPA.
8. 443. The Government recalls that measures for the autonomous labour–employer relations system of local public service employees were incorporated in the Amendment Bill of the Local Public Service Law, etc. and the Draft Law on Labour Relations of Local Public Service Employees, that were dropped due to dissolution of the House of Representatives on November 2012. And since various opinions were expressed by the employer’s side (local governments) and the workers’ side (including APU, the All-Japan Prefectural and Municipal Workers Union (JICHIRO), and the Japan Federation of Prefectural and Municipal Workers’ Unions (ZENROREN–JICHIROREN) regarding measures for the autonomous labour–employer relations system, they were not incorporated in the Amendment Act of the Local Public Service Law and the Act for Local Incorporated Administrative Agency established in April 2014. The Ministry of Internal Affairs and Communications will continue to examine the handling of measures for local public service reform while listening carefully to the opinions of those concerned with considerations given to the examination of national civil service reform in the future.
9. 444. With regard to measures concerning the remuneration of national public service employees, the Government recalls that it took a special temporary measure, based on the “Law of Revision and Temporary Special Provisions on Remuneration for National Public Service” (Act No. 2 of 2012, hereinafter referred to as “the Revision and Special Temporary Measures on Remuneration Law”), to cut personnel expenses of national public service employees since further reduction in annual expenditures was indispensable, taking into consideration the severe national fiscal situation and the necessity to respond to the Great East Japan Earthquake. The special temporary measure to reduce remuneration for national public service employees was implemented for two years ended on 31 March 2014.
10. 445. Following a comprehensive review of the remuneration system, on August 2014, the NPA made the following recommendations to the Diet and the Cabinet: (i) to balance the remuneration level with the private employees’ remuneration level, the monthly remuneration and special remuneration (bonuses) of national public service employees in regular service should be raised; and (ii) a comprehensive review of the remuneration system should be implemented aiming to revise the distribution of remuneration among regions and age groups as well as based on duties and performance, while maintaining the raised remuneration level.
11. 446. With regard to the remuneration of local public service employees, the Government recalls that it is ordinarily determined by the by-laws of each local government. According to the law, a request from the national Government is only a technical advice and cannot force the reduction of remuneration. As a result, any request from the national Government never alters the independent process of local Governments to decide upon the reduction of remuneration for local public service employees through discussion in assemblies, taking the reports and recommendations of the Personnel Committee. In October 2013, the Minister of Industry and Commerce reported on a number of local governments which did not accept the request for reduction of remuneration.
12. 447. Furthermore, in November 2013, the Cabinet confirmed the end of the special temporary measure to reduce remuneration for national public service employees on 31 March 2014, in accordance with the Revision and Special Temporary Measures on Remuneration Law. And since the 2014 fiscal year onwards, the national Government has not requested the reduction for remuneration of local public service employees.
13. 448. In relation to the recommendation made by the NPA in August 2014 on the comprehensive review of the remuneration system, the Cabinet confirmed on October 2014 that a review of remuneration for national public service employees shall be conducted in accordance with the NPA recommendations which suggested a comprehensive review of the remuneration system should be implemented aiming to revise the distribution of remuneration among regions and age groups as well as based on duties and performance. Following the Cabinet decision, the MIC sent the notification “About the measures of revision of remuneration for local public service employees” requesting each local government to perform a proper review, including a more accurate reflection of local private sector remuneration.
14. 449. Remuneration of local public service employees in various local governments are considered to be, in accordance with the spirit of the Local Public Service Act and based on the recommendations of the Personnel Committee, properly determined by the by-laws of each local government, having passed through the vote of assemblies of local governments. Additionally, the recommendations of the Personnel Committee are important as part of a compensatory measure for restrictions placed on basic labour rights, which a neutral and professional third-party institution makes in accordance with the research on the state of private-sector remuneration. Although these recommendations are not legally binding, they should be respected in the fullest.
15. 450. With regard to the lawsuit filed by KOKKOROREN against the salary cut adopted by the Diet on 25 May 2012, the Government indicates that the Tokyo District Court dismissed KOKKOROREN’s claim on 30 October 2014. The Tokyo District Court ruled that given the severe fiscal situation of Japan and the Great East Japan Earthquake, the necessity of the Revision and Special Temporary Measures on Remuneration Law for taking the measure to reduce remuneration for national public service employees could not be denied, and the Diet’s judgment on this matter cannot be regarded as unreasonable. Therefore, it cannot be said that the Revision and Special Temporary Measures on Remuneration Law was legislated without its necessity being acknowledged. In addition, because the measure to reduce remuneration for national public service employees is limited to two years, and the Government has recognized the measure as very unusual, showing its stance of continuing to respect the NPA recommendation, it is not appropriate to evaluate the measure to reduce remuneration for national public service employees implemented at an average reduction rate of 7.8 per cent as impairing the original function of the NPA recommendation. Finally, the Government response to a request for collective bargaining, in the process of establishing the Revision and Special Temporary Measures on Remuneration Law, was unavoidable within the scope of collective bargaining obligations limited by the principle of determining their working conditions by law, and so it cannot be deemed that the Government committed illegal acts that violate the collective bargaining rights of the plaintiff. KOKKOROREN appealed to the Tokyo High Court on November 2014.
16. 451. With regard to the lawsuit about the salary reduction in the Organization, the Government reports the following: (i) the Kanagawa Labour Relations Commission conducted four investigations, four trials, and two adjustments before issuing a decree on 19 December 2013; (ii) the labour union issued statements on the details of relief for the five areas, and most of them were dismissed, although it was ruled that collective bargaining and the payment regarding the term-end and diligence allowance were unfair labour practice as provided in article 7, sections 2 and 3 of the Trade Union Law; (iii) the Organization expressed objection to the decree of the Kanagawa Labour Relations Commission and filed the re-examination in the Central Labour Relations Commission on 27 December 2013; (iv) the labour union also filed the re-examination on 6 January 2014; and (v) the Central Labour Relations Commission investigated the case seven times and a settlement was established between the Organization and the labour union on 8 January 2015. Thus, the statement that the Ministry of Health, Labour and Welfare performed unfair labour practice was withdrawn.
17. 452. With regard to the lawsuit against national university corporations, the Government reports that as of 1 October 2015, the labour unions of nine national university corporations (instead of eight alleged by the complainant) have brought lawsuits, which are still pending, against their respective universities seeking the payment of lost wages stemming from measures to reduce remuneration. In lawsuits against two of the national university corporations, regional courts have ruled against the plaintiffs and rejected their demands. In their rulings, the lower courts stated that there was a high degree of necessity for the implementation of the salary cuts and that there were no problems in the negotiations with the unions. With regard to the results of the other lawsuits, the Government will provide additional information about the rulings. However, the Government recalls that it has requested each national university corporation to consider the trend of the review of the remuneration of national public service employees and to take necessary measures in this regard within the context of the university’s autonomous and independent labour–management relations. The Government did not compel by legal force the national university corporations to reduce remuneration.
18. 453. With regard to the court case involving ZENDAIKYO mentioned by the complainant in its communication of 18 June 2015, the Government reports that in its lawsuit against the National Institute of Technology, ZENDAIKYO demanded the payment of salary lost through the measure to reduce remuneration, but on 21 January 2015, the regional court, hearing the case, handed down its ruling rejecting the demand. The contents of the ruling were similar to the ruling by the lower courts in the two lawsuits against the national university corporations mentioned above.
19. 454. Finally, with regard to the functions of the NPA in the current context, the NPA continues to make recommendations to the Diet and the Cabinet based on the principle of meeting changing conditions established in the National Public Service Act as a compensatory measure for restrictions placed on basic labour rights. Furthermore, with regard to deciding and revising the fixed numbers of officials in each grade of the salary schedules, according to the Act on Remuneration of Officials in the Regular Service revised by the Amendment Act of the National Public Service Act, etc., the Prime Minister shall hear and fully respect the NPA’s opinions, submitted from the viewpoint of securing adequate working conditions of employees. Additionally, in the process of the operation, the NPA prepares a draft decision and revision of the fixed numbers of officials in each grade of the salary schedules after hearing the opinions of both employers and employees and submits the draft to the Prime Minister as an opinion during the budgetary process, which starts with the requests made by the Cabinet Office and each ministry. Then, the Prime Minister decides and revises the fixed numbers in each grade of the salary schedules based on the NPA’s opinion. And, in addition to implementing the compensatory function for restrictions placed on basic labour rights as mentioned above, the NPA continues to play the role of ensuring fairness in the personnel administration of public employees, concerning appointment, recruitment examinations and training, etc.
20. 455. As concluding remarks, the Government states that it has done its utmost to have meaningful discussions and achieve fruitful civil service reform, bearing in mind the basic idea that frank exchanges of views and coordination with relevant organizations are necessary. The Government will continue to refer to the Committee’s recommendations and commit to provide the Committee with timely and relevant information on progress made. In the meantime, the Government requests that the Committee acknowledges its efforts on this matter.

D. The Committee’s conclusions

1. 456. The Committee recalls that it decided to examine these two cases, initially filed in 2002, in conjunction taking into account that they both concern the reform of the public service in Japan and its consequence in terms of realization of freedom of association principles. The Committee notes the detailed information from the Government and a complainant organization in relation to its previous recommendations, including on the most recent steps taken in this reform process.
2. 457. With regard to the national public service reform, in its previous examination of this case, the Committee had expressed its regret that, despite the progress which had been achieved towards the elaboration of a reform of the public service in Japan which would have included a number of basic labour rights for national public service employees, in the end none of these measures were adopted. With regard to the local public service reform, the Committee recalls that the amendment bills that had been submitted to the Diet in November 2012, were dropped from the agenda pursuant to its dissolution due to the elections. The Committee urged the Government to pursue full, frank and meaningful consultations with all interested parties on these issues and expected that the Government would make every effort to complete the civil service reform without any further delay.
3. 458. The Committee notes the Government’s reiteration that the Amendment Act of the National Public Service Law, adopted in April 2014, does not include measures for the autonomous labour–employer relations system given that there were various issues raised with the system that had been incorporated in the previous bills. The Committee notes from both the Government and ZENROREN that under the Amendment Act the Cabinet Bureau of Personnel Affairs took charge of examining measures for the autonomous labour–employer relations system in article 12 of the Reform Law with continuous hearing of relevant trade unions, including the APU and KOKKOROREN affiliated to ZENROREN.
4. 459. With regard to the local public service, the Committee observes that the Government reiterates that measures for the autonomous labour–employer relations system of local public service employees were incorporated in the Amendment Bill of the Local Public Service Law, etc. and the draft Law on Labour Relations of Local Public Service Employees were dropped due to dissolution of the House of Representatives on November 2012. Moreover, since divergent opinions were expressed by the employers’ side (local governments) and the workers’ side (including APU, JICHIRO, and ZENROREN–JICHIROREN regarding measures for the autonomous labour–employer relations system, they were not incorporated in the Amendment Act of the Local Public Service Law and the Act for Local Incorporated Administrative Agency established in April 2014. However, the Ministry of Internal Affairs and Communications continues to examine the handling of measures for local public service reform by continuously hearing from those concerned.
5. 460. The Committee deeply regrets that, given the time that has elapsed since the complaint was filed and despite the long and intensive dialogue in which the Government and the social partners have been engaged, no concrete measures have yet been taken to provide basic labour rights to the public service in order to ensure full respect for the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan. The Committee cannot but once again urge the Government to expedite its consultation with the social partners concerned to ensure, without further delay, basic labour rights for public service employees in line with its previous recommendations. The Committee expects that the necessary legislative amendments will be submitted to the Diet without delay and requests the Government to keep it informed of developments in this regard.
6. 461. In its latest communication, ZENROREN once again expresses concern over the unilateral reduction of the national public service employees’ wage, the pressure for reduction of local public employee wages and the degradation of the NPA recommendation system. ZENROREN refers to the spillover effect of the pay cut to workers of municipality services and independent administrative agencies pursuant to the cases of national public service employees. ZENROREN alleges that this spillover effect has spread as the result of the request made by the national Government to local governments to reduce wages of their public service staff without due consultation with workers unions and in disregard of the recommendations of local personnel committees, similar wage cuts are being carried out in a number of local governments. The Committee notes that the Government reiterates that the reduction in wages of national public service employees was indispensable taking into consideration the severe national fiscal situation and the necessity to respond to the Great East Japan Earthquake. The Government also recaps that this special measure was implemented for two years and ended on 31 March 2014. As regards local employees, the Committee notes the Government’s statement that it cannot impose such a reduction but did need to draw local governments’ attention to the serious need to respond to this situation. Moreover, since the 2014 fiscal year onwards, the national Government has not requested the reduction for remuneration of local public service employees.
7. 462. Following serious concerns raised in the complaints that the authority of the NPA recommendations on wage settlement, which acts as a compensatory measure until the basic labour rights are granted to public servants, has been undermined, and with respect to possible transfer of authority relating to the administration of salary scales to the Cabinet Personnel Bureau, the Committee previously requested detailed information on the NPA’s functioning in the current context and any proposals for its revision. The Committee observes that ZENROREN is still of the view that, since the passing of the partial revision of the Public Service Personnel Act in April 2014, developments demonstrate that the NPA is no longer a third-party organ independent from the Cabinet, but subordinated to the Government, and that its recommendation system is not functioning as a compensatory measure for the restriction of the basic labour rights. The Committee notes the Government’s indication that the NPA continues to make recommendations to the Diet and the Cabinet based on the principle of meeting changing conditions established in the National Public Service Act as a compensatory measure for restrictions placed on basic labour rights. Furthermore, with regard to deciding and revising the fixed numbers of officials in each grade of the salary schedules, the Government indicates that according to the Act on Remuneration of Officials in the Regular Service revised by the Amendment Act of the National Public Service Law, etc., the Prime Minister shall hear and fully respect the NPA’s opinions, submitted from the viewpoint of securing adequate working conditions of employees. In addition, in the process of the operation, the NPA prepares a draft decision and revision of the fixed numbers of officials in each grade of the salary schedules after hearing the opinions of both employers and employees and submits the draft to the Prime Minister as an opinion during the budgetary process, which starts with the requests made by the Cabinet Office and each ministry. Then, the Prime Minister decides and revises the fixed numbers in each grade of the salary schedules based on the NPA’s opinion. Finally, the Government recalls that the NPA continues to play the role of ensuring fairness in the personnel administration of public employees, concerning appointment, recruitment examinations and training, etc. The Committee requests the Government to continue to provide information on the functioning of the NPA recommendation system, as a compensatory measure until the basic labour rights are granted to public servants.
8. 463. Furthermore, the Committee takes note of the information provided both by the Government and by ZENROREN on the outcome of the lawsuit filed by KOKKOROREN against the salary cut adopted by the Diet on 25 May 2012. The Committee observes that, in its decision of 30 October 2014, the District Court ruled that: (i) given the severe fiscal situation of Japan and the Great East Japan Earthquake, the necessity of the Revision and Special Temporary Measures on Remuneration Law for taking the measure to reduce remuneration for national public service employees could not be denied, and the Diet’s judgment on this matter cannot be regarded as unreasonable. Therefore, the Court considered that it could not be said that the Revision and Special Temporary Measures on Remuneration Law was legislated without its necessity being acknowledged; (ii) because the measure to reduce remuneration for national public service employees is limited to two years, and the Government has recognized the measure as very unusual, showing its stance of continuing to respect the NPA recommendation, it is not appropriate to evaluate the measure to reduce remuneration for national public service employees implemented at an average reduction rate of 7.8 per cent as impairing the original function of the NPA recommendation; and (iii) the Government response to the request for collective bargaining, in the process of establishing the Revision and Special Temporary Measures on Remuneration Law, was unavoidable within the scope of collective bargaining obligations limited by the principle of determining their working conditions by law, and so the Court considered that it could not be deemed that the Government committed illegal acts that violate the collective bargaining rights of the plaintiff. Noting that KOKKOROREN appealed to the Tokyo High Court on November 2014, the Committee requests the Government and the complainant to provide information on the results of this appeal.
9. 464. The Committee also notes the information provided both by the Government and the complainant on the status of the lawsuits concerning the unilateral cut at the “Workmen’s Health and Welfare Organization” which was finally settled in January 2015 and those concerning the wage cut measures at nine state-run universities. In this regard, the Committee notes that in lawsuits against two of the national university corporations, regional courts have ruled against the plaintiffs and rejected their demands. In their rulings, the courts stated that there was a high degree of necessity for the implementation of the salary cuts and that there were no problems in the negotiations with the unions. The Committee requests the Government and the complainant organization to keep it informed of the results of the remaining lawsuits at the other state-run universities.
10. 465. In view of the history of the present case, the Committee considers appropriate to recall as a general matter that in cases where the Government has resorted to statutory limitations on collective bargaining, the Committee stresses that repeated recourse could, in the long term, only prove harmful and destabilize labour relations, as it deprives workers of a fundamental right and means of furthering and defending their economic and social interests. Where the budgetary powers lay with the legislative authority, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the bargaining parties, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1000 and 1035].

The Committee’s recommendations

1. 466. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to expedite its consultation with the social partners concerned to ensure, without further delay, basic labour rights for public service employees in full respect for the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan, in particular as regards:
     • (i) granting basic labour rights to public servants;
     • (ii) fully granting the right to organize and to collective bargaining to firefighters and prison staff;
     • (iii) ensuring that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures;
     • (iv) ensuring that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and
     • (v) the scope of bargaining matters in the public service.
2. The Committee expects that the necessary legislative amendments will be submitted to the Diet without delay and requests the Government to keep it informed of developments in this regard.
   • (b) The Committee requests the Government to continue to provide information on the functioning of the NPA recommendation system, as a compensatory measure until the basic labour rights are granted to public servants.
   • (c) The Committee requests the Government and the complainant organizations to keep it informed of the results of the appeal to the Tokyo High Court made by KOKKOROREN concerning its lawsuit against the salary cut adopted by the Diet on 25 May 2012.
   • (d) The Committee requests the Government and the complainant organizations to keep it informed of the results of the remaining lawsuits filed by the employees’ unions of a number of national university corporations against the university management for the wage-cut measures.