Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Japan (Ratification: 1965)

The Government has communicated the following information:

1. In Japan, the Tripartite Committee (the Convention Subcommittee of the Conference on Labour Problems), at which the most representative trade unions in Japan, SOHYO and DOMEI, were represented, deliberated on this question prior to the ratification of the Convention, and, in 1958, it unanimously reached a full agreement to confirm that "it is considered appropriate that the function of the fire defence... in Japan can be interpreted as being included in the category of the function of the police as referred to in the Convention, judging from their historical development and the existing legal system".

2. In addition to that, it was confirmed by the ILO prior to the Government's ratification of the Convention that the function of fire defence agencies in Japan should be assimilated to that of the police, since the Committee on Freedom of Association deliberated twice, in 1954 and in 1961, on this issue in connection with the trade union's allegations concerning the right to organise in Cases Nos. 60 and 179. On both occasions it recommended that the Governing body decide that those allegations did not call for further examination on the ground that the services of fire defence agencies in Japan were included in "the police and certain services assimilated thereto" (paras. 33-36 of the 12th Report, and para. 94 of the 54th Report of the Committee).

3. On the basis of the domestic agreement and the confirmation by the ILO with regard to the prohibition on the organisation of the personnel of the fire defence agencies in Japan, as mentioned in points 1 and 2 above, the Government reached the interpretation that they are included in the police referred to in Article 9 of the Convention, and it ratified the Convention in 1965. The Government, as that of a State having ratified the Convention, has maintained this interpretation consistently and will continue to do so firmly hereafter.

4. As for the application of standards concerning the same individual case, it is a matter of course that the views of the ILO should be uniform and constant throughout the whole machinery of the ILO. The reason for this is that if an international organisation indicated with regard to the same individual case contradictory views through its different internal bodies, or changed its view every now and then, it would not only harm the stability of the legal systems of member States which are under the obligation to respect ratified Conventions but also would raise a grave problem of impairing the prestige of the international organisation itself.

5. From these viewpoints, the Government considers that the treatment of the prohibition on the organisation of the personnel of the fire defence agencies in Japan is nothing but a domestic issue which should be determined by national laws and regulations on the basis of Article 9 of the Convention.

The Worker member of the United States, speaking in the name of the Workers, stated that in order to save time it had been decided to concentrate on the very serious problem of the right of fire fighters to organise, which was dealt with in paragraph 2 of the observation of the Committee of Experts. As far as paragraph 1 of the observation was concerned, which considered violation of the right to strike in the public service and the problem of the penalties imposed on workers who went on strike, they thought that the observations of the Committee of Experts were perfectly clear and added that they fully subscribed to these views. They added that a detailed discussion of these points should be undertaken at a future session of the Committee.

A Government representative of Japan first referred to the information communicated in writing by his Government and then stated that the question of forbidding the right to organise to fire fighters had been examined on two occasions by the Committee on Freedom of Association. In both cases, the Committee had concluded that the services of the fire fighters in Japan were regarded as certain services assimilated to the police and that the question did not call for further examination. It was on this basis that Japan had ratified this Convention in 1965. The interpretation of the Government was that fire fighters in Japan are comparable to the police, an exception which is provided for in Article 9 of the Convention. The Government considered this question as a domestic matter to be examined in a long-term perspective and it intended to maintain this position in the future. It would continue to send the ILO information when any progress may be recorded. As far as the question of the prohibition of strikes in the public service was concerned, and the sanctions applied to those who violated this prohibition, it was the Government's view that the Committee repeated its established point of view. He stated that the Government was fully aware of the opinion of the ILO according to which the application of disproportionate sanctions did not facilitate the development of harmonious industrial relations. The Government had not taken a rigid and inflexible attitude with regard to this issue and nor would it do so in the future.

The Worker member of Japan stated that although he was limiting his intervention to the question of freedom of association and the right of fire fighters to organise this did not imply that he considered the other questions as being of little importance or as having been resolved in any way. The situation of fire fighters had been discussed year after year, since 1973, in this Committee. The Committee had recommended systematically that consultations should take place at the national level in the light of the observations of the ILO supervisory bodies. In spite of this fact, no progress had been made. In its written communication the Government had referred to a document which implied that the most representative trade unionists of Japan were fully in agreement with its policy according to which the services provided by the fire fighters could be compared to the functions of the police, as far as the right to organise was concerned. He said that such a document had never been made public; nor had it been sent to the Committee of Experts. He pointed out that the Convention had been ratified in 1965. At the time of its examination by Parliament, neither Parliament nor the Government had expressed any reservations in terms of arguing that the functions of the fire fighters should be compared to those of the police as far as application of the Convention was concerned. He expressed the view that this was probably due to the fact that article 28 of the Japanese Constitution clearly gives all workers the right to organise and the right to collective bargaining. With regard to the Government's allegations that the Committee on Freedom of Association had accepted its views as far as fire fighters were concerned, he underlined the fact the complaints which had been submitted did not concern the fire fighters but other workers in the public service. The question of the fire fighters was mentioned only incidentally. The situation of the fire fighters had never been examined. Furthermore, the report of the Fact-finding and Conciliation Commission which was set up as a result of the complaints which had been submitted and which went to Japan in 1965, did not contain any reference to the situation of the fire fighters since this was not an issue at the time.

The right of the fire fighters to organise had become a burning question as from the 1970s, when the fire fighters themselves began to organise. In 1973, this Committee examined this problem for the first time, on the basis of an observation by the Committee of Experts which stated in particular that one could not consider the functions of the fire fighters as justifying an exclusion under Article 9 of the Convention, which covered the armed forces and the police. At the time, the Government had accepted this conclusion with certain reservations. Since then, the Government had not taken any measures to grant fire fighters the right to organise. Ten years had passed since the fire fighters had established a trade union which included several thousand members, but he added that this trade union had never been recognised by the Government. It had never been consulted nor authorised to negotiate or to present its demands directly. It had no legal status and was not affiliated to any national trade union federation. This was the reason why it was essential to remedy the situation and to guarantee justice to Japanese fire fighters without delay. They should be able to enjoy the right to organise like the fire fighters of other countries. The Japanese Government could not claim special privileges as far as the application of the Convention was concerned. He pointed out that while the Committee of Experts had concluded that the right to organise should be granted to Japanese fire fighters, it had none the less considered that their services were essential services, that is, in the views of the supervisory bodies, their right to strike could be restricted or even completely forbidden. He thought that these conclusions could be accepted. Further, in return for freedom of association and the right to organise, Japanese fire fighters were ready to forgo voluntarily the right to strike which they had never claimed. In conclusion, the Worker member of Japan expressed the hope that the Committee would request his Government to grant fire fighters the basic right to constitute organisations of their choice whose aims would be to defend their occupational interests. In case the Government persisted in its refusal to apply the Convention, he said that Japanese workers would be forced to have recourse to more radical measures which were available to them under the ILO Constitution.

The Worker member of the United States, continuing to speak for the Workers, appreciated the Government representative's appearance before this Committee, but noted that nothing he had said was responsive to the appeals made by this Committee. In 1984 and 1985 it had asked for positive action regarding the Observations of the Committee of Experts but there was nothing encouraging to the effect that steps had been taken towards that. He fully agreed with the views expressed by the Worker member of Japan. This was a particularly serious case because it involved a violation of the provisions of one of the most basic of all human rights Conventions-the right to organise-and secondly, because of the inordinate length of time which had elapsed without any action or progress by the Government towards compliance with its obligations.

Referring to the written information provided by the Government, that, firstly, there had apparently been no agreement reached in 1958 between the Government, SOHYO and DOMEI; even if such an agreement had existed, it would be invalid and could in no way affect Japan's obligations under this Convention, because it would result in an infringement of it. Secondly, in relation to the 1954 and 1961 conclusions of the Committee on Freedom of Association, he noted that they were very early decisions (predating Japan's ratification) and arose at a time when the country was undergoing a complex investigation which later developed into the Dryer Commission and in which the present question was mentioned very casually. In addition, there was a further decision of the Committee on Freedom of Association in Case No. 737 which had occurred after ratification, in 1974. This later decision stated clearly that: "Firemen in Japan, although having very special characteristics, are not members of the police or armed forces." In the same case, that Committee rejected the Government's contention that the granting to firefighters of the right to organise would undermine the discipline necessary in the performance of their duties and would lead to the outbreak of strikes; it made the point that the right to organise and the right to strike were two entirely different matters and that the former did not necessarily involve the latter. The speaker saw no contradiction between the conclusions of the Committee of Experts and the Committee on Freedom of Association since the latter had based re-ratification conclusions on the information made available to it on the Japanese situation at that time. Thirdly, the suggestion that the Government had based its ratification on the decisions of the Committee on Freedom of Association was not correct; Japan had ratified the Convention as a result of many public sector problems arising from the Dryer Commission Report in which the fire-fighter issue had played no part-it had not even been mentioned in the Commission's report. The Committee of Experts in this year's observation merely noted the Government's reliance on the earlier cases. The fact that it did not discuss it indicated that the Experts did not consider this sufficiently serious to require specific discussion, because they applied a uniform and universal evaluation to the terms of the Convention.

He stressed that the Government's attempt to carve out an exception from the Convention on the ground that Japanese fire service personnel were really part of the police had been consistently rejected by the Committee of Experts since its first observation on the point in 1973. The Committee of Expert's clear position was that the functions of fire defence personnel were not of such a nature as to warrant the exclusion of this category of workers under Article 9 of the Convention, which refers to members of the armed forces and police. It had said this in 1976, 1977, 1978, 1979, 1980, 1981, 1983, 1984, 1985 and 1987. There had been a ray of hope when, in the 1983 general survey, the Committee of Experts had stated that the functions of fire-fighting personnel would not "normally" justify their exclusion on the basis of Article 9. This year's observation had stated that: "In Japan the fire service administration is clearly and formally separate from that of the police", and had indicated that the Fire Defence Agency had been formally separated from the police in 1948. Moreover, the Experts had noted that fire services were essential services in the strict sense of the term, wherein the right to strike could be limited or prohibited completely; Japanese firefighters recognised that strikes for them were not an option in collective bargaining.

Referring to the present Committee's approach to this ongoing problem, he noted that there had never been disagreement expressed by the large majority on the legal conclusions put forward by the Committee of Experts as to the lack of justification for the Government's continued denial of the right of fire defence personnel to organise. The dialogue in this Committee had been one of continual entreaties to the Government to try and resolve the problem with, in reply, repeated assurances from the Government to consider the matter and make efforts to resolve it on a national basis. Particularly in 1984 the Committee had hoped that the problem would receive attention at the earliest possible time and that it would be able to note the following year (1985) that positive steps had been taken to resolve it; the Workers' members at that time had added that if no improvements had been made by 1985, recourse should be had to other methods. The speaker that three years after this conclusion there had not only been no progress, but a worsening of the situation. The Government had wanted to resolve the problem at the national level, but the Japanese Constitution itself unequivocably guaranteed to all citizens the right to organise and bargain collectively (article 28), preserved the enjoyment of the fundamental human rights set out in it (article 11) and prohibited abuse of these rights by those responsible for the public welfare (article 12). It therefore appeared to him that, if the Government had wanted to act in good faith, it could have easily settled the problem domestically by recognising the paramount guarantees in its own Constitution. However, the Government's written statement had shown that this was not its true intention. This intransigent rejection of all authoritative advice on the situation of fire-fighters did not become the great industrial power of Japan, particularly because it was rejecting the considered judgement of 19 of the 20 experts who had consistently disagreed with its evaluation of the requirements under the Convention. As had been pointed out in the general discussion, the Experts deliberated with objectivity, impartiality and independence; if the Japanese Government could not accept their views, it blinded itself to all advice. The real danger here went beyond this particular case involving 110,000 fire-fighters, because if the functioning of the Convention was muzzled and the right to organise suppressed, there could be no collective bargaining, no consultation. Likewise, dialogue should lead to a reasoned solution to the problems through an exchange of viewpoints, but this could be completely frustrated when one party turned a deaf ear to all attempts at persuasion. He thought that the Government should be embarrassed at being the only industrialised Power in the world today which denied the right of fire defence workers to organise. He asked whether the Government had any serious intention to comply with its obligations under the Convention, as evaluated by the Committee of Experts, to grant the right to organise to its fire-fighters and thereby comply with the requirements of its own Constitution.

The Employers' members noted that in Japan there had been an organisation for fire-fighters for some time which did not have the status of a fully organised trade union nor the right to negociate. Two new points on this ongoing problem had arisen this year: the observation had referred to two cases of the Committee on Freedom of Association in the 1950s and 1960s which had accepted the position that fire-fighters should be considered as part of the police and therefore could be excluded from the protection afforded by the Convention. Secondly, there had been reference to the 1958 agreement between the Government and the most representative workers' organisations by which the position that fire defence should be considered as part of the police had been accepted. Although the Experts had not been able to express their position on the internal Japanese Agreement, it was relevant here because it could create a situation of confidence explaining the Government's position. The Employers' members stressed "explaining", not "justifying". As for conclusions of the Committee on Freedom of Association, there might have appeared to be a contradiction if the additional information put forward by the Worker member of the United States and by the Government representative had not been heard. They considered that the Committee of Experts should examine this further information, particularly since some of the facts were not quite clear. From the overall discussion of this problem over the last few years, it appeared to them that the Government was prepared to bring about a change internally and this had been accepted in the Government's present statement as well. Further consideration was necessary for the ultimate solution of the problem and, in any case, the Government representative had stated that this was not a decision which was final for all time. If they had understood him correctly, all negotiating possibilities had not yet been exhausted and it should be possible to change something. They therefore urged the Government to take steps, in consultation with the workers' organisation, so that the domestic status of fire defence personnel would be re-examined and that new information could come forward in the future.

The Government representative stressed that his Government's attitude to international labour standards was the thorough examination of the conformity of domestic law, and the amendment of relevant laws in consultation with the trade unions if there was lack of conformity, before ratification. Prior to the ratification of Convention No. 87, there had been much discussion of the compatibility of domestic laws, including the treatment of the prohibition of the right of fire defence personnel to organise. However, it had been noted that the Committee on Freedom of Association had already considered the issue of fire-fighting personnel, concluding that the allegation referring to the right to organise of personnel in the police, fire services, maritime safety board and penal institutions did not call for further examination. In addition, the tripartite committee of the Convention Subcommittee of the Conference on Labour Problems had submitted a report concerning the ratification of this Convention which said that in view of the existing legislation and the history of fire defence in Japan, its functions could be regarded as being included in the police, which are referred to in Article 9 of the Convention.

The Government representative pointed out that article 28 of the Japanese Constitution guaranteed trade union rights, but they could be restricted because of the necessity of national security and public well-being, and this has been upheld by the Supreme Court of Japan. The Supreme Court had in fact already held that this restriction was valid for fire-fighting employees. He stressed that his Government's consistent approach had been that the matter would be examined domestically with a long term perspective. However, even the Worker member of Japan had acknowledged that there were conflicting views on the issue, and much time was needed to come to a conclusion involving an examination of the various views held. His Government was not trying to prolong this discussion intentionally, and was engaged seriously and in good faith in discussions with all parties concerned. It did not doubt the importance of the ILO's supervisory machinery but strongly held that, once the machinery had expressed its views on a specific case which eventually formed the premise for the ratification on Conventions, it should not ask the Government to reexamine its national legislation by reversing its view. If two bodies within this machinery expressed conflicting views, or the same body within this machinery reversed its view afterwards, that would harm not only the stability of the national legislation of a country, but also the authority and prestige of the supervisory machinery itself as well as the ILO's important task of promoting the ratification of Conventions. He gave the assurance that his Government would continue to give serious consideration to this matter and would continue to maintain a constructive dialogue with all concerned in Japan so as to be able to arrive at a fruitful conclusion in the future.

The Worker member of the United Kingdom was particularly interested in this case because it involved Convention No. 87 and its effects on public employees' freedom of association, which was a problem in his country. He was deeply concerned that governments had a habit of giving themselves the right to exclude all categories of public workers from this Convention on various grounds such as national security, high court cases or complicated explanations which backdated their ratification. Referring to the Government representative's statement, he noted that prior to ratification the Government had thoroughly examined the position of the police and the armed forces, and had then simply added fire defence personnel to this interpretation. The Government had argued that it had only agreed to ratify the Convention if firefighters were included in the exemptions set out in Article 9. However, it was a poor state of affairs if governments were allowed to ratify Conventions on the understanding that only their interpretation of that Convention would be allowed. No new facts had emerged: the-Committee of Experts had considered the Government's argument regarding the Committee on Freedom of Association's decisions in 1954 and 1961 and had still arrived at exactly the same conclusion. Moreover, the Government had argued that the Fire Defence Agency was regarded by many "scholars" as part of the security police, but it was the opinion of the Committee of Experts which was at issue here. Given the ongoing discussion of this case, he considered that further examination would lead to further complexity. It was one thing to support the Committee of Experts in the general discussion and another to then make an exception when one's own country was discussed. No exceptions could be allowed to Convention No. 87, particularly as regards public employees, because the public service was the area where the government, being both government and employer, had special responsibility for its observance. He hoped for a more definitive conclusion than that which had been suggested up to now for this case and wanted to see real signs of progress.

The Worker member of the United States, speaking for the Workers, stressed that they-indeed the whole Committee-had been extremely patient, but that nothing had happened. He had the same feelings of frustration in this case as the Workers' members had expressed concerning the attitude of Bangladesh with respect to Convention No. 107-frustration at the continuing promise of consideration without action. It was always distasteful to have to reach a point of confrontation, but given this impasse, there would only be one alternative if there was no progress again this year: there would undoubtedly be recourse to article 26 of the ILO Constitution, and perhaps a Commission of Inquiry.

The Workers' members emphasised that discussions had reached a culminating point when courage was needed to complete consultations and considerations and to see what could be done in a constructive manner. They considered that the Committee's conclusions should be extremely clear. Firstly, the situation in practice was that fire-fighthers were taking the situation into their own hands and were forming organisations. These organisations, however, were not recognised as valid. Secondly, with reference to all the arguments put forward concerning events in 1958 and 1954 and 1961, they Workers' members noted that there had been many developments since then including instruments on the public service, conclusions on the right to strike in the Governing Body and resolutions adopted by various bodies. The situation had therefore not remained static. The early situation had been one of a country not having ratified the Convention; since 1965, when Japan did ratify, the circumstances relied on no longer existed. It was not pre-ratification agreements that counted, but the Convention itself. Over the years the opportunity had been given to settle the problems at the domestic level, but the Committee of Experts still stated clearly that firemen could not be assimilated to the police. This Committee said the same thing today. There was no disagreement with the exceptions listed in Article 9 of the Convention, and firemen were not included as one of them. They agreed with the Committee of Experts and with the Worker member of Japan that freedom of association did not preclude the need for discipline; the Japanese workers agreed that the right to strike might not apply to them if they were granted some compensatory conciliation and arbitration procedures. The International Court of Justice should decide the question. Like the Employers' members, the Workers' members wanted to give the Government time to apply the Convention in Japan after joint consideration.

The Government representative repeated that the ILO's supervisory machinery-i.e. the Committee on Freedom of Association had acknowledged the prohibition on the right of fire-fighting personnel in Japan to organise not to be in violation of the Convention. His Government had great respect for the authority and prestige of the Committee of Experts, and it wanted to examine the issue very carefully as a domestic matter with a longterm perspective.

The Committee took note of the discussion that had taken place and, in particular, of the information supplied by the Government representative. The Committee noted that, for a number of years, the Committee of Experts had been commenting on restrictions, particularly on the right of fire defence personnel in Japan to organise. The Committee noted, in particular, that the discussions that had taken place, and which continued to take place, in Japan had not yet led to concrete steps being taken to make progress towards the full application of the Convention regarding fire-fighters' right to organise. The Committee could only express the hope that discussion would soon be able to report that appropriate action had been taken to fully guarantee to the workers concerned the right to which they were entitled under the Convention.