Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

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

A Government representative explained his Government's position concerning the observation of the Committee of Experts on the Application of Convention No. 87. With regard to the issue of the right to organize of fire defence personnel, this issue was solved through the introduction of the fire defence personnel committees system, which was welcomed with satisfaction by this Committee at the 82nd International Labour Conference. Based on the system, the Bill to amend the Fire Defence Organization Law was unanimously approved by the Diet on 20 October 1995, and entered into effect on 1 October 1996.

The role of these fire defence personnel committees was to discuss opinions expressed by the fire defence personnel, concerning their working conditions or other subjects. The results of these discussions were then reported to the fire chief of the fire defence headquarters. The committees were established in all of the 923 fire defence headquarters as of 1 April 1997. So far, they had been operating smoothly in accordance with the aim of the Law. Half of the members of the fire defence personnel committees had to be appointed upon the recommendation of the fire defence personnel. At the end of March 2000, nearly 90 per cent of the committee member posts were filled by general personnel not in managerial positions. In the course of fiscal year 1998-99, the committees had discussed approximately 10,500 opinions concerning working conditions or other subjects. About 40 per cent of these opinions were considered appropriate for adoption, leading, for example, to the allocation of grants for acquiring qualifications, installation of resting rooms, introduction of non-combustible working clothes, etc. Taking this into consideration, the fire defence personnel committees were working well to improve their working conditions. He indicated that his Government continued its efforts for the smooth operation and firm establishment of the system, in cooperation with the parties concerned, such as workers' organizations, fire-defence headquarters, etc. Regarding the prohibition of the right to strike in the public service, his Government considered that this was an issue of imposing a sanction under a law that was considered to be in conformity with the Japanese Constitution by the Supreme Court. His Government was aware of the observations made by the Committee of Experts regarding the imposition of sanctions pursuant to strike action. His Government had been applying the Law accordingly. It intended to continue making this effort and would provide as much information as possible taking into consideration the latest observation of the Committee of Experts.

Finally, the Government representative commented briefly on a new movement in the Japanese public service system. The Government was currently considering a project of civil service reform on the basis of the "Outline of the administrative reform" decided by the Cabinet in December 2000. The purpose of this reform was to change some aspects of the attitude of public employees which had been subject to severe criticism from the public, such as sectionalism, dependence on the authorities, excessive reliance on precedents and a lack of sense of service. Hence, the reform aimed at making it possible for public employees to work with pride as a group of experts. The "Framework of the civil service reform", made public on 27 March 2001 by the Office in charge within the Government, indicated the main directions of the reform as follows: the establishment of a remuneration system which appropriately reflected the officials' capability and performance, placement based on personal capability, adjustment of a new evaluation system that was transparent and acknowledgeable, and so on. As nothing was definite yet concerning the substance of the reform, the Government was not in a position to present any substantial information to the ILO. However, the Government was ready to supply information to the ILO on any concrete progress made, if any.

The Employer members indicated that this Committee had dealt with the issue of the denial of the right to organize of fire-fighting personnel on several occasions from the 1980s up to the 1990s. The last time the Committee had dealt with this case in 1995, the Government had indicated that fire-defence personnel committees would be established at the fire defence headquarters. These measures had been welcomed by this Committee as a form of progress. However, the Committee had also indicated at that time that full freedom of association had not been achieved, but rather steps had been taken with a view to gradually achieving it. Now the workers' organizations concerned were indicating that the system was not functioning satisfactorily. Since the Government representative had indicated that other measures were being taken, the Employer members encouraged it to do so actively. The current situation was not ideal and it would be necessary for the Government to provide more information on steps taken to change this to the Committee of Experts. Regarding the limitation of the right to strike for public servants, including for public school teachers, the Employer members pointed out that the Government had made a distinction between two categories of employees. It had indicated that the right to strike was prohibited for national public employees, whereas the right to strike was granted for those who were not national public employees. However, the Employer members considered that the Committee of Experts should not be making any comments on this issue since they were of the view that the Convention did not deal with the right to strike. Moreover, they felt that prohibition of the right to strike for teachers was entirely justified since the teaching sector was an essential service. Concerning compensatory guarantees for hospital workers, the Employer members did not consider that there was a need to provide such guarantees: in effect, the Employer members could not accept the fact that these compensatory guarantees were a requirement for workers whose right to strike was restricted.

The Worker members said that they would also have liked to have seen the application of Convention No. 29 by Japan discussed that year. It had unfortunately not been possible to reach a consensus with the Employer members on that subject, but if there were no improvement, that case should be re-examined. Nevertheless, Japan's violations of Convention No. 87 were very serious and a dialogue with the Government was necessary. Indeed, despite the observations formulated by the Committee of Experts for a number of years, the Government had not taken any real measures to ensure trade union freedom for all workers, in whatever sector of activity. Moreover, the case had already been discussed by the Committee in 1995. With respect to the denial of the right to organize of fire-fighting personnel, the establishment of personnel committees in that sector should be welcomed. It represented progress in improving the dialogue between fire-fighting personnel and the authorities, as shown by the survey of the All-Japan Prefectoral and Municipal Workers' Unions (JICHIRO) and the National Firefighters Council (ZENSAYOKYO). But further improvements were necessary, especially due to the fact that those committees were not active everywhere. The objective was to create the conditions to guarantee fire-fighting personnel the right to organize. As for the prohibition of the right to strike of public servants, the Committee of Experts had recalled that: "the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State". In that respect, the Japanese Government's interpretation of the notion of essential services went much further than the Organization's, in particular because it included teaching. It was clear that the Government was restricting the trade union freedom of a large number of workers, especially in the public services. The Worker members considered that the failure to comply with that Convention and the Committee of Experts' interpretation of it was unacceptable. A similar problem also arose in the hospital sector, where the Committee of Experts had recalled the need to provide compensatory guarantees to workers whose right to strike had been restricted. Moreover, it should be recalled that reform of the public services was being carried out without involving the public service unions, despite the fact that the reform would have significant consequences for their salaries and conditions of work. In conclusion, it should be emphasized that the Government apparently had no intention of applying Convention No. 87, particularly in the public sector, which raised the issue of fundamental human rights whose violation had a direct influence on the lives and working conditions of Japanese workers. The Government of Japan should be called on to take all necessary measures, in law and in practice, to guarantee trade union freedom, including the right to strike. It should also involve workers' organizations in the reform of the public sector, thereby taking the opportunity to improve social dialogue.

The Worker member of Japan pointed out that there were several issues which infringed the provisions of Convention No. 87, namely, the broadly defined scope of managerial personnel; the non-involvement of unions in the decision-making procedure of wages and working conditions; a registration system which violated freedom of association; inadequate guarantees in situations where basic workers' rights were denied. However, he wished to focus on two issues, namely, the denial of the right to organize for fire defence personnel and the total prohibition of the right to strike for workers in the public service. The Government had ratified Convention No. 87 of 1965 but firefighters were still denied the right to organize. In 1995 the Government established the fire defence personnel committee system. However, Japanese workers considered this to be merely a transitional measure in the process of achieving the right to organize for firefighters in Japan. Moreover, no workers in the public service have the right to strike. The ILO considered that the prohibition of the right to strike in the public service should be limited to personnel operating in essential services and to public servants exercising authority in the name of the State. The Japanese Government, however, had enlarged the scope of services where the right to strike could be restricted by creating its own definition of "essential services". Moreover, the Government regarded all public employees to be persons who "exercised authority in the name of the State". This was a serious violation of Convention No. 87. If the Government respected the recommendations of the Committee of Experts, it should take concrete measures to solve these issues as soon as possible. Finally, the speaker referred to an ongoing violation by the Government of Convention No. 87. On 1 December 2000, the Cabinet decided, without any consultation with workers' organizations, the Government's basic policy for the institutional reform of the public service system, which would drastically change the existing wages and working conditions of public employees. On 19 December 2000 the Government set up the "Administrative Reform Promotion Office". The Minister in charge of Administrative Reform, indicated that the framework of the reform would be set by the end of March 2001, its basic design would be developed by end of June 2001 and then a Bill for a new public system would be presented to Parliament in January 2002. The framework of the reform was established unilaterally without any consultation or negotiation with the unions concerned. The Government had consistently been rejecting the workers' demands to negotiate with the workers concerned in developing the basic design of the reform. The speaker requested the Government to fully respect the views expressed by the Committee of Experts in proceeding with its work to reform the public service system. Furthermore, the Government should sincerely negotiate with workers' organizations to reach an agreement thereon. Finally, the fact that the framework unilaterally set and announced by the Government should not constrain any future negotiation with workers' organizations.

The Worker member of France wanted to revert to the restrictions imposed by Japanese legislation on the trade union rights of public employees and public servants. He noted that, since 1965, the date of ratification of Convention No. 87 by Japan, the Committee of Experts had continued to request that Convention No. 87 be effectively applied. He remarked that fire-fighting personnel, public servants and employees of state enterprises continued to be denied of their basic trade union rights. He added that even if the reforms of 1995 which authorized the establishment of staff committees were undeniably a step in the right direction, they continued to be insufficient and could not replace the full application of the Convention for this occupational category. Furthermore, even if the Supreme Court of Japan had considered as constitutional the prohibition of the right to strike of all public servants, it was worth noting that such an interpretation was contrary to the international obligations contracted by Japan, as reiterated by the Committee of Experts on a number of occasions. This restriction also applied to employees of state enterprises. Furthermore, public servants who infringed that prohibition were subject to being fired and even being imprisoned. What was at stake was the violation of the basic trade union rights of workers when the Government of Japan was involved in a reform process of the public sector on a massive scale. He pointed out that the latter did not seem to involve the consultation of representative organizations of the personnel under question. Yet, the reform process offered a unique opportunity for the Government to bring its legislation into conformity with its international obligations. It was useful to recall that the application of Convention No. 87 was the basis for the observance of all the fundamental rights of workers. In the first instance, the Government of Japan had to apply the obligations it had contracted itself to its own staff in order to apply them to private companies. He added that more developed countries were in a position to demonstrate their commitment to fundamental standards. In that context, any other position adopted by the Government of Japan could not be in line with the principles that constitute the foundation of any State in which rights prevail.

The Worker member of Pakistan stated that since Japan was an industrialized country and a Governing Body member, it should be a model for developing countries with regard to the functioning of its industrial relations system. Hence the right to organize of firefighters was an important point and the fire defence personnel committees were not an adequate or appropriate solution for these employees. Concerning the right to strike, he emphasized that this should only be limited to essential services whose interruption would endanger the safety, security or health of all or part of the population. Moreover, in such services where workers were deprived of the right to strike, they should be granted compensatory guarantees which should be impartial and rapid. Finally, with regard to the reform of the public service system, it was the right of society to reform the civil service. However, the fundamental rights of public servants, including their right to organize, should also be taken into account during the course of this reform.

The Worker member of the United States expressed his support for the statements made by the Workers' spokesperson and by the Japanese Worker member. He recalled that the last time the Committee had discussed the issue of the right to organize for fire-fighting personnel was in 1995. At that time, the Japanese Worker member was able to report the establishment of fire defence personnel committees, which was seen as a breakthrough towards granting firefighters their full rights under Convention No. 87. He noted, however, that the Japanese Public Service Union (JICHIRO) and firefighters themselves had argued that the Local Public Service Law must be amended in order to achieve full compliance with the Convention, a position also supported by the Committee of Experts. The Experts had pointed out in 1999 that a number of aspects of the current system had not worked effectively, and unions had made suggestions to the Government on how to improve the system, although it appears the Government had ignored these. Today it appeared that the progress which had begun six years ago had stalled because of government intransigence on the issue. It was the responsibility of the Government to end the stalemate by heeding the advice of JICHOREN and firefighters themselves. He urged the Government to take every step necessary to bring its laws and practice into full compliance with Convention No. 87. The Government should understand, in view of the long history of the case, that the Committee would review the case as long as necessary until the issue had been resolved.

The Worker member of Sweden indicated that Japan had initiated a process with the goal of achieving a reform of the public service system, including changes to the labour-management system in the public sector. In December 2000, the Government had decided officially to begin its work, setting a timetable aimed at having the Parliament adopt a new law in this regard by January 2002. She expressed concern that this reform had been undertaken unilaterally by the Government, which so far had shown neither the interest nor the will to involve workers' organizations in this important task. Moreover, the Government had already established a framework for the reforms without any consultation with the workers' organizations. This was a clear violation of Convention No. 87, ratified by Japan in 1965. One of the points contained in the framework addressed the establishment of a new system for determining wages and working conditions for public employees. However, no consultations had yet been held on this matter with the workers concerned. In this regard, the Government was completely rejecting the workers' demands that it observe the principles set forth in the Convention.

In her view, if the Japanese Government was serious concerning its commitment to respect the Convention, as the Government representative had indicated at last year's Conference Committee, it must first demonstrate its intent to involve workers' organizations in good-faith negotiations concerning the reforms to the public service system. The Government must also observe its commitment to respect fully the views expressed by the Committee of Experts. The Government must guarantee that the work of reforming the public service system would be done in full compliance with Convention No. 87. She pointed out that fire-fighting personnel in Japan were still not allowed by law to organize and to strike. The Convention was clear, as was the Committee of Experts' interpretation of its provisions. Freedom of association was to be guaranteed not only to workers and employers in private industry, but also to public employees. The exclusion of public employees from the exercise of this fundamental right was contrary to the provisions of the Convention. She therefore urged the Japanese Government to take the necessary measures to enable firefighters to organize and form trade unions.

The Worker member of Germany addressed the issue of public servants' right to strike. As the Worker members had correctly pointed out in earlier statements, the constitutional rights of public servants had been violated for a long time, and the situation had been criticized for the last two years. However, there were no improvements to the situation in sight. He was familiar with this problem, as the legislation in his country had the same prohibition which the Committee of Experts had been criticizing for years. Accordingly, he expressed his emphatic support of public servants' right to strike. Noting that the Committee of Experts' report referred to teachers' right to strike, he noted that the right of this category of employees to strike had been recognized by the Joint ILO/UNESCO Committee on the Status of the Rights of Teachers, as well as by the Committee of Experts and the Committee on Freedom of Association. Noting that the Committee on Freedom of Association had always made its decisions on the basis of a consensus between the Government, Employer and Worker members, he pointed out that the Japanese Government had not followed the comments of the Committee of Experts. He considered this situation to be unacceptable and noted that key institutions which had been established to provide compensatory rights to public servants were now being dismantled. He therefore urged the Japanese Government to fully recognize the right to strike and to apply it in law and practice. With regard to the right to strike of public servants this was particularly important given the proposed changes to the system on labour relations. To this end, the first step to be taken was the full involvement of trade unions in the development of the framework.

The Worker member of Singapore wished to make two points with regard to Japan's application of Convention No. 87. First, it was clear under Article 9 of the Convention that only members of the police and armed forces were exempted from the right to trade union representation. Convention No. 87 did not exclude firefighters from coverage, and for good reason. She stressed that no worker should be denied the right to trade union representation unless this right, if exercised, would compromise national security. Therefore, she expressed the opinion that the Local Public Service Law constituted a violation of the provisions of the Convention. The establishment of the fire defence personnel committees did not in any way address this issue. These committees, which had been established in 1997, were surely meant to constitute a temporary measure. However, the indications were now that these committees had in fact become permanent fixtures. She cited the statement made in the Government's report that "it intends to continue to make efforts for the smooth operation and firm establishment of the system". This showed that there were strong and valid reasons for the concerns expressed by the Japanese Trade Union Confederation (JTUC-RENGO), the Japan Federation of Prefectoral and Municipal Workers' Unions (JICHIRO), the National Firefighters Council (ZENSHYOKYO) and the other trade union organizations cited in the report of the Committee of Experts that there was no intention on the part of the Government to comply with the Convention. There was clearly a distinction between a committee which performed a purely consultative function and a trade union with full rights to represent and negotiate collectively on behalf of workers.

With regard to the right to strike, the position of the Committee of Experts was clear - the prohibition applied only to public servants exercising authority in the name of the State. The basis for the Government's distinction between "specified independent administrative institutions" which have no right to strike and "independent institutions other than those specified", which have the right to strike was unclear and arbitrary. Moreover, it was not sustainable in the light of the Government's explanation that "operation delays in specified independent administrative institutions were deemed to directly and markedly hamper the stability of national life or the society and the economy". This argument was not sustainable when applied to public servants such as public school teachers. She therefore concurred with the statements made by the other Worker members and called upon the Government to review its position seriously and to take corrective measures to bring its legislation and practice into line with Convention No. 87.

The Government representative of Japan explained his Government's position, in response to the statements made by the Worker members. With regard to the issue of fire defence personnel's right to organize, he pointed out that the 1994 General Survey cited Japan as an example among the countries which denied the right of fire defence personnel to organize. He indicated that the Ministry of Home Affairs, the Fire and Disaster Management Agency and the All-Japan Prefectoral and Municipal Workers' Union (JICHIRO) had held intensive consultations and that as a result, the fire defence personnel committees had been introduced as the solution to this problem. This solution had been accepted by the Japanese people by consensus. Under this system, the process of improving working conditions or addressing other issues relevant to fire defence personnel was conducted with their participation at the respective fire defence headquarters to which they were assigned. Problems concerning working conditions or other issues relevant to specific individuals were also handled in this manner. He added that the fire-defence personnel committees had achieved good results as mentioned in his opening statement and, in the future, the Japanese Government intended to continue its efforts to achieve the increasingly smooth operation and firm establishment of this system, in cooperation with the parties concerned, including workers' organizations and fire defence headquarters. The Japanese Government's basic observations regarding fire defence personnel's right to organize had been set forth in its past reports as well as on other occasions. The Government member pointed out that, in the view of his Government, there was no problem in the application of Convention No. 87. He acknowledged, that there were some restrictions on the fundamental labour rights of public employees, due to their distinctive status and to the public nature of their functions. Public employees nonetheless had specific workers' rights that must be guaranteed, and they benefited from compensatory measures, including the National Personnel Authority's recommendation system. While the Government recognized fully the ILO's views on the restriction of public employees' right to strike, it considered that an evaluation of the restrictions needed should take into account the specific circumstances of each country, including its history and the tradition of labour relations in the public service, etc.

With regard to the civil service system reforms in question, he noted that, while the decision made in the Cabinet meeting in December 2000 had provided a rough idea of the contents of the reform, the framework of March 2001 indicated the direction that the Government's internal examination of the issue had taken based on the Cabinet decision. The nature of these two decisions explained why there were no issues calling for negotiations with workers' organizations at this stage. The Government nevertheless intended to proceed in the future with its examination of the new system through good-faith negotiations and consultations with the parties concerned, including the workers' organizations. He stated that neither the Cabinet decision nor the framework would constrain future negotiations and consultations in any way, and the concrete substance of the new system would be determined gradually through discussions with all parties concerned, including negotiations and consultations with the employees' organizations.

The "basic outline" which the Government would issue by the end of June 2001 would not mark the end of discussions on concrete measures. Instead, the Government would continue examining the substance of the system through negotiation and consultation in good faith with the parties concerned, including the workers' organizations, even after the "basic outline" was issued. In conclusion, he assured the Committee that the Japanese Government had recognized fully the views expressed by the ILO to date and that it was ready to supply information to the ILO on any concrete progress made concerning this matter.

The Employer members called on Japan to provide additional information to the Committee of Experts indicating the measures that remain to be taken in respect of the first point of the report of the Committee of Experts. With regard to points 2 and 3 of the report the Employer members recalled that, contrary to the position taken by the Committee of Experts, the right to strike could not be derived from the provisions of Convention No. 87. They characterized the statements of some Worker members, who called for the right to strike to be extended to firefighters, as verging on the absurd. They noted that not even the report of the Committee of Experts contemplated such a result. Referring to the statements made by the Worker member of Germany regarding the cases examined by the Committee on Freedom of Association, they noted that the Committee on Freedom of Association involved countries that had not ratified Convention No. 87. In these cases, the right to strike had been based on the ILO Constitution. The Employer members found this result strange, given that the ILO Constitution contained only general constitutional principles. Commenting on the nature of the Committee on Freedom of Association, they noted that this body had been established in 1951 to conduct preliminary examinations on cases for the Governing Body, as was also the case for the Fact-Finding and Conciliation Committee. These bodies had no competence beyond fact-finding and conciliation. The Employer members pointed out that the members of these tripartite bodies acted in their personal capacities in achieving agreements.

The Worker members stated that the main problem of this case regarded the various elements of freedom of association in the public sector, even if violations to Convention No. 87 also existed in other sectors. They insisted that the civil servants' unions had fully participated in public function reforms which would have direct consequences on the working conditions of their affiliates. If the Government had taken steps towards this end, including addressing the application of the principles of freedom of association in other sectors, it would have avoided appearing before the Committee the following year.

The Committee noted the statements made by the Government representative and of the ensuing discussion. The Committee further noted that the statements made by the Committee of Experts referred to different aspects, namely, the right to freedom of association of fire-fighting staff, the rights of civil servants' organizations and the situation of hospital staff. The Committee noted that certain trade union organizations had presented statements regarding the denial of the right to freedom of association of fire-fighting staff. The Committee expressed the hope that the Government would hold a bona fide dialogue with the concerned trade unions and would take measures, as soon as possible, to guarantee the right of freedom of association of the staff. The Committee urged the Government to undertake efforts to encourage a social dialogue with the concerned trade union organizations of the public sector on the relevant points. The Committee hoped that the Government would provide detailed information in its next report so that the Committee of Experts could fully review the topics in order to verify whether the situation had improved and trusted that in the near future it would be in a position to consider if real progress had been made in the application of the Convention.