Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

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

The Government communicated written information in the form of an organizational chart of the Fire Defence Personnel Committee System, composed of "liaison facilitators", the Fire Defence Personnel Committee and the fire chief. The newly established liaison facilitators help employees submit their opinions to the committee and explain to them its decisions. The opinions may concern wages, working hours, working conditions, welfare, protective clothing and equipment. The committee is composed of the chairperson and usually eight members appointed by the fire chief from fire defence personnel; half of the members are appointed on the recommendation of the personnel. The results of the discussions in the committee are reported to the fire chief who should deal with each case with serious attention to the results of these discussions. A new feedback process has been added whereby the results of the committee's discussions are to be communicated to the personnel and to the liaison facilitators, who could make comments on the operation and opinions of the committee.

In addition, before the Committee, a Government representative of Japan presented his Government's position regarding the observations of the Committee of Experts on the application of Convention No. 87. The Government had drafted the Civil Service Reform Bill which defined the fundamental principles of civil service reform and basic policy, based on discussions with trade unions and employees' organizations, and had submitted it to the Diet on 4 April 2008. The Bill had passed the House of Representatives with amendments on 29 May 2008 and was under deliberation in the House of Councillors.

Regarding the basic labour rights of public service employees, the Bill provided that the Government should present a complete overview of the reform, including the costs and benefits, in such a case where the range of public service employees who had the right to conclude collective agreements was expanded and, with the understanding of the people, take measures for a transparent and autonomous labour relations system. This was the result of partial amendments to the original Bill; the latter was based on the report of the Special Examination Committee which featured members having knowledge of and experience with trade unions and the relevant em- ployees' organizations as well as the report of the Advisory Group for Comprehensive Civil Service Reform, made up of intellectuals and including a trade union representative. The Government would examine it in detail after the Bill was adopted and would continue to do its utmost to promote civil service reform, including an examination of the right to conclude collective agreements, based on the idea that a frank exchange of views and coordination were necessary. The Government would be grateful if the ILO would recognize its basic policy while awaiting the conclusion of domestic consultations.

With regard to the right of fire defence personnel to organize themselves, he recalled that Japan had ratified Convention No. 87 in 1965, based on the conclusion of the Committee on Freedom of Association which had shown twice that this matter caused no problems in the application of Convention No. 87 in Japan regarding fire defence services, which were assimilated to the police. Meanwhile, the report of the Special Examination Committee provided arguments on whether or not the right to organize should be accorded to fire defence personnel. Since 1996, Japan had implemented the Fire Defence Personnel Committee System to guarantee the participation of fire defence personnel in decisions on working conditions and to protect their rights. The system was based on the Fire Defence Organization Law and the agreement between the Government and the All Japan Prefectural and Municipal Workers' Union (JICHIRO).

The Government also continued to improve the system. In 2006, the Committee on Freedom of Association had welcomed introduction in 2005 of the liaison facilitator system. The Government recognized the importance of the Fire Defence Personnel Committee, which had contributed substantially to improving working conditions, and was determined to continue its smooth operation. Regarding the improved system, he asked those present to look at the figures presented in the written information provided by the Government.

The Worker members said that this case concerned the recognition of the fundamental trade union rights of workers in the public sector in Japan. The Committee of Experts had repeated the same observations for a number of years with regard to the prevailing system in Japanese public services. These observations dealt first of all with the refusal to recognize the right of workers in the public sector, such as firefighters, to organize. The Government refused them this right on the ground that they performed equivalent duties to the police, and were therefore excluded from the application of the Convention. A system of fire defence personnel committees and "liaison facilitators" to relay information to personnel had been established ten years ago. Investigations had revealed that these committees had a limited role. Furthermore, the Committee of Experts had been obliged to recall for more than 35 years that fire defence personnel could not be excluded from the application of the Convention.

The Worker members recalled that a second criticism made by the Committee of Experts concerned the general prohibition of strikes in the Japanese public sector. This general prohibition existed although the Committee of Experts had maintained for more than 30 years that both public and private sector workers should enjoy the right to strike, with the exception of public servants exercising authority in the name of the State and workers employed in essential services in the strict sense of the term. The latter should, however, be afforded appropriate compensatory guarantees to defend their interests, in particular through appropriate conciliation procedures.

The Worker members raised another matter which revealed gaps in Japan's labour relations system, namely the very limited capacity of civil servants to enter into collective agreements, particularly with regard to determining salaries. The Worker members highlighted the Government's inaction on all the above points. This inaction had been going on for several decades now. The nonconformity of Japan's labour relations system with the Convention was first indicated in the 1965 Dreyer report. In addition, both the Committee on Freedom of Association and the Conference Committee had examined the matter on several occasions without any progress being made.

The Worker members drew attention to the Government's change of course at the end of 2005 with the adoption of a fundamental policy on civil service reform, including reviewing labour relations and fundamental labour rights in the public sector. The draft Act being discussed in the Diet, Japan's Parliament, had been amended following pressure from trade unions and political parties. This draft Act, which provided for the right to bargain collectively, represented a step forward, but did not go far enough, since it covered neither the right of firefighters to organize, nor did it recognize the civil servants' right to strike.

The Worker members observed that a developed country such as Japan could not reasonably invoke economic, social or political problems as an obstacle to full compliance with the Convention.

The Employer members recalled that this case concerned three elements in connection with the Convention: denials of the right to organize of the firefighters; prohibition of the right to strike of public servants and the reform of the civil service. When the case had been dealt with in 2001, it had concerned only the first two items mentioned. The Committee of Experts' 2006 report had shown progress in those areas.

The case differed from many of the cases before the Committee because it related to public sector employees. This Committee had dealt with cases concerning public employees before, such as the 2007 cases concerning Cambodia, Ethiopia and Turkey. There were three aspects in which public employees differed from private employees. The employer of public employees could not go bankrupt and could not, in any other way, involuntarily leave business. In many cases, public employees were prohibited from striking, but this differed very much from country to country.

The Employer members recalled that there were special exceptions in the Convention for some public employees, as provided in Article 9 of the Convention. Further, the Convention included special clauses for the armed services and the police. There were good reasons for their exclusion. The Committee of Experts had a much narrower interpretation of these provisions than the Japanese Government. The Government might have good reasons for its position, taking into consideration the historical circumstances of the Japanese ratification and the traditional view of firefighters in Japan. However, the Employer members did not agree with the Government's reasoning.

In 2001, the Employer members noted that full freedom of association had not been achieved. They recognized, however, that the Government had taken steps to remedy the situation.

The fundamental right to organize without interference from the Government could not be compromised in Japan. The Employer members therefore welcomed that the Japanese Government had informed the Committee of new and positive initiatives in the law-making process.

Furthermore, the Employer members emphasized that during the discussion, before the adoption of the Convention, the question of whether there should be a paragraph on the right to strike was thoroughly discussed. It was decided that the Convention would not include such a provision, and it was adopted and ratified without it. The Employer members were well aware that the Committee of Experts had tried for many years to reverse the original decision in such a way that they read into the Convention a right to strike. The Employer members did not acknowledge this right.

In the Employer members' view, the question whether public employees had a right to strike had to be determined at a national level. However, there was nothing wrong with the Japanese Supreme Court maintaining the prohibition of strikes by public servants as constitutional. This Committee could not regulate the right to strike for public employees.

The Employer members noted that governments and public employers worldwide restructured the civil service. It was a way of improving and making the public service more effective. But these attempts were hardly a violation of the Convention. The reform process concerning the attempts to bring the public sector in line with the Convention played a fundamental role. In 2001, this Committee had urged the Government to undertake efforts to encourage social dialogue with the concerned trade unions. The civil service reform process that took place since then included union representatives. The non-involvement of the unions participating in this Committee's discussion did not mean that other unions did not participate in the preparation of the reform. The Employer members found that it was natural and advantageous for all parties, including Japanese society as a whole, to include the workers in the reform process. Genuine social dialogue in the public sector was a well-established means to help such reforms.

The Employer members noticed that the new reform in Japan seemed to consider establishment of a new negotiating system for firefighters and asked the Japanese Government to proceed with the process. While the Government was putting in place a new negotiation system, it should, simultaneously, pursue the reform so as to recog- nize the right of firefighters to form organizations without any interference from the authorities.

The Worker member of Japan reiterated that, in violation of the Convention, the fundamental labour rights of public sector employees in Japan were severely restricted. This had been repeatedly pointed out by the Committee on Freedom of Association and the Committee of Experts, as well as by the Fact-Finding and Conciliation Commission on Freedom of Association in 1965. The Government had kept ignoring the recommendations without taking remedial measures.

Under the "registration system for employees' organizations", public employees were not allowed to join together with other employees beyond their own ministries or administrative units, to form one united union. Firefighters and prison staff were prohibited by law from forming a union, which constituted a severe restriction of the right to organize. The Government reiterated that efforts would be made to improve the working conditions of firefighters through the smooth operation of the Fire Defence Personnel Committee. While the Fire Defence Personnel Committee could be regarded as a form of labour-management consultation, it was not equivalent to giving firefighters the right to organize. Among all member countries of the Organization for Economic Cooperation and Development (OECD) having ratified the Convention, Japan was the only state denying the right to organize.

There had also been a case of an unfair labour practice against teachers staging a strike in January 2008. The wage increase recommendations of the personnel committee, which were supposed to constitute compensatory measures for the restriction of fundamental labour rights during the past nine years, had not been implemented due to difficult fiscal constraints. After having reduced the wages by 10 per cent per year for an agreed period of two years, the Government had unilaterally broken the promise it had given to the union and, as of 2008, imposed a further wage reduction for four years. When the Hokkaido Teachers Union staged a one hour strike in protest, disciplinary measures were immediately taken under the Local Public Services Act against all strikers (over 10,000 teachers). The case clearly showed a lack of effective recourse against unilateral wage reduction of public service employees, and the malfunctioning of the compensatory mechanism, because local autonomous bodies ignored the personnel committee system due to fiscal difficulties.

In February 2002, his organization along with the International Trade Union Confederation (ITUC), formerly known as the International Confederation of Free Trade Unions (ICFTU), and other international organizations had filed a complaint with the Committee on Freedom of Association against the Government of Japan for denying public service employees the right to organize in conformity with Conventions Nos 87 and 98 (Case No. 2177), since Government plans to reform the civil service system maintained the restrictions on fundamental labour rights. The Committee on Freedom of Association issued recommendations on three occasions to redress the violations, namely in November 2002, June 2003 and March 2006.

In 2006, the Government finally set up the Special Examination Committee and allowed union representatives to participate. The Special Examination Committee submitted its report in October 2007, concluding that the existing system should be changed so that labour and management could autonomously determine working conditions. Further, certain non-operational white-collar public employees should be granted the right to conclude collective agreements. Although these conclusions appeared to be insufficient in the light of the Convention, his workers' organization considered they could represent a possible first step towards reform and demanded their implementation.

However, the Government has submitted to the Diet a Bill that totally diluted the conclusion of the Special Examination Committee. The National Public Services System Reform Basic Bill stated the Government would "further examine" the issue of fundamental workers' rights of public service employees, so as to leave room for maintaining the status quo. The workers' organizations and opposition parties' demands for amending the Bill were reluctantly accepted. The words "to further examine" were changed to "to take measures for an autonomous labour-employer relation system". Obviously, the repeated recommendations of the ILO supervisory bodies had put pressure on the Government. The amended Bill passed the Lower House on 28 May and was now under discussion in the Upper House. The direction indicated by the amended Bill was a small but positive step forward. The Minister in charge stated in the Diet that another reform bill would be submitted within 3 years in order to take measures for an autonomous labour relations system. After the Diet's approval, the Government would have to establish, without delay, a competent body to design the system. His organization urged the Government to undertake to establish without delay an autonomous labour relations system based upon the principles of freedom of association, to further commit itself to establishing a competent body with union representation and to cooperating in good faith.

The Government representative of Japan stated that civil service reform was an important issue, which should be addressed promptly in view of the significant public interest in public service employees. The Civil Service Reform Bill, which included an examination of the right to conclude collective agreements, was based on the reports of the Special Examination Committee and the Advisory Group consisting of members with experience with trade unions and relevant workers' organizations. The civil service reform was developed with the assistance of the social partners concerned. Following in-depth discussions in the Diet, partial amendments had been made to the Bill. As a result of the amendments, the Bill required the Government to present to the people the whole picture of the reform, including the costs and benefits in the event that the range of public service employees who had the right to conclude collective agreements was expanded and, with the understanding of the people, to take measures for a transparent and autonomous labour-employer relations system. In cooperation with social partners concerned and based on an exchange of views and listening to all parties concerned, the Government of Japan would decide on the necessary legislative measures within about three years after the enactment of the law. Indeed, social dialogue would be fundamental throughout all stages in order to achieve a fruitful civil service reform.

With regard to the fire defence personnel's right to organize, the Government established the Fire Defence Personnel Committee, based on the agreement with the All Japan Prefectorial and Municipal Workers' Union (JICHIRO), a trade union grouping of local public service employees. Moreover, due to the introduction in 2005 of the liaison facilitator system, the percentage of the opinions submitted through the liaison facilitator rose from 52.9 per cent in 2005 to 78.6 per cent in 2007. In addition, the percentage of the fire defence headquarters notifying the personnel and the liaison facilitators of the results and reasons of the deliberations rose from 48.4 per cent in 2005 to 73.9 per cent in 2007.

The Government representative emphasized that his Government was continuously committed to further improving the smooth operation of the Fire Defence Personnel System and, through exchanges of views with workers' unions, the working conditions of the fire defence personnel.

The Worker members recalled that the question of respect for the fundamental rights of workers in the Japanese public sector had been raised since 1965, and that it had been examined by the ILO's supervisory bodies on many occasions. The Government had finally adopted a draft Act to reform the public services system, which was currently being discussed by the Diet. The Worker members maintained that the draft Act should be adopted, as it would finally allow the right of civil servants to bargain collectively to be recognized. As a result, an autonomous labour relations system could be established in the public sector. Nevertheless, provisions recognizing the right of civil servants to strike and the right of firefighters to organize should be added to the draft Act as a matter of urgency. The Worker members requested the Government to initiate discussions with the trade unions without delay on these additional reforms and hoped that the ILO would provide the necessary technical assistance in that regard. Japan's civil servants should not have to wait several more decades for the recommendations of the Committee of Experts and the Committee on Freedom of Association to be implemented in practice.

The Employer members highlighted the Government's efforts to address civil service reform through an exchange of views with concerned trade unions. The progress towards adopting an amended Civil Service Reform Bill based on discussions with the unions was welcome. It was necessary that the parties concerned further discussed the issue of labour rights of public service employees.

The Employer members asked the Government to separate the processes of building up a new negotiation system for firefighters from the improvement of freedom of association of fire defence personnel. In this regard, they encouraged a de facto recognition of the firefighters' union by the authorities for the purpose of consultation and negotiation. The Government was also asked to develop the reform in such a way as to recognize the firefighters' right to organize as a matter of law.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and of the discussion that followed.

The Committee observed the comments made by the Committee of Experts which referred to the right to freedom of association of firefighting staff and the rights of civil servants' organizations.

The Committee noted the Government's statement according to which the Civil Service Reform Bill was currently pending before the Diet on the basis of recommendations made by the Special Examination Committee. The Government was committed to a full and frank dialogue with the social partners concerned on the matter of the fundamental rights of public employees. As regards firefighters, the Government recalled the special measures taken, in agreement with the municipal workers' union, to institute the system of fire defence personnel committees and the recent addition of liaison facilitators.

The Committee welcomed the steps taken by the Government over the last few years to ensure full and meaningful consultations with the social partners concerned on the issue of the provision of fundamental labour rights for public employees within the context of civil service reform. It encouraged the Government to pursue this approach of full and open social dialogue in the further elaboration of the texts necessary to ensure full application of the Convention in law and in practice. In this respect, the Committee recalled the need to ensure the right of Convention No. 87 to public servants and to guarantee the right of firefighters to organize without interference from the public authorities. It encouraged the Government in the meantime to proceed to a de facto recognition of the firefighters' union so that they might participate in the relevant consultations and negotiations. The Committee trusted that the Government would be in a position in the near future to provide detailed information to the Committee of Experts on the tangible steps taken to ensure the full respect of the Convention for all workers.