Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s report. It also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos. 2177 and 2183 (329th Report, paragraphs 567-652, and 331st Report, paragraphs 516-558). The Committee also takes note of the comments of the Japanese Trade Union Confederation (JTUC-RENGO) dated 1 September 2004 and 5 September 2005, and of the Government’s reply thereto. It further notes the comments made by the Japan National Hospital Workers’ Union (JHWU/ZEN-IRO) on 26 August 2003 and 4 August 2004 as well as the Government’s reply thereto. The Committee finally notes the comments made by the ZENTOITSU (All United) Workers’ Union on 30 March, 7 October and 14 December 2004 and 12 April 2005. The Committee observes that the comments made by the ZENTOITSU (All United) Workers’ Union relate to collective bargaining and anti-union discrimination issues dealt with under Convention No. 98.

1. Denial of the right to organize of firefighting personnel. The Committee recalls its long-standing comments concerning the need to recognize the right to organize for firefighting personnel. It also notes that in the conclusions and recommendations reached in Cases Nos. 2177 and 2183, the Committee on Freedom of Association urged the Government to amend its legislation to ensure that firefighters have the right to organize.

The Committee observes that in its report the Government reiterates previously provided information to the effect that the services and functions of the fire defence in Japan correspond to those of the police and therefore fall under the exception of Article 9. The Government adds that the issue of the establishment of an organization by the fire defence personnel should be resolved in accordance with the national consensus which has so far, allowed for the creation of a system of fire defence personnel committees which guarantee the participation of fire defence personnel in decisions over their terms and conditions of employment. The fire defence personnel committee system has been firmly established since 1997, and nearly 5,000 opinions by employees are discussed annually through this system across the country (50,000 in total by March 2005). On 15 October 2004, eight years since the establishment of the system, an agreement was made between the Minister of Internal Affairs and Communications and the representative of the Japan Federation of Prefectural and Municipal Workers’ Union (JICHIRO) to exchange views on the practices of the Fire Defence Personnel Committees. As a result, a "body" was set up and held five meetings from 25 November 2004 to 15 March 2005. Pursuant to consultations within the body, the following improvements were agreed between the Ministry and JICHIRO: (i) the sessions of the committees shall be held in the first half of the fiscal year (April to September) in order to allow enough time for budget allocations; (ii) the committees shall notify each employee who submitted opinions of the result of discussions on these opinions and provide relevant reasons; they shall also provide all of the personnel with a summary of the deliberations including the opinion which the Committees submitted to the Chief; (iii) a "Liaison Facilitator" system shall be introduced to the Committees; facilitators shall be named on the basis of recommendations by the personnel in order to provide explanations on the opinions submitted by personnel to the Committees and make comments on their operation. The improvements have already been introduced in the Order on the organization and operation of the fire defence personnel committees issued under article 14(5), paragraph 4, of the Fire Defence Organization Law.

The Committee takes note of the improvements introduced to the functioning of the fire defence personnel committees system pursuant to consultations with JICHIRO. It also recalls however, that in their comments submitted over the years, the Japan Federation of Prefectural and Municipal Workers' Union (JICHIROREN) and the National Network of FireFighters (FFN), had indicated that although they considered the fire defence personnel committees as an advancement in providing an opportunity to staff to state their own opinions, they also considered that these committees were not equivalent to giving personnel the right to organize and that the law needed to be amended in this respect. The Committee further notes from the recent comments made by JTUC-RENGO, that although steady progress has been obtained in the operation of the existing system of fire defence personnel committees, with the voices of the fire defence personnel carrying more weight, no improvement has been made on securing the right to organize itself for fire defence personnel.

The Committee once again recalls that as early as 1973, it had stated that it "does not consider that the functions of fire defence personnel are of such a nature as to warrant the exclusion of this category of workers under Article 9 of the Convention" and hoped that the Government would take "appropriate steps to ensure that the right to organize is recognized for this category of workers" (ILC, 58th Session, Report III(4A), page 122). The Committee therefore once again asks that the Government indicate in its next report any legislative measures taken or contemplated in order to ensure that fire defence personnel are guaranteed the right to organize.

2. Prohibition of the right to strike of public servants. The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos. 2177 and 2183 to the effect that public sector employees, like their private sector counterparts, should enjoy the right to strike, with the possible exceptions of public servants exercising authority in the name of the State and workers employed in essential services in the strict sense of the term. Moreover, public employees who may be deprived of this right should be afforded appropriate compensatory guarantees (329th Report, paragraph 641, and 331st Report, paragraph 554). The Committee recalls that in its previous comments it had referred to the detailed comments of the Fact-Finding and Conciliation Commission on Freedom of Association which stressed the importance "… in circumstances where strikes are prohibited or restricted in the civil service or in essential services within the strict meaning of the term, of according sufficient guarantees to the workers concerned in order to safeguard their interests" (ILC, 63rd Session, 1977, Report III(4A), page 153).

The Committee observes that in its latest report the Government indicates once again that the Supreme Court of Japan has maintained throughout its judgments that the prohibition of strikes by public servants is constitutional, something it had already mentioned to the Fact-Finding and Conciliation Commission on Freedom of Association (ILC, 64th Session, 1978, Report III(4A), page 143). The Committee is most concerned therefore to note that the situation has not evolved significantly. It asks the Government to indicate in its next report the measures taken or envisaged to ensure that the right to strike is guaranteed to public servants who are not exercising authority in the name of the State and to workers who are not working in essential services within the strict sense of the term, and that the others (e.g. hospital workers) benefit from sufficient compensatory guarantees in order to safeguard their interests, namely adequate, impartial and speedy conciliation and arbitration procedures, in which the parties have confidence and can participate at all stages, and in which the awards, once made, are binding and fully and promptly implemented.

3. Reform of the civil service. The Committee notes that in Cases Nos. 2177 and 2183 the Committee on Freedom of Association requested that the Government, as well as the complainants ZENZOREN and JICHIROREN make efforts with a view to achieving rapidly a consensus on the reform of the public service and on legislative amendments addressing the issues raised above and many others.

The Committee takes note of the comments made by JTUC-RENGO to the effect that despite ongoing negotiations with the Government, no improvement has been noted on any of the issues under discussion. JTUC-RENGO strongly opposes unilateral legislative proposals aimed at reforming the public service system and it calls on the Government to establish a new framework for the implementation of reform based on national consensus. JTUC-RENGO proposes certain minimum demands in this respect, including the need for the Government to state clearly its intention to grant fundamental trade union rights to public service employees and to present a plan to this effect, as well as the need to establish a labour-management consultation system in the framework of introducing a new personnel appraisal system focusing on workers’ competence and achievement.

The Committee notes that according to the Government, the Cabinet adopted in December 2004 a decision on the "Future Policy for the Administrative Reform", in which it indicated that the Government will consider submitting bills to the Diet while making further coordination efforts with the parties concerned, and will try to put into practice reforms which can be implemented within the current legislative framework for a steady promotion of the reform. The Government recognized that it is necessary to continue meeting with JTUC-RENGO on this subject, in a meeting of May 2005 between representatives of this trade union and the Prime Minister as well as other ministers. As for the trial implementation of the new personnel appraisal system, the Government is currently exchanging views with employees’ organizations in an effort to start the trial within the 2005 fiscal year. The Government stated its intention to make its best efforts to achieve a fruitful Civil Service Reform through a broad exchange of views with the parties concerned including employees’ organizations.

In these conditions, the Committee wishes to stress once again that the reform process which will establish the legislative framework of industrial relations in the public sector for many years to come, is a particularly appropriate opportunity to hold full, frank and meaningful consultations with all interested parties on all the issues which create difficulties with the application of the Convention and whose legal and practical problems have been raised by workers’ organizations over the years. The Committee trusts that the Government will continue to take all the necessary measures in this regard and asks it to provide information on the progress made in its next report.

4. Restrictions on trade union activities in medical institutions. The Committee takes note of the comments made by JHWU/ZEN-IRO on 26 August 2003 as well as the Government’s observations thereon. JHWU/ZEN-IRO indicates that the Direction of the National Sanatorium Nishi-beppu Hospital prohibited trade union training sessions using videotapes, removed TV sets from the rest stations, repeatedly questioned the union branch officers on the training sessions, banned the distribution of union bulletins, petition papers etc. in the personnel rest stations, intervened in a union petition activity and took disciplinary measures (reprimand) against the deputy chairman of the union branch. According to JHWU/ZEN-IRO, training during rest hours had been allowed for 30 years in that sanatorium before the management unilaterally decided to prohibit it.

The Committee notes that according to the Government, the stance of the hospital management was fully justified by the fact that the regulation concerning the management of national land and buildings prohibits the use of video recorders on hospital property without permission.

The Committee recalls that freedom of association implies that workers’ and employers’ organizations should have the right to organize their activities in full freedom, including by using video recordings if they so wish, with a view to defending all of the occupational interests of their members. It requests the Government to ensure respect for this principle in the future.