Individual Case (CAS) - Discussion: 2024, Publication: 112nd ILC session (2024)

Written information provided by the Government

(i) Right to organize of firefighting personnel

(ii) Right to organize of prison staff

(iii) Public service employees

Discussion by the Committee

• The NPA provides recommendations to the Diet, which is comprised of representatives of the Japanese public, and the Cabinet.
• In response to the recommendations, the Government drafts the bills to modify working conditions, and the Diet deliberates and passes them.

Conclusions of the Committee

• further improvements of the status and labour conditions of firefighters;
• what categories of prison officers are considered part of the police, thus exempted from the right to organize, and those categories that are not considered part of the police, and having the right to organize;
• with regard to public service employees:
  • ensure that the National Personnel Authority (NPA) procedures guarantee effective, impartial and speedy conciliation and arbitration procedures;
  • continue to examine carefully the autonomous labour–employer relations system and seek solutions to the various obstacles to it, in line with the Convention; and
  • review the Local Public Service Act and any other related legislation to ensure that local public sector workers enjoy the rights and guarantees set out in the Convention.

Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)



A Government representative indicated that the basic labour rights of national public service employees were, to some extent, restricted. They were, however, compensated by the National Personnel Authority (NPA) Recommendation System and other measures. Specifically, remuneration, working hours, leave and other working conditions were revised through laws adopted by the Diet on the basis of the NPA Recommendations. The NPA was a third party body, independent of employers and employees, which made its own decisions. In particular, with respect to the level of remuneration of national public service employees, the NPA made its Recommendations with the aim of achieving a balance in remuneration levels between the public and private sectors by eliminating the wage gaps between the two sectors. For this purpose, the NPA conducted nationwide surveys in consultation with representatives of employers and workers, and compared in detail remuneration in the public and private sectors. After receiving the NPA’s recommendations and following consultation with employees’ organizations, the Government revised remuneration scales through bills which were submitted to the Diet for adoption. The Government, in principle, respected the NPA Recommendations. The National Public Service Act had been revised in 2014, establishing the Cabinet Bureau of Personnel Affairs. Even after this amendment, the Government had been revising remuneration in accordance with the NPA’s recommendations. While the fiscal conditions remained tight, both base pay and bonuses had been increased every year for the last four years. She was therefore of the view that the NPA continued to provide compensatory measures. The Government was also confident that working conditions for national public employees were appropriately maintained through the deliberation of relevant bills which were prepared by the Government based on the Recommendations by the NPA, a neutral and independent entity. With respect to the issue of the autonomous labour–employer relations system, the Government would continue to have social dialogue with employees’ organizations for a careful examination of these issues. In particular, the following concerns needed to be addressed: the cost of negotiation; which might lead to some confusion, the possible effect of prolonged labour–employer negotiations on the normal operation of services; the risks associated with a failure to reach agreement; and the concerns that it might become standard practice for cases to move to arbitration.

With respect to fire defence personnel, she recalled that the fire defence service was considered to be of a similar nature to the police; thus firefighters did not have the right to organize. The service had been historically part of the police system. In Japan, one of the countries most frequently hit by natural disasters, the fire defence service had to respond under harsh conditions and in close cooperation with the police and the self-defence forces. When the Great East Japan Earthquake had hit in 2011, emergency fire response teams had been mobilized by order of the Commissioner of the Fire and Disaster Management Agency (FDMA) pursuant to the Fire and Disaster Management Organization Act, as amended in 2003. The manner in which the firefighters engaged with the police and defence forces when conducting extremely dangerous operations should be recognized. For these reasons, the right to organize was not granted to the fire defence personnel. However, the Fire Defence Personnel Committee (FDPC) system had been established as an alternative. The role of the FDPC was to examine proposals on working conditions by fire service personnel and to submit its views on them to the chief of the fire service. This system had been introduced by an amendment to the Fire and Disaster Management Organization Act following an agreement between the Minister of Internal Affairs and Communications and the President of the All Japan Prefectural and Municipal Workers Union (JICHIRO) that such a system would be accepted nationally. The system was fully functional for the resolution of problems related to working conditions and other matters. During its 20-year existence, the FDPC had examined some 110,000 proposals and considered about 40 per cent of them to be appropriate for implementation. Over 50 per cent of those had been implemented and dealt with matters considered to be urgent by fire defence personnel, such as the need for measures to deal with harassment or to promote the active participation of women. Thus, the FDPC system contributed to the realization of the demands of the personnel. She emphasized that the Government endeavoured to improve the FDPC system and, to that effect, had conducted an additional survey in January 2018 with a view to identifying areas for improvement. The questionnaire for the special survey had been prepared in close consultation with JICHIRO. On the basis of the results obtained, the Government had been exchanging views with representatives of firefighters, JICHIRO, and employers. All agreed that there was a need to further improve the policy so as to ensure better communication, transparency of procedures and an environment in which the personnel would feel safe expressing their views. The Government intended to produce a plan to improve the FDPC and to revise operational policy of the FDPC system in the summer of 2018, in further consultation with the social partners. In addition to that consultation, the Government will start new regular social dialogue on the FDPC with representatives of firefighters, workers’ representatives such as JICHIRO and with employers’ representatives. She recalled that Japan had ratified the Convention in 1965 in view of the conclusion of the Committee on Freedom of Association, which had twice indicated that it would cause no problem in the application of the Convention to view the fire service of Japan as “certain services assimilated to the police”. Moreover, prison officers were not granted the right to organize, to bargain collectively or to strike, as they fell, for the purpose of this Convention, under the definition of “the police”. In the same way as police officials, prison officers were allowed to carry and use weapons. They were responsible for incarcerating people sentenced to imprisonment, investigating crimes committed in penal institutions, arresting suspects, and carrying out the duties of the judicial police officials in penal institutions. Updated information on the above matters would be provided as much as possible to the Committee of Experts. She concluded by requesting the ILO to take into account the views of the Government and the unique circumstances of the country and to await the conclusion of the national consultations.

The Employer members recalled that since 1989, the application of the Convention had been the subject of 19 observations of the Committee of Experts and had been discussed by the Conference Committee in 1989, 1993, 1995, 2001 and 2008. In its 2017 observation, the Committee of Experts had identified two main issues, namely the denial of the right to organize of public service employees, on the one hand, and to prison officers and firefighters, on the other. Considering the need for flexibility in determining the meaning of the term “police” in line with the national context, it appeared reasonable for the Government to consider prison officers in the category of police and thereby exclude them from the right to organize in the form of a trade union. The Government had been requested to consider, in close consultation with the social partners, which categories of prison staff could be considered part of the police ‒ and therefore exempt from the Convention ‒ and which could not. For those not covered by the Convention, the Government could be asked to establish a compensatory scheme; for the others, the Government should ensure the rights provided for in the Convention. Although firefighters had traditionally not been recognized in the exemption from the right to organize for the armed forces, the Government considered them part of the police: in some circumstances of natural disaster, they had similar responsibilities to protect life, health and property. Furthermore, the Government had ratified the Convention on the understanding that firefighters would be considered part of the police: it had also referred to the FDPC system that had been introduced pursuant to a 1995 agreement that had been applied nationwide. The Government was therefore perhaps justified in taking into account the history and circumstances of its ratification, as well as the traditional view of firefighters in Japan. The Employer members had articulated their position on this during the 2008 discussion and, regarding the FDPC, highlighted a new level of engagement on the part of the Government. In order to comply with the Convention, firefighters must have the right to organize, which did not necessarily require the right to form a trade union. Rather, an organization such as the FDPC might satisfy that obligation, provided that firefighters were allowed, not necessarily to form a trade union, but to organize themselves in relation to their occupation. The Government had also set up fact-finding missions about how that system worked. Information should be provided on that initiative, as well as feedback from the fact-finding surveys. On this basis, the Employer members considered that the Japanese context must be carefully assessed in future to better understand the issue.

Finally, the Committee of Experts had identified the denial of the right to organize to public service employees, noting that they should enjoy the right to strike without risk of sanctions. The Employer members reaffirmed that their position had not changed since the 2008 discussion: the right to strike was not an express part of the Convention and therefore did not fall within the scope of issues on which the Committee of Experts should make observations. Whether public service employees had a right to strike was to be determined at the national level. They expressed concern that the Committee of Experts had included it in their observation, and would not elaborate further on the matter. Finally, the Government should continue its constructive engagement with the ILO with regard to firefighters and prison officers to ensure compliance with the Convention.

The Worker members recalled that Japan had ratified the Convention more than 53 years ago. The issues before the Committee, namely the right of firefighters and prison personnel to form genuine workers’ organizations and the right of public servants to organize and exercise their right to strike, had been pending before the ILO supervisory bodies ever since. The Committee had examined the application of the Convention in Japan on numerous occasions and called on the Government to ensure that public servants were guaranteed the rights provided for in the Convention and that firefighters enjoyed the right to organize without interference by the public authorities. Notwithstanding repeated discussions of this case and the very serious and diligent engagement and patience demonstrated by the national trade unions, no progress had been made to ensure that workers could enjoy the rights set out in the Convention. Firefighters and prison staff were excluded from the right to join or establish trade unions under the National Public Service Act (section 108-2) and the Local Public Service Act (section 52(5)). Both Acts dated back to 1948 and excluded these categories of workers from the right to organize and join organizations for the purpose of maintaining and improving working conditions through negotiations with the relevant authorities. The Government had attempted to justify the exclusion of prison staff and firefighters under Article 9(2) of the Convention by arguing that these categories of workers performed duties that were included in the duties of the police. However, the Committee of Experts, as early as 1973, had stated that it did not consider that the functions of fire defence personnel were of such a nature as to warrant their exclusion from the application of the Convention. It had called on the Government to take appropriate steps to ensure that the right to organize was recognized for these categories of workers. The Ministry of Internal Affairs and Communications had issued a report in December 2010 revealing that there were no practical obstacles to granting the right to organize to firefighters. Nevertheless, the Government had decided to drop the Bill on Labour Relations of Local Public Service Employees, which would have had granted this right, and instead had called for a further exchange of views on the subject. The Worker members expressed their deep disappointment at the lack of progress, which cast doubt on the Government’s commitment to genuine, effective and efficient consultations and its commitment to resolve this situation. Furthermore, regarding firefighters, the Government appeared to believe that the FDPC system that it had set up was an appropriate means of allowing participation by staff in the determination of working conditions. However, this system could by no means be considered to be a valid alternative to the right to organize, as these committees were not freely established by workers and had no negotiating or decision-making powers. The outcome of their meetings, in the form of recommendations, were submitted to the FDMA, which enjoyed discretionary powers as to their implementation. While the Government was delaying to taking concrete steps towards giving effect to the Convention, workers were facing the consequences of the denial of their most fundamental rights. The lack of workplace democracy and the restrictions placed on the ability of workers to voice collective concerns had created an abusive working environment in the firefighting services. Incidents of verbal and physical violence and harassment by managers had become commonplace and in one instance had led to a suicide. The Government bore its share of responsibility for such abuses. The Worker members strongly condemned Japan’s failure to guarantee freedom of association to firefighters and prison staff in law and in practice. Japan could not continue to claim to be a free and open society while denying the most basic rights to its workers and exposing them to abuse. While the Government insisted that granting firefighters the right to organize could interfere with emergency relief operations, it was egregious to deny trade union rights on this account. Indeed, in the event of a state of emergency, firefighters, the Japan Self Defence Forces and the local police were mobilized to save human lives, and firefighters’ professionalism had never and should never be compromised because they had joined a union.

There were also limitations and obstacles preventing workers in the public service from enjoying the right to strike. This had been reinforced through the ongoing Government work-style reform initiative. Pursuant to section 98 of the National Public Service Act, public officials could not engage in strike action and section 110 made it a criminal offence, punishable by up to three years imprisonment or a fine of up to 1 million yen, to instigate or incite strikes. Furthermore, the legal framework for promoting autonomous negotiations over working conditions remained inadequate. Only blue-collar public sector employees could engage in collective bargaining. Despite the long-standing nature of these issues and consultations with the social partners, the Government had dropped the package of reform bills, and instead adopted the Amendment Act in April 2014, which provided that the Cabinet Bureau of Personnel Affairs would continue to make efforts to reach an agreement. The Government was still deliberating over the issue and was unable to demonstrate at any tangible progress. While tripartite consultations over legislative matters, in particular involving labour relations, were to be encouraged, these were virtually meaningless and could in fact be an obstacle, if they did not lead to any concrete action. The Government appeared to believe that the functions of the NPA were an adequate compensatory measure for the restrictions on the basic labour rights of public sector workers. The NPA was a government agency and its members were selected by the Diet rather than on a tripartite basis. There were no consultations with the most representative workers’ or employers’ organizations. The NPA had the mandate to ensure working conditions and basic work-related standards for public sector workers by making recommendations to the Government and municipal authorities. The implementation of the recommendations adopted was entirely left to political decisions, and the process for deciding on whether and how recommendations were implemented was not transparent. By failing to ensure that it had the confidence of the social partners and that once decisions had been taken, they were binding and fully and promptly implemented, the NPA fell short of the standard for compensatory measures under the Convention. The Government should take without further delay the necessary measures to demonstrate its respect to fundamental rights of workers and commitment to an open and democratic society.

The Employer member of Japan regretted that the workers concerned and the Government had been unable to address the problem and that the latter had been brought before the Committee. Taking the case before the ILO would not necessarily result in finding a solution. Japanese employers fully supported the information provided by the Government. With regard to the situation of firefighters, he recalled that their role was different from those in other countries and considered that national contexts should be taken into consideration. Efforts had been made by all stakeholders concerned. On 1 June 2018, the opposition parties, backed by JTUC–RENGO, had submitted a bill providing for the right to collective bargaining for all workers and abolishing the NPA. Japanese workers needed to convince the population with a view to obtaining their support so that Parliament would be prepared to discuss the bill. While the comments and recommendations from the supervisory bodies were not binding, they could be given full effect if they took into account national circumstances. This also applied to the rights of prison officers which had never been discussed at the national level. He expressed his strong belief that the parties would address their problem better themselves, rather than relying on international forums.

The Worker member of Japan indicated that Japan had continued to violate Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in respect of basic labour rights of public employees. The violations included denial of the right to form organizations without prior approval and the appointment of full-time union officers by the authorities. The right to organize of firefighting personnel and prison officers was denied by law. Attempts to assist in improving the situation had been made through the reports and recommendations of the supervisory bodies, including the Dreyer Commission that had visited Japan with a view to fact-finding and conciliation. The issues remained unresolved. The Government had submitted bills to the Diet to reform the national public service (June 2011) and the local public service (November 2012), drafted in consultation between the Government and the relevant unions including JTUC–RENGO. These bills, if adopted, would have granted the right to organize to firefighting personnel. The bills had lapsed however due to the dissolution of the House of Representatives in November 2012. The Committee of Experts had noted this situation with regret. No legislative measures had been proposed since then. During the recovery and reconstruction process following the Great East Japan Earthquake of 11 March 2011, public service employees, including firefighters, had performed their duties despite a lack of previous experience and sufficient information. This was above all due to their strong sense of duty to protect the lives and property of citizens. The Government and other parties asserted that granting the right to organize would hamper the discharging of the duties of firefighters. However, the performance of duties and guaranteeing the right to organize were entirely separate matters. He called for the immediate granting the right to organize to the fire defence personnel. He also referred to a case of national forest service employees, whose trade union rights had been curtailed. They previously had the right to conclude collective agreements. However, they had lost this right when the source of funding for the national forest service had been changed from a special account to a general account. He recalled the autonomous labour–employer relations system provided for under section 12 of the Basic Act on the Reform of the National Civil Service. Since 2014, the Government had been reiterating that there was a need to continue careful consideration of the situation. To that end, it had conducted surveys and exchanged views on an ad hoc basis. It was to be regretted, however, that no tangible results had been achieved so far. JTUC–RENGO had reported this inaction and the lack of any intention by the Government to resolve the issues raised by the Committee of Experts and the Committee on Freedom of Association. In conclusion, he expressed the hope that the discussion and conclusions of the Committee would lead to a sincere response and commitment by the Government to resolve the issues concerning the basic labour rights of public service employees. JTUC–RENGO reiterated its readiness to make every effort in this regard.

The Government member of Norway speaking on behalf of Government members of Denmark, Finland, Iceland, Norway and Sweden, recalled that this was a long-standing case which dealt with the right to organize, especially for firefighters and prison guards, and the right to strike in the public sector. In the Nordic countries, all public employees have the right to organize. The right to organize of public employees was important in order to ensure that there was an independent and strong voice at all levels, including at the workplace. In the Nordic countries, the processes of collective bargaining and workplace consultations were in many ways the same in the public and private sectors. However, the public service had its own particularities and there were services where the right to strike could be restricted. The Committee of Experts had accepted that the right to strike could be restricted or prohibited in the public service for public servants exercising authority in the name of the State or when a total and prolonged stoppage could result in serious consequences for the public. A negotiated minimum service could be maintained in some cases. In relation to the situation in the Nordic countries, the right to strike in the public sector was extensive, but still met the public interest. There were a few restrictions which were imposed by law, through ad hoc laws or agreed between the social partners in collective agreements. The Government was encouraged to ensure continued social dialogue and progress in this matter.

The Worker member of Poland pointed out the lack of progress despite the fact that the Committee had repeatedly examined this case, most recently in 2008, when it had called on the Government to ensure that public servants had the rights guaranteed by the Convention and that firefighters enjoyed the right to organize without interference from the public authorities. Nevertheless, both were still excluded from the right to join or establish trade unions under the Local Public Service Act and the National Public Service Act. Already in 1973, the Committee of Experts had considered that the functions of fire defence personnel were not of such a nature as to exclude this category of workers under Article 9 of the Convention. The exclusion of the police or armed forces could be justified only on the basis of their responsibility for the external and internal security of the State. Furthermore, prison officers, by the nature of their duties, were included in the category of the police and denied the right to organize. That was not in accordance with ILO standards. She condemned the Government’s failure to guarantee freedom of association to firefighters and prison staff in law and practice and called on the Government to consult the social partners including the representatives of firefighters and prison officers, with a view to finding a solution.

The Worker member of Singapore speaking on behalf of the Worker members of France, the Australian Council of Trade Unions (ACTU), the Cambodian Labour Confederation (CLC), the Confederation of Indonesian Prosperity Trade Union (KSBSI), the Federation of Korean Trade Unions (FKTU), the Korean Confederation of Trade Unions (KCTU), the Malaysian Trade Unions Congress (MTUC), the Confederation of Trade Unions of Myanmar (CTUM), the Pakistan Workers’ Federation (PWF), the Federation of Free Workers (FFW) (Philippines), and the Singapore National Trades Union Congress (SNTUC), stated that Japan’s public service employees faced restrictions on their basic labour rights. A third-party organization had been established as a compensatory measure to regulate the salaries and working conditions of public employees, matters which would normally be settled through labour–management negotiations. The Committee of Experts had been clear that compensatory mechanisms must ensure impartial and speedy conciliation and arbitration procedures, in which the parties had confidence and could participate at all stages, and in which the awards, once made, were binding and fully and promptly implemented. In that sense, the compensatory measures proposed by the Government fell short. In particular, the NPA, a third-party organization, had been established under the jurisdiction of the Cabinet, which appointed the commissioners. This had resulted in an organization lacking in impartiality. Further, the ability of the parties to participate at all stages of the procedures should not be limited to simply participating in meetings; the parties should be able to exchange opinions, persuade, consent and make concessions, without which, the confidence of the people concerned could not be earned. In addition, while the NPA made annual salary recommendations, these were not binding on the Government, which was also the employer. In this respect, it should be recalled that while the Government had the financial authority and responsibility, the inseparable issues of salaries and working conditions needed to be settled through labour–management negotiations; thus both parties had a shared responsibility in that regard. In conclusion, she emphasized the importance of basic labour rights, open labour relations and a labour–management relationship in which the parties shared responsibility for the matters of mutual interest for a well-functioning democracy.

An observer representing Public Services International (PSI) recalled that, while the right of firefighters to organize had been discussed at length by the Committee on Freedom of Association since 1954, the Committee of Experts since 1973 and this Committee since 1973, no concrete steps towards the full application of the Convention had been taken by the Government. To address the issue, the Government had established the FDPC system in 1996, for the purpose of achieving mutual understanding by eliciting opinions from firefighters. The Government had emphasized the smooth operation of the system and its success in improving wages, working conditions, clothing, equipment and other facilities as a justification for not conferring the right to organize to firefighters. However, the recognition of the right to organize firefighters and attempts to improve current working conditions and the workplace environment were different matters. The Committee of Experts and the Committee on Freedom of Association considered that when the right to engage in labour disputes was restricted, the existence of compensatory measures was a necessary condition. These could not apply to the right to organize, as compensatory measures would assume the denial of the right itself. In other words, the FDPC was not a compensatory mechanism as it denied the right to organize. Although the Committee of Experts and the Committee on Freedom of Association had provided some positive assessments of the operational status and effects of the FDPC system, they continued to call on the Government to ensure that firefighters enjoyed the right to organize and the right to collective bargaining. A tripartite expert meeting, held in April 2018, had confirmed the relevance of the obligations under Conventions Nos 87 and 98 when adopting the ILO Guidelines on decent work in public emergency services, which included firefighters. The Committee’s conclusions should therefore be directed at ensuring that the Government complied with the Convention.

The Worker member of the United Kingdom stated that freedom of association, as enshrined in the ILO Constitution and recognized by the Declaration of Philadelphia, was essential to any free and open society, and central to dispute resolution and to promoting democracy. The Government’s failure to provide firefighters with the right to organize was therefore of serious concern, and had been repeatedly criticized by the ILO supervisory bodies since the early 1970s. In the United Kingdom, the Fire Brigades Union (FBU) negotiated with employers over pay and working conditions through the National Joint Council for Local Authority Fire and Rescue Services. In order to protect the lives and safety of the population, firefighters exercised their right to take industrial action while entering into voluntary agreements to return to work in the event of major incidents. A 2010 Japanese Government survey on the impact of conferring the right to organize on firefighters in 22 countries had identified no adverse effects, suggesting that the current ban was based, not on evidence, but on the Government’s own views. It sought to justify those by aligning firefighters with military personnel and the police, given the public nature of their duties. Such arguments could be self-defeating. In the United Kingdom, effective social partnership had proved vital to improving fire services, as when the FBU had worked with the fire authorities to investigate deaths while on duty in order to prevent future fatalities. Depriving firefighters of the right to organize on such grounds was inconsistent with Article 9 of the Convention. The Government’s failure to comply was serious and warranted criticism. She called on the Government to extend the right to join trade unions and to negotiate collectively to the personnel concerned as a matter of urgency.

An observer representing Education International (EI) speaking on behalf of the Japan Teachers’ Union (Nikkyoso), addressed the lack of basic bargaining rights in the public sector, the inadequate system of overtime compensation and the disparities between public and private sector workers in this regard. Teachers and education stakeholders had to be involved in the reforms affecting their sector. Their lack of involvement was detrimental to the quality of education. According to the ILO–UNESCO Recommendation concerning the Status of Teachers (1966) and comments by the ILO–UNESCO Committee of Experts on the Application of the Recommendations concerning Teaching Personnel (CEART), reforms and decisions regarding the status and working conditions of educational personnel should be negotiated between the unions and the Government. However, in Japan, educational personnel did not enjoy basic labour rights, decisions regarding salaries were left to third-party organizations and overtime was not compensated. A recent survey had shown that 72 per cent of elementary school teachers and 86 per cent of junior high school teachers worked more than 60 hours a week. The restoration of labour rights for all public service employees was necessary so as to ensure the effective application of the Convention, as well as to redress the persistent inequality between public and private sector employees.

The Government representative stated that with respect to the autonomous labour–employer relations system, it was essential to gain “the support and trust of the people” as provided for in section 12 of the Civil Service Reform Law. The support and trust of the people had not yet been gained, and the Government needed to continue with the careful examination of the matter. The Government would endeavour to maintain good relations with employees’ organizations and to strive for mutual understanding through social dialogue on various matters including the autonomous labour/employer relations system. She recalled the unique background of the fire service in Japan. Fire defence personnel did not have the right to organize because the firefighting service was considered to be of a similar nature to the police. The service had historically been part of the police system and played an important role in emergency situations. She also reiterated the usefulness of the FDPC system, a compensatory mechanism for the absence of the right to organize. She also mentioned the effective measures taken by the Government to eliminate harassment in the fire service headquarters, in addition to the FDPC. Consideration was currently being given to improving the FDPC system. The Government had been engaging in social dialogue with representatives of firefighters, labour representatives such as JICHIRO and employers’ representatives on the FDPC, and would continue this social dialogue on the FDPC on a regular basis.

The Worker members reiterated that firefighters and prison staff continued to be denied their most fundamental right to join or form a trade union. There were also serious limitations on the basic rights of public sector workers, as well as the absence of an autonomous labour–employer relations system. The Government had failed to make the distinction between employees exercising authority in the name of the State and workers engaged in essential services, who would require compensatory guarantees if their right to strike was legitimately limited, and all other employees in the public services, who should be able to exercise the right to strike. The Government appeared to believe that the institutions set up to represent the interests of workers constituted adequate compensatory measures. However, these institutions lacked autonomy and independence, and were therefore not sufficient to advance the collective rights and interests of workers. Japan’s laws and practices were not in conformity with the Convention. The Worker members deplored the fact that no meaningful progress had been made on these issues and expected the Government to finally take the necessary measures to ensure that firefighters and prison staff may form and join organizations of their own choosing. The Government must urgently enter into time-bound consultation with the social partners in order to establish an autonomous labour–employer relations system to ensure the basic labour rights of public service employees. This process must be completed within the next two years. The Government should report progress to the Committee of Experts by 2020. Workers in the public sector who were not exercising authority in the name of the State and who were not working in essential services in the strict sense of the term must have the right to strike and to exercise industrial action without risk of sanction. The procedures of the NPA were flawed and should be reviewed in consultation with the social partners to ensure impartial and speedy conciliation and arbitration procedures in which the parties had confidence. They expressed the hope that this discussion would serve as an important opportunity for the Government to ensure the effective application of this fundamental Convention once and for all. This would require a real commitment by the Government to engage with the social partners in social dialogue to make tangible progress. The Government must fulfil its obligations and report on the measures taken in its next report. The Worker members called on the Government to accept an ILO direct contacts mission to support and assess the progress made.

The Employer members recalled the divergence of views with regard to the right to strike and its impact on the discussion of the case. The comments of the Committee of Experts concerning the right to strike of members of essential services, and issues related to that, fell outside the scope of the express provisions of the Conventions. They were to be left to the Government to regulate at the national level. Given the restriction on the right to organize of firefighters, the Government had established the FDPC system as a compensatory scheme. A number of interventions had discussed the effectiveness of that system. In light of the criticism of the functioning of the system by trade unions, the Employer members understood that the Government planned a new initiative which included fact-finding surveys of the operation of the system. The Government should take those steps and provide information in time for examination by the Committee of Experts. Finally, with respect to prison officers, it could be argued that, by the nature of their duties, prison officers were part of the police as they were responsible for the internal security of the State, and were therefore covered by Article 9 of the Convention. The Employer members noted that more information was needed. While certain categories of prison officers could be considered as police officers, others could not. They encouraged the Government to give due consideration to the situation of those prison officers who were exempt from the full application of the Convention, and encouraged it to provide information, before the next meeting, about the compensatory scheme that allowed some participation by prison officers. The Employer members were encouraged by the constructive attitude and stated commitment of the Government to move forward on this issue, and they looked forward to receiving more information.

Conclusions

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

The Committee noted the Government’s submissions that a special survey was conducted in January 2018 to identify problems concerning the functioning of the Fire Defence Committee System, that it consulted workers and employers several times on this issue since March 2018 and the Government’s stated commitment to produce a plan to improve the functioning of the Fire Defence Committee in continued consultation with employers and workers.

The Committee observed with concern that the Committee of Experts’ comments had been referring for decades to discrepancies between the legislation and practice concerning the rights of firefighters and prison officers to establish and join organizations of their own choosing. The Committee noted the lack of meaningful progress in taking necessary measures regarding the autonomous labour-employer relations system.

Taking into account the Government’s submissions and the discussion that followed, the Committee called upon the Government to:

- examine carefully the autonomous labour–employer relations system, in consultation with the social partners, taking into account the Government’s statement that there are various issues with regard to this system;

- provide information on the initiative discussed above to identify problems concerning the functioning of the Fire Defence Committee System and measures taken as a result;

- hold consultations with the social partners at the national level on the view of the Government that firefighters are considered police and how this view corresponds to the application of the Convention and provide information on the outcome of this consultation;

- consider, in consultation with the social partners, what categories of prison officers are considered part of the police, thus exempted from the right to organize, and those categories that are not considered part of the police, and having the right to organize; and

- consider, in consultation with the social partners, if the procedures of the National Personnel Authority ensure impartial and speedy conciliation and arbitration.

The Committee called upon the Government to develop a time-bound action plan together with the social partners in order to implement these recommendations and report to the Committee of Experts before its next meeting in November 2018.

The Government representative indicated that, regarding the labour–employer system, section 12 of the Civil Service Reform Law prescribed that the Government could not take any steps towards achieving an autonomous labour–employer system unless the people of Japan were confident that it was necessary. As currently such confidence was lacking, the Government would need to be cautious in this regard. The Government, as an employer, promised to engage in a continuous effort to maintain appropriate working conditions of public service employees under the current system. She also indicated that the Government would improve the operation of the FDPC system as an alternative to granting the right to organize.

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

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.

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

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.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

The Government supplied the following information:

With regard to the issue of the right to organize of fire defence personnel, the Ministry of Home Affairs, the Fire Defence Agency and the All-Japan Prefectural Municipal Workers' Union (JICHIRO) have held consultations strenuously in order to find an appropriate solution to this issue since the submission by the Government of Japan of its report in December 1994. The consultations continued even in the extremely difficult circumstances caused by the recent Kobe earthquake, a natural disaster of unprecedented devastation, in respect of which the Japanese fire defence system was required to mobilize all its resources in order to cope. As a result of the consultative efforts, an agreement was reached recently that was the solution accepted by consensus of the Japanese people. This solution was the introduction of a new system to guarantee the participation of fire defence personnel in the process to determine their working conditions and improvement of such conditions.

The specific content of this new system is as follows: (1) a fire defence personnel committee (provisional name) will be established in each fire defence headquarters throughout the nation; (2) the committee will discuss opinions to be presented by fire defence personnel on improvement of working conditions or other subjects, and the committee will present its observations to the fire chief; (3) the committee will be formed by fire defence personnel, half of whom will be appointed on the basis of recommendations of members of the respective unit; (4) the fire chief will respect the intention of the committee's observations and strive to improve working conditions or other matters regarding fire defence personnel.

The Government will prepare legislative amendments to institute this new system. In this new system, the process to improve working conditions or other matters regarding fire defence personnel will be conducted with their participation at the respective fire defence headquarters where they are assigned, and problems concerning working conditions or other matters regarding specific individuals will also be handled. This new system will therefore guarantee the participation of fire defence personnel in the process to decide their working conditions, and is consistent with the spirit of protection of their rights.

This solution is based on the agreement that was reached through in-depth discussions among all parties concerned throughout the nation, and both the Government and workers greatly appreciate its significance.

In addition, a Government representative of Japan stated that with regard to the issue of the right to organize of fire-fighting personnel, consultations had been held since 1990 between the Ministry of Home Affairs and the All-Japan Prefectural Municipal Workers' Union (JICHIRO). These consultations continued even in the wake of the Kobe earthquake, a disaster of unprecedented devastation, which the Japanese fire defence system coped with by mobilizing all of its resources. As a result of these consultations, the two parties recently reached an agreement providing a solution which would be acceptable to the Japanese people. The measures agreed on were, in short, to introduce a new system by revising the Fire Defence Organization Law. The new system was to be made up of fire defence personnel committees which would be established in all fire defence headquarters. These committees would discuss opinions concerning the improvement of working conditions or other subjects which would be proposed by the fire defence personnel.

The important points of this system were the guarantee of "locality" and "participation of personnel" in deciding the working conditions of fire defence personnel, which JICHIRO had demanded throughout the consultations. Regarding locality, this system would be established in each of the 931 fire defence headquarters across the country. With respect to personnel participation, all personnel could put forward opinions to the committee concerning improvements in their working conditions, individual outfits or other matters. All members of the committee would be fire defence personnel and half of these members would be appointed on the basis of recommendations made by the personnel themselves. The fire chief would act on the results of the committee's discussions, thereby giving consideration to the proposals of the personnel for improving their working conditions. Thus this new system would guarantee the participation of fire defence personnel in the process of deciding their working conditions and would be in line with the spirit of the protection of their rights. The Government and trade unions had agreed that both would make their utmost efforts to have this system firmly established and operating effectively so that fire defence personnel could further improve their economic status and other conditions. The Government considered that the manner of restricting the fundamental rights of workers for the sake of public welfare could be changed depending on a change in the consensus of the Japanese people. Accordingly, the Government considered that discussions on the right to organize of fire defence personnel, which was a fundamental right of workers, would be made in the future by the parties concerned.

The Workers' members expressed satisfaction that a certain amount of progress had been made with respect to this case which was one of the oldest cases before this Committee. Progress had been made mainly due to dialogue within the Committee, the assistance of the ILO and discussions held in Japan between the union concerned and the Japanese Government. While these discussions were not over, the first stages of an agreement had been reached on a very difficult case which had been outstanding in this Committee for a long time.

The Employers' members, referring to the problem of the denial of the right to organize of fire-fighting personnel, agreed that they were very pleased with the agreement that had been reached between the Government and the union concerned since this was indeed an old case before this Committee. It was important, here, that dialogue had not just been embarked upon, but that this dialogue had actually produced results which were acceptable to both parties. While further progress was possibly still needed, this first step would probably be followed by others, since in this case agreement had been reached after so many years of dialogue.

The Workers' member of Japan, who spoke on behalf of the Japanese Trade Union Confederation and the All-Japan Prefectural Municipal Workers' Union, first of all expressed his appreciation to the two high-ranking ILO officials who visited Japan last year to help the parties find a solution to this long-standing problem. The issue of the right to organize of fire-fighting personnel had been before this Committee for more than 20 years and it was therefore to be welcomed that the Government had finally agreed to make a step forward to solving this matter. The proposed introduction of the new system to the fire defence service was quite significant in terms of participation of fire-fighters in the determination of their working conditions, since at present there was no machinery for joint discussion or consultation. His organization would make utmost efforts to utilize the new system for improving the working conditions of fire-fighters through their representatives at their workplaces. However, the new system was not the final solution of this issue; therefore, whilst due note should be taken of the positive steps made so far, there was still a long way to go before Convention No. 87 was fully complied with, in law and in practice. In this respect, the supervisory machinery of the ILO could and should continue to play its constructive role in this process by asking for reports from the Government on further positive developments in this respect. On behalf of fire-fighters in Japan who had patiently striven for progress in this domain, the speaker expressed his sincere gratitude to both the Committee of Experts and the Conference Committee for their efforts to solve this problem. These fire-fighters were fully aware of the responsibility they had in carrying out essential services to the community and their commitment would not change even after they obtained their freedom of association.

The Government representative of Japan thanked the delegates from the Workers' and Employers' sides for the various comments made of which due note would be taken and reported to his Government.

The Committee noted the written communication and the oral information supplied by the Government representative, as well as the discussion which took place within the Committee. Recalling that, for many years, both the Committee of Experts and the Conference Committee had called upon the Government to take appropriate measures to find a solution satisfactory to all parties concerned to ensure the right to organize for fire-fighting personnel, the Committee noted with interest that the public authorities and the municipal workers' union had held consultations even in the difficult circumstances caused by the recent Kobe earthquake and had agreed to the introduction of a new system to guarantee the participation of fire-defence personnel in the process of determining and improving their working conditions. The Committee welcomed, with satisfaction, this important step towards the application of the Convention and encouraged the public authorities and the municipal workers' union to continue their dialogue. It also called upon the Government to amend the law and practice, truly reflecting the agreement already reached, and in a way that was consistent with Convention No. 87. The Committee asked the Government to report to the Committee of Experts on any further developments with regard to the application of the Convention.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

A Government representative stated that the basic observations of the Government on the question of the right to organize of fire-fighting personnel had been given in its previous annual reports sent to the Office and that since 1990 periodic consultations between the responsible ministries and the All-Prefectural Municipal Workers'Union (JICHIRO) had been taking place and they had agreed to consult each other so as to find a solution to the problem of the right to organize of fire-fighting personnel within a period of two years. Frequent discussions recently took place involving concrete solutions and procedural matters. Important efforts had also been made to gain a wider understanding of the problems involved and to be able to transmit to Parliament and to the trade unions the necessary information. Despite all efforts and consultations, solutions, approved by all parties concerned, to resolve the problem with a long history behind it and affecting a large number of people had not been found. The Government nevertheless continued to make all possible efforts not to interrupt the ongoing negotiations. It expected the adoption of various measures and a more frequent exchange of information between the parties concerned in the ILO. To the extent possible it would be providing the ILO with all the available information.

The Workers' member of Japan described the historical context of the problem involved. The Convention had been ratified by Japan in 1965 with the help of the good offices of the ILO but not without problems. However, the problem of fire-fighting personnel was not one of those problems. In the 1960s, when fire-fighters began to organize, this question arose and the Government took a low profile with regard to the first comments made by the Committee of Experts. The Government even expressed the wish to resolve the problem so as to avoid discussion in the ILO. Then, in the early 1980s, the Government adopted a more aggressive attitude and challenged the comments of the Experts. In the past few years, however, it began to recognize the importance of finding a solution and today further new events and elements in this respect could be noted. He noted nevertheless that the period of two years from June 1991, during which the trade union leaders and responsible authorities had agreed to find a solution, had expired. It was important to note that, after 21 years, meetings of some significance were now taking place. It was nevertheless clear now that this problem could not be resolved by mere consultations and that a draft law needed to be submitted to Parliament. He recalled that the trade unions of his country have given up the right to strike of fire-fighting personnel because they provided an essential service of public safety. He stressed, however, their readiness to reach any compromise of a transitional nature for trial periods regarding the freedom of association of these personnel in consultation with the Government.

The Workers' members welcomed and commended the constructive and positive remarks made by the Government representative which sharply contrasted with those of previous years. They noted the progress made in the 11 meetings that had taken place in the past two years referred to by the Government representative. They drew the Committee's attention to article 28 of the Constitution of Japan which, in their view, presented no problem for the enactment of laws with respect to ratified Conventions. They invited the Government representative to provide this Committee with more details on the 11 meetings including the problems encountered and solutions provided. They requested the Government representative to confirm whether any possible ILO collaboration and assistance on the question of the right to organize of fire-fighting personnel had been consented to by the Government.

The Government representative stated that, while closely and fully cooperating with the ILO, his Government wished to invite the concerned ILO officials to come to Japan for them to have contact with the responsible people in Japan and to obtain information directly with a view to finding real solutions to the problem. He also stated his Government's formal acceptance of the cooperation of the ILO as one of the possible ways of resolving the problem.

The Workers' members noted the Government's readiness to seek the ILO's collaboration and assistance on this question and considered that what they had heard would go a long way towards improving understanding in ensuring the desired results in Japan.

The Employers' members considered that the Government representative had provided information of great importance. With regard to the substance of the problem, they noted that the Committee on Freedom of Association had already clearly stated that fire-fighting personnel did not form part of the police, while the Committee of Experts and this Committee had not decided on this question. Neither had the Government done so, because this Committee had at its disposal now much information regarding the formal aspects of the problem as well as the procedural progress made, but not on all the results of these procedures. In view of the level of intensity attained in the discussions and in view of the Government's commitment to finding a solution, the Employers' members considered that it was now necessary to seek solutions to the problem. In this respect, they recalled the other cases that could not find solutions for long periods of time but which had been rapidly and positively resolved following consultations. They hoped that solutions would soon be found in the current case and that the Government would keep the ILO informed of developments. With regard to the second point raised by the Committee of Experts concerning the prohibition of the right to strike of public servants, the Employers' members expressed the wish that it should not be included in the conclusions of this Committee given that the Government representative and the Workers' member of Japan had not referred to it.

The Worker's member of Pakistan supported the statements made by the Worker's member of Japan and the Workers' members. He referred to Article 9 of the Convention and hoped that consultations with the ILO would obtain positive results with regard to the right to organize of fire-fighting personnel and further referred to the question of the right to strike mentioned by the Employers' members. He stressed this Committee's and the Committee of Experts' position that public servants should have recourse to a jurisdiction where they could present their grievances or settle their disputes. He hoped the consultations and positive results referred to by the Government representative would bring the legislation of the most industrialized country in Asia into conformity with the requirements of the Convention.

A Government member of Germany also recalled that in earlier cases this Committee had repeatedly called upon the parties concerned to find solutions through negotiations and such appeals had produced results. He welcomed the fact that in the present case all the parties recognized the great progress made and the substantive negotiations taking place after 21 years of silence. He considered that this Committee should take due note of this fact and welcome this development which constituted a hopeful and encouraging sign for the continuation of the consultations with a view to finding solutions. He stressed that his remarks only concerned the first point raised by the Committee of Experts.

The Workers' member of the Netherlands welcomed the discussions regarding the first points mentioned by the Committee of Experts on the right to organize of fire-fighting personnel. This Committee could afford to be optimistic even if it had to wait to see if the Government would honour its undertakings. With regard to the prohibition of the right to strike of public servants, he regretted the failure on the part of the Government to provide any information despite the fact that the Experts had specifically requested such information. He further felt that discussions should also take place concerning this question. He requested the Government representative to indicate if such discussions were taking place on this question in the country and if any progress could be expected soon. The speaker further considered that it was necessary to clarify the question of essential services in general.

The Workers' member of Italy referred to the Italian experience in this respect. The contradictions between the public interest and the interests of workers regarding the right to strike of public servants had been reconciled after long discussions between the trade unions and the public authorities, and the results had been included in the text of a law.

The Government representative stated that, to the extent possible, his Government would provide the requested information with regard to the right to strike of public servants to the Committee of Experts.

The Committee took due note of the oral information provided by the Government representative as well as the discussion that had taken place in this Committee. It recalled that the Committee of Experts, as well as this Committee, had been drawing the Government's attention for some years to the discrepancies between the national legislation and the Convention, particularly concerning the denial of the right to organize of fire-fighting personnel. The Committee noted that since 1990, 11 consultations between the Government and the All-Japan Prefectural Municipal Workers' Union (JICHIRO) had taken place. The Committee noted, however, that for some years the Government had stated to the Conference Committee that consultations were going on in this respect but no concrete measures had yet been taken to ensure the full application of the Convention ratified in 1965. The Committee once again expressed the firm hope that the consultations taking place at the national level with the representative organizations would make it possible in a very short time to bring the whole legislation into line with the Convention. The Committee noted with great interest the statement of the Government representative that the Government wished to cooperate and have consultations with the ILO and in particular its wish to invite those in the ILO handling this matter regarding the right to organize of fire-fighting personnel to visit Japan and to assess the situation de visu and in situ. The Committee hoped that the Office would be able to provide technical assistance in the form requested and that the Government would in its next report be able to communicate the concrete progress made concerning the application of this fundamental Convention

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government has sent the following information:

The right to organise of fire defence personnel

In Japan, the tripartite committee (the Convention Subcommittee of the Round-Table Conference on Labour Problems), in which the most representative trade unions in Japan, SOHYO and DOMEI, were represented, deliberated on this question prior the ratification of the Convention, and, in 1958, it unanimously reached full agreement to confirm that "it is considered appropriate that the function of the fire defence personnel 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".

In addition, it was confirmed by the ILO prior to Japan'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, and on both occasions recommended to the Governing Body that it should 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" (paragraphs 33-36 of the 12th Report, and paragraph 94 of the 54th Report of the Committee).

On the basis of the tripartite consensus at the national level and the confirmation by the ILO with regard to the prohibition on organisation of personnel of fire defence agencies in Japan as mentioned above, Japan concluded that they are included in the police referred to in Article 9 of the Convention, and ratified the Convention in 1965. The Japanese Government, as the government of a State that ratified the Convention, has maintained this interpretation consistently and repeated the view that the prohibition on organisation of fire defence personnel in Japan does not constitute a violation of ILO Convention No. 87.

From these viewpoints, the Government considers that the treatment of the prohibition on organisation of fire defence personnel in Japan is a domestic issue and a matter to be determined by national laws and regulations on the basis of Article 9 of the Convention. Based on this understanding, the Government authorities concerned have been exchanging opinions on occasions with workers' organisations concerned, and the Inter-Ministerial Conference on Public Employees' Problems has also received opinions from fire defence personnel directly as well as the representatives of organisations concerned, including those of workers' organisations. (I-3-(1) of the "Reports on the application of Conventions Nos. 87 and 98" dated February 1985, (Reference material) (b) and (c) of I-2 of the "Observations of the Government of Japan regarding the comments of SOHYO, DOMEI and others on the application of ILO Conventions Nos. 87 and 98" dated February 1986, (Reference material) (b) and (d) of I-2 of the "Observations of the Government of Japan regarding the comments of SOHYO and DOMEI on the application of ILO Conventions Nos. 87 and 98" dated January 1987.)

Moreover, the Government is now in the course of hearing opinions from members of the volunteer fire corps (volunteers who perform calamity defence activities such as fire fighting, patrolling, etc. in co-operation with fire defence personnel; their total number is about 1,010,000). In the Process of hearing so far, the workers' organisations concerned have expressed the opinion that the right to organise should be given to fire defence personnel, but, on the other hand, the National Prefectural Governors Association, the Japan Association of City Mayors, the National Association of Headmen of Towns and Villages, the National Fire Brigade Chiefs Conference, and the Japan Fire Services Association expressed opposite opinions.

The Government has been examining this issue as a domestic matter. In future, the relevant public authorities will hold on occasions discussions with the appropriate workers' organisations, and the Inter-Ministerial Conference on Public Employees' Problems will hear opinions from members of volunteer fire corps. Furthermore taking account of the fact that in November this year a unified organisation will be formed comprising unions in the public sector and Rengo (the confederation of trade unions in the private sector which was formed in November 1987), the Government will onces again hear opinions from relevant workers' organisations at the completion of hearings at the Inter-Ministerial Conference on Public Employees' Problems.

In addition, a Government representative of Japan, firstly, took up the question of the right to organise of fire defence personnel. The reply of the Government to the observations by the Committee of Experts on this question had already been submitted in writing to the Office. He requested that the written reply and his remarks would be put in the record of the Committee. For reasons repeatedly made known to the present Committee, and stated in the above-mentioned reply, the Government considered that the prohibition of organisation of fire defence personnel did not constitute a violation of ILO Convention No. 87. This question had been examined as a domestic issue. The relevant government authorities had been discussing and exchanging opinions from time to time with workers' organisations. Direct opinions from fire defence personnel, as well as representatives of the relevant organisations concerned, including the workers' organisations, were heard at the Inter-Ministerial Conference on Public Employees' Problems. The Government was in the course of listening to members of volunteer fire corps who perform fire defence activities in close collaboration with fire defence personnel. From now on, too, the Government considering this to be a domestic matter, would continue, through the relevant authorities, to exchange opinions with relevant workers' organisations and also would hear opinions from members of the volunteer fire corps at the Inter-Ministerial Conference on Public Employees' Problems. Furthermore, taking into account the current evolution of circumstances that later this year in November there would be a unified labour organisation formed by the trade unions in the public sector as well as the private sector, the Government would once again listen to the relevant workers' organisations.

Secondly, as concerns the sanctions applied for having engaged in strikes, the report of the Committee of Experts referred to the prohibition of strikes by public employees in Japan and the sanctions applied to those who have violated the prohibition. The present Committee had restated its previous view. In Japan, national and local public employees were prohibited by law from engaging in strikes. The laws concerned had been repeatedly upheld by the Supreme Court as being constitutional. It was quite natural that a constitutional State applied sanctions to those who had violated the laws in an appropriate way in accordance with the laws. On this point, the Government was fully aware of the ILO's established view that the application of disproportionate sanctions did not favour the development of harmonious relations. The speaker stated that his Government would continue to deal in a proper manner with this question.

A Worker member of Japan stated that the question of the right to organise for Japanese fire-fighters had been the subject of discussion in the present Committee for many years. He recalled the opportunity given him to speak on this subject in this Committee in 1973. No progress had since been achieved at the national level, despite the repeated and consistent recommendations and the conclusions of this Committee to accord the right to organise to fire-fighters.

He expressed his disappointment with the written reply supplied by the Government. The so-called agreement between the Government and trade unions referred to in the first paragraph of the Government's written reply was a distortion. The Government representative introduced this agreement for the first time during the discussion in this Committee two years ago. This statement about an agreement was neither fair nor honest. The report of the Convention Subcommittee of the Round-Table Conference on Labour Problems was drafted and presented to the Minister of Labour by the Chairman of this subcommittee on his own behalf and without any sign that it was adopted by the subcommittee itself. In any event, the question of the fire-fighters was not the subject of major discussion in the subcommittee because it was not at issue.

The subcommittee was not an authoritative tripartite body, but it was an informal council only answerable to the Minister of Labour in which trade union representatives were a small minority. The said council worked on an ad hoc basis and existed only a short period before the ratification of Convention No. 87.

Furthermore, no action was taken on the said report and it was almost forgotten until the Government started to use it in this Committee. He expressed great doubt that such an agreement was ever reached, since it was 30 years ago, well before his time. He would not challenge it here, but preferred to present overriding facts which were indisputable. Firstly, such an agreement was never reported to the Parliament when ratification of Convention No. 87 was discussed only three or four years later. On the contrary, Parliament ratified Convention No. 87 in 1964 without any hesitation and established a statutory tripartite council for the purpose of securing conformity of the public service employment system with the Convention. A number of outstanding issues, including the right of fire-fighters to organise was specifically referred to this council. Official minutes and the report of the council published by the Government themselves showed clearly that the workers' representatives on the council unanimously insisted on the right to organise for the fire-fighters. This crystal clear fact ran squarely counter to what the Government stated in the written reply. The Government, however, did not change its position; therefore the council had to conclude its work without an agreement in this regard. That was the position in the late 1960s, ten years after the so-called agreement quoted by the Government.

There has been no agreement between the Government and the trade union even since. For this reason, the case had to be brought to the ILO for examination by the supervisory machinery. If there was any agreement with the Government, such course of action would have been redundant.

The Government presented another distorted picture by saying that the Committee on Freedom of Association admitted the position of the Government which assimilated the fire-fighters with the police. The case quoted on this point had no direct connection in this regard. It was a case brought by the Japanese postal workers' union concerning their freedom of association. That case was also concluded some 30 years ago when the question of the trade union rights of fire-fighters in Japan was not yet an issue.

The case of the fire-fighters became a hotly debated issue in the late 1960s and the fire-fighters themselves started to organise only in the early 1970s. The complaints directly related to this question were lodged with the ILO by the Municipal Workers' Union (JICHIRO) which tried to help fire-fighters in their efforts to organise. In 1974 the ILO Committee on Freedom of Association concluded the case by clearly stating that fire-fighters cannot be excluded from the scope of the Convention.

The Government representative in his statement underlined ongoing discussions in the Government on the national level. The Government, however, only invited organisations of their own unilateral choice. When the trade union representative went to see the authority concerned to ask for consultation with the union, these brief meetings and conversations counted as consultations in the reply.

Regrettably, there has been no partnership with trade unions in the exercises reported by the Government as "consultation" or "hearing". There has been no consultation even on the procedure adopted by the Government. Most of the so-called organisations invited by the Government for hearings are governmental or semi-governmental organisations, such as the Governors' Council and the Mayors' Council. An association directly engaged in organising fire-fighters has never been invited.

The Association of Fire-Fighters was formed in 1976 to represent the voice and aspirations of 130,000 full-time personnel, all of them public employees. This organisation was not recognised and has been prevented from having any access to the Government and their employer.

It requested that the right to organise be assured for fire-fighters, but emphasised that the right to strike was not being sought. Fire-fighters were fully aware of the heavy social responsibility in carrying out an essential service to the public, and would probably not hesitate to accept restrictions on the right to strike when the right to organise was granted.

The Workers' members stated that this case was a very serious one because it involved the violation of one of the most basic of all human rights Conventions and because of the excessive length of time which had elapsed without any action taken by the Government to comply with its obligation. This was an international obligation, not simply a domestic concern. The Workers' members wished to focus upon the issue raised in the Government's written reply concerning the Government's reliance on the confirmation, allegedly given by the Committee on Freedom of Association, of its position that fire-fighters should be considered as part of the police and thus excluded from the scope of Convention No. 87. In 1987 the Employers' members expressed concern in the present Committee that some of the facts concerning the conclusions made by the Committee on Freedom of Association were not quite clear. By way of explanation, the question of fire-fighting personnel was not an issue in the cases in 1950 and 1961 which were relied upon by the Government. The Government simply explained its custom and practice with regard to fire-fighting personnel in the context of the "Dreyer Commission" inquiry into the multiple problems involved in the public sector in Japan. Convention No. 87 had not been ratified at that time, and therefore no detailed information was provided concerning the right to organise for fire-fighting personnel. The Committee on Freedom of Association, therefore, merely noted the Government's statements.

In 1973, however, following Japan's ratification of Convention No. 87 in 1965, the Committee of Experts, after examining reports from Japan in response to its direct request for information on fire-fighting personnel, concluded that the fire services were not in fact formally assimilated with the police and determined that this category of workers had the right to organise pursuant to the guarantees of the Convention.

Moreover, in case No. 737 of its 139th report, published in 1974, the Committee on Freedom of Association stated in its conclusions concerning the right of firemen to organise: "In the earlier reports referred to by the Government, the Committee treated firemen within a more general context, considering allegations concerning the refusal of the right to organise in the public service. Subsequently, Japan ratified Convention No. 87 and a specific question of the fire service was examined by the Committee of Experts". The Committee then stated in its recommendations to the Governing Body "that firemen in Japan, although having special characteristics, are not members of the police or armed forces".

Firemen, therefore, were not considered among the category of workers which were excluded from the right to organise by virtue of Article 9 of the Convention. The Committee also rejected the Government's intention that granting firemen the right to organise would undermine the discipline necessary for their duties and lead to the outbreak of strikes, and emphasised that the right to organise and the right to strike were two entirely different matters. Accordingly, there was no contradiction between the supervisory bodies on this problem. In the earlier cases prior to ratification, the Committee on Freedom of Association based its conclusions on the information made available to it at that time. Subsequently, when more detailed information and reports were available, the conclusions of the Committee of Experts and the Committee on Freedom of Association were not contradictory.

Even assuming there had been an agreement between the Government and the unions concerned and assuming that the ILO confirmed this position, the Government's position would still be invalid. Reservations or exceptions, whether by agreement between the Government and trade unions, or otherwise, to the terms of the application of Conventions, were not permissible.

The Workers' members stressed the extremely long period of time which has passed since the Government was requested by the Committee of Experts and the present Committee to observe the provisions of the Convention. No progress has been made in all this time.

The Workers' members emphasised that the real issue was whether Convention No. 87 permitted the Government to carve out an exception to the requirements of the Convention on the grounds that its fire-service personnel were really part of the police. The Committee of Experts had consistently rejected this contention ever since its first observation on the issue in 1973, and had expressed its hope that the Government would take appropriate measures to ensure the right to organise for personnel in this category.

As regards the right to strike in fire services, the Committee of Experts emphasised "that the right to organise does not necessarily imply the right to strike and that the fire-fighting services must be considered as an essential service in the strict sense of the term in which the right to strike may be subject to prohibition". The fire-fighters had informed this Committee on previous occasions that, involving as it does protection of life and limb, strikes in the fire service are not an option in their collective bargaining. The issue now is simply one of the right to organise. Consultation and negotiations were a separate and distinct problem following recognition.

There had never been disagreement by the large majority of this Committee's members of the legal conclusions asserted by the Committee of Experts concerning the lack of justification for the Government's continued denial of the right to organise for fire-fighters. The dialogue in this Committee had been one of continual entreaty to the Government to try to resolve this problem at home.

The Government had repeatedly assured this Committee that the problem would be resolved. In the light of the provisions of the Japanese Constitution guaranteeing unequivocally the rights of workers to organise and bargain collectively, the Government could solve this issue on a national basis by simply recognising the paramount guarantees of its own Constitution and its supercession of any legislation that may exist to the contrary. But the Government's promises seemed to be empty and, in effect, a kind of smoke screen for the fire-fighters who were only seeking the recognition of their right to organise in protection of their interests, the freedom of association which the ILO safeguards as so sacred a trust as to embody it in its own Constitution.

It was a pity that the Government not only disavowed its solemn international obligations under Convention No. 87, as well as its obligations under its own Constitution, but that it also rejected the considered judgement of all 20 experts, 19 of whom have consistently disagreed with the Japanese Government in its evaluation of the requirements of Convention No. 87. These experts deliberated with objectivity, impartiality and independence of parochial concerns. If the Japanese Government did not accept their views it was obviously blind to all counsel and advice.

In 1984 the Workers' members had added to the conclusion on this same case that, if no improvements had been made by 1985, recourse should be had to other methods. Five more years had elapsed since that conclusion by this Committee. It was clear that in point of fact there had not only been no progress, but the situation had actually worsened. Two year ago the Government asserted in its written reply that it would maintain "firmly hereafter" its interpretation that fire-fighters were included in the police. The purpose of dialogue should be to reach a conclusion and resolution of a problem through an exchange of viewpoints. Dialogue was completely frustrated when one party no longer listened to the other.

The refusal of the Government to comply with its obligations under the Convention reached well beyond the parameters of this particular case involving 135,000 fire-fighting personnel. As every trade union leader instinctively knew, denial of freedom to organise has a negative impact on all social progress and paralyses the source from which workers' rights grow. Anything which endangered this principle imperilled everything done in this Committee. Finally, the Workers' members requested an impartial assessment of this case which would mete out the same measure of justice to the powerful industrial States as it would to the developing countries.

The Employers' members emphasised that this case raised two issues: the restrictions on the right to strike of public servants and the freedom of association of fire-fighters. During the general discussion, they had made clear that they could not accept certain conclusions of the Committee of Experts they considered excessive, in particular as regards the restrictions of the right to strike where it threatened life and health of the population. Far from challenging the right to strike and of lock-out, they merely wanted the exercise of that right submitted to reasonable restrictions. No member State could accept the restrictions proposed by the Committee of Experts which, indeed, were not respected in practice. The principle of proportionality was at stake here. Every country should protect its citizens even before their lives would be threatened; if one were to accept the Committee of Experts' notion, every country could be accused of violating Convention No. 87. Since under the general rules of international public law, the concepts and practice of each member State should be taken into account to interpret correctly the obligations of the States which have ratified a Convention. This general rule of law was explicitly enshrined in the Vienna Convention on Treaties. However, if no State recognised this limitation of the right to strike, no interpretation could be correct. Therefore, they expressed the hope that the Committee of Experts would reconsider its position on that issue, and they stated that they were ready to continue the discussions. Their intention was not to support restrictions of the right to organise or the freedom of association enjoyed by employees in essential services, but rather to propose reasonable limitations of the right to strike.

The problem of fire-fighters did not call for any other explanation since everybody knew their situation. The Employers members learned from the experience of the years 1950 and 1960, and during the last discussions in this Committee, they had examined the decisions taken in that field by the Committee on Freedom of Association. Initially, it had appeared possible to put the fire-fighters in the category of police members. The decision of the Committee on Freedom of Association had been, as usual, submitted to the Governing Body which approved it, as mentioned in the report of the Committee of Experts. It would be difficult to say to what extent these observations could be unanimously accepted by the Japanese. However, it was surprising that the Committee of Experts would not decide on this issue, but merely give its opinion, i.e. that fire-fighters should not be considered as members of the armed forces or the police. The Committee of Experts did not mention in its report if other decisions had been taken or if that decision had been expressed in different terms, and whether it was necessary to modify it now. Such an attitude was surprising considering the importance given to the co-operation between the Committee of Experts and this Committee. Therefore they wished to obtain an answer from the Committee of Experts on its earlier decisions. Referring to the Workers' members' statement, the Employers' members recalled that this was a question which should be carefully studied. Although they did not feel competent to decide on the problem, they remained convinced that the situation in Japan would strongly affect the interpretation of the case. Nobody would challenge the fact that Japan faced complex problems which would continue to raise discussions and different interpretations of the situation. They considered that the problem was far from settled in Japan since it was even more crucial in that country than elsewhere. The Committee of Experts shared that opinion and trusted that the parties would pursue their discussions and that the problem of the right to organise of fire-fighting personnel could find a solution at the national level. The Employers' members considered that this sentence had been carefully worded and they fully supported it.

The Workers' member from Liberia stated that this was not a borderline case but a very clear-cut one. Convention No. 87 was definitely applicable to the Japanese fire-fighters. The speaker asked two questions of the Government. Firstly, since workers were either protected under the industrial relations or the Civil Service legislation, with access to the corresponding adjudicating procedure, what was the situation in Japan? Secondly, If the workers here in question did not qualify to belong in the industrial trade unions, were they civil servants? He wanted answers to these questions because Convention No. 87 did not establish preconditions and gave workers without distinction whatsoever the right to join a labour organisation of their own choosing, without prior authorisation or permission. The speaker expressed his strong support to his Japanese colleagues.

The Workers' member of the United Kingdom stated that he was getting worried about the interpretations given to Convention No. 87 by the Employers. For instance, the Employers' member of Sweden had declared that the Committee of Experts had exceeded their functions in a number of cases and now the Employers appeared to argue that the views of the Committee on Freedom of Association could override the views of the Committee of Experts. The speaker pointed out that when this issue was dealt with by the Committee on Freedom of Association in 1974, it went subsequently to the Committee of Experts who reiterated their view that fire fighters were not excluded from the provisions of Convention No. 87. This Committee was reaching the same dangerous position it had reached in the 1970s, when it considered cases concerning socialist countries, when the objectivity of the Committee of Experts was challenged. The difference now is that its impartiality is being challenged by advanced industrial countries. The validity of the work of this Committee was once again at issue. During the general debate, everybody had agreed on the impartiality and objectivity of the Committee of Experts, and rightly so because the whole work of this Committee rested upon their comments and observations. So this Committee should come back to the simple issue: if Japan wanted to pass an act of Parliament saying that from now on fire fighters were considered as being part of the police or armed forces, they should say so and this Committee would understand it. However, the Government kept on saying that it wanted an exception to the general rule in the country so as to count fire-fighters as part of the police, but the Committee of Experts told them this was not possible under the Convention. This Committee had been considering this case long enough. It seemed to be another case of a Western government asking for special exemptions concerning another part of the public service; the workers were getting a bit fed up with the way some Western governments dealt with Convention No. 87 and there would be less sympathy on the side of the workers when dealing with issues of more concern to the employers, if the workers could not get an understanding on something as vital as Convention No. 87 in so far as it applied to the public services.

The Workers' member of the Netherlands stated that there were three main questions: firstly, whether freedom of association meant the same in industrialised countries as in others; secondly, whether the right to organise in these countries should be discussed in the same manner as in other countries with different levels of economic, political and cultural development; and finally, whether violations should be dealt with on the same basis by this Committee by taking fully into account the observations of the Committee of Experts. The speaker expressed his uneasiness at the detached and reserved - if not totally negative - attitude of the Government. This was again a case with a long history in this Committee, probably the longest history of a case involving serious difficulties. As mentioned by the Committee of Experts over a number of years, the Government had handled this case in a rather satisfactory manner from a procedural point of view: it had duly responded to the comments made by Workers' representatives, supplied the ILO with full information, and kept close contact with the Office, both formally and informally. While very laudable, this should not divert this Committee's attention from the essential issue, namely compliance with the present Convention. Over the past few years this Committee had learned to live with governments which said that they disagreed with the Committee of Experts and with this Committee, and which stated they were sure that they were perfectly in line with the Convention and that the Committee of Experts were wrong. Faced with such a position in the past, in the face of repeated serious criticisms from the Workers' side, the Committee expressed its concern about such an attitude by mentioning it in a special paragraph. In 1987 the Committee came very close to mentioning the present case in a special paragraph; it did not do so but expressed once more hopes and concerns, to which the Government had reacted now by stating that whatever this Committee would say it would not change its policies. The speaker stated he was aware that Japan was a very special country, that the job of firemen was a very special one, and that this Convention certainly was a very special one: so this certainly was a very special case. Nevertheless, as in some other cases of a special nature, the Committee of Experts itself took that factor into account. The comments and observations made by the Committee of Experts over a number of years left no doubt that they did not consider it to be a marginal case, which might have revealed some difficulties with ILO Conventions. The speaker expressed the hope that this Committee would deal with the case accordingly.

The Workers' members considered that it was not necessary to recall the substance of this problem since the Committee of Experts, the Committee on Freedom of Association and the present Committee, on many occasions over the past 12 years, already had the opportunity to give their opinion on the necessity for the Government to re-examine this case so that progress could be made with a view to guaranteeing the fire-fighters the full enjoyment of the rights that the Convention would give them. Referring to the conclusions of this Committee at its 1987 Session, which expressed the hope that the Government would be in a position to announce concrete measures taken to guarantee to fire-fighters the full enjoyment of the rights established in this Convention, they expressed their disappointment. At the end of the general discussion, they hoped that the universality of standards, but also the objectivity, impartiality and independence of the experts, would be unanimously acknowledged in the present Committee. If the work and observations of the Committee of Experts on the cases of developing or industrialised countries were questioned, then all the discussions would be useless and the control mechanism would also be questioned. Consequently, the Workers' members trusted that the present discussion (which could seem rather long to some participants) would nevertheless lead to concrete results since it concerned an extremely important subject: the associational rights of public servants established by Conventions Nos. 87 and 151. The Workers' members had nothing to add on the two aspects of the problem, except that the Government appeared not to be facing the truth. The freedom of association of fire-fighters concerned more than 700,000 workers, which made it an important case. Where human dignity and workers' rights were at stake, there could not be small problems, even if that concerned only 13 workers, as in the British case. The Workers' members congratulated the Japanese workers for keeping their faith in the ILO and supported their efforts. They trusted that these Committees' conclusions would not contradict those of the previous years. Referring to the Japanese Government's answer that this was an "internal question" they replied that all the questions addressed by this Committee were "internal questions", but that the Government had ratified the Convention and was consequently committed to respect it. The discussions should, therefore, be continued until a solution could be found. Referring to the corrigendum mentioned in Point 4 of the written reply, where the Government declared that it had "consulted the fire-fighters' personnel, as well as the representative organisations", they noted that all reference to "union organisations" had been deleted, which preoccupied them.

It was not enough to be aware of measures to be taken, of the changes which were necessary and of union rights. To discuss the issues of strikes, negotiation and arbitration in case of labour disputes, it would be necessary to consult the representative union organisations, regroup the social partners and not to deal with each fire-fighter. They concluded by noting this was a serious case which did not progress and they asked whether the employers had a solution to propose.

The Government representative stated, firstly, that, contrary to the allegiations of the workers, cases Nos. 60 and 179 decided by the Committee on Freedom of Association indeed dealt with the right to organise of Japan's fire-fighters. Case No. 179 was lodged by the trade unions alleging that prohibition of the right to organise to fire-fighters in Japan fell upon the violation of freedom of association. With regard to this allegation, the Government sent the information to the ILO in January 1959, including the report of the Convention Subcommittee of the Round Table Conference on Labour Problems which concluded that "the function of the fire defence in Japan can be interpreted as being included in the category of the function of the police". The Freedom of Association Committee, having examined this allegation as well as the information supplied by the Government, concluded that fire defence agencies in Japan were included in "the police and certain services assimilated thereto". It was quite clear, the Government representative said, that the 54th Report of the Committee on Freedom of Association concerning case No. 179 had decided these allegations concerning fire-fighters in Japan did not call for further examinations. His Government ratified Convention No. 87 on the premise of these conclusions reiterated by the Committee on Freedom of Association, one of the authoritative and prestigious supervisory bodies in the ILO. Secondly, the Round Table Conference was an official tripartite body, set up by the Cabinet decision, to examine national laws with a view to ratifying ILO Conventions. It was not an informal council of the Labour Minister as the Japanese Workers' member insisted. Thirdly, with regard to the agreement reached by the Subcommittee of the Round Table Conference, the Government representative said that his Government, after this issue being taken up again by the ILO in 1972, repeatedly sent the copies of the said agreement to the ILO, i.e. in October 1972 in the annual report and in May 1973 in its reply to the Experts Committee's observation, contrary to the assertion by the Japanese Workers' member. The Government representative also mentioned the fact that the said agreement had been indeed reported to the Japanese parliament on the occasion of its deliberation regarding ratification of the Convention No. 87, for example, to Special Committee on ILO Convention No. 87 of the House of Representatives in July 1963 and to the Special Committee on ILO Convention No. 87 of the House of Councillors in May 1965 in response to the question sposed by members of the Socialist Party.

In reply to a question asked by the Liberian Workers' member, the Government representative stated that fire-fighters were covered by the Local public Service Law and, as such, had a right of recourse to the complaint procedure which was guaranteed to public employees, as well as before the courts, when a problem arose. The Government representative reiterated in conclusion that his Government would treat this problem as a domestic issue and that it remained determined to further its examination at the Inter-Ministerial Conference as well as to maintain a constructive dialogue with the labour organisations concerned through the relevant government authorities.

The Workers' members considered that the historical overview of the case proposed by the Government representative could not modify the opinion of the Committee of Experts and of the Committee of Freedom of Association. They wanted to know if, where the Government representative mentioned exchanges of opinion with the workers' organisations, he meant the competent organisations representing the public sector workers.

The Employer member for the United States stated that this case illustrated a point that the Employers had been stressing over the past two years, namely the stability and consistency of interpretation by the ILO supervisory bodies. When examining the substantive issue in this case, one would be addressing in part what was the basis for the ratification of this Convention by the Japanese Government; it seemed that one of the problems which concerned the Employers' group was that the Government relied in part on two earlier decisions made by the Freedom of Association Committee prior to the ratification of the Convention. As pointed out by the Workers' representative of the United States, there was an evolution in this interpretation such that, in 1969, the Committee of Experts analysed differently the fire-fighters' situation. However, this Committee was now addressing the issue in terms of the uniform and consistent application of Conventions.

The Worker member of Pakistan stated he was glad that ratification of a Convention did not absolve a country from bringing its legislation in conformity with the principles outlined in the Convention. In addition, the speaker declared that the fact of giving a worker the individual right to proceed before the courts did not replace the functions of trade unions because these have a wider scope. Therefore, the observations made by the Committee of Experts in their report fully deserved to be implemented in the respective countries, in consultation with the workers concerned.

The Committee took due note of the discussion which took place and in particular of the information provided by the Government delegate. The Committee recalled that for many years the Committee of Experts had made comments on certain differences between the national legislation and the Convention, in particular in connection with the right to organise of the fire-fighting staff. The Committee noted that internal discussions continued on this issue but that they had not led to concrete measures permitting progress toward the full application of the Convention. The Committee expressed the firm hope that the discussions with representative trade unions would be intensified and that they would soon lead to the recognition of the right to organise of these workers in conformity with the Convention.

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

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.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Japanese Trade Union Confederation (JTUC–RENGO) dated 22 October 2008 and 5 October 2009 and the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention and in relation to the restrictions on check-off procedures in Osaka city. The Committee notes the 2008 observations of the Conference Committee on the Application of Standards.

Denial of the right to organize of firefighting personnel and prison officers. The Committee recalls its long-standing comments concerning the need to recognize the right to organize for firefighting personnel.

The Committee notes that the Government indicates in its report that it has revised the Order of the Organization and Operation of the Fire Defence Personnel Committee to include the establishment of a system of liaison facilitation. The Government also indicates in its report that it has made efforts to operate the Fire Defence Personnel Committee system appropriately by: announcing the operational conditions of the Fire Defence Personnel Committee in the previous year and the points of concern on the operational conditions through the notification to all fire defence headquarters at the beginning of the fiscal year; distributing brochures on the Fire Defence Personnel Committee system to all fire defence personnel across the country; and explaining the purpose of the Fire Defence Personnel Committee system points and the warning points of its operation at the nationwide training meetings of fire chiefs.  While the JTUC–RENGO has indicated in its comments that the Fire Defence Personnel Committee system has played an important role in improving the working conditions and environment of firefighters, it recalls that the main concern of ensuring the right to organize to firefighters has yet to be granted.

The Committee notes from the Government’s report that as of 31 March 2009 the Fire Defence Personnel Committee meetings were held in 804 fire defence headquarters out of 806 across the country. In addition, 748 headquarters made available to all fire defence personnel the summary of their deliberation including a Committee’s opinion to the fire chief. The number of the opinions submitted through the liaison facilitators rose to 4,131 (82.5 per cent) in the fiscal year 2008, from 2,833 (52.9 per cent) in the fiscal year 2005 when the system was introduced.  In addition, the number of headquarters notifying the result and the reasons of a deliberation to the personnel and the liaison facilities who submitted the opinion rose from 393 (48.4 per cent) in the fiscal year 2005 to 604 (75.1 per cent) in the fiscal year 2008.

The Committee notes that the JTUC–RENGO also indicates that there has been no progress on the issue of granting the right to organize to prison staff.  The Committee recalls that the functions exercised by prison staff should not justify their exclusion from the right to organize and further refers to the examination of the Committee on Freedom of Association with regard to this matter (Cases Nos 2177 and 2183, 329th Report).

The Committee recalls the importance it attaches to the right of all workers, including firefighters and prison officers, to form and join organizations of their own choosing. The Committee once again requests the Government to indicate in its next report the additional legislative measures taken or contemplated in order to ensure the right to organize to these categories of workers and in the meantime to permit their de facto organization without penalty.

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 (354th Report, paragraph 992) 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.

The Committee recalls that it has expressed concern in the past at the lack of progress in this regard. The Committee notes that the Government indicates in its report that public employees benefit from the National Personnel Authority recommendation system and other compensatory measures, in compensation for restrictions on the right to strike and that the Supreme Court has maintained throughout its judgements that the prohibition of acts of dispute by public employees is constitutional. The Committee once again 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 in 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.

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 continue to take steps to ensure without delay the promotion of full social dialogue aimed at effectively addressing the measures necessary for the implementation of the freedom of association principles embodied by Conventions Nos 87 and 98. The Committee previously noted the establishment of a “Special Examination Committee” consisting of 17 members including three representatives from trade unions, in addition to representatives from private enterprises, academia and the mass media. The Committee notes that the Government indicates that after having held 15 meetings and having deliberated in four simulation group meetings, the Special Examination Committee completed the final report in October 2007. The report states that as main points of the reform the following: (1) establishment of autonomy in employee/employer relations by giving a certain range of non-industrial public service employees the right to conclude collective agreements and abolishing the system in which the third party institutions recommend labour conditions of public service employees; (2) establishment of a governmental employers’ organization; and (3) enhancement of accountability to the public. The Committee also notes the Progress Schedule for Civil Service Reform. In addition, in the process of establishing the Progress Schedule, the Japanese Government held a number of meetings with JTUC–RENGO and RENGO–PSLC at various levels formally and informally between November 2008 and the end of March 2009.

The Committee takes note of this information and 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 vigorously pursue these consultations within the framework of the labour–employer relations system examining the committee or other appropriate bodies, in order to find mutually acceptable solutions to all the issues raised and to bring the law and practice into full conformity with the provisions of the Convention and asks it to provide information on the progress made in its next report.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report as well as its response to the comments made by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006; the Japanese Trade Union Confederation (JTUC‑RENGO) dated 28 August 2006; the Japan Federation of Prefectural and Municipal Workers’ Unions (JICHIROREN) and the National Network of Fire‑Fighters (FFN) dated 13 April 2007 with regard to the issues previously raised by the Committee including the public service system reform and the right to organize of fire‑fighters. It further notes the communication by the ITUC dated 27 August 2007 with regard to difficulties in trade union organizing due to an increase in precarious forms of employment and subcontracting, including for migrant workers and the communication of JTUC-RENGO dated 19 October 2007. The Committee requests the Government to provide its observations on the latest comments by the ITUC and the JTUC-RENGO.

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.

The Committee takes note of the Government’s report which reiterates its previous position 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 of the Convention. In 1997 a system of fire defence personnel committees was created, allowing for the participation of fire defence personnel in decisions over their terms and conditions of employment. On 15 October 2004, eight years since the establishment of the system, certain improvements were agreed between the Minister of Internal Affairs and Communications and the representative of the JICHIROREN on the practices of the fire defence personnel committees, including with regard to the timing of the sessions of the committees (to be held in the first half of the fiscal year, from April to September, in order to allow enough time for budget allocations), the provision of feedback to employees who submitted opinions to the committees, the communication of summaries of the deliberations and opinions of the committees and the creation of a “liaison facilitator” system to provide explanations to the personnel (improvements introduced in the Order on the organization and operation of the fire defence personnel committees under article 14(5), paragraph 4, of the Fire Defence Organization Law).

The Committee notes that, according to the comments communicated by JICHIROREN and FFN, following a survey conducted in eight fire defence departments to which FFN officers belong so as to evaluate the implementation of the above improvements, it was revealed that no real progress had been achieved with regard to the right to organize of firefighters. In particular, committee meetings were scarce (held once a year), employees did not receive proper feedback, the “opinion coordinators” did not function properly and many opinions submitted by the employees had been dismissed as not falling under the committee deliberations, thus demonstrating overall the limited role that these committees could play. The Committee recalls that in previous comments, these organizations 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 notes from the Government’s report that by March 2007, nearly 5,000 opinions annually and 60,000 in total had been discussed in almost all (99.6 per cent) of fire defence headquarters across the country, and each year about 40 per cent of the opinions were found to be appropriate for adoption and of those, more than half were implemented by the fire chief. These opinions concerned for instance, measures to counter smoking, the introduction of counselling as a means to counter stress, the improvement of the office environment such as nap rooms for those on shift, etc. Almost 80 per cent of the opinions discussed have been submitted through liaison facilitators. In a recent notification the Government invited all local authorities to fully implement the relevant discussions and the liaison facilitator system. The Committee further takes note of the information provision and training measures to ensure the full implementation of the system.

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 requests the Government to indicate in its next report the additional 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 interim 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) 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 recalls that it has expressed concern in the past at the lack of progress in this regard, given that the Government has been confined ever since the Fact-Finding and Conciliation Commission on Freedom of Association took place (ILC, 64th Session, 1978, Report III(4A), page 143), to noting that the Supreme Court of Japan maintained throughout its judgments that the prohibition of strikes by public servants is constitutional. Noting that the Government’s report once again repeats its previously stated position, the Committee once again 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 in 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 National Confederation of Trade Unions (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 and the ICFTU to the effect that on 24 December 2005, the Government adopted an “Essential Policy for Administrative Reform” which represented a major switch from the previous policy of the General Principles for Civil Service System Reform in that it provided for “frank dialogue and adjustment with the parties concerned” in order to achieve the implementation of a personnel management system based on merit and the fair management of re-employment in the context of reforms of overall employment costs; it also provided for “a broad review of the public service system, including the fundamental labour rights of civil servants and the National Personnel Authority system, the way of setting salaries for civil servants” and treatment based on merit and performance evaluations, taking into account public awareness and progress in reforms of the existing salary system. Pursuant to this policy, government–labour consultations were held on three occasions between January and May 2006 and the two parties agreed that the best way to develop industrial relations and discuss the issue of fundamental labour rights of public service employees was to establish a “Special Examination Committee” consisting of 17 members including three representatives from trade unions, in addition to representatives from private enterprises, academia and the mass media. At the first meeting of the committee held on 27 July 2006, it was agreed that a meeting would be held once a month to discuss: (a) the scope of public work for a simple and efficient government; (b) the proper classification structure and job descriptions for workers engaged in public work; and on the basis of these (c) the proper way of developing industrial relations, including the issue of fundamental labour rights of public employees.

The Committee also takes note of the information provided by the Government on this point, to the effect that until May 2007, the Special Examination Committee had held ten meetings until May 2007 and had approved a note by its chairperson according to which “the issue of labour–employer relations in the public sector, including the fundamental labour rights of public employees, should be re-examined with an eye towards reform”. Moreover, the Government submitted two bills to the Diet aimed, inter alia, at introducing an ability- and performance-based personnel management system for public employees at the national and local levels respectively. It also adopted a Cabinet Decision on civil service reform according to which the Government shall continue to examine the fundamental labour rights of public employees taking into consideration the discussions taking place at the Special Examination Committee and further exchanges of views with concerned parties such as employees’ organizations.

The Committee takes note of this information and 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 vigorously pursue these consultations in order to find mutually acceptable solutions to these difficulties and to bring the law and practice into full conformity with the provisions of the Convention and asks it to provide information on the progress made in its next report.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU), the Zentoitsu Workers’ Union and the Japan Trade Union Confederation (JTUC-RENGO), in communications dated respectively, 10 August 2006, 13 December 2005 and 28 August 2006, which largely refer to issues that the Committee is already examining and that concern the effect given to the Convention in law and in practice. The Committee requests the Government to send its observations on the ICFTU’s comments.

The Committee also requests the Government, in the context of the regular reporting cycle, to send for examination at its next session, to be held in November‑December 2007, its views on the legislative matters raised in the Committee’s observation of 2005 (see 2005 observation, 76th Session).

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.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the comments of the Japanese Trade Union Confederation (JTUC-RENGO) dated 1 September 2004 on the public service system reform. The Committee recalls that it has examined this issue in its previous observation. The Committee also takes notes of the comments of the Zentoitsu Workers’ Union dated 17 March and 7 October 2004 and observes that they concern anti-union discrimination issues dealt with under Convention No. 98. The Committee requests the Government to transmit in its next report its observations on the comments made by JTUC-RENGO and the pending comments of the Committee on Convention No. 87 (see 2003 observation, 74th Session).

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information in the Government’s report, as well as the comments made by the Japanese Trade Union Confederation (JTUC-RENGO) in 2002 and by the International Confederation of Free Trade Unions (ICFTU), the ZENTOITSU (All United) Workers Union and the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO) in 2003. The Committee requests the Government to provide its observations on these comments with its next report.

The Committee recalls that its previous comments dealt with the denial of the right to organize of fire-fighting personnel, the prohibition of the right to strike of public servants, and the reform of the public service. The Committee also notes the further conclusions and recommendations of the Freedom of Association Committee in Cases Nos. 2177 and 2183 (331st Report, June 2003 session) where all these issues, and some additional ones (e.g. the right to organize of prison staff, the trade unions registration system, lack of compensatory procedures for workers deprived of fundamental rights) have been raised, without any progress being noted.

1. Denial of the right to organize of fire-fighting personnel. The Committee recalls that as early as 1973, the Committee 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 organise is recognised for this category of workers" (International Labour Conference, 58th Session, Report III(4A), page 122). While it had been hoped that the system of fire defence personnel committees might constitute an important step towards the application of the Convention, the comments submitted over the years by Japanese workers’ organizations to this Committee, and the most recent complaint filed to the Committee on Freedom of Association, clearly demonstrate that the system of fire defence personnel committees is not a valid alternative to the right to organize. Noting that the information provided in the Government’s report concerning the functioning of these committees is the same as that provided in the Government’s reply in Cases Nos. 2177 and 2183, the Committee regrets to note that no progress whatsoever has been made on this issue. The Committee once again requests the Government to take legislative measures in the near future to ensure that fire defence personnel are guaranteed the right to organize, and to keep it informed of developments in this respect in its next report.

2. Prohibition of the right to strike of public servants. The Committee recalls that it referred to the detailed comments of the Fact-Finding and Conciliation Commissions on Freedom of Association, and 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" (International Labour Conference, 63rd Session, 1977, Report III(4A), page 153). The Committee also notes in this respect that the Government merely reiterates its previous comments and that the situation has not evolved significantly. It recalls, once again, 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). It requests 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 meaning of the term, and that the others (e.g. hospital workers) benefit from sufficient 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 the issues mentioned above, and many others, are to be addressed as part of the major civil service reform currently under way, which has been the subject of a complaint before the Committee on Freedom of Association (Cases Nos. 2177 and 2183). The Committee points out from the conclusions in these cases, including those reflected in the 331st Report, that no progress has been made so far on any of these issues. The Committee notes that the relevant bills have not yet been submitted to the Diet and that the Government intends to continue the consultations and negotiations with the parties. The Committee can only continue to stress that, as the Government embarks upon a reform process which will establish the legislative framework of industrial relations for many years to come, the time would be particularly appropriate 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 take all necessary measures in this regard and requests it to provide information on the progress made in its next report.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information in the Government’s report, as well as the observations made by the Japanese Trade Union Confederation (JTUC-RENGO), the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO), the ZENTOITSU (All United) Workers’ Union (and other endorsing unions), the National Railway Motive Power Union of Chiba (DORO-CHIBA), the Japan Federation of Prefectoral and Municipal Workers’ Unions (JICHIROREN), and the National Network of Firefighters (FFN).

The Committee recalls that its previous comments dealt with the denial of the right to organize of fire-fighting personnel, the prohibition of the right to strike of public servants, and compensatory guarantees for hospital workers. The Committee notes that all these issues were debated at some length in the Conference Committee on the Application of Standards at the 89th Session of the International Labour Conference (2001), which expressed the hope that the Government would hold a bona fide dialogue with firefighters’ unions and that it would take measures, as soon as possible, to guarantee their right of freedom of association. The Conference Committee also trusted that this Committee would be in a position to consider whether real progress had been made in the application of the Convention.

The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2177 and 2183 (329th Report, November 2002 session) where all these issues, and some additional ones (e.g. the right to organize of prison staff, the trade unions’ registration system, right to strike of public servants, lack of sufficient compensatory procedures for workers deprived of fundamental rights) have been raised, without being able to note any progress. The Committee further notes with concern from those conclusions that a major reform of the public service legislation is currently under way, to be presented to the Diet in 2003 and to be introduced in fiscal year 2005; a reform which does not, at present, address adequately the issues previously raised by this Committee and may even further aggravate the situation.

1. Denial of the right to organize of fire-fighting personnel. The Committee 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 organise is recognised for this category of workers" (ILC, 58th Session, Report III(4A), page 122). While it had been hoped that the system of fire defence personnel committees introduced in 1995 might constitute an important step towards the application of the Convention, the comments submitted over the years by Japanese workers’ organizations on the application of this Convention and the discussions in the Conference Committee, and the most recent complaint filed to the Committee on Freedom of Association, clearly demonstrate that this is not the case and that the system of fire defence personnel committees is not a valid alternative to the right to organize. While noting the information provided in the Government’s report concerning the functioning of these committees, the Committee urges the Government to take legislative measures in the very near future to ensure that fire defence personnel are guaranteed the right to organize and to keep it informed of developments in this respect in its next report.

2. Prohibition of the right to strike of public servants. 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 and 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 Government limits itself to stating in this respect that the Supreme Court of Japan has held that the prohibition of strikes by public servants is constitutional, something it had already mentioned at the time (ILC, 64th Session, 1978, Report III(4A), page 143). The Committee also notes with concern the decisions of the Committee on Freedom of Association in the abovementioned cases concerning public servants and in Case No. 2114 concerning public school teachers (328th Report, paragraphs 371-416). The Committee is bound to note that the situation has not evolved significantly. It recalls, once again, 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 (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 158). It requests 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 the issues mentioned above, and many others, are to be addressed as part of the major civil service reform currently under way. This reform has been the subject of recent complaints before the Committee on Freedom of Association (Cases Nos. 2177 and 2183). The Committee notes with concern from the conclusions in these cases, and from the Government’s report, that it "has decided to retain the current restrictions on the workers’ fundamental rights". The Committee emphasizes that, as the Government embarks upon a reform process which will establish the legislative framework of industrial relations for many years to come, the time would be particularly appropriate 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 practical problems have been raised by workers’ organizations over the years. The Committee requests the Government to keep it informed of developments in this respect in its next report.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the recent comments made by the Zentoitsu Workers Union and endorsed by other workers’ organizations. The Committee requests that the Government transmit, with its next report, its observations in this regard so that it may examine these points, as well as those raised in its previous comments, at its next meeting.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information in the Government’s report, as well as the observations made by the Japan Federation of Prefectoral and Municipal Workers’ Unions (JICHOREN), the National Network of Fire-Fighters (FFN), the Tokyo Zenrodosha Kumiai Labour Union (NUGW), the Japan National Hospital Workers’ Union (JNHWU/ZEN-IRO), and the Japanese Trade Union Confederation (JTUC-RENGO). As concerns these last two observations, the Committee notes that no reply has yet been received from the Government. It therefore requests the Government to respond to the matters raised therein in its next report.

1.  Denial of the right to organize of fire-fighting personnel.  In its previous comments, the Committee recalled that the Committee on the Application of Standards of the International Labour Conference, when discussing the proposed system to establish fire defence personnel committees, had welcomed these developments with satisfaction as an important step towards the application of Convention No. 87. The Committee further noted, however, the hope expressed by the JICHOREN and the FFN in its previous comments under Convention No. 87 that the Local Public Service Law be amended in order to provide fire-fighting personnel with the right to organize. The Committee requested the Government to keep it informed of any relevant developments in the operation of the fire defence personnel committees and to indicate any steps envisaged to guarantee further the right to organize for fire defence personnel.

The Committee notes from the latest observations made by the JICHOREN and the FFN that they have considered the fire defence personnel committees as an advancement in providing an opportunity to state their own opinions and that they had made certain suggestions for further improvements. They further indicated that a survey conducted in 1999 demonstrated that there were a number of aspects of the present system that have not been working effectively. They maintain that the current system is not an alternative to the right to organize in regulations and once again express the hope that this right will be realized as soon as possible for fire defence personnel.

In this respect, the Committee notes the information provided in the Government’s report concerning the functioning of the fire defence personnel committees and the results of their discussions. The Government has indicated that more than 150,000 pamphlets describing the system have been distributed to fire defence personnel and that, in order to ensure smoother application, the Government is providing each fire defence headquarters with guidance and advice. Moreover, in the future, the Government intends to continue to make efforts for smooth operation and firm establishment of this system, in cooperation with the parties concerned, such as organizations of workers, fire defence headquarters, etc.

The Committee takes due note of the concerns raised by the JICHOREN and the FFN, as well as of the efforts made and envisaged by the Government to ensure a smoother functioning of the fire defence personnel committees, in cooperation with the parties concerned. The Committee once again requests the Government to keep it informed of any pertinent developments in the operation of the fire defence personnel committees and to indicate any steps envisaged to guarantee further the right to organize for fire defence personnel.

2.  Prohibition of the right to strike of public servants.  In its previous comments, the Committee, having noted the comments made by JTUC-RENGO to the effect that there was a total ban on the right to strike for government employees both at the national and local levels, including for public schoolteachers, emphasized the importance of taking measures so that public servants who are not exercising authority in the name of the State were not sanctioned for having exercised the right to strike.

The Committee notes the distinction made in the Government’s report in this regard to "specified independent administrative institutions" and "independent administrative institutions other than specified". In the former, the Government indicates that the personnel are national public employees and the right to strike is not granted, whereas in the latter, they are not national public employees and the right to strike is granted. The Government adds that the treatment of personnel differs between the two because operation delays in specified independent administrative institutions are deemed to directly and markedly hamper the stability of national life or the society and the economy.

The Committee recalls 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraph 158). It recalls that the earlier comments of JTUC-RENGO had also referred to public schoolteachers who the Committee does not consider to fall within the abovementioned category. The Committee therefore requests the Government to indicate in its next report the measures taken or envisaged to ensure that public servants who are not exercising authority in the name of the State, including public schoolteachers, are not sanctioned for having exercised the right to strike. Furthermore, it requests the Government to provide further information on the types of institutions classified as "specified independent administrative institutions".

3.  Compensatory guarantees for hospital workers.  In its previous comments, the Committee had noted the conclusions of the Committee on Freedom of Association in Case No. 1897 submitted by the Japan National Hospital Workers’ Union to the effect that the National Personnel Authority (NPA) which had been set up to compensate for the prohibition of the right to strike of public servants had issued a decision concerning night duty of nurses which had still not been implemented over 30 years later. The Committee drew the Government’s attention to the need to provide compensatory guarantees to workers whose right to strike was restricted. Such compensatory guarantees should be impartial and rapid and arbitration awards should be binding on both parties and implemented rapidly and completely (see General Survey, op. cit., paragraph 164.) Noting the recent comments made by the Hospital Workers’ Union, the Committee requests the Government to send any observations it might have on the matters raised in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's reports. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1897 which was examined in November 1997 (see the 308th Report approved by the Governing Body at its 270th Session). It also notes the observations made by the Japanese Trade Union Confederation (JTUC)-RENGO, Japan Federation of Prefectural and Municipal Workers' Unions and by the National Network of Firefighters and the Government's replies thereto.

1. Denial of the right to organize of fire-fighting personnel. In its previous comments, the Committee had noted with interest that, following consultations with the Ministry of Home Affairs, the Fire Defence Agency and the All-Japan Prefectural Municipal Workers' Union (JICHIRO), the Bill to amend the Fire Defence Organization Law was passed on 20 October 1995. It requested the Government to supply a copy of the amended law and to provide information on the operation of the new system. The Committee notes with interest that, according to the Government's report, section 14-5 of the Fire Defence Organization Law as amended provides that a fire defence personnel committee shall be established in each fire defence headquarters in order to contribute to the effective operation of the fire service by discussing opinions proposed by fire defence personnel with regard to, inter alia, matters concerning remuneration, working hours and other working conditions and welfare of the fire defence personnel.

Furthermore, the Committee notes the Government's indication in its latest report that the Ministry of Home Affairs and the Fire and Disaster Management Agency, in cooperation with the parties concerned such as the labour organizations and the fire defence headquarters, made thorough preparations by, inter alia, holding a national meeting with local governments to inform them of the new system. As a result of these efforts, the municipal regulations on the fire defence personnel committees have now been enacted and such committees have been established in all fire defence headquarters in Japan (as of April 1997 there were a total of 923 headquarters). In accordance with the municipal regulations, one-half of the members of the fire defence committees have been appointed by fire defence personnel and discussions concerning working conditions and other matters have begun.

The Japanese Trade Union Confederation (JTUC)-RENGO indicated in its communication dated 6 October 1998 that these fire defence personnel committees have been effective in many of those fire district headquarters where there exist autonomous firefighter organizations. JTUC-RENGO added that it expected to continue to be actively involved in the management of the committee system so that the working conditions and organization of work at fire stations can be steadily improved and to continue its efforts so that firefighters can be guaranteed the same organizing rights as other public servants.

In a communication dated 1 June 1998, the National Network of Fire-Fighters (FFN) indicates that it is engaged in activities to guarantee the right to organize of firefighters in opposition to the Government which considers that the issue has already been resolved by setting up fire defence personnel committees at fire defence headquarters. The FFN states that the Government has not yet resolved this issue given that the Local Public Service Law has not yet been amended to provide fire-fighting personnel with the right to organize. It adds that there are a number of structural faults and problems with the fire defence personnel committees set up by the Government. These difficulties include a lack of representativeness of personnel, limitation to one meeting a year and censure on certain proposals for discussion. The Japan Federation of Prefectural and Municipal Workers' Union (JICHIROREN), for its part, recognizes the fire defence personnel committees as a significant advance allowing the personnel to express their views; however, it emphasizes that these committees are not equivalent to giving personnel the right to organize. JICHIROREN raises concern about the limited powers vested in these committees and their ability to improve working conditions effectively. Finally, JICHIROREN proposes a number of changes which would be necessary in order to make these committees more effective and insists that the law on local public personnel needs to be amended in order to ensure fully the right to organize for fire-fighting personnel.

The Committee takes note of this information and of the comments made by the various trade union organizations representing fire defence personnel. The Committee notes the difficulties raised by the FFN and the JICHIROREN and in particular their hope that the Local Public Service Law be amended in order to provide fire-fighting personnel with the right to organize. In this regard, the Committee recalls that, when discussing the proposed system to establish fire defence personnel committees to discuss opinions proposed by fire defence personnel with regard to, inter alia, matters concerning remuneration, working hours and other working conditions and welfare of the fire defence personnel, the Committee on the Application of Standards of the International Labour Conference welcomed these developments with satisfaction as an important step towards the application of Convention No. 87. The Committee therefore requests the Government to keep it informed of any pertinent developments in the operation of the fire defence personnel committees and to indicate any steps envisaged to further guarantee the right to organize for fire defence personnel.

2. Prohibition of the right to strike of public servants. In its previous comments, the Committee had noted the observations made by JTUC-RENGO to the effect that there was a total ban on the right to strike for government employees both at the national and local levels, including for public school-teachers, and that dismissals and other sanctions due to strike action were quite common.

The Committee notes from the statement made by the Government in its report that the Supreme Court of Japan has maintained its judgement that the prohibition of strikes by state public employees is constitutional.

In its most recent communication, JTUC-RENGO indicates that new arrangements are being considered in respect of government employees who might be placed into new agencies outside the jurisdiction of the National Government Organization Law. These employees would apparently be given the choice between retaining their status as civil servants or becoming private sector workers. The former however would continue to be covered by the prohibition on strike action. The Committee recalls that the prohibition of strikes by public servants other than public officials acting in the name of the public powers may constitute a considerable restriction of the potential activities of trade unions (see 1994 General Survey on freedom of association and collective bargaining, paragraph 147). The Committee emphasizes the importance of taking the necessary measures so that public servants who are not exercising authority in the name of the State are not sanctioned for having exercised the right to strike. The Committee requests the Government to indicate any measures taken or envisaged in this respect in its next report.

Moreover, the Committee notes the conclusions of the Committee on Freedom of Association in Case No. 1897 concerning the trade union activities and strike action undertaken by the Japan National Hospital Workers' Union (JNHWU). While noting that the right to strike may be prohibited or restricted in the hospital sector, the Committee on Freedom of Association emphasized in Case No. 1897 that adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action. It underlined that such restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented. The Committee notes from these conclusions that, while the National Personnel Authority (NPA) set up to compensate for the prohibition on the right to strike of public servants had issued a decision concerning night duty of nurses in 1965, this decision was not implemented until 1996 (over 30 years later), despite several requests from the union and hospital directors, (see 308th Report of the Committee on Freedom of Association, paragraph 479). The Committee draws once again the Government's attention to the need to provide compensatory guarantees to workers whose right to strike is restricted.

The Committee requests the Government to indicate the measures taken to ensure in the future that adequate guarantees are provided to protect workers who have thus been denied one of the essential means of defending their occupational interests.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee takes note of the Government's report and of the detailed oral and written information supplied by the Government to the Conference Committee in June 1995 as well as the discussion which took place thereafter. It also notes the comments made by the Japanese Trade Union Confederation (JTUC-RENGO).

1. Denial of the right to organize of fire-fighting personnel. The Committee notes from the information supplied by the Government in its report and to the Conference Committee that the Ministry of Home Affairs, the Fire Defence Agency and the All-Japan Prefectural Municipal Workers' Union (JICHIRO) continued to hold consultations in order to find an appropriate solution to the issue of the right to organize of fire-fighting personnel. The Committee also notes that as a result of these consultative efforts, an agreement was reached on the introduction of a new system to guarantee the participation of fire defence personnel in the process of determining their working conditions and improving such conditions.

According to the Government, the new system would be as follows: (1) a fire defence personnel committee would be established in each fire defence headquarters throughout the nation; (2) the committee would discuss opinions to be presented by fire defence personnel on improvement of working conditions or other subjects, and the committee would present its observations to the fire chief; (3) the committee would be formed by fire defence personnel, half of whom would be appointed on the basis of recommendations of members of the respective unit; (4) the fire chief would respect the intention of the committee's observations and strive to improve working conditions or other matters regarding fire defence personnel. Legislative amendments to establish this new system have been undertaken through the introduction of a Bill to amend the Fire Defence Organization Law. The Government states that the Bill was passed on 20 October 1995 with the unanimous approval of ruling and opposition parties and promulgated on 27 October.

In addition, the Government states that the important points of this system were the guarantee of "locality" and "participation of personnel" in deciding the working conditions of fire defence personnel, which JICHIRO had demanded throughout the consultations. Regarding locality, this system would be established in each of the 925 fire defence headquarters across the country. With respect to personnel participation, all personnel could put forward opinions to the committee concerning improvements in their working conditions, individual outfits or other matters. Thus this new system would guarantee the participation of fire defence personnel in the process of deciding their working conditions and would be in line with the spirit of the protection of their rights.

Finally, the Government states in its report that in order to implement this new system, it has held a national meeting with local governments and has made other efforts to inform them of the new system. Furthermore, in cooperation with the parties concerned such as labour organizations, fire defence headquarters, etc., the Government is making preparations so that this system will operate smoothly.

The Committee further notes the comments made by JTUC-RENGO that the relevant laws have already been revised and that the necessary steps to set up a fire-fighting staff committee in each fire defence headquarters have been taking place.

The Committee takes note of the above information with interest. The Committee would request the Government to supply a copy of the amended law and to provide information on the operation of the new system.

2. Prohibition of the right to strike of public servants. The Government states in its report that the Supreme Court has maintained in a judgement that the prohibition of the right to strike by public employees is constitutional. The Committee recalls that the prohibition on strikes should be confined to public servants exercising authority in the name of the State or to essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that according to JTUC-RENGO there is a total ban on the right to strike for government employees both at the national and local levels, including for public school teachers. The JTUC-RENGO adds that dismissals and other sanctions due to strike action are quite common and several government employees, including teachers, have filed cases in court.

The Committee requests the Government to provide its comments on the observations made by JTUC-RENGO in its next report. It would also once again ask the Government to indicate the measures taken or envisaged to limit the prohibition of the right to strike of public servants only to those exercising authority in the name of the State or those providing essential services.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the information supplied by the Government in its report as well as the information it provided to the Conference Committee in June 1993 and the discussion which took place there. It also notes the comments made by the Japanese Trade Union Confederation (JTUC-RENGO) in a communication dated 19 December 1994.

1. Denial of the right to organize of fire-fighting personnel. First of all, the Committee notes the conclusions of the ILO visit to Japan which took place in January 1994 concerning the question of the right to organize of fire-fighting personnel.

The Committee notes from the Government's latest report that consultations have been continuing between the Ministry of Home Affairs and the All-Japan Prefectural Municipal Workers' Union (JICHIRO) in order to find an appropriate solution to the right to organize for fire-fighting personnel. Furthermore, upon the suggestion at a meeting between the Prime Minister and the President of the JTUC-RENGO in April 1994 that the participation of the Fire Defence Agency be strengthened in these consultations, several further consultations have been held since April 1994 with the participation of the Fire Defence Agency. While the Government indicates that it is not yet in a position to submit a report on the conclusion of these consultations, the Ministry of Home Affairs, the Fire Defence Agency and the JICHIRO have agreed to continue more positive consultations and to make their utmost efforts in order to come to a conclusion, which will be acceptable to the Japanese people, as soon as possible. Once the consultation is concluded, the Government will submit additional information. The Committee further notes in this respect the comments made by JTUC-RENGO to the effect that JICHIRO has been continuing consultations in order to reach a settlement by the time of the 82nd Session of the International Labour Conference in June 1995.

The Committee therefore trusts that a solution satisfactory to all parties concerned will be reached in the very near future and that it will ensure the right to organize for fire-fighting personnel. It once again recalls, however, that the right to organize does not necessarily imply the right to strike and that fire-fighting services are considered to be an essential service in the strict sense of the term in which the right to strike may be prohibited.

The Committee requests the Government to supply information in its next report on further developments in the situation and, in particular, on any measures taken or envisaged following the above-mentioned consultations.

2. Prohibition of the right to strike of public servants. In its previous comments, the Committee recalled that the prohibition on strikes should be confined to public servants exercising authority in the name of the State or to essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. In its latest report, the Government cites several recent judgements of the Supreme Court of Japan which state that the prohibition of strike by public employees is constitutional and further hold that Article 3 of this Convention cannot be interpreted as guaranteeing the right to strike by public employees. In this regard, the Committee would draw the Government's attention to paragraphs 156-158 of its 1994 General Survey on Freedom of Association and Collective Bargaining in which it indicates that restrictions on the right to strike of public servants should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term.

As regards penal sanctions, the Committee notes the indication in the Government's report that it has always properly applied the law, fully recognizing the Committee's previous observations. The Committee must, however, once again point out that penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association and that they should be proportional to the offences committed; penalties of imprisonment should not be imposed in the case of peaceful strikes. The Government is requested to indicate in its next report the measures taken or envisaged to limit the restriction on the right to strike of public servants only to those exercising authority in the name of the State or to essential services and to ensure that penal sanctions for strike are confined to the above-mentioned conditions.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the information supplied by the Government in its report.

1. Denial of the right to organize of fire-fighting personnel. The Government indicates that in order to respond to the demand made by the trade union representatives concerned, the Government, in agreement with the Inter-Ministerial Conference on Public Employees' Problems, decided in 1990 that meetings would take place periodically between the Ministry of Home Affairs and the All-Japan Prefectural Municipal Workers' Union (JICHIRO), in order to find a solution to the issue of the right to organize of fire-fighting personnel.

The Government states that consultations between the Ministry of Home Affairs and JICHIRO have been held ten times since the first session was held in November 1990, namely, one session in 1990, six sessions in 1991 and three sessions in 1992. Although such consultations have enabled both sides to gain a better understanding of the standpoint of the other side, the Government feels that, given the lengthy history and the numerous persons involved in the issue of the right to organize of fire-fighting personnel, the consultations have not yet reached a stage which would allow the Government to submit a report on the solution to this problem. However, both the Ministry of Home Affairs and JICHIRO have agreed to continue consultations in order to find a solution.

The Committee trusts that these future consultations will take account of the comments that it has been making for several years, namely that the functions exercised by fire-fighters are not of such a nature as to warrant their exclusion from the right to organize under Article 9 of the Convention and that it would not be in conformity with the Convention to deny the right to organize to any category of worker other than the armed forces and the police. However, the right to organize does not necessarily imply the right to strike and the fire-fighting services must be considered to be an essential service in the strict sense of the term in which the right to strike may be prohibited.

The Committee requests the Government to supply information in its next report on further developments in the situation, and in particular on measures that have been taken following the consultations to resolve the issue.

2. Prohibition of the right to strike of public servants. The Committee regrets to note that the Government has not provided any information on the examination of its legislation which prohibits the right to strike of public servants. The Committee recalls that the prohibition on strikes should be confined to public servants acting in their capacity as agents of the public authority or to essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. As regards penal sanctions, the Committee points out once again that they should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association and that they should be proportional to the offences committed; penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee requests the Government to supply information in its next report on the measures taken following the examination of this matter by the Government.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's reports, the comments submitted by the Japanese Trade Union Confederation (JTUC-RENGO) and the discussions in the Conference Committee in 1989.

1. Denial of the right to organise of fire-fighting personnel. The Government refers to its previous reports in which it clearly indicated its position: the refusal to recognise the right to organise of fire-fighting personnel cannot be considered to be a violation of the Convention, in view of the opinion issued by the Committee on Freedom of Association (Case No. 60 of 1954 and Case No. 179 of 1961) and the unanimous opinion of the tripartite Subcommittee of the National Round Table on Labour Problems (1958), according to which this personnel belongs to the category of police personnel. For the Government, this matter is therefore an issue to which a solution must be found at the national level, in accordance with Article 9 of the Convention. It is for this reason that on several occasions the Inter-Ministerial Conference has heard the representatives of the organisations concerned, and in particular workers' organisations of fire-fighting personnel and of the members of volunteer corps. In accordance with the promise made to the Conference Committee in 1989, new hearings were held from May to October 1990, which were attended by the All-Japan Prefectual Municipal Workers' Union (JICHIRO), the Congress of Public Employees' Unions (KOMUIN-KYOTO) and the JTUC-RENGO. Furthermore, in order to respond to the demand made by the trade union representatives, the Government, in agreement with the Inter-Ministerial Conference, decided that meetings would take place periodically between the Ministry of Home Affairs and JICHIRO, the first of which will be held soon.

In its most recent comments, received on 21 January 1991, the JTUC-RENGO notes that, during a hearing held on 15 October 1990 by the Inter-Ministerial Conference on Public Employees' Problems, it put forward its point of view in support of the right to organise of fire-fighting personnel and requested the establishment of a permanent consultation body with the trade unions concerned. The JTUC-RENGO indicates that on 27 November 1990 consultations were held between the Government and the trade union concerned (JICHIRO) on the substance of the question and should be continued in order to find a solution to this problem which is in conformity with Convention No. 87 and the interpretation of it by the ILO supervisory bodies.

The Committee notes that the dialogue is continuing between the parties concerned and trusts that these discussions will take account of the comments that it has been making for several years, namely that the functions exercised by fire-fighters are not of such a nature as to warrant their exclusion from the right to organise under Article 9 of the Convention and that it would not be in conformity with the Convention to deny the right to organise to any category of worker other than the armed forces and the police. However, the right to organise does not necessarily imply the right to strike and the fire-fighting services must be considered to be an essential service in the strict sense of the term in which the right to strike may be subject to prohibition.

The Committee requests the Government to supply information on any developments in the situation, and in particular on measures that are envisaged following the current consultations to resolve the issue of the right to organise of fire-fighters at the national level.

2. Prohibition of the right to strike of public servants. The Committee notes the Government's statement to the Conference Committee in 1989 to the effect that it is normal for sanctions to be applied in the event of strikes which, under the terms of the national legislation, are illegal, as is the case in the public services. However, the Government is fully aware of the position of the ILO that disproportionate sanctions do not favour the development of harmonious industrial relations. The Government is continuing to examine the matter closely.

In these circumstances, the Committee trusts that, following this examination, it will be possible to amend the legislation in order to confine the prohibition on strikes to public servants acting in their capacity as agents of the public authority or to essential services in the strict sense of the term, that is those whose interruption would endanger the life, personal safety or health of the whole or part of the population. As regards penal sanctions, the Committee points out that they should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association and that they should be proportional to the offences committed; penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee requests the Government to supply information on the progress achieved following the examination of this matter by the Government.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the comments submitted by the Japanese Trade Union Confederation (JTUC-RENGO) on 4 January 1990 concerning the application of the Convention.

In a communication dated 23 February 1990, the Government indicated that it would forward its reply with its next report on the application of the Convention.

Consequently, the Committee will examine the comments made by the JTUC-RENGO in the light of the Government's observations at its next session.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's reports on the application of the Convention and the comments submitted by the General Council of Trade Unions of Japan (SOHYO). It also notes the discussions that took place in the Conference Committee in 1987.

The comments made by the Committee in its previous observations dealt with, on the one hand, the prohibition of strikes by public servants (which are enforceable by disciplinary sanctions) and, on the other hand, the denial to fire-fighting personnel of the right to organise in trade unions.

1. On the first point, the Committee notes the statement by the Government representative to the Conference Committee in 1987 to the effect that the Government had not taken a rigid and inflexible attitude with regard to this issue and nor would it do so in the future. As it does not appear from the Government's report that there have been any developments in the situation in this respect, the Committee is bound to reiterate its previous conclusions, namely that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. In the Committee's opinion, such a prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Moreover, if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties. Such awards, once rendered, should be rapidly and fully implemented. The Committee has also pointed out that penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association. In these cases, the sanctions should be proportional to the offences committed, and penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee once again requests the Government to re-examine the situation regarding the right to strike and penal sanctions in the light of the above principles and to continue supplying information on any development concerning the application of these principles.

2. With regard to the denial to fire-fighting personnel of the right to organise in trade unions, the Committee notes that, according to SOHYO, the Government has taken no steps to continue discussions on this subject with the parties concerned in the country. The Government has therefore, according to SOHYO, maintained its position of not recognising the right of fire-fighting personnel to organise in trade unions. With reference to the reports of the Committee on Freedom of Association of 1954 and 1961, referred to in the Government's previous report, SOHYO considers that the conclusions adopted by that Committee on that occasion do not deal principally with the situation of fire-fighters and it refers to a 1973 report of the Committee on Freedom of Association in which it points out that the terms of Convention No. 87 do not permit the exclusion of this category of workers from the right to organise in trade unions. SOHYO also states that, contrary to the Government's statements, the workers' organisations concerned have never approved the Government's position on the denial to fire-fighting personnel of the right to organise in trade unions.

In its report, the Government refers once again to the 1954 and 1961 reports of the Committee on Freedom of Association which, in its opinion, deal with the situation of fire-fighters, and it refers to a national agreement concluded by a tripartite commission in 1958. It reaffirms that, in its opinion, the legislation forbidding the right to organise in trade unions of fire-fighting personnel is not in violation of Convention No. 87. The Government is therefore examining this question as a domestic issue in a long-term perspective. It has accordingly exchanged opinions on several occasions with the parties concerned (eight times in 1988) and in particular with workers' organisations. The issue has also been examined at the Inter-Ministerial Conference on Public Employees' Problems.

While noting these explanations, the Committee is bound to recall the position that it has constantly adopted in this respect, namely that it does not consider that the functions of this category of workers are of such a nature as to warrant their exclusion from the right to organise under Article 9 of the Convention. In the Committee's opinion, it would not be in conformity with the Convention to deny the right to organise to any category of worker other than the armed forces and the police. However, the Committee emphasises once again that the right to organise does not necessarily imply the right to strike and that the fire-fighting services must be considered as an essential service in the strict sense of the term in which the right to strike may be subject to prohibition.

The Committee hopes that the discussions between the parties concerned can be continued on the basis of the principles and considerations set out by the Committee so that the issue of the right to organise of fire-fighting personnel can be resolved at the national level.