Informe definitivo - Informe núm. 12, 1954

10. The Committee had before it two distinct and separate complaints: one, dated 26 March 1952, presented by the World Federation of Trade Unions, and the other, dated 27 February 1953, presented by the General Council of Trade Unions of Japan. At its meeting in November 1953 the Committee had before it the observations of the Government of Japan on the latter complaint only. The Committee decided to postpone its examination of the case until the present session, requesting the Director-General to ask the Government to be good enough, when forwarding its observations on the complaint presented by the World Federation of Trade Unions, also to furnish texts of the various enactments referred to in the complaints. The Director-General wrote accordingly, on 4 December 1953, to the Government of Japan, which, on 30 December 1953, forwarded its observations on the complaint presented by the World Federation of Trade Unions together with copies of the enactments referred to above.

1. 10. The Committee had before it two distinct and separate complaints: one, dated 26 March 1952, presented by the World Federation of Trade Unions, and the other, dated 27 February 1953, presented by the General Council of Trade Unions of Japan. At its meeting in November 1953 the Committee had before it the observations of the Government of Japan on the latter complaint only. The Committee decided to postpone its examination of the case until the present session, requesting the Director-General to ask the Government to be good enough, when forwarding its observations on the complaint presented by the World Federation of Trade Unions, also to furnish texts of the various enactments referred to in the complaints. The Director-General wrote accordingly, on 4 December 1953, to the Government of Japan, which, on 30 December 1953, forwarded its observations on the complaint presented by the World Federation of Trade Unions together with copies of the enactments referred to above.

B. Analysis of the Complaints

• Complaint Presented by the World Federation of Trade Unions
  11. 11 The complaint presented by the World Federation of Trade Unions contains the following allegations:
      • (a) Although the right of workers to organise and to bargain and to act collectively is guaranteed by article 28 of the Japanese Constitution, this right is being denied to the workers, particularly to the large section which is opposed to government policy.
      • (b) In 1948, in flagrant violation of article 28 of the Constitution, the Government enacted a law depriving workers in the service of the State of the right to join trade unions, the right to strike, the right to take part in election campaigns and the right to engage in collective bargaining. The provisions of this law, which were extended in December 1950 so as to apply to municipal employees by the adoption of the Local Public Service Law, are also in opposition to the Trade Union Law as revised in 1949.
      • (c) In August 1950 the Zen-Ro-Ren (liaison committee of the Japanese trade unions) was dissolved, 12 of its officers were deprived of all civil rights and trade union leaders were imprisoned.
      • (d) Following the Matsukawa Case (the North East District Train Derailment Case) sanctions were imposed with a view to discouraging trade unionists from militant activity; some 13,000 trade unionists have been dismissed because of their trade union activities.
      • (e) The Government is drawing up legislation to impose new restrictions on the exercise of trade union rights (prohibition of general strikes, prior authorisation for meetings, etc.).
  12. Complaint Presented by the General Council of Trade Unions of Japan
  12. 12 While referring to the restrictions which the Government is alleged already to have imposed on the exercise of trade union rights with respect to employees of the State and of public corporations, the complaint alleges, in particular, that the Government on 10 February 1953 approved a draft law intended to disrupt and oppress the Japanese trade union movement by placing restrictions on the exercise of the right to strike in electricity undertakings and in the coalmining industry. The complainant annexes to be complaint the text of the proposed law in question, together with the text of a resolution adopted in this connection by the General Council of Trade Unions. This resolution affirms that the disastrous strikes which recently occurred in Japan originated in the imposition on workers, who had demanded an increase in wages, of a reduction in wages and longer working hours and in the refusal to accord to them the right to engage in collective bargaining, this attitude having been modified only when public opinion had already been seriously disturbed by the consequences of the strike. The resolution further emphasises that the withdrawal of safety maintenance crews and stoppages of work in power plants are commonplace strike tactics in Western countries and that it is the management in each undertaking which is responsible for the protection of its installations and for the maintenance of electric supply.

C. Analysis of the Government's Replies

1. 13. The Government deals with the complaint presented by the General Council of Trade Unions of Japan in its communication dated 13 November 1953, and with the complaint presented by the World Federation of Trade Unions in its communication dated 30 December 1953.
   • Complaint Presented by the World Federation of Trade Unions
   • Allegation as to the Discriminatory Application of Article 28 of the Japanese Constitution
2. 14. The Government denies that the trade union rights guaranteed by article 28 of the Constitution are not being accorded to the workers and particularly, as alleged, to those opposed to government policy. The Government states that this allegation is in such general terms that it is not clear what specific cases the complainant has in mind. However, the Government adds, there has never been a case, " legislatively, juridically or administratively " in which a worker has been denied or restricted in his enjoyment of the rights guaranteed by article 28 of the Constitution on the ground that he is opposed to government policy or in which he has enjoyed more favourable treatment because of his being a government supporter.
   • Allegations concerning the National Public Service Law and the Local Public Service Law
3. 15. The National Public Service Law is applicable to national public employees engaged in administrative services in general. Such employees may not strike or resort to " acts of dispute ", but may organise trade unions and bargain collectively.
4. 16. This law is not contrary, in the Government's view, to the provisions in article 28 of the Constitution which guarantee the rights to organise and to bargain and act collectively. Article 15 of the Constitution stipulates that all public officials are servants of the whole community, and, therefore, they must perform their duties for the interests of the public. As they have a status different from that of private employees, it is necessary that their industrial relations should operate under a special system. The Government, therefore, having regard to the provision in article 12 of the Constitution to the effect that the people must not abuse their freedoms and rights and shall always be responsible for using them for the public welfare, has taken steps, in the form of the National Public Service Law, to limit acts of dispute by public officials which would conflict with the public welfare. The Government considers that Article 6 of the Right to Organise and Collective Bargaining Convention, 1949 can be construed so as to permit of the labour relations of public servants being treated on a different basis from those of private employees.
5. 17. The Government points out that it is not the National Public Service Law but the Public Corporation and National Enterprise Labour Relations Law, containing guarantees of the right to bargain collectively and to conclude collective agreements, which applies to a large section of the persons in the employ of the Government, that is, persons engaged in what is referred to as " government operative work ", for example, printing, minting, forestry, the alcohol monopoly, postal service, postal savings, etc., and persons employed by the National Railways Corporation, the Nippon Telegraph and Telephone Public Corporation and the Japan Monopoly Public Corporation.
6. 18. For public servants, whether falling within the National Public Service Law or the Public Corporation and National Enterprise Labour Relations Law, special measures are taken to ensure maintenance or improvement of working conditions. Thus, for national public servants engaged in general administration, who are covered by the first-mentioned law, there exists a National Personnel Authority which may recommend to the Government amendments to wages, working hours and other conditions, while the employees concerned may, at the same time, request the National Personnel Authority to take account of their own representations. In the case of the " operative " categories, covered by the Public Corporation Law, two tripartite bodies, the Public Corporation and National Enterprise Mediation Commission and the Public Corporation and National Enterprise Arbitration Commission, have been established for the settlement and adjustment of labour disputes.
7. 19. There are also two separate laws relating respectively to public officials engaged in administration and to persons employed in local public enterprises, adopting the demarcation observed at the national level.
8. 20. The first category is governed by the Local Public Service Law, 1950, which has much in common with the National Public Service Law. Thus the Local Public Service Law guarantees the right to negotiate on conditions of work and the right of employees to lodge complaints, for review of working conditions, with a Personnel Commission or Equity Commission. While the Local Public Service Law does not contain the provisions relating to unfair labour practices (including an employer's refusal to bargain collectively) which exist in the Trade Union Law as revised in 1950, it does stipulate that employees shall not suffer prejudice because of their trade union membership or legitimate trade union activities. The Local Public Service Law is not, therefore, as alleged, " in opposition " to the Trade Union Law.
9. 21. Local public personnel who are the counterpart of those covered at the national level by the Public Corporation and National Enterprise Labour Relations Law are subject to the provisions of the Local Public Enterprise Labour Relations Law. This law, for example, deals with the position of local personnel of the private railways service, tramway service, motor transportation service, electricity, gas and water supply services, guarantees the right to bargain collectively and to conclude collective agreements and applies in their case the system of unfair labour practices provided for in the Trade Union Law.
   • Allegation concerning the Zen-Ro-Ren
10. 22. The Government states that the Committee rejected this allegation when it examined a previous complaint against the Government of Japan and, therefore, makes no further comments on this issue.
    • Allegations concerning the Matsukawa Case
11. 23. In that train derailment case, which had nothing to do with lawful trade union activities, fair judgments were given by courts of first and second instance, completely independent of the Administration and free from any political pressure.
    • Allegations concerning Dismissals for Trade Union Activities
12. 24. As to the allegation that 13,000 trade unionists were dismissed because of their trade union activities, the Government assumes that the complainant is referring in fact to the so-called " Red Purge " of 1950. Measures were taken in compliance with S.C.A.P memoranda addressed to the Prime Minister demanding the expulsion of those responsible for the compilation of the Communist organ Akahata, and measures were taken also by the managements of news agencies, broadcasting enterprises and certain key industries to eliminate, as a safeguard, those who had " tried to undermine these industries ". The " Red Purge " was not directed against persons engaged in union activities or intended to impede the trade union movement. Workers dismissed under the " purge " retained the right to appeal against unfair or illegal discharge to the courts and to the Labour Relations Commission under the Trade Union Law.
    • Allegations as to Restrictions on Trade Union Rights Contained in Draft Legislation
13. 25. No law exists and no draft legislation is under consideration which would, as alleged, " prohibit general strikes, require trade unions to notify the authorities of intended meetings 48 hours in advance or give the authorities the right to prohibit meetings and demonstrations ". In the case of some local public bodies, however, there are regulations which require them to be notified 48 hours in advance of certain meetings, solely for the purpose of maintaining public order or controlling the traffic. There is no intention to prohibit trade union meetings.
    • Complaint Presented by the General Council of Trade Unions of Japan
14. 26. In its reply the Government indicates that the proposed law concerning the control of methods of acts of dispute in electricity undertakings and in the coalmining industry was adopted by the Diet on 5 August 1953, was promulgated on 7 August 1953 and entered into force on the latter date. The Government denies that the object of this law is to repress the trade union movement in Japan and explains its purpose as follows.
    • (a) Strikes on an extensive scale, during last winter, affected electricity undertakings and the coalmining industry and were carried out in such circumstances that the Legislature has considered it necessary to define the limits of what is rightful and what is wrongful in methods of acts of dispute in these industries. Although the strikes, fortunately, were ended by a settlement in the last resort, they nevertheless constituted a dire threat both to the national economy and to the daily life of the people; they caused serious damage and occasioned general disapproval on the part of the public, until public opinion expressed itself as being greatly in favour of controlling the exercise of the right to strike in these industries. Hence, the Government took the view that it was necessary to provide for the control of methods of acts of dispute in these two industries, in order to harmonise the right to resort to acts of dispute with public interests, all the more so as there had been a misleading notion entertained by some workers concerned that even a general withdrawal of maintenance crews from a mine would be rightful.
    • (b) It is true that the workers' right to resort to acts of dispute has been guaranteed by article 28 of the Constitution of Japan. But article 12 of the Constitution provides that the people " shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilising them for the public welfare ". Article 13 provides that " their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and other governmental affairs ". It is obvious that these provisions prescribe that even the basic rights guaranteed to the people shall not interfere by any abuse of their exercise with the public welfare and that any act which will inevitably have such a consequence shall not be permitted even as an act of dispute; this point of view, moreover, has been justified several times by judicial precedents of the Supreme Court. Therefore, with respect to the electricity industry, the law prohibits resort to strikes entailing interruption of electric current and power and other acts which will directly interrupt the normal supply of electric power and, with respect to the coalmining industry, acts of dispute enumerated in the Mine Safety Law (Law No. 70, 1949), which prohibits the interruption of the normal operation of mine safety services, including danger and injury to persons, demolition of important equipment in mines and any other act leading to damage in the mines. In this connection the Government points out that strikes in electricity undertakings can be carried out by a very few workers among all the workers in the undertakings in question and that the loss of wages of workers and the damage sustained by employers are very little as compared with the material and mental loss suffered inevitably by the consumers. The Government considers that the tactics used in these strikes differ from those in other disputes and are remarkably inconsistent with the character of a public utility of the electricity undertakings. As regards the coalmining industry the Government considers that the act of suspending maintenance activities goes beyond the limits of normal methods of acts of dispute and may lead to flooding, rock-falling, natural ignition, filling up of poisonous gas, etc., endanger human lives in the mine, inflict ruinous or serious damage to mineral resources, destroy vital facilities or cause damage to third persons. Hence, express provisions have been laid down in order to remove misunderstanding caused by some workers.
    • (c) The Government observes that the application of the law is strictly confined only to certain methods of acts of dispute in these two industries which infringe directly and seriously upon the public welfare. Other methods of acts of dispute are not considered to be contrary to the law. Accordingly, in the electricity undertakings, acts of dispute which, regarded objectively, do not cause any direct interruption of the normal supply of electricity, periodical repairs and inspection of machines and equipment are not considered to conflict with the law even when they are carried out in a power plant or power supply control station; the workers may, for instance, resort to clerical strikes, including suspension of bill collecting, meter inspection and work in connection with the settlement of accounts. In the coalmining industry the law recognises the free exercise of the right to strike in the form, for example, of a suspension of mining, etc., provided that no acts are committed which entail the suspension of the normal operation of the mines' safety maintenance activities, or which endanger human lives or destroy vital facilities in the mines. The Government recognises that it is desirable to avoid as far as possible the regulation by law of matters relating to industrial relations, but points out that the law was enacted in order to deal with an urgent situation and that its term of validity is limited to three years and considers that this last-mentioned fact demonstrates its desire to see, both among workers and among employers, a development of a sense of responsibility and the establishment of sound labour practices.
    • (d) The Government of Japan recently set up a Labour Problems Council in which representatives not only of the trade unions and of employers but also of wider sections of the public in general have participated. The Government considers that this is further evidence of the fact that it has no intention of repressing the trade union movement and declares that it will not lightly have resort to legislation in order to solve labour problems.

27. Japan has ratified the Right to Organise and Collective Bargaining Convention, 1949, but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948.

1. Complaint Presented by the World Federation of Trade Unions
2. Allegation as to the Discriminatory Application of the Trade Union Rights Guaranteed by Article 28 of the Japanese Constitution
3. 28. The complainant alleges in general terms that " the right of workers to organise and to bargain and act collectively " guaranteed by article 28 of the Japanese Constitution is being denied to the workers and, in particular, to those opposed to the Government's policy. The Government, while referring to the vague nature of this charge, states categorically that there has never been a case, " legislatively, juridically or administratively ", in which a worker has been denied or restricted in his enjoyment of these rights because he has been opposed to government policy, or in which he has enjoyed more favourable treatment because he has been a government supporter.
4. 29. The Committee considers that the allegation made is too vague to permit of this aspect of the case being considered on its merits and, therefore, recommends the Governing Body to decide that this allegation does not call for further examination.
5. Allegations concerning the National Public Service Law and the Local Public Service Law
6. 30. The complainant alleges that this legislation denies to all government workers, including teachers, civil servants and post office workers, the right to join trade unions, the right to strike and the right to engage in collective bargaining and to draw up collective agreements, although, it is contended, these rights are guaranteed by article 28 of the Constitution. The complainant contends also that this legislation infringes freedom of association because it does not contain provisions to protect the workers against unfair labour practices such as are contained in the Trade Union Law. While the complainant speaks of all government (and municipal) workers as being governed by these two laws, the Government in its reply has made it clear that it is necessary to consider also, with respect to certain categories, the application of the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law. Before dealing with each of the trade union rights alleged to be denied to persons in public employment, it is desirable, in the first place, to consider exactly which laws govern the rights of the categories of such persons mentioned by the complainant.
7. 31. The Public Corporation and National Enterprise Labour Relations Law, 1948, as amended, applies to employees of the Japanese National Railways, the Nippon Telegraph and Telephone Public Corporation and the Japan Monopoly Public Corporation, these three being designated " public corporations ", and of a number of " national enterprises ", including all postal services, forestry undertakings, the alcohol monopoly, etc. Whereas " executive officers " in the corporations are excluded from the scope of this law, even national public service personnel in the regular government service are included within the law where they are employed in one of the national enterprises. The Local Public Enterprise Labour Relations Law, 1952, applies to services operated by local bodies-local railway, tramway and motor transport services and electricity, gas and water supply services, including, following the method adopted in the law first mentioned, local public personnel in the regular service who are employed in the local public enterprise. The " regular service " of the national public service, that is, civil servants recruited by competitive examination, is governed by the National Public Service Law, 1947, as amended; the Local Public Service Law, 1950, as amended, applies to persons in the " regular public service " of the local public service. Article 57 of the Local Public Service Law provides that with regard to teachers, " for whom exceptions to this Law are required on account of the special nature of their functions and responsibilities ", provision shall be made in a special law, but the exceptions must not be contrary to the spirit of article 1 of the law in question (which defines the purpose of the law as being to ensure democratic and efficient operation of the public administration of the local public bodies, including protection of the welfare and interest and organisation of the local public service personnel). There would appear to be no special law as yet with regard to teachers, as the Government refers to none and no such law is included in the Labour Code 1952 forwarded by the Government and which contains the texts of all the laws referred to in the present case. To sum up, therefore, it would appear that civil servants engaged in the administration of the State are governed by the National Public Service Law, that local or municipal civil servants of the regular public service, to whom teachers appear at present at least to be assimilated, are governed by the Local Public Service Law and that the mass of government workers, including post office workers cited by the complainant, are governed by the Public Corporation and National Enterprise Labour Relations Law or, at the local level, by its counterpart, the Local Public Enterprise Labour Relations Law.
8. 32. Bearing in mind these distinctions, it appears convenient, in the interest of clarity, to examine separately the various points raised in this group of allegations under the following heads: (a) allegation concerning the right to join trade unions; (b) allegation concerning the right to engage in collective bargaining and to draw up collective agreements; (c) allegation concerning the right to strike; (d) allegation concerning the failure to protect government workers against anti-union discrimination.
9. Allegation concerning the Right to Join Trade Unions
10. 33. The complainant alleges that the right to join trade unions is denied to all government workers, including teachers, civil servants and post office workers, and that this infringes their trade union rights, although the right is guaranteed by article 28 of the Japanese Constitution. The Government declares that they are not deprived of this right under the laws in question.
11. 34. Under article 98 of the National Public Service Law " personnel shall be permitted to form or refrain from forming or to join or refrain from joining associations or other organisations ". This right is not accorded to personnel of the police and fire services, the Maritime Safety Board and penal institutions. Article 52 of the Local Public Service Law accords the right to organise in similar terms. Article 4 of the Public Corporation and National Enterprise Labour Relations Law provides that the employees covered by that law, with the exception of those in managerial or supervisory or confidential posts, may organise or refrain from organising trade unions or join or refrain from joining such unions. Article 5 of the Local Public Enterprise Labour Relations Law is almost identical with this provision.
12. 35. As already observed, these four laws together cover all employees of government-operated concerns and enterprises operated by local bodies, as well as civil servants. It would appear, therefore, that, with the exception of the police and certain services assimilated thereto and of certain higher categories regarded in Japan as being identified with management rather than with the employees, all public servants and employees are accorded the right to organise under Japanese legislation.
13. 36. In these circumstances the Committee considers that there is no foundation for the allegation that all government workers, including teachers, civil servants and post office workers, are denied the right to organise or that the legislation in question, in this respect, infringes the right to organise accorded to workers by article 28 of the Japanese Constitution, and, therefore, recommends the Governing Body to decide that this allegation does not call for further examination.
14. Allegation concerning the Right to Engage in Collective Bargaining and to Draw Up Collective Agreements
15. 37. The complainant alleges that trade union rights are infringed because the right to engage in collective bargaining and to conclude collective agreements is denied to all government workers, including teachers, civil servants and post office workers, although the right to bargain collectively is guaranteed by article 28 of the Constitution. The Government states, in reply, that the right to bargain collectively is guaranteed by the National and Local Public Service Laws and that the right to bargain collectively and conclude collective agreements is guaranteed under the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law.
16. 38. Article 28 of the Japanese Constitution guarantees the right to bargain and to act collectively but does not refer specifically to the conclusion of collective agreements.
17. 39. The National Public Service Law applies to civil servants in the regular civil service who are recruited by examination and whose terms and conditions of employment are prescribed by statute. In this respect the position under the Local Public Service Law is similar. Collective bargaining, therefore, as in the case of other countries in respect of persons benefiting from statutory terms and conditions of employment, is not directed towards the conclusion of collective agreements but towards the making of representations to the authorities with a view to the amendment of or supplementation of the statutory provisions in force. Under the National Public Service Law an administrative National Personnel Authority is appointed which makes its recommendations to the Government in full freedom, but article 98 of the law provides that through their organisations the personnel may designate representatives of their own choice to negotiate on conditions of work, but, specifically, this negotiation does not include the right of collective agreement with the Government. Under the Local Public Service Law the employees' organisations concerned play a similar role in relation to the authorities of the local public bodies; here again, the right to negotiate specifically does not include the right to conclude collective agreements (article 55).
18. 40. On the other hand, the government worker in Japan does not generally benefit from statutory terms and conditions of employment under either of the laws by which he may be governed. In his case, therefore, the Government has accorded the right to conclude collective agreements as well as the right to bargain collectively. Under article 8 of the Public Corporation and National Enterprise Labour Relations Law wages and other conditions of employment and a number of other matters are specifically the subject of collective bargaining and, " upon the insistence of either party, shall be appropriately provided for in all collective agreements ". Negotiation committees appointed by each side conduct the actual bargaining, the appropriate units for collective bargaining being determined by " the public corporation or national enterprise and the employees or their union by mutual deliberation " (article 10). Detailed provisions are laid down under which the principal trade unions representing the workers employed in the corporation or enterprise must, each year, designate the negotiation committee which will act on behalf of the employees (article 11). Article 7 of the Local Public Enterprise Labour Relations Law provides that wages and conditions of employment and various other matters may be the subject of collective bargaining and " shall be appropriately provided for in all trade agreements ".
19. 41. As already mentioned, Japan has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Article 4 of which provides: " Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements." Article 6 of the same Convention provides: " This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way." Having regard to Article 6, the Government considers that it is entitled to deal with the position of public servants in a manner somewhat different from that adopted with respect to employees in private industry.
20. 42. All government employees, whether civil servants, salaried employees or workers, have the right to negotiate through their organisations. The Committee considers, therefore, that the legislation cited in this connection does not appear, from this point of view, to infringe freedom of association, but appears to give effect to the right embodied in article 28 of the Japanese Constitution, which guarantees only the right to bargain and not the right to conclude collective agreements.
21. 43. With regard to the Government's obligations in the light of its ratification of Convention No. 98, the Committee considers that, by providing in its legislation, first, for negotiation machinery and, secondly, for the conclusion of collective agreements in respect of government-employed persons other than those benefiting from statutory terms and conditions, the Government appears to have acted in a manner consistent with the stipulations contained in Article 4 of Convention No. 98 cited above. With regard to the persons who do enjoy statutory terms and conditions, that is, persons engaged in the administration and with whom Convention No. 98 does not deal specifically, although it is not to be construed as prejudicing their rights or status in any way, the Government, by enabling them to present grievances and representations through their organisations with a view to their being taken into consideration by those responsible for laying down or making recommendations concerning the contents of their statutory terms and conditions, has adopted the principle most usually accepted in other countries with respect to civil servants of this category, whose situation under the law admits of negotiation but not of the conclusion of collective agreements. The Committee considers, therefore, that the Government appears to have acted in a manner consistent with the provisions of Convention No. 98 with respect to the collective bargaining rights of persons employed by the Government and local public bodies.
22. 44. In these circumstances, the Committee considers that the complainant has not offered sufficient evidence in support of the allegation that all government workers, including teachers, civil servants and post office workers, are denied the right to bargain collectively and to conclude collective agreements, and, therefore, recommends the Governing Body to decide that this allegation does not call for further examination.
23. Allegation concerning the Right to Strike
24. 45. The complainant alleges that trade union rights are infringed by the fact that all government workers, including teachers, civil servants and post office workers, are denied the right to strike, although the right to strike is guaranteed by article 28 of the Constitution.
25. 46. Article 28 of the Constitution guarantees the right " to act collectively ".
26. 47. It is especially with respect to the right to strike of public employees and the settlement of disputes in which they are concerned that the Government has invoked Article 6 of Convention No. 98 as justification for its adoption of different methods with respect to such employees as compared with the methods applicable in the case of employees in private undertakings.
27. 48. The Government argues also that it is justified under the Constitution in adopting special methods with respect to public employees. The Government refers to article 15 of the Constitution, which declares that public officials are servants of the whole community, to article 12, which provides that the people shall refrain from any abuse of its freedoms or rights and shall always be responsible for utilising them for the public welfare, and to article 13, which provides that the basic right of the people shall, " to the extent that it does not interfere with the public welfare ", be the supreme consideration in legislation and in other governmental affairs.
28. 49. Civil servants enjoying statutory terms and conditions are prohibited from striking by article 98 of the National Public Service Law and by article 37 of the Local Public Service Law, as the case may be. While grievances may be presented to the administrative bodies established under these laws there is no provision for arbitration. Dispute procedures provided under the Labour Relations Adjustment Law, 1946, a law of general application, are specifically excluded.
29. 50. With reference to government employees not benefiting from statutory terms and conditions, that is, employees governed by the Public Corporation and National Enterprise Labour Relations Law or the Local Public Enterprise Labour Relations Law, the position is different. Article 17 of the former law and article 11 of the latter law prohibit both strikes and lockouts. In both laws provision is made for the settlement of disputes. The Public Corporation and National Enterprise Labour Relations Law establishes a comprehensive system for the settlement of disputes-a bipartite Grievance Adjustment Board, tripartite central and local mediation commissions and a tripartite Arbitration Commission whose decisions are binding. The services of these bodies may be invoked by both parties acting together or by either party making application alone or the bodies themselves may take the initiative. The position under the Local Public Enterprise Labour Relations Law is substantially the same.
30. 51. The position may be summarised as follows. Under all four laws strikes are prohibited, grievances may be presented to the appropriate authorities and, in the case of government workers but not in the case of civil servants enjoying statutory terms and conditions, special joint conciliation and arbitration machinery is established f or the purpose of settling disputes, the procedure culminating in a binding award if no settlement is reached by mediation.
31. 52. The Committee considers that civil servants enjoying statutory terms and conditions are, in the majority of countries, denied the right to strike as a normal condition in the legislation governing their employment and that there is no reason for it to give further consideration to this aspect of the question.
32. 53. The Committee considers that it is not called upon to give an opinion on the question as to how far the right to strike in general-a right which is not specifically dealt with in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)-should be regarded as constituting a trade union right. In several earlier cases and, in particular, in that relating to Turkey, the Committee has observed that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective interests. In another case, that relating to Brazil (Case No. 11), the Committee has had to consider the question of the denial of the right to strike to persons employed in " essential occupations ", such as water, gas and electricity services, hospitals and, in that case, transport and communications. In that case the Committee noted that strikes were absolutely prohibited only in occupations designated as " essential ". On conclusion of its examination of that case the Committee recommended the Governing Body to draw the attention of the Government of Brazil to the importance which it attached, in cases in which strikes were prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of " an essential means of defending occupational interests ". Subject to this observation the Committee concluded that the allegation did not call for further examination.
33. 54. In the present case, having regard to the nature of the public corporations and public enterprises referred to in paragraph 31 above as being governed by the Public Corporation and National Enterprise and Labour Relations Law and the Local Public Enterprise Labour Relations Law, the Committee considers that the employees of such corporations and enterprises are, in fact, persons regarded by the Government as being engaged in essential occupations and, therefore, considers that it must be guided by the principles which it has previously adopted in this connection. The Committee is of opinion that the denial of the right to strike in the present case, in respect to those public employees who do not enjoy statutory terms and conditions but are governed by the Public Corporation and National Enterprise and Labour Relations Law or the Local Public Enterprise Labour Relations Law, is, in fact, accompanied by virtue of that legislation by certain guarantees to safeguard the interests of the workers-a corresponding denial of the right of lockout, provision of joint conciliation procedure and, where and only where conciliation fails, the provision of joint arbitration machinery whose decisions are binding on both sides -but is not accompanied by any safeguard equivalent to that provided in case of civil servants in the shape of statutory terms and conditions of employment.
34. 55. In these circumstances the Committee, having noted that, in the case of national or local public undertakings, strikes are prohibited not only in essential occupations but in the whole public sector of the economy, reaffirms the importance it attaches, in cases in which strikes are prohibited, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and recommends the Governing Body to decide that this allegation does not call for further examination.
35. Allegation concerning the Failure to Protect Government Workers against Anti-Union Discrimination
36. 56. The complainant alleges that the National Public Service Law " extended to cover municipal workers with the passing of the Local Public Service Workers' Law " infringes trade union rights in that it fails to protect the workers against anti-union discrimination by providing, as is done in the Trade Union Law, as revised in 1949, that an employer must " not make it a condition of employment that the worker must not join or must withdraw from a trade union " or " refuse to bargain collectively ". As the complainant cites these laws as covering all government employees whereas, as already observed, such employees may be governed by any of four separate laws, the allegation would appear to be intended to refer to all the categories governed by these four laws.
37. 57. By its ratification of Convention No. 98 the Government has, except with regard to public servants engaged in the administration of the State-in the present case those persons employed in the " regular public service " governed by the National or Local Public Service Laws-assumed the obligations laid down in Article 1 of that Convention, which reads as follows:
38. 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
39. 2. Such protection shall apply more particularly in respect of acts calculated to:
40. (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
41. (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
42. 58. The question of an employer refusing to bargain collectively is not dealt with in Convention No. 98.
43. 59. With respect to workers in general, the Government has made provision with respect to " unfair labour practices " in article 7 of the Trade Union Law, 1949, as amended, which reads as follows:
44. Article 7. The employer shall be disallowed to do the following practices:
45. (1) To discharge or give discriminatory treatment to a worker by reason of his being a member of a trade union, for his having tried to join or organise a trade union or for his having performed proper acts of a trade union; or to make it a condition of employment that the worker must not join or must withdraw from a trade union. Provided, however, that this shall not prevent an employer from concluding a trade agreement with a trade union to require, as a condition of employment, that the workers must be members of the trade union if such trade union represents a majority of the workers in the particular plant or working place in which such workers are employed.
46. (2) To refuse to bargain collectively with the representative of the workers employed by the employer without fair and appropriate reasons.
47. ......................................................................................................................................................
48. 60. It would appear to be the complainant's contention that the Government has infringed trade union rights because this or a similar provision is not reproduced in the four laws already referred to as governing the employment of government servants and workers.
49. 61. The Government, in reply, points out that it has made appropriate provision in the laws in question to prevent anti-union discrimination but that, so long as the provision made is adequate and, therefore, such as to fulfil its obligations in this connection, there is no obligation on the part of the Government to reproduce the same stipulations in one law as in another.
50. 62. With respect to public employees falling within the scope of Convention No. 98, that is, public employees other than public servants engaged in the administration of the State (vide Article 6 of the Convention), the Government has made provision to prevent unfair labour practices in both the Public Corporation and National Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law.
51. 63. Article 3 of the Public Corporation and National Enterprise Labour Relations Law provides that matters not provided for in that law shall be treated by appropriate articles of the Trade Union Law, including, specifically, article 7 of that law with the exception of the proviso permitting compulsory unionism (see paragraph 59 above). Article 4 of the Local Public Enterprise Labour Relations Law makes the same provision. In fact, both these laws contain further provisions authorising a certain number of employees to be permitted to engage exclusively in activities as union officers.
52. 64. The Committee feels satisfied from the above that these two laws contain adequate provision for prevention of anti-union discrimination and that, by virtue of the provisions cited, the Government has fulfilled its obligation under Convention No. 98 to afford protection to the employees to whom that Convention applies.
53. 65. While the Government is under no specific obligation under the Convention to introduce " unfair labour practice " clauses in its legislation governing the position of public servants engaged in the administration of the State, it may be of interest to refer briefly to certain provisions which the Government has made in its National and Local Public Service Laws with respect to such servants which the Government has cited in its reply. Article 98 of the national law provides that " personnel shall not be subjected to adverse treatment on the ground that they are the constituent members of the association or other organisation or have attempted to form or join it, or that they have performed lawful actions in such organisation ", while article 56 of the local law is in similar terms.
54. 66. In these circumstances the Committee considers that the complainant has not offered sufficient proof that the legislation governing government employees infringes trade union rights by failing, as alleged, to afford protection against unfair labour practices and, therefore, recommends the Governing Body to decide that this allegation does not call for further examination.
55. Allegation concerning the Zen-Ro-Ren
56. 67. The complainant alleges that the Zen-Ro-Ren was banned in 1950, 12 of its officers being deprived of all civil rights.
57. 68. As the Government points out in its reply, the Committee has already given an opinion on this question in its Sixth Report. In these circumstances the Committee recommends the Governing Body to decide that this allegation does not call for further examination.
58. Allegation concerning the Matsukawa Case
59. 69. The complainant alleges that, in connection with this train derailment case, which, it is claimed, was " staged " by the Government, terrorist sentences were passed " with the obvious aim of discouraging trade unionists from militant activity ". The complainant gives no further information in support of this allegation.
60. 70. The Government states that it is incredible that it could have staged this case of train derailment which has nothing to do with the legal activities of trade unions, and that legal decisions have been given on the case, in accordance with the provisions of the Constitution, the Criminal Code and the Law of Criminal Procedure, by courts of first and second instance which are completely independent of the Administration and free from political pressure.
61. 71. In these circumstances the Committee recommends the Governing Body to decide that the allegation does not call for further examination.
62. Allegation concerning Dismissals for Trade Union Activities
63. 72. The complainant alleges that some 13,000 trade unionists have been dismissed for trade union activities. In reply, the Government declares that it does not know to which cases and to what period the complainant is referring, but assumes that reference is intended to the so-called " Red Purge " of 1950. This " purge " was undertaken for the purpose of expelling persons responsible for a Communist Party publication and for removing from certain public utilities and key industries, as a safeguard, persons who had tried to undermine them. It was not directed against persons engaged in union activities and workers who were discharged were given the right of appeal to the courts of law and to the Labour Relations Commission under the Trade Union Law.
64. 73. The Committee notes that the complainant gives neither the name nor the date of any specific case among the 13,000 alleged dismissals for trade union activities.
65. 74. In these circumstances the Committee considers that the allegation made is too vague to permit of an examination of this aspect of the case on its merits and, therefore, recommends the Governing Body to decide that the allegation does not call for further examination.
66. Allegations concerning Restrictions of Trade Union Rights Contained in Draft Legislation
67. 75. The complainant states that the Government is drawing up legislation prohibiting general strikes, requiring trade unions to give the authorities 48 hours' notice in advance of intended meetings, and giving the authorities the right to prohibit meetings and demonstrations. The Government denies the intention to draw up any such laws and explains that, while some local public bodies do require 48 hours' notice of certain meetings to enable them to maintain public order or to control traffic, they have no intention to prohibit trade unions from holding meetings.
68. 76. The Committee notes that the local regulations appear to apply only to public meetings. It also considers that it is not called upon to examine a situation which, it is alleged, will arise under legislation which has not been enacted, and the intention to enact which, moreover, the Government denies. In these circumstances the Committee recommends the Governing Body to decide that the allegation does not call for further examination.
69. Complaint Presented by the General Council of Trade Unions of Japan
70. 77. The complainant refers in the first place to alleged restrictions placed on the rights of employees of the public corporations. As this matter has already been examined by the Committee m connection with the complaint presented by the World Federation of Trade Unions, the Committee considers that there is no reason for it to be examined further.
71. 78. The complainant's main allegation is directed against the Bill (which has since become an Act) concerning Control of Methods of Acts of Dispute in the Electric Enterprise and Coalmining Industry. The complainant contends that the anti-strike provisions contained in this enactment are intended to disrupt and oppress the labour movement, that while the Government stresses the bad effect of strikes in these industries on the public such strikes as had occurred were due to demands for higher wages having been met by lower wages, longer hours and a refusal to bargain. The complainant makes the further points that the withdrawal of safety maintenance crews or walk-outs at power plants are commonplace strike tactics in Western countries and that it will have bad effects to ban strikes in the mines without removing the bad working conditions.
72. 79. In its reply the Government states that the extensive strikes of a year ago in these two industries threatened heavy damage to the national economy and to the daily life of the people, so that public opinion expressed itself in favour of controlling acts of dispute in those industries. The Government therefore decided to prohibit certain acts of dispute in the electricity supply and coalmining industries so as to " harmonise the right to resort to acts of dispute with public interest ". The Government points out that, though article 28 of the Constitution accords the workers the right to act collectively, article 12 of the Constitution provides that the people shall refrain from abusive use of their freedoms and rights and shall be responsible for using them for the public welfare. In the enactment, therefore, the Government prohibits such strikes in the electricity supply industry as would directly interrupt normal supply of electric power. This, according to the Government, leaves workers in electricity undertakings free to call strikes which do not interrupt normal supply, as, for example, " clerical strikes ". With regard to coalmining, the workers remain free to suspend mining but may not suspend the normal operation of mine safety maintenance activities which would endanger human lives or destroy vital facilities in mines. In conclusion, the Government points out that the validity of the law is at present restricted to three years.
73. 80. In accordance with the request made by the Committee at its last session the Government has forwarded the text of the law concerning Control of Methods of Acts of Dispute in Electric Enterprises and the Coalmining Industry. The main operative provisions are articles 2 and 3, which read as follows:
74. Article 2. The employer in the electric enterprise or those employed in the electric enterprise shall not perform, as an act of dispute, an act of suspending the normal supply of electricity or any other acts of interrupting directly the normal supply of electricity.
75. Article 3. The employer in the coalmining industry or those employed in the coalmining industry shall not perform, as an act of dispute, such acts of suspending the normal operation of mine safety maintenance activities provided for in the Mine Safety Law (Law No. 70 of 1949) as endanger human lives in mines, inflict ruinous or serious damage on mineral resources, destroy vital facilities in mines, or cause damage by mining.
76. 81. It is readily apparent that the restrictions placed on strikes in coalmining are much less far-reaching than those imposed with respect to electric enterprises. With respect to coalmining the only persons refused the right to strike are those required to protect installations and to comply with the statutory safety requirements. Prior to the present enactment acts of dispute " hampering or causing the stoppage of maintenance or normal operation of safety accommodations at factories, mines ", etc., were prohibited under article 36 of the Labour Relations Adjustment Law, 1946. But the present enactment appears to leave the miners free to call what is normally regarded as a miners' strike, that is, a suspension of mining or a cessation of production. The Committee considers that, with respect to coalmining, the restriction placed on strikes is comparatively slight and substantially the same as those applied to strikes in most countries, where the right to strike does not imply the right to cease to fulfil duties with respect to safety and maintenance. With respect to the restrictions placed on strikes in coalmining, therefore, the Committee considers that the complainant has not offered sufficient evidence to show that trade union rights have been infringed by a measure which, in this respect, merely reinforces statutory safety obligations without to any substantial degree limiting the freedom of action of the workers and their organisations.
77. 82. With regard to the electric industry, however, the Committee considers that the banning of strikes which interrupt supplies of electricity is virtually equivalent to a general prohibition of strikes in electricity undertakings. Now, the Committee, in examining the complaint presented by the World Federation of Trade Unions, has observed that in the case of electricity undertakings run by public bodies, in common with other undertakings run by such bodies, strikes are prohibited under the provisions of the Local Public Enterprise Labour Relations Law. That law, however, as already observed, provides certain safeguards for the protection of the rights of the workers, including the right of the workers, unilaterally, to bring a dispute before a tripartite arbitration body (if mediation fails) which will give a binding award, but not including the safeguard provided by the establishment of statutory terms and conditions. In the present case, therefore, the Committee, with respect to the workers employed in private electric undertakings, reaffirms once again the importance it attaches, in cases in which strikes are prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and, with this reservation, recommends the Governing Body to decide that the allegations do not call for further examination.