Informe provisional - Informe núm. 363, Marzo 2012

1. 816. The Committee examined these cases at its November 2002, June 2003, March 2006, June  2008, June 2009 and June 2010 meetings, where it presented interim reports, approved by the Governing Body at its 285th, 287th, 295th, 302nd, 305th and 308th Sessions [see 329th Report, paras 567–652; 331st Report, paras 516–558; 340th Report, paras 925–999; 350th Report, paras 1167–1221; 354th Report, paras 951–992 and 357th Report, paras 709–730].
2. 817. The Japanese Trade Union Confederation (JTUC–RENGO) (Case No. 2177) submitted additional information in a communication dated 8 September 2011. The National Confederation of Trade Unions (ZENROREN) submitted additional information in a communication dated 21 September 2011.
3. 818. The Government submitted its observations in communications dated 13 May and 16 September 2011.
4. 819. Japan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 820. At its June 2010 meeting, the Committee made the following recommendations:
   • (a) The Committee welcomes with interest the institutionalized tripartite discussions that have taken place, and trusts that they will continue to take place in a continuing spirit of social dialogue and in the context of the ongoing reform process, particularly as regards the formulation of the Amendment Bill for the National Public Service Employee Law and the committee established under the Ministry of Internal Affairs and Communications to study the issue of the right to organize of firefighters. The Committee once again strongly reiterates its previous recommendations that the Government continue to take steps to ensure the promotion of full social dialogue aimed at effectively, and without delay, addressing the measures necessary for the implementation of the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan, in particular as regards:
     • (i) granting basic labour rights to public servants;
     • (ii) granting the right to organize to firefighters and prison staff;
     • (iii) ensuring that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures;
     • (iv) ensuring that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and
     • (v) the scope of bargaining matters in the public service.
     • The Committee requests the Government to keep it informed of developments on all the above issues.
   • (b) The Committee once again reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.
   • (c) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

B. Additional information from the complainants

1. 821. In its communication of 8 September 2011, JTUC–RENGO states that on 14 December, 2010, the Ministry of Internal Affairs and Communications released a report compiled by the Committee on the Right to Organize of Fire Defence Personnel at its 9th session held on 3 December. According to the report, the final decision on whether or not to grant firefighters the right to organize should be made by the Government after further examination, however, the Committee believed that it was able to come up with a product which could contribute to the design of the system, should the right to organize be restored. JTUC–RENGO regretted that the Report did not go as far as stating that fire defence personnel should be granted the right to organize. However, the complainant indicated that in 10 June 2011, during a meeting attended by the Internal Affairs and Communications Minister and the Minister for Civil Service Reforms, the Chief Cabinet Secretary had indicated that the Government’s official position was “to grant the right to organize to fire defence personnel” in response to the complainant’s request. Recalling that the issue of the right of firefighters to organize has been pending since the 1960s, the complainant observed that although measures taken regarding this issue have been moving steadily forward and should be commended, at present, the relevant legislation has yet to be adopted and the right of fire defence personnel to organize is still not a reality.
2. 822. With regard to the right to strike of National Public Service Employees, the complainant indicates that the Government had set up, on 26 November 2010, the Advisory Group on Basic Labour Rights (Right to Strike) of National Public Service Employees, as a private advisory group to the Minister for civil service reform. The Group met five times and released a report on 24 December 2010. According to the report, one possible option would be to determine the timetable for granting the right to strike, considering the actualities and issues surrounding labour–employer negotiations, however the final decision on whether or not to grant the right to strike and the design of a concrete system etc. would be left to the Government. The complainant welcomes the establishment of the Advisory Group as evidence of a change in the Government’s attitude which had, for 38 years, adhered to the Supreme Court ruling that denying public service employees the right to strike was not unconstitutional.
3. 823. The complainant adds that the Autonomous Labour–Employer Relations System Reform Draft was released on 24 December 2010. On 5 April, 2011, the Headquarters for Promoting Civil Service Reform formally adopted the “whole picture” of the reform based on the National Civil Service Reform Law, etc. Then, on 3 June 2011, the Cabinet adopted the Four Bills related to Civil Service Reform as a step toward establishing the Autonomous Labour–Employer Relations System, and the Bills were presented to the Diet. Although the Ministry of Internal Affairs and Communications released the “Basic vision of labour–management system for local public service employees” on 2 June 2011. However, no related bills were drawn up or presented. The complainant indicates that the Government and JTUC–RENGO as well as the Alliance of Public Services Workers Unions (APU) have had meaningful consultations throughout these series of events.
4. 824. The complainant commended the presenting of the Reform Bills in the Diet as an historic first step towards opening the possibility of restoring fundamental workers’ rights. However, recalling that at the present stage, the Reform Bills have not yet been debated in the Diet and that bills for local public service employees have not yet been drawn up, the complainant expresses the hope that the Government will treat the Committee’s recommendations set out in this case seriously and act in good faith to implement them by moving ahead with the discussion of the Reform Bills in the Diet and by drawing up bills for local civil service employees at the earliest possible opportunity.
5. 825. In its communication of 21 September 2011, ZENROREN acknowledged progress – though limited – in the Government’s action in studying several labour relations systems and preparing necessary bills introduced to the Diet. ZENROREN views the change in the Government’s attitude toward the recovery of the basic labour rights in the public sector as closely linked to the repeated recommendations from the Committee on Freedom of Association.
6. 826. In the decision making process of the “Overall Picture” adopted in April 2011, there were consultation meetings between the Government and ZENROREN, however the complainant indicates that they turned out to be unsatisfactory for the union since the consultations were held only a month after the Government plan was made public. In addition, they took place in a confused situation after the Great East Japan Earthquake which occurred in March 2011. ZENROREN declares that it had expressed its disappointment in April, on the eve of the adoption of the “Overall Picture”, for the lack of efforts and faithfulness on the part of the Government on several points expressed during the negotiation. ZENROREN regrets that the Government remained reluctant to take its remarks into consideration. The four bills related to the public personnel system would therefore be presented and adopted without any of the changes ZENROREN had asked for. ZENROREN further observes that the debate over the recovery of basic labour rights for local government employees has not progressed since the hearings sessions of the stakeholders held from April to May 2011 by the Ministry of Public Management and Home Affairs, the authority responsible for the management of local government personnel. In this regard, ZENROREN recalls the viewpoints expressed during the hearings by its affiliate organizations (the Japan Federation of Prefectural and Municipal Workers’ Union (JICHIROREN) and the All Japan Federation of Teachers’ and Staff Unions (ZENKYO)).
7. 827. Regarding the right to organize of firefighting personnel, ZENROREN indicates that the report issued by the Study Committee on the Right to Organize of Firefighting Personnel on December 2010 merely presented five possible scenarios including the recognition of the right to organize alone, the recognition of the right to organize and the labour–management consultation, the recognition of the right to organize and the right to negotiate with the employing authority (without the right to conclude collective labour agreement), along with a scenario of “improving the Fire Defence Personnel Committee System instead of the recovery of the right to organize”. In ZENROREN’s point of view, the Government has not succeeded in convincing those who are negative to the return of the right to organize of firefighting personnel, and it has not yet adopted a proper position for promoting the recovery of the basic labour rights by taking into consideration the differences between firefighters and policemen as advised by the ILO.

C. The Government’s reply

1. 828. In its communication of 13 May 2011, the Government states that in April 2011, the “whole picture of the reform based on the Civil Service Reform Law, etc.” was formally adopted on April 2011 by the Headquarters for Promoting Civil Service Reform, headed by the Prime Minister and comprised of all Ministers of State. The purpose of the ongoing reforms of the civil service system is to realize efficient and high-quality government services which meet the needs of the people, responding to changing social and economic circumstances. The “whole picture” is a package of government policies on detailed measures and the schedule for the realization of all the reforms specified in the Civil Service Reform Law, including the introduction of an autonomous labour–employer relations system. The Government declares that in the process of drawing up the “whole picture”, it held discussions with JTUC–RENGO/RENGO–PSLC, ZENROREN, and KOKKOROREN at various levels. The “whole picture” also took public opinion into consideration via public consultation on the autonomous labour–employer relations system which was conducted from December 2010 to January 2011, prior to the April 2011 decision.
2. 829. The Government gives further details on the main contents of the measures of the autonomous labour–employer relations system in the “whole picture”. According to the Government, in order to foster the motivation and abilities of personnel and secure and utilize a skilled workforce, the current framework has to be transformed to a new one where, with increased awareness, both parties of labour–employer relations negotiate the issue of working conditions autonomously and promote reform of the personnel management and remuneration system, responding to changing circumstances and new political issues. Additionally, the Government seeks to establish a framework for determining working conditions which allows personnel to take part in the process and requires them to share responsibility. Also, this framework should be transparent and should be supported by understanding of the public with regard to the quality of personnel output.
3. 830. The Government has determined its policy on granting the right to conclude collective agreements to national public service employees in the non-operational sector (excluding police officials and officials working for the Japan Coast Guard and penal facilities, and administrative vice-ministers, director-generals of agencies and director-generals of bureaus of ministries), and establishing the matters to be handled by collective bargaining as well as the parties thereto and procedures thereof, the validity of collective agreements, and procedures for conciliation, mediation, and arbitration by the Central Labour Relations Commission. To this end, a new “Act on Labour Relations of National Public Service Employees (provisional title)” is to be enacted.
4. 831. The Government indicates that this new Act on Labour Relations of National Public Service Employees would provide for the following with the aim of creating a framework in which decisions on the working conditions of personnel can be taken autonomously via labour–employer negotiations:
   • – The Act will specify the response to be given by the authorities when they receive a proposal from a labour union certified by the Central Labour Relations Commission for lawful collective bargaining with regard to the working conditions of personnel or labour–employer relations such as collective bargaining procedures.
   • – In cases in which a collective agreement is entered into between a certified labour union and a competent authority, this shall be enforceable. In cases in which a collective agreement is entered into which includes matters necessitating the establishment or revision of a law or cabinet order providing for working conditions, the Cabinet shall be obliged to submit relevant bills to the Diet or enact or revise relevant cabinet orders.
   • – Unfair labour practices such as the treatment of staff in a disadvantageous manner by authorities, refusal of collective bargaining, financial assistance to or interference with the management of labour unions are prohibited. When the Central Labour Relations Commission receives allegations pertaining to unfair labour practices from a certified labour union, it shall make a judgment on the case and, if necessary, issue a relief order.
   • – The Act will give the authority to the Central Labour Relations Commission to conduct conciliation, mediation and arbitration in which certified labour unions can take part. Specifically, it sets the requirement for initiation of arbitration as an application from both relevant parties, application from a relevant party where no settlement is found to a dispute after a period of two months since the initiation of conciliation or mediation, or a decision by the Central Labour Relations Commission on an ongoing case of conciliation or mediation.
5. 832. Furthermore, in the Government’s view, in order to respond to changing social and economic circumstances and to realize efficient and high-quality government services, the necessary personnel administration functions are to be centralized, and a Civil Service Office is to be established which handles the functions of the structures and operations of the government as well. To this end, a “Civil Service Office Establishment Act” is to be enacted. The Civil Service Office is to have responsibility for the overall personnel management and remuneration system and undertake negotiations with labour unions as the employer.
6. 833. The Government adds that following the granting of the right to conclude collective agreements and the establishment of the employer organization (Civil Service Office), the National Personnel Authority and its recommendation functions will be abolished. A Personnel Fairness Committee (provisional title) is to be established under the jurisdiction of the Prime Minister, as a third party organization which will be responsible for ensuring fairness in personnel administration, and is to deal with personnel complaints, restrictions on personnel regarding political or commercial activities, and provide recommendations on improvements to personnel administration to the relevant ministers. The National Public Service Act is to be revised to accommodate measures relating to the autonomous labour–employer relations system.
7. 834. In its latest communication of September 2011, the Government indicates that, following the formal adoption of the “whole picture” of the reform based on the Civil Service Reform Law, etc., on April 5 2011, the Government drafted four civil service reform-related bills and submitted them to the Diet on 3 June 2011. However the Bills were not deliberated during the said session and will be carried over to the next session. The Reform Bills consist of four bills, namely: (i) the Amendment Bill for the National Public Service Employees Law; (ii) the Draft Act on Labour Relations of National Public Service Employees; (iii) the Draft Act for Establishment of the Civil Service Office; and (iv) the Draft Act on Arrangement of Relevant Acts Incidental to Enforcement of the Amendment Bill for the National Public Service Employees Law. In the process of establishing the Bills, the Government held discussions, since December 2010, with JTUC–RENGO and RENGO–PSLC at various levels. Discussions were also held with ZENROREN and KOKKOROREN at various levels. The Government specifies that the various opinions expressed during the discussions were reflected in the Reform Bills.
8. 835. The Government gives full details on concrete provisions that would help create a framework in which decisions on the working conditions of personnel can be taken autonomously via labour–employer negotiations. These provisions relate to: (i) the organization of labour unions; (ii) the certification of labour unions; (iii) the system of leaves of absence for full-time union officers; (iv) collective bargaining; (v) obligations involved in concluding a collective agreement; (vi) the prohibition and examination, etc. of unfair labour practices; (vii) conciliation, mediation, and arbitration by the Central Labour Relations Commission; and (viii) effect of arbitration awards.
9. 836. With regard to the issue of granting the right to strike of National Public Service Employees, the Government indicates that a supplementary provision of the Draft Act on Labour Relations of National Public Service Employees provides that “taking into consideration the status of enforcement of this Act including the status of operation of collective bargaining and the status of operation of the system for conciliation, mediation, and arbitration, and the status of public opinion on the implementation of the autonomous labour–employer relations system, the Government shall examine the right to strike of national public service employees. And then, necessary measures are to be taken based on the outcome of the examination”.
10. 837. The Government adds that an Advisory Group on Basic Labour Rights (Right to Strike) of National Public Service Employees was set up in November 2010 under the Minister of Civil Service Reform, composed of experts including a member related to labour unions, etc. In the Advisory Group, without prejudicing the conclusions to be drawn, the examination focused on the following points: the meaning of the right to strike in light of the autonomous labour–employer relations system; points to note on the decision on whether to grant the right to strike; and points to note for exercising prudence in concrete system design for cases in which the right to strike is granted. A report summarizing model cases to balance the right to strike and public nature of the functions and matters specific to the civil service was released on December 2010. The Government then conducted public consultation on measures for the autonomous labour–employer relations system from December 2010 to January 2011, using the draft on the reform for autonomous labour–employer relations and the report of the Advisory Group listed as reference materials. 217 comments, including comments from those connected to labour unions, were collected.
11. 838. As a result, the Government compiled the “whole picture” in April 2011 in which the policy is expressed as follows: “An examination is to be conducted on the right to strike of national public service employees, taking into consideration the actualities of collective bargaining under the newly implemented autonomous labour–employer relations system and public opinion on the implementation of the system. Necessary measures are to be taken based on the outcome of the examination”. After further legal examination, the Government established the above provision in the Reform Bills.
12. 839. With regard to the basic rights of local public service employees, the Government indicates that the “whole picture” stipulates for a prompt study to be conducted on the basic labour rights of local public service employees in regular service with the advice of relevant parties, based on the characteristics of local public service employee systems in a manner consistent with measures for the labour–employer relations system of national public service employees. As such, a “meeting for hearing opinions of relevant parties concerning the basic labour rights of local public service employees” was held at the Ministry of Internal Affairs and Communications to hear the opinions of relevant parties. After taking into consideration the opinions heard at this meeting and the contents of bills concerning national public service employees, the “Basic Concept of the Labour–Employer Relations System for Local Public Service Employees” was compiled and published on 2 June 2011. The Government details the key contents of the system.
13. 840. Finally, with regard to right to organize of fire defence personnel, the Government provides information on the Report of the Committee on the right to organize of fire defence personnel (Appendices three and four of its May communication). It also indicates that further examination will be made in the future in accordance with the “Basic Concept of the Labour–Employer Relations System for Local Public Service Employees” towards the realization of system reform.
14. 841. In conclusion, the Government states that it is doing its utmost to have meaningful discussions to achieve the civil service reform, bearing in mind the basic idea that frank exchanges of views and coordination with relevant organizations are necessary. The Government will also continue to refer to the recommendations of the Committee on Freedom of Association and provide the Office with timely and relevant information on the situation.

D. The Committee’s conclusions

1. 842. The Committee recalls that these cases, initially filed in March 2002, concern the current reform of the public service in Japan. The Committee notes the latest comments from the Committee of Experts on the Application of Conventions and Recommendations on the implementation of Conventions Nos 87 and 98 which relate to the legislative aspects of the reform.
2. 843. With regard to the civil service reform, the Committee notes that, pursuant to its last examination of the case in June 2010, the Government has taken the following steps forward: (i) the Government adopted on 5 April 2011 the “whole picture of the reform based on the Civil Service Reform Law, etc.” which is a package of government policies on detailed measures and the schedule for the realization of all the reforms specified in the Civil Service Reform Law, including the introduction of the autonomous labour–employer relations system; (ii) the Government drafted four civil service reform related bills “the Reform Bills” on the basis of the whole picture: the Amendment Bill for the National Public Service Employees Law, the Draft Act on Labour Relations of National Public Service Employees, the Draft Act for Establishment of the Civil Service Office and the Draft Act on Arrangement of relevant Acts Incidental to Enforcement of the Amendment Bill for the National Public Service Employees Law were all submitted to the Diet on 3 June 2011; and (iii) on 2 June 2011, the Ministry of Internal Affairs and Communications released its Basic Concept of the Labour–Employer Relations System for Local Public Service Employees.
3. 844. The Committee notes from the information provided by the complainants and the Government that throughout the abovementioned process, the Government held consultations with employees’ organizations including JTUC–RENGO, RENGO–PSLC, ZENROREN and KOKKOROREN at various levels, although ZENROREN has expressed its lack of satisfaction with the consultation process and its outcome.
4. 845. The Committee notes that, according to the Government, once the four Reform Bills are adopted by the Diet, a new framework will be established in the national public service where both parties of labour–employer relations negotiate and determine autonomously the issue of working conditions and promote reform of the personnel management and remuneration system, responding to changing circumstances and new political issues. The Committee observes in particular that the new framework includes granting the right to conclude collective agreements to national public service employees in the non-operational sector, establishing a Civil Service Office and suppressing the National Personnel Authority and its recommendation functions, treatment of the right to strike of national public service employees and basic labour rights of local public service employees.
5. 846. The Committee observes that the Reform Bills were not brought under deliberation during the 177th ordinary session of the Diet which ended in August 2011, but takes due note of the Government’s indication that they will be deliberated at the next session of the Diet.
6. 847. While commending the efforts of the Government to hold systematic consultations with interested parties throughout the reform process, the Committee encourages the Government to maintain full, frank and meaningful consultations with all interested parties on any remaining issues. The Committee expects that the Government will pursue its efforts to complete the ongoing civil service reform in a continuing spirit of social dialogue in order to find mutually acceptable solutions to all the issues raised. It requests the Government to continue to provide information on the progress made in the deliberation of those Bills, and on any relevant law adopted by the Diet.
7. 848. With regard to the right to strike of National Public Service Employees, the Committee notes that the Government had set up, on 26 November 2010, the Advisory Group on Basic Labour Rights (Right to Strike) of National Public Service Employees, as a private advisory group to the Minister for Civil Service Reform. The Group met several times and released a report on 24 December 2010. According to the report, one possible option would be to determine the timetable for granting the right to strike, considering the actualities and issues surrounding labour–employer negotiations, however the final decision on whether or not to grant the right to strike and the design of a concrete system etc. would be left to the Government. The Committee observes that JTUC–RENGO welcomed the establishment of the Advisory Group as evidence of a change in the Government’s attitude towards the issue.
8. 849. With regard to its long-standing comments concerning the need to recognize the right to organize for firefighting personnel, the Committee notes the Government’s indication that further examination will be made in the future in accordance with the “Basic Concept of the Labour–Employer Relations System for Local Public Service Employees” toward the realization of system reform. The Committee also notes JTUC–RENGO and ZENROREN indications that the Ministry of Internal Affairs and Communications released a report in December 2010 compiled by the Committee on the Right to Organize of Fire Defence Personnel. According to the said report, the final decision on whether or not to grant firefighters the right to organize should be made by the Government after further examination. The report – provided by the Government in annex to its communication – also presented possible scenarios including the recognition of the right to organize alone, the recognition of the right to organize and the labour–management consultation, the recognition of the right to organize and the right to negotiate with the employing authority (without the right to conclude collective labour agreement), along with a scenario of “improving the Fire Defence Personnel Committee System instead of the recovery of the right to organize”. However, the Committee notes that JTUC–RENGO regretted that the Report did not go as far as stating that fire defence personnel should be granted the right to organize. The Committee also notes that in ZENROREN’s point of view, the Government has not succeeded in convincing those who are negative to the return of the right to organize to fire fighting personnel, and it has not yet adopted a proper position for promoting the recovery of the basic labour rights by taking into consideration the differences between firefighters and police as advised by the ILO. Finally, the Committee notes that while it acknowledges that measures taken regarding the issue of granting the right to organize to fire defence personnel have been moving steadily forward, JTUC–RENGO observed that at present, the relevant legislation has yet to be adopted and the right of fire defence personnel to organize is still not a reality.
9. 850. The Committee observes that no specific information has been provided In respect of granting the right to organize to prison officers. It wishes to recall once again the importance it attaches to the right of all workers, including prison officers, to form and join organizations of their own choosing.
10. 851. The Committee welcomes the continuing institutionalized tripartite discussions concerning the various issues raised in the present case. It expresses the firm hope that the Government will vigorously pursue its efforts to complete the ongoing civil service reform process in a spirit of social dialogue in order to find mutually acceptable solutions aimed at effectively, and without delay, addressing the measures necessary for the implementation of the freedom of association principles embodied in Conventions Nos 87 and 98, ratified by Japan, in particular as regards: (i) granting basic labour rights to public servants; (ii) fully granting the right to organize and to collective bargaining to firefighters and prison staff; (iii) ensuring that public employees not engaged in the administration of the State have the right to bargain collectively and to conclude collective agreements, and that those employees whose bargaining rights can be legitimately restricted enjoy adequate compensatory procedures; (iv) ensuring that those public employees who are not exercising authority in the name of the State can enjoy the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately this right are not subject to heavy civil or criminal penalties; and (v) the scope of bargaining matters in the public service. The Committee requests the Government to keep it informed of developments on all the above issues.