Rapport intérimaire - Rapport No. 58, 1962

1. 204. The Committee, which at earlier sessions had confined its examination of the case to a consideration of certain allegations relating to restrictions on trade union membership and election of officers, proceeded, at its meeting on 29 and 30 May 1961, to examine also the remaining allegations raised in the several complaints which it had before it, and submitted its conclusions thereon in its 54th Report, which was approved by the Governing Body at its 149th Session (June 1961).
2. 205. In that report the Committee submitted to the Governing Body its definitive conclusions and recommendations on several of the allegations, namely the allegations relating to the denial of the right of association to the personnel of certain services, to denial of the right of civil servants' organisations to conclude collective agreements, to the Police Duties Law, to the full-time union officer system, to the denial of the right to strike and defects in the mediation and arbitration system, to non-recognition of the Japanese Teachers' Union and to the denial of the right of association to supervisory employees of public corporations and enterprises. The Committee submitted an interim report on the remaining allegations and requested the Government to furnish further information on various aspects of the matters raised therein.
3. 206. The conclusions and recommendations contained in the 54th Report of the Committee were transmitted to the Government of Japan by a letter dated 28 June 1961.
4. 207. On 10 June 1961 a further complaint was presented by the All-Japan Prefectural and Municipal Workers' Union. This complaint was transmitted to the Government for its observations by a letter dated 11 July 1961.
5. 208. In two communications dated 16 September and 3 October 1961 respectively, the Government furnished further information in accordance with the request addressed to it by the Committee. On 2 October 1961 the Government forwarded its observations on the complaint of the All-Japan Prefectural and Municipal Workers' Union.
6. 209. The present report therefore is confined to the outstanding allegations on which the Committee did not submit its definitive recommendations at its meeting in May 1961, to the matters raised in the complaint subsequently presented by the All-Japan Prefectural and Municipal Workers' Union and to the observations made by the Government of Japan with regard to these aspects of the case.
7. 210. Japan has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Position with Regard to the Ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

1. 211. The Committee has on a number of occasions considered the position with regard to the ratification by Japan of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in conjunction with its examination of allegations made by several of the complaining organisations in this case in respect of restrictions on trade union membership and election of officers.
2. 212. These allegations were first raised in the earliest complaints of the General Council of Trade Unions of Japan, the P.T.T.I and the All-Japan Postal Workers' Union. It will be remembered that the most essential point made in these allegations, which were analysed more fully in paragraphs 7 to 12 of the Committee's 32nd Report, was the contention that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, 1948, and the similar provision in section 5 (3) of the Local Public Enterprise Labour Relations Law, place two restrictions on the exercise of trade union rights, because, firstly, union membership is limited to employees engaged in the public corporation or national enterprise concerned and, secondly, only such employees are eligible to serve as officers of the Union. Because certain unions, including the Locomotive Engineers' Union and the All-Japan Postal Workers' Union, had retained as officers persons who had been dismissed from their employment, the employing administrations, it was alleged, had refused to bargain collectively with the unions in question. After considering these allegations at its meeting in November 1958, together with the Government's observations thereon, the Committee, noting that the Government was studying the legal provisions referred to above in conjunction with the question of possible ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), submitted to the Governing Body the recommendations contained in paragraph 20 of its 32nd Report, approved by the Governing Body at its 140th Session (November 1958).
3. 213. At subsequent sessions the Committee, noting the various communications forwarded from time to time by the complainants and the information as to developments with regard to the question of ratification of the said Convention contained in several communications received from the Government of Japan, submitted a series of interim reports to the Governing Body. At its meeting in May 1960 the Committee submitted to the Governing Body the recommendations contained in paragraph 98 of its 47th Report, which reads as follows
4. 98. In these circumstances the Committee recommends the Governing Body:
5. (a) to note with satisfaction the Government's statement that, having decided to seek the approval of the National Diet for ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it has submitted the Convention to the Diet together with Bills to amend the relevant legislation, including Bills to abrogate section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law;
6. (b) to express the hope that the proposals to ratify the Convention and to enact the Bills referred to above will be approved by the National Diet at an early date;
7. (c) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
8. 214. Further information as to progress made towards the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), was given by the Government in a communication dated 13 August 1960. At its meeting in November 1960 the Committee considered this communication and submitted to the Governing Body the conclusions contained in paragraph 7 of its 49th Report, which reads as follows:
9. 7. With regard to the case relating to Japan (Case No. 179), the Committee had before it a letter from the Government, dated 13 August 1960, in which the Government states that the Bills submitted to the National Diet for the purpose of seeking approval for the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and of abrogating section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law in April 1960 were not reached by the National Diet in the course of its last session. The Government states further that the Convention and the Bills to amend the relevant legislation are to be submitted to the next regular session of the National Diet, which will convene at the end of this year. In these circumstances the Committee decided to take note of the Government's statement and, having regard to the decision of the Governing Body when it adopted paragraph 98 of the Committee's 47th Report, to reaffirm the hope expressed in that report that the proposal to ratify the Convention and to enact the Bills referred to above will be approved by the National Diet and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection.
10. This report was approved by the Governing Body at its 147th Session (November 1960).
11. 215. At its meeting in February 1961 the Committee had before it a further communication from the Government, dated 21 February 1961. The Committee, after examining this communication, submitted to the Governing Body the conclusions contained in paragraph 9 of its 52nd Report, which reads as follows:
12. 9. With regard to the case relating to Japan (Case No. 179), the Committee had before it a letter from the Government, dated 21 February 1961, in which the Government states that, in his policy speech delivered at the opening of the regular session of the Diet resumed at the end of January 1961, the Prime Minister of Japan stated that " with regard to the ratification " of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), " the Government recognises the necessity of giving careful study to the preparation of related national laws, and is preparing to submit the Convention together with the related Bills to the present session of the National Diet, from the standpoint of promoting the development of a free and democratic labour movement ". The letter goes on to state that the Government of Japan, acting on the above-mentioned basic line, is now preparing earnestly for the presentation to the current session of the National Diet of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Bills to amend the related laws. In these circumstances the Committee decided to take note of this statement by the Government, which renews the previous assurances given as to taking the necessary action to ratify the Convention, to express the hope that the proposal to ratify the Convention and to enact the Bills referred to above will have been approved by the National Diet by the time the Committee meets in its next session in May 1961, and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection. The Committee further decided that, at its next session, it will examine all the allegations raised in the different complaints in this case, on the basis of the documentation now before it, together with such further documentation as may be received at a sufficiently early date to permit of its being taken into consideration by the Committee at that session.
13. This report was approved by the Governing Body at its 148th Session (March 1961).
14. 216. In its communication dated 9 May 1961 the Government stated that it submitted to the National Diet, on 25 March 1961, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Bills to amend the related laws, and that they were under consideration by the Diet.
15. 217. The Committee therefore, at its meeting on 29 and 30 May 1961, recommended the Governing Body, in paragraph 188 (a) of its 54th Report:
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17. to take note of the Government's statement, in its communication dated 9 May 1961, that it submitted to the National Diet, on 25 March 1961, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Bills to amend the related laws, and that they are now under consideration by the Diet; to express the hope that the proposal to ratify the Convention and to adapt the legislation to it will be approved by the National Diet at an early date, in accordance with the wish expressed by the Prime Minister of Japan when meeting representatives of the Japanese trade unions on 14 April 1961 that such action should be taken by the Diet at its present session; and to request the Government to be good enough to continue to keep the Governing Body informed as to further developments in this connection.
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19. This recommendation was approved by the Governing Body at its 149th Session (June 1961).
20. 218. On 10 November 1961 the Government furnished further information concerning the position with regard to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government states that the Diet met in extraordinary session from 25 September to 31 October 1961, mainly for deliberation on appropriations for flood disasters and other matters. With a view to securing early approval by the Diet of Bills relating to the ratification of the Convention, the Government held informal negotiations with the Government Party and, through it, with the Opposition Parties, on the submission of the Bills concerned and on their early deliberation. A doubt had arisen that it might be difficult to have the Bills in question approved by the Diet in the extraordinary session, but the Government wished to present the Bills in the hope that their deliberation would be advanced and that, if they were not passed in that session, they might be passed in the next ordinary session, to be convened at the end of this year, by referring them to continued deliberation between the two sessions. Later it became clear, declares the Government, that the Bills, even if presented to the extraordinary session, could not secure the Diet's approval; furthermore, it became impossible, upon the objection of the Opposition, to refer them to continued deliberations between sessions until the next ordinary session without withdrawing them, and eventually the extraordinary session ended before the Bills had been presented to the Diet. The Government concludes by stating that there is no diversion at all in the policy of the Government for early ratification of the Convention, that it has been formally stated on many occasions by the Minister of Labour that every effort would be made to realise that aim and that the Government is ready to exert its efforts to secure approval of the Bills by the Diet by submitting them to the coming ordinary session.
21. 219. In these circumstances the Committee recommends the Governing Body to take note of the Government's explanation as to the reasons why it was not found possible to present the Bills relating to the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to the extraordinary session of the Diet which closed on 31 October 1961, and of the Government's statement that there is no diversion at all in the policy of the Government for early ratification of the Convention and that the Government is ready to exert its efforts to secure approval of the Bills by the Diet by submitting them to the coming ordinary session; to express its disappointment that the Convention, which the Government of Japan has on nine separate occasions 1 from 25 February 1959 onwards indicated its intention of ratifying, has not yet been ratified by Japan; and to request the Government to keep the Governing Body informed as to further developments in connection with the Government's expressed intention of submitting Bills providing for the ratification of the Convention to the coming ordinary session of the Diet to be convened at the end of the present year.
22. Position with Regard to the Application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
23. 220. The Committee has also had occasion to take account of the provisions of the legislation of Japan in the light of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan. At its meeting in November 1959 the Committee recommended the Governing Body to note and endorse certain observations made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations as to the compatibility of section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law with Article 2 of Convention No. 98; this recommendation was approved by the Governing Body at its 144th Session (March 1960). At its meeting in May 1960 the Committee on Freedom of Association observed that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, at its 30th Session (March-April 1960), after noting the information given verbally by the Government to the International Labour Conference in 1959 and in the report furnished by the Government, in respect of the period 1 July 1958-30 June 1959, on the application of Convention No. 98, pointed out that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law, which provide that officers of trade unions must be persons employed in the undertaking in which the union operates, run counter to Article 2 of the Convention. Noting that the Government, according to its report, intended to repeal section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, the Committee of Experts expressed the hope that this repeal would be effected as soon as possible and that section 5 (3) of the Local Public Enterprise Labour Relations Law would also be repealed.
24. 221. The matter was further considered by the Committee of Experts at its 31st Session (March 1961), when it made the following observations:
25. The Committee has taken note with interest of the information furnished orally by a Government representative to the Conference and also of the detailed report furnished by the Government.
26. 1. According to the Government, section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, providing that trade union officers must be persons employed in the undertaking in which the trade union carried on its activities, is intended to protect the trade union movement in this sector of the economy against " subversive elements "; further, this section cannot afford a pretext for acts of interference because the grounds for dismissal are defined in the Law and various appeal procedures are available to the persons concerned; finally, the onus of proving the reason for dismissal falls upon the employer.
27. 2. The Committee observes, however, that it would be extremely difficult for a worker who was dismissed by an employer invoking, for example, " neglect of duty " (section 31 (2) of the Japanese National Railways Law) to prove that the real motive for his dismissal was to be found in his trade union activities. Further, as lodging of an appeal does not suspend the decision taken, a dismissed trade union leader must, under the provisions of the Law, resign his trade union post when he is dismissed. As the Committee emphasised in 1959, section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law, which is in similar terms, make it possible for the managements of these undertakings to hinder the activities of a trade union and thus run counter to Article 2 of the Convention, according to which " workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration".
28. The Committee therefore expresses the hope that, in order to secure the full application of the Convention, the Government, which has expressed its intention to repeal the provisions referred to above, will be able to effect this repeal in the near future.
29. 222. The Committee at its meeting on 29 and 30 May 1961 recommended the Governing Body in paragraph 188 (b) of its 54th Report:
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31. to endorse the observations made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations at its 31st Session (March 1961), and cited in paragraph 32 above, concerning section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law viewed in the light of Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan; to note the submission to the National Diet of Bills to amend the legislation; and to express the hope that legislation on this point will be promptly enacted.
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33. The recommendation was approved by the Governing Body at its 149th Session (June 1961).
34. 223. After discussion concerning the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Conference Committee on the Application of Conventions and Recommendations, in June 1961, urged the Government to bring its legislation into conformity with the Convention at an early date.,
35. 224. In these circumstances the Committee recommends the Governing Body to take note of and to associate itself with the desire expressed by the Conference Committee on the Application of Conventions and Recommendations, in June 1961, that the Government should bring its legislation into conformity with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), at an early date.
36. Allegations relating to Searches of Trade Union Premises
37. 225. In paragraphs 62 to 78 of its 54th Report the Committee examined allegations relating to disciplinary measures against and arrests of trade unionists, including cases in which proceedings had been taken against members of the All-Japan Postal Workers' Union, following stoppages of work in Japanese post offices in March 1958, on charges, inter alia, of having violated section 79 of the Postal Communication Law. At that stage of its examination of the case at its meeting on 29 and 30 May 1961 the Committee had already formulated its conclusions, in paragraphs 34 to 61 of its 54th Report, with regard to certain allegations relating to the denial of the right to strike to some categories of workers, including employees of the postal services, and to defects in the arbitration and mediation system, and had made a number of observations and reservations therein. In those circumstances the Committee, having noted that where persons were detained it seemed that charges were brought against them before the ordinary courts according to normal legal procedure, observed in paragraphs 69 and 78 of its 54th Report that to examine in substance the allegations relating to the measures taken against the trade unionists in question would be tantamount to re-examining the question of the prohibition of strikes in the services concerned, and decided that, in view of the conclusions relating to the allegations concerning the right to strike set forth in paragraphs 34 to 61 of the report, and of the various observations and reservations made therein, the principles brought into question in the allegations relating to disciplinary measures against and arrests of trade unionists had already been covered in those paragraphs.
38. 226. It is alleged by the P.T.T.I that a further consequential event of the stoppages of work by the postal workers referred to above was that, in the course of the measures taken against the trade unionists concerned, the police, on 10 May 1958, raided offices of the All-Japan Postal Workers' Union throughout Japan, including 33 branches in Tokyo, Osaka and Nagoya. The All-Japan Postal Workers' Union lists ten addresses of union premises, together with a number of private residences of union officials, alleged to have been searched by the police.
39. 227. As the Government had not then replied to these allegations, the Committee decided at its meeting on 29 and 30 May 1961 to request the Government to furnish its observations thereon before it made its recommendations to the Governing Body.
40. 228. The Government forwarded its observations on this aspect of the case in its communication dated 16 September 1961.
41. 229. The Government states that members of the All-Japan Postal Workers' Union performed unlawful acts of dispute, which rendered them liable to prosecution according to law. On 20 May 1958, declares the Government, the union itself instructed its members to leave their workplaces, contrary not only to section 17 of the Public Corporation and National Enterprise Labour Relations Law but also to section 79 of the Postal Communication Law, which meant that these acts of dispute and the instigation of such acts became the subject of penal proceedings. In some cases proceedings were brought also in respect of alleged acts of violence and other offences. In accordance with the Japanese Code of Penal Procedure, which permits the police to search any premises, provided that it is necessary for the investigation of any offence and that a warrant has been issued by a judge, the police searched 33 places, including union premises and private houses. The Government lists these 33 places and the causes for which warrants were issued. In every case the sole cause or one of the causes appears to have been suspicion of having instigated violations of section 79 of the Postal Communication Law.
42. 230. In Case No. 133 relating to the Netherlands Antilles one of the allegations made was in some respects analogous to the allegations made in the present case. In that case the Government admitted that trade union premises had been searched by order of the Public Prosecutor in the course of assembling evidence material to proceedings taken against union officers on charges of inciting a violent strike. The Committee took the view that subsequent events-the acquittal of the accused and the intervention by the Government to stay any further proceedings and the admission by the Government that the proceedings in any event had been "uncalled for ", as they were taken pursuant to obsolete legislation and contrary to the directives of the Government-showed that in the circumstances the measures taken must have interfered with the trade union activities of the persons concerned and with the proper functioning of the trade union organisation to which they belonged. In Case No. 40 relating to Tunisia, on the other hand, the Committee expressed the view that where trade union premises were used as a refuge by persons committing outrages or as an assembly point by a political organisation, the trade unions concerned could not claim any immunity against the entry of the authorities into the premises.
43. 231. The facts in the present case do not make it appear that any circumstances comparable to those referred to in Case No. 40 existed. By contrast with the position in Case No. 133, however, the Government gives in the present case the names of 11 union officials or executive members stated to have been indicted following the searches on charges founded on section 79 of the Postal Communication Law, an enactment which is not obsolete but is effectively applied. Proceedings were not in these cases taken on the basis of the provision in section 17 of the Public Corporation and National Enterprise Labour Relations Law prohibiting strikes.
44. 232. The Committee, while recognising that trade unions, like other associations or persons, cannot claim immunity from search for their premises, emphasises the importance which it attaches to the principle that such a search should only be made following the issue of a warrant by the ordinary judicial authority after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued. There does not appear to be any evidence before the Committee to show that this principle was not respected in the present case. Subject to the above observation, therefore, the Committee considers it inappropriate further to examine the present allegations in substance, for the same reason that it declined, in paragraphs 69 and 78 of its 54th Report, to examine in substance other related measures taken against trade unionists in the spring of 1958, namely for the reason that to examine the present allegations in substance would be tantamount to re-examining the question of prohibition of strikes already examined in paragraphs 34 to 61 of that report. The Committee therefore considers that, for the purposes of this particular case, in view of what was stated in paragraphs 34 to 61 of its 54th Report and of the observations and reservations made therein, it should regard the principles brought into question in these allegations as having already been covered in those paragraphs.
45. 233. In the circumstances the Committee recommends the Governing Body to decide that, subject to the observations made in paragraph 232 above, and subject to the observations and reservations contained in paragraphs 34 to 61 of the Committee's 54th Report, in which the allegations relating to the exercise of the right to strike were examined, no useful purpose would be served by pursuing further its examination of the allegations relating to searches of trade union premises.
46. Allegations relating to the Denial of the Right to Strike and to the Lack of Compensatory Guarantees (Affecting Organisations Subject to the Local Public Service Law)
47. 234. In its communications dated 9 November and 8 December 1960 the Japan Teachers' Union complains that the right to strike is denied to elementary and secondary school teachers-who have the status of local civil servants subject to the Local Public Service Law--and that no proper compensatory guarantees are afforded to them in order to safeguard their interests.
48. 235. Section 37 of the Local Public Service Law prohibits strikes by local civil servants, on pain of dismissal. As a counterpart, the said Law provides for the establishment of a Personnel Commission in each Prefecture, with power to keep wages, hours and other working conditions under continuous review and to report thereon to the local public body and to " take measures " in connection with demands submitted on behalf of the personnel. Each Commission is to consist of three persons appointed by the head of the local public body, with the consent of the assembly of the public body.
49. 236. The complainant's case, in brief, is that the Personnel Commissions have failed to protect the rights of workers deprived of their right to strike, that the working conditions of teachers have deteriorated (especially, the complainant refers to conditions in the Saga Prefecture) and that when they have been driven to take direct action in support of fair demands legal proceedings have been taken against them.
50. 237. The complainant cites a considerable number of alleged facts and statistics in support of this contention-increased number of pupils compared with numbers of teachers, resulting in longer hours and heavier work; non-payment of increments due under Prefectural Wage Regulations on the pretext of lack of funds; poor pay compared with workers in industry-and also lists a large number of cases of teachers disciplined, dismissed or prosecuted for engaging in or inciting direct action of one form or another.
51. 238. Among the evidence adduced by the complainant with a view to proving that denial of the right to strike is not compensated for by the provision of machinery for the settlement of disputes is a purported extract of a judgment given by the Morioka District Court. According to the complainant, the Iwate Prefectural government twice passed by-laws postponing the payment of increments, contrary to the recommendation of the competent Personnel Commission and, when the local teachers' union instituted proceedings in the court, judgment was given against them on the ground that the authority had the unilateral right to fix wages and that " the opinion of the Personnel Commission has no binding power".
52. 239. In its communication dated 24 January 1961 the Government states that the working conditions of teachers are laid down in prefectural regulations; section 37 of the Local Public Service Law prohibits strikes by local civil servants, including teachers, and the Supreme Court has held this prohibition to be valid. The prohibition of strikes does not contravene the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No 98), argues the Government, because these Conventions do not deal with the right to strike.
53. 240. The Government then deals with the allegation that the Personnel Commissions have not protected the interests of the workers, so that the conditions of employment of teachers have deteriorated. The Government states that it is the function of a Personnel Commission to express its observations " in connection with the enactment, revision and abrogation of the prefectural regulations concerning the personnel " and that " it has also such functions of arbitration as to examine, give judgment on, and take necessary measures on the claims for an action concerning working conditions of the personnel, and to examine, and take necessary measures upon, any action adverse to the interests of the personnel ". The members of the Personnel Commission " are chosen, with the approval of the prefectural assembly, from among those who are of high moral character and who have a deep understanding of the principle of local autonomy and democratic and efficient handling of affairs, as well as good knowledge of personnel administration " and certain steps are prescribed by law " to avoid politically partial appointments of the members ". Thus, in the Government's view, where the conditions of teachers are prescribed by prefectural regulation, the Personnel Commissions are " an adequate guarantee for ensuring the interests of educational public servants who are deprived of the right to strike ".
54. 241. Referring to the position in the Saga Prefecture cited by the complainants, the Government states that in 1956 this Prefecture had to take drastic austerity measures because of damage sustained through typhoons but that since then wages have been brought in line with those in other areas. In the period in question, says the Government, the Saga Prefectural Personnel Commission " made recommendations three times to the prefectural authorities to ensure that raises in wages be properly given effect to ".
55. 242. In its communication dated 14 February 1961 the Government furnishes information with a view to showing that measures by way of disciplinary action or prosecution taken against members of the Japan Teachers' Union have been occasioned by their own unlawful acts. The offences listed are taking leave simultaneously so as to paralyse operations, refusal to perform day or night duty, simultaneous walk-out when tests were to be held, acts with a view to preventing seminars being held, incarcerating superior educational officers, riotous conduct, wounding, assault, demonstrations violating the Road Traffic Control Law, entering and refusing to leave premises. Altogether, it would appear, 56 persons were dismissed, 289 suspended and 3,288 suffered salary reductions or warnings. One-hundred-and-five public prosecutions are pending.
56. 243. In its communication dated 9 May 1961 the Government declares that the statistical tables furnished by the Japan Teachers' Union are distorted and, in several cases, quite meaningless, but admits that the teachers, in common with all other local public servants, experienced delays in implementation of salary increments in the period 1954-57, when the financial situation of the local public bodies was very bad. Since then, however, declares the Government, such delays have ceased to occur.
57. 244. It did not seem clear to the Committee, from the evidence before it when it considered these allegations at its meeting on 29 and 30 May 1961, just to what extent the interests of local public servants, denied the right to strike, are safeguarded under the provisions of the Local Public Service Law. While such persons, including teachers, are classed as civil servants in Japan, their employment is governed not by national statutes but by municipal or prefectural by-laws or regulations. While the local civil servant covered by such by-laws or regulations is not in the same position as publicly employed workers, nevertheless, it is usual, the Committee pointed out, for the civil servants of local authorities in the majority of countries to be protected by the establishment of adequate and impartial conciliation and arbitration machinery for the settlement of disputes. It is alleged that the Personnel Commissions fail to protect the workers. The exact powers of the Commissions, however, did not appear quite clear to the Committee. On the one hand, the Government states that the Commissions have " such functions of arbitration as to examine, give judgment on, and take necessary measures on the claims for an action concerning working conditions of the personnel, and to examine, and take necessary measures upon, any action adverse to the interests of the personnel " and offer " an adequate guarantee for ensuring the interests of educational public servants who are deprived of the right to strike ". On the other hand, the complainants allege that a court has stated that " the opinion of the Personnel Commission has no binding power ", while the Government states that in a period of financial difficulty the Saga Prefectural Commissions " made recommendations " to the authorities on three occasions. The Government also states that the law ensures that the Commissions, although appointed by the assemblies of the local public bodies, are " politically " impartial.
58. 245. The Committee, therefore, decided to request the Government to explain more fully whether the Commissions can only make recommendations on working conditions, and, if so, on what grounds they can be described as having " such functions of arbitration " as " to examine, give judgment... and take necessary measures on claims ". The Committee also asked the Government to state, in the event of the Commissions being unable to give decisions binding the authorities, what other machinery for arbitration, if any, exists for the settlement of disputes between local authorities and the employees governed by regulations issued by such authorities.
59. 246. In its communication dated 3 October 1961 the Government makes the following points. The personnel may request the Personnel Commission to see to it that the authorities of the local public body should take appropriate measures with regard to salaries, hours and other working conditions. The Personnel Commission shall make its decision and thereupon " shall make necessary recommendations on the matter in question to the competent organ of the local public body (sections 46 to 48 of the Local Public Service Law) ". The Government continues as follows: " When the personnel consider that they have been subjected to an adverse action against their will, they may, according to the prescribed procedure, appeal to the Personnel Commission for review of that action. The Personnel Commission shall, on the basis of the result of the examination, approve, revise or cancel the action, and, if necessary, give direction for the correction of any unjust treatment that may have been suffered by the personnel on account of the action, such as to cause the appointing authority to take necessary and appropriate measures for the recovery of the compensation and other claims due to them (sections 49 to 51 of the Local Public Service Law). The above-mentioned revisions, cancellation or direction shall be binding on the appointment authority (section 60 (3) of the Local Public Service Law)."
60. 247. The Government then goes on to cite the general functions of the Personnel Commissions, pursuant to section 8 of the Local Public Service Law, to study continuously wages, hours and other conditions, to state opinions to the local authorities concerned and to make recommendations to the authorities, and, pursuant to section 26, to submit an annual report to the local authorities as to whether the salary scale is adequate or not. Where the Commission deems it appropriate to increase or decrease the amount of salary in the salary scale, "it may submit appropriate recommendations" together with the report mentioned above.
61. 248. In conclusion the Government states that there is no other arbitration machinery to settle disputes between the competent authorities and the personnel and that it does not deem it necessary to set up any other machinery.
62. 249. Since the Committee made its request to the Government to furnish the further information analysed in paragraphs 246 to 248 above, the All-Japan Prefectural and Municipal Workers' Union has submitted allegations on the same questions.
63. 250. In its communication dated 10 June 1961 this complainant cites, in the first place, cases in which it considers it was driven inevitably to take strike action, with the result that disciplinary measures were taken against the employees concerned. These points, in principle, add nothing to what is stated in the complaint of the Japanese Teachers' Union.
64. 251. The union then goes on to make its own comments on the machinery for the settlement of disputes under the Local Public Service Law. The complainant declares that wage recommendations issued by the National Personnel Authority have normally been taken as a standard by the Personnel Commissions of the Prefectures, but that the recommendations in question have not been implemented to the full or have been implemented only after delay and that since 1954 they have been in accordance with the " low wage policy " of the Government.
65. 252. The complainant then alleges that the Personnel Commissions are not constituted on an impartial basis, and furnishes a table for the purpose of showing that the 153 members of the Commissions for the four prefectures and six principal cities, covering 52 local public bodies, are comprised of 42 legal experts or members of the judiciary, 35 senior public servants, 27 directors of companies and banks, 15 educational personnel, 13 members of local assemblies, eight secretaries-general of Personnel Commissions, six officials of public corporations, five doctors, two unknown, three seats being vacant. This, in the view of the complainant, gives a great preponderance to management.
66. 253. The complainant furnishes statistics according to which applications made since 1950 under section 46 of the Local Public Service Law (see paragraph 246 above) have been approved in only 25.2 per cent of the cases, rejected in part in 21.3 per cent and totally rejected in 52.3 per cent, the corresponding figures for applications under section 49 being 7.1 per cent, 58.8 per cent and 33 per cent.
67. 254. Accordingly, concludes the complainant, the salaries of local public servants have deteriorated substantially and the Personnel Commissions have provided no guarantee in compensation for the denial of the right to strike.
68. 255. In its communication dated 2 October 1961 the Government repeats its earlier statement that, subject to the general provisions of the Local Public Service Law, each local authority is free to issue its own regulations on matters concerning its own local public servants, including their salaries and working conditions. The Government declares that these local statutory conditions are established after taking into account such elements as the cost of living and the wages paid in other sectors of the economy. The Government refers again to the arguments presented with respect to the Personnel Commissions when commenting on the complaint of the Japanese Teachers' Union, and declares that each Commission is a third-party body independent of the local authority. According to the Local Public Service Law, " the members of the Commission must be persons of high moral character and have a deep understanding of the principle of local autonomy and democratic and efficient handling of affairs as well as good knowledge of personnel administration. It is further provided that in the appointment of these members the head of the local public body must select candidates and appoint them in all cases after obtaining the approval of the assembly representing the will of the inhabitants."
69. 256. The Government goes on to explain that the complainants' contention that wages in the local public service are relatively low is based on the findings of a survey made in July 1958, when the financial position of the municipalities was unfavourable, and considers that since then salaries have in general been brought up to an appropriate level, although in a few cases salaries remain low in some areas in which wages in the private sector are also low.
70. 257. In this part of its reply the Government gives the information that in the pending Bill to amend the Local Public Enterprise Labour Relations Law-which applies to employees of the local public bodies other than those designated as local public servants-it is proposed to provide that an arbitration award shall be final and binding on both parties.
71. 258. In conclusion the Government repeats substantially its earlier arguments as to the unlawfulness of strikes in the local public service and as to the justification for taking measures against persons who engage in unlawful acts of dispute.
72. 259. The Committee considers that the question of the denial of the right to strike to local public servants and of disciplinary measures taken against strikers adds nothing in principle to the similar issues with regard to which, in another context, it formulated certain conclusions in its 54th Report. The point that would seem essential here is that made by the Committee when it indicated, at its meeting in May 1961, that it is usual for the civil servants of local authorities in the majority of countries, where they are denied the right to strike, to be protected by the establishment of adequate and impartial machinery for the settlement of disputes (see paragraph 244 above).
73. 260. In this connection two issues require to be clarified: how far the Personnel Commissions are to be regarded as arbitral bodies which compensate the local public employees for the prohibition of strikes; and whether or not they are impartial.
74. 261. For this purpose it is necessary to consider the sections of the Local Public Service Law referred to by the Government (see paragraph 246 above). Sections 46 to 48 of the Local Public Service Law relate, according to the general heading, to the powers of the Personnel Commission with regard to " an appreciation for action on working conditions ". Section 46 gives the personnel the right to apply to the Personnel Commission with regard to pay, working hours and other working conditions. Section 47 provides that the Commission must examine the case, pass judgment thereon and " take actions on its own accord with regard to matters within its powers, or, with regard to other matters, make necessary recommendations to the agency of the local public body which has powers over the matter under consideration ". Section 48 enables the Commission to fix the rules for its own procedure.
75. 262. It has been made quite clear both in the complaints and by the Government that the fixing of salaries, hours and general conditions of work is a matter over which the local public body has exclusive powers (see paragraph 255 above) and that this is a matter on which the Commission can only make recommendations (see paragraph 246 above). It would appear, therefore, that, so far as these matters are concerned, the Personnel Commission is an advisory body and not an arbitral body.
76. 263. Sections 49 to 51 and 60 of the Local Public Service Law cited in part by the Government (see paragraph 246 above) related to quite another matter. Under the heading of " appeal for review of adverse action " these sections give the Personnel Commission power to give binding decisions in cases in which " a member of the personnel " has been subjected to a disciplinary punishment or other adverse action.
77. 264. The Committee considers, therefore, that on the evidence before it and according to the provisions of the Local Public Service Law, the Personnel Commission does not appear to be an arbitration body but an advisory body, so far as representations on wages and other conditions of employment are concerned. The Government states that no other arbitration machinery exists or is envisaged.
78. 265. So far as the impartiality of the Personnel Commissions are concerned, the Government, while stating that they must consist of persons of high moral character with experience of certain matters (see paragraph 255 above) offers no information to refute the complainants' statement concerning the occupational or professional background of the 153 members now sitting on these Commissions (see paragraph 252 above). If the complainants' statement is correct, it would seem that, apart from 47 persons drawn from the legal and medical professions, the rest are almost all drawn from high managerial circles in the public or private sectors of the economy, the senior civil service or local governmental bodies. They are all, moreover, on the Government's admission, appointed by the head of the local body, subject to approval by such body, which is itself the employing authority.
79. 266. In some respects the issues raised involve questions of principle analogous to those of which the Committee had to take account when examining, in paragraphs 34 to 61 of its 54th Report, allegations relating to the Arbitration Committee of the Public Corporation Labour Relations Commission. When examining those allegations, the Committee emphasised the principle that where strikes are restricted or prohibited such restriction or prohibition should be accompanied by the provision of conciliation procedures and of impartial arbitration machinery whose awards are in all cases binding on both sides, and also the principle that, with regard to such machinery, it should be ensured that the different interests are fairly reflected in the numerical composition of the body from among which arbitrators are chosen and that all the neutral or public members thereof are persons whose impartiality commands general confidence. The situation now under consideration by the Committee differs from that examined in paragraphs 34 to 61 of the Committee's 54th Report, especially in that, firstly, the Personnel Commissions, as stated in paragraph 262 above, are not arbitral bodies, and, secondly, they are appointed directly by the head of the public body which is the employer. These factual differences would not appear to affect the validity of the general principles enunciated above and the Committee, therefore, reaffirms the importance which it attaches to those principles.
80. 267. In these circumstances the Committee recommends the Governing Body:
81. (a) to reaffirm the importance which the Governing Body has always attached to the principle that, where strikes are prohibited, there should be other means of redress; to note the Government's statement that it intends to amend the Local Public Enterprise Labour Relations Law to provide for arbitration machinery whose awards shall be binding in the case of employees of local public bodies who are not designated local public servants; to suggest to the Government that it should consider the advisability of adopting the widespread practice of bringing local public servants also within the scope of similar machinery;
82. (b) to suggest to the Government that it may care to consider what steps can be taken to ensure that the different interests are fairly reflected in the numerical composition of the Personnel Commissions and that all the neutral or public members of the Commissions are persons whose impartiality commands general confidence;
83. (c) to suggest to the Government that it may care to consider also the advisability of providing that each of the respective parties concerned shall have an equal voice in the appointment of the members of the Personnel Commissions.
84. Allegations relating to Proposed Amendments to the National Public Service Law
85. 268. The Japanese Congress of Government Employees' Unions, in its memorandum forwarded to the I.L.O on 20 October 1960 by the Public Services International (London), makes allegations relating to a number of amendments which the Government is said to be making to the National Public Service Law in connection with the proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In so doing, this complainant draws attention to the fact that the Committee examined the contents of a pending Bill in Case No. 105 (Greece) and claims that it submits in its complaint " precise and detailed allegations " within the meaning of paragraph 136 of the Committee's 14th Report and that the Committee, therefore, should examine them in substance even prior to the enactment of the new legislation.
86. 269. It is alleged that the new section 108-2 (3) (4) of the Law would provide that " the personnel holding managerial or supervisory positions or those whose duties involve handling of confidential matters "-referred to elsewhere in the Bill as "managerial personnel and the like "-are to be prescribed by rules of the National Personnel Authority. A new section 108-3 (4) would limit the membership of an employees' organisation to persons actually employed, plus dismissed employees until one year after the dismissal or so long as an appeal against dismissal was pending. The above limitations, it is contended, would extend to federations (new section 108-2 (1)).
87. 270. The complainant proceeds to review these provisions in the light of the General Remarks of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations contained in its report in 1959 -, stating, firstly, that in paragraphs 15 and 16 of those General Remarks the Committee of Experts pointed out that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), permits the prohibition of workers engaged in different occupations establishing the same organisation only provided that the separate organisations for each occupation " may freely establish and join federations and Confederations ". But, says the complainant, the federation in Japan must also be established solely by organisations of national public employees. The complainant goes on to argue that the amending provisions introduce limitations similar to the limitations by categories held to be incompatible with the said Convention No. 87 in an Observation by the Committee of Experts in respect to Pakistan. Designation of the categories in question by the National Personnel Authority, which is also responsible for registration of organisations, is likened by the complainant to the system described by the Committee of Experts as equivalent to " previous authorisation " in paragraph 31 of its General Remarks in 1959. Such a system, moreover, in the complainant's view, would enable the employer to transfer inconvenient union activists and so endanger the registration of a union-a situation criticised by the Committee of Experts in paragraph 84 of its said General Remarks.
88. 271. Further, the complainant declares that section 53 of the Local Public Service Law requires unions to be organised separately for each local public body, thus going beyond the permitted limitation by occupation and amounting to a requirement that separate unions must be set up in such undertakings-a situation criticised by the Committee of Experts, declares the complainant, in paragraph 35 of its said General Remarks, and by the Committee on Freedom of Association in Cases Nos. 134 and 141 relating to Chile.
89. 272. The complainant then refers to the new provisions relating to the registration of organisations. The new section 108-5 (1) of the National Public Service Law would grant the right of negotiation only to registered organisations; only registered organisations could acquire legal personality. According to Rule No. 13-2 of the National Personnel Authority, only registered organisations " may make requests for administrative action on working conditions " to the Authority. Organisations must comply with several prescribed conditions before they can be registered, " including the limitations as to membership " analysed earlier. The registered organisation has such privileges, according to the complainant, that registration is indispensable. After reviewing the conclusions of the Committee on Freedom of Association in Case No. 11 (Brazil) and Case No. 12 (Argentine Republic) and the contents of paragraphs 30, 31, 32 and 35 of the General Remarks made by the Committee of Experts in 1959 -, the complainant argues that the privileges of the registered organisation are such that the non-registered organisations would have great difficulty in " furthering and defending the interests " of its members as mentioned in paragraph 27 of the General Remarks, and that the new section 108-3 (3) of the National Public Service Law especially gives the Personnel Authority far too much discretion with regard to the registration of an organisation-subject to appeal to the courts only on points of law-so that, following the reasoning of the Committee of Experts, registration is here equivalent to a requirement of previous authorisation, while the privileges of the registered organisation are so great as to endanger the right of workers to establish and join organisations " of their own choosing ". The new provision in section 108-3 (3) of the Law would not only oblige the registering organisation to specify in its Constitution the rules for drawing up and amending the Constitution and for electing officials, but it would also have to prove to the Personnel Authority that it had applied these rules in fact before the Authority would register it; in the light of paragraph 64 of the General Remarks of the Committee of Experts, states the complainant, this is contrary to Article 3, paragraph 2, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
90. 273. In view of the foregoing, declares the complainant, the fact that appeals would be to the courts only on points of law against a decision of the Authority to cancel registration amounts to " suspension by administrative authority " as envisaged in paragraphs 80 and 81 of the aforesaid General Remarks of the Committee of Experts.
91. 274. As the prerequisite for acquisition of legal personality would be the same as for registration, the complainant argues that there is here an incompatibility with Article 7 of the aforesaid Convention No. 87.
92. 275. The complainant points out that section 98 (2) of the National Public Service Law at present ensures the right of government employees' unions to negotiate both on working conditions and other conditions. But the new section 108-5 (1) would differentiate, says the complainant, between working conditions and other conditions, the right to negotiate on the other conditions being restricted, while new section 108-5 (3) would provide that " matters concerning the management and operation of affairs of the State shall not be " the subject of negotiation. At the same time other proposals, according to the complainant, would deprive the National Personnel Authority of much of its jurisdiction, so that its customary right to negotiate terms of agreement and then to make recommendations as to legislative action would be greatly curtailed, its powers of decision being transferred wholly to the Government. As this is all part of the legislative programme accompanying the procedure for ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the complainant argues that it is intended to curtail trade union rights established by custom in a manner contrary to article 19 (8) of the Constitution of the I.L.O.
93. 276. In its communication dated 14 February 1961 the Government begins by stating that it was considering whether the content of the Bills to be submitted to the current session of the National Diet should be the same as that of the Bills submitted by the previous Cabinet to the session in 1960 and on the text of which the complainants make their allegations. The views expressed in the reply of 14 February 1961 and analysed below are those which the Government " entertained when the Bills were submitted to the last session of the National Diet ".
94. 277. It was decided to amend the National Public Service Law so as to permit full freedom of choice of officers elected freely and democratically by the employees' organisations-they would be enabled to elect officers who were not employees.
95. 278. Under the existing law, employees representing employers are not prohibited from joining the same organisations as the other employees. The Bill would have prohibited managerial and supervisory employees and those employed in a confidential capacity from belonging to the same organisations as other employees.
96. 279. The new provisions regarding registration of organisations, declares the Government, lay down certain requirements to be complied with by organisations in order to be or remain registered. Registration is not compulsory and non-registered organisations would not be denied the right to exist and function. Only registration would permit of the acquisition of legal personality but such personality does not affect the existence and activities of organisations; cancellation of registration does not entail dissolution. The Bill would entrust the handling of registration and deregistration to the National Personnel Authority, described by the Government as a fair and independent organ, with a right of appeal against its decisions to the court of justice.
97. 280. Corresponding adjustments to the Local Public Service Law would be made.
98. 281. At the same time the Government decided to readjust the responsibility for personnel administration on the part of the authorities. Matters relating to salary, efficiency, training, compensation for accident, mutual aid, retirement, etc., would be transferred from the authority of the National Personnel Authority and Minister of Finance to that of the Prime Minister. But such matters as recommendations to the National Diet and Cabinet concerning maintenance and improvement of wages and other conditions of work of national public employees and requests for administrative action to be taken thereon, procedures for administrative remedy of actions disadvantageous to employees and their organisations would be dealt with, as before, by the National Personnel Authority, whose full independence would be maintained by retaining the legal provisions according to which the National Diet alone has the right to dismiss the commissioners of the Authority and the Authority may report and make recommendations directly to the National Diet without going through the Cabinet.
99. 282. The Government appends to its reply the text of the relevant part of the previous Bill to amend the National Public Service Law.
100. 283. In its communication dated 9 May 1961 the Government declares that in fact the Bills then submitted to the current session of the National Diet were similar in content to the Bills previously submitted in 1960. It therefore makes its own observations on the substance. Texts of the Bills to amend the National Public Service Law-the Bill in issue in the allegations here being considered-and the Public Corporation and National Enterprise Labour Relations Law have been forwarded by the Government.
101. 284. The Government declares that the Bill places no restriction at all on membership of the employees' organisations and does not prohibit them from federating jointly " with any organisations of workers ". Membership is restricted in the case of a registered employees' organisation; this provision is designed to establish normal relations between the government authorities and the employees' organisation by registering only the organisation composed solely of employees whose conditions are governed by law and regulations; the competent authorities are " required... to enter into negotiations, unless there are justifiable reasons to refuse so to do, with such a registered employees' organisation, when the latter has so proposed ". But the registered employees' organisation has freedom of election of officers and of federating jointly " with other employees' organisations and any workers' organisations ". Further, states the Government, " a non-registered employees' organisation under the Bill may equally present its demands to and negotiate with the authorities with a view to furthering and defending the interests of its members " (section 108-5 of the Bill). The registration provided for in the Bill is therefore not a practical requirement for the establishment and administration of an organisation. The authorities will, in principle, be willing to negotiate with the registered organisations (section 108-1 of the Bill). On the other hand, even non-registered organisations may negotiate.
102. 285. The Government repeats its earlier statements concerning the rules ensuring the independence of the National Personnel Authority.
103. 286. Another condition precedent to entitlement to registration under the Bill is that " managerial staff and the like " should not join the employees' organisation catering for other categories. Under the Bill, managerial staff and the like, including supervisory staff and persons employed in a confidential capacity may form their own separate organisations; in the Government's view this will help to ensure the independence of the organisations of other employees in relation to the employers. The Government does not consider this to be the same thing as the classification by categories mentioned in the observations of the Committee of Experts on the Application of Conventions and Recommendations. The National Personnel Authority will, under the Bill, determine the scope of " managerial staff and the like " but this scope, says the Government, " has been determined a priori, and it is only made clear by the National Personnel Authority ", so that the system is not tantamount to prior authorisation because it is operated by the Authority which is also responsible for registration.
104. 287. The Government denies that under the provisions of the Bill the employer could transfer an active trade unionist and so endanger the registration of a trade union, personnel changes for this purpose being prohibited by law, while, in the case of such action to the disadvantage of employees, an appeal for review may be made to the National Personnel Authority and to the court of law.
105. 288. The Government states that the acquisition of legal personality is not a requisite to the existence and activity of an organisation but is merely a means of conferring financial facilities on an organisation and does not restrict the rights provided for in Articles 2, 3 and 4 of the aforesaid Convention No. 87. Only a very small percentage of unions has chosen to acquire legal personality.
106. 289. Prerequisites for registration, including matters to be dealt with in union rules, provision for election of officers by direct secret ballot, etc., under the Bill are, says the Government, pure formalities and do not involve danger to the autonomy of an organisation-in effecting registration the National Personnel Authority cannot act arbitrarily at its own discretion. An employees' organisation can appeal to a court of law if the Authority " has committed an illegal action in regard to the registration. The interpretation of the complainant that paragraphs 3 and 4 of section 3 of the Bill deny the right of appeal on factual matters, is based on a sheer misinterpretation of these provisions ". Cancellation of registration of an organisation, says the Government, " does not impair in any way its existence and activities as an organisation of workers ". The same right of appeal is accorded against cancellation as against refusal of registration.
107. 290. With reference to the allegations relating to the matters to be left to negotiation under the new section 108-5 (1) and (3) (see paragraph 275 above), the Government states that under both the existing law and the Bill to amend the National Public Service Law provision is made for negotiation " concerning the conditions of work and for other lawful purposes including social and welfare activities ", but matters affecting the management and operation of government business are excluded from the scope of negotiation. In this connection the Government argues that article 19 (8) of the Constitution of the I.L.O does not impose on a State ratifying a Convention " the obligation to maintain standards more favourable than those established by the Convention " and that " the revision or abolition of a system by the State from its own standpoint which is not dealt with by any Convention has nothing to do with article 19 (8) of the Constitution ".
108. 291. Finally, the Government comments on the allegations concerning the scope of organisation under the Local Public Service Law, stating that the amending Bill does not prohibit employees belonging to two or more local public bodies from forming a federation jointly with other employees' organisations or workers' organisations-restrictions on membership apply, as in the case of national public employees' organisations, only if the organisation registers. But working conditions of local public employees are determined by the assembly of the local public body (municipality or prefecture) concerned.
109. 292. At its meeting on 29 and 30 May 1961 the Committee observed that the allegations related to proposed amending legislation still being examined by the National Diet. The Committee recalled that in a number of cases it had considered how far it should comment on pending legislation. While the Committee had in certain cases dismissed allegations relating to proposed legislation, either because of the vagueness of the allegations or because the proposed enactment was not government-sponsored, it had declared, on the other hand, that when it has before it precise and detailed allegations concerning a proposed enactment submitted to the Legislature by the Government, the fact that the allegations relate to a text which does not have the force of law should not of itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee had expressed the view that in such circumstances it is desirable that the Government and the complainant should be made aware of its point of view with regard to a proposed Bill before it is enacted, in view of the fact that it is open to the Government, on whose initiative such a matter depends, to make any amendments which may seem desirable
110. 293. In the present case the Committee pointed out that detailed allegations had been made concerning a number of the provisions in the amending legislation then before the National Diet. The Government had made a detailed reply and had also furnished texts of certain Bills as finally submitted to the Diet. The Committee, therefore, following its previous practice, and especially having regard to the fact that the initiation of the Bills was specifically related to the Government's proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), considered it appropriate to express its views on the intended amendments in the light of the provisions of the said Convention. However, as there was always the possibility that the texts of the Bills might be altered in the Diet and as it was difficult to visualise at that stage the cumulative effect of a comprehensive programme of legislative amendments, the full extent of which was not entirely clear, the Committee confined itself at that juncture to commenting on a few of the major points raised and, for the rest, decided to await the final outcome before formulating further conclusions.
111. 294. These major points are related to the question of the proposed provisions regarding registration of public employees' organisations. The complainants allege that the right of negotiation would be enjoyed only by registered organisations, whose privileges would therefore be so great that the non-registered organisation would have great difficulty in " furthering and defending the interests " of its members and that the right of workers to establish and join organisations " of their own choosing " would be restricted. The Government confirms that, under the Bill to amend the National Public Service Law, an organisation could be registered only if its membership were confined to public employees and if " managerial staff and the like " form organisations separate from those of the other employees.
112. 295. The essential issue which the Committee considered at its meeting on 29 and 30 May 1961 was the question of which organisations would have the right to negotiate because, if the situation were such that only organisations which fulfilled the above conditions for registration could negotiate, as alleged, such a situation would appear to call for examination in the light of Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government, however, had denied that this would be the position.
113. 296. In this connection the Government stated that " a non-registered employees' organisation under the Bill may equally present its demands to and negotiate with the authorities with a view to furthering and defending the interests of its members " (section 108-5 of the Bill). This was a categorical assurance and the Committee took formal note of it as such.
114. 297. The Government stated that the competent authorities are " required... to enter into negotiations, unless there are justifiable reasons to refuse so to do, with such a registered employees' organisation, when the latter has so proposed " and that " the authorities will, in principle, be willing to negotiate with the registered organisations. On the other hand, even non-registered organisations may negotiate."
115. 298. In these circumstances the Committee, having regard to the importance which it attaches to the right of negotiation of representative organisations, whether they are registered or not, decided to request the Government to state whether, in practice, the competent authorities negotiate with non-registered organisations and, if so, whether they negotiate with them on the same conditions as they do with registered organisations.
116. 299. In its communication dated 16 September 1961 the Government expresses the view that the legislation provided for in the Bill represents an adequate formula for ensuring the normal functioning of organisations and that an organisation formed by employees only may easily be registered on a voluntary basis. The Government declares that an existing rule of the National Personnel Authority, based on the law as it now stands, provides that negotiation shall be conducted only by the employees' organisations registered with the National Personnel Authority; under the Bill an employees' organisation may negotiate with the authorities whether it is registered or not and no prohibition is imposed on the authorities entering into negotiation with the employees' organisation; the provisions in the Bill concerning the procedure of negotiation will apply to negotiations by employees' organisations whether registered or not. The Bill, states the Government, provides no distinction between registered and non-registered employees' organisations either with regard to the situation in which employees' organisations may negotiate with the authorities or with regard to the conditions under which the employees' organisations negotiate in practice with the authorities.
117. 300. The Committee recommends the Governing Body to note that the provisions of the proposed Bill as explained by the Government would involve rescinding the present rule of the National Personnel Authority, which provides that negotiation shall be conducted only by the employees' organisations registered with the National Personnel Authority, and to request the Government to be good enough to keep the Governing Body informed as to action taken for this purpose.
118. Allegations relating to Acts of Anti-Union Discrimination (Japan Teachers' Union)
119. 301. In its communications dated 9 November and 8 December 1960 the Japan Teachers' Union points out that section 56 of the Local Public Service Law stipulates that local civil servants shall not be subjected to discriminatory treatment on the ground that they have joined a trade union or acted legitimately on behalf of the union and that, under section 8-1 (10), any person aggrieved may ask the Personnel Commission to review acts of discrimination and adopt necessary measures.
120. 302. Workers in private industry are protected under the Trade Union Law against (a) acts of anti-union discrimination in respect of employment, (b) refusal to bargain collectively and (c) interference by the employer in union management. The complainant declares that the Local Public Service Law (like the National Public Service Law) gives protection only against the first of these types of acts and that the Government, so far as local civil servants are concerned, is not implementing Articles 2 and 3 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan. The complainant alleges that the Government applies the term " public servants engaged in the administration of the State " (Article 6 of the said Convention) as including all public servants, including teachers, who have no connection whatsoever with the administration of the State.
121. 303. The complainant goes on to list a number of cases in which alleged acts of antiunion discrimination against individuals have taken place by reason of their membership in the Japan Teachers' Union. In particular they refer to acts in one prefecture connected with participation in the Ehime Research Conference, organised by the Prefectural Education Commission and having authority to appoint teachers and to pursue educational research. Teachers were to be asked by their headmasters to take part. It is alleged that the Ehime Prefectural Commission barred members of the Japan Teachers' Union from participating unless they first withdrew from the union. As evidence the complainant adduces statements as to their interviews with education authorities or headmasters made by Mr. S. Ishikawa (Vice-Chairman of the Niihama-Shi Teachers' Union), Mr. Y. Kitayama (teacher at Iwamatsu Secondary School) and Mr. T. Ogawa (teacher at Lekushi Elementary School). The complainant declares that the purpose of this was to replace the union by the Research Conference in the region concerned. At the same time, it is alleged, teachers were threatened with discrimination in respect of promotion unless they left the Japan Teachers' Union. As evidence of this the complainants adduce statements by Mr. Takatoshi Inoue (headmaster of Nakano Municipal Elementary School), Mr. T. Mizumoto (teacher), Mr. K. Yamaoka (teacher at Kawabe Secondary School), Mr. N. Hisai (teacher at Kawabe Elementary School) and Mr. S. Nishiyama (teacher at Sakao Elementary School). A further purported statement by Mr. Takeo Inoue, Chairman of the Executive Committee of the Ehime Prefectural Teachers' Union, lists cases of alleged discrimination against members and committee members of the union in respect of transfers to remote areas, discriminatory statements by members of the local governmental authority (for example that a certain teacher would make a good headmaster if he were not a member of the union executive); on the other hand, teachers who withdrew from the union under pressure, it is alleged, immediately received more favourable treatment in respect of salary increments. These examples of discrimination against the Japan Teachers' Union in one prefectural district, it is alleged, are repeated all over the country.
122. 304. According to the statement of Mr. Ishikawa, he and five other officials and executive members of the Niihama Teachers' Union held negotiations on 25 August 1960 with Mr. Ozaki, Guidance Chief of the Saijo Education Office. It is alleged that Mr. Ozaki declared that a portion of the government grant for education research had been allotted to the Ehime Prefecture but that the Niihama municipal authority would not allow any of the money to be used for members of the Japan Teachers' Union, but only for persons abiding by the ideas of the Ministry of Education. It is also alleged that at this interview Mr. Ozaki admitted having entertained three members of the union, Messrs. Kato, Shiraishi and Onishi, and having suggested to them that they leave the union because members of the union were excluded from the Ehime Educational Research Conference. According to the statement, the three members concerned then resigned from the union.
123. 305. According to the statement of Mr. Y. Kitayama, on 19 September 1960 at Iwamatsu Secondary School the headmaster, Mr. Nagaosa, declared that members of the Japan Teachers' Union would be excluded from the Ehime Conference and suggested that the teachers should not " fail to catch the bus ", meaning that they should resign from the union.
124. 306. According to the statement of Mr. Imura, on 17 September 1960 the headmaster of Hisara Elementary School, Mr. Yoshida, declared that the local education commission had forwarded to him a document stating that the educational research conference would not include members of the union.
125. 307. According to the statement of Mr. Ogawa, on 19 September 1960 the headmaster of Jekushi Elementary School, Mr. Fujiwara, declared at the school that he wished " non-union members " to participate in the Ehime Educational Research Conference but that " if one, already a union member wants to join it, he must retire from the union ". It is alleged that Mr. Fujiwara made this announcement at the request of the Chief of Education.
126. 308. According to the statement of Mr. Takatoshi Inoue, headmaster of Nakano Elementary School, one of the teachers at his school, Mr. Mizumoto, prior to his joining this school on 1 April 1959, had been warned twice in writing because of his participation in 1958 in " the united action " of the Japan Teachers' Union; nevertheless he received his annual increment on 1 April 1959, but the increment due on 1 April 1960 was delayed for three months. When Mr. Inoue asked the local education commission why this had been done, he says that he was told that it was probably because of the warnings and that he pointed out that these were matters outside the incremental period in question. Mr. Inoue declares that in the teachers' merit rating, which he himself conducted on 1 November 1959, Mr. Mizumoto scored good marks and was in the upper group of the teachers concerned, but that some teachers lower in the merit rating were given their increments on 1 April 1960 in preference to Mr. Mizumoto. Mr. Inoue considers that this was an illegitimate and unfair action placing pressure on Mr. Mizumoto because he was an active union member. Mr. Mizumoto confirms this statement and declares that another teacher who had also had two warnings like himself obtained his increment after resigning from the union.
127. 309. Mr. Takatoshi Inoue then refers to the case of another of his teachers, Mr. S. Yamaoka, who had also received warnings for his participation in the action taken by his union in 1958. He received his increment in 1959 but, on 18 October 1960, the date of Mr. Inoue's statement, he had still not received the increment for 1960. Mr. Inoue points out that in his case, also, teachers lower in the merit rating of 1 November 1959 received their increments in 1960. At this point Mr. Inoue confirms Mr. Mizumoto's statement as to another teacher who had also received warnings having been granted his increment following his resignation from the union.
128. 310. According to the statement of Mr. K. Yamaoka, teacher at Kawabe Secondary School (not the same person as the Mr. S. Yamaoka referred to in the preceding paragraph), Mr. Horio, the headmaster, told him on 22 June 1960 that he had been talking with the school inspectors, who had said that members of the union were regarded as hooligans. For 20 minutes, declares Mr. Yamaoka, the headmaster tried to persuade him to leave the union, after which he talked similarly to another teacher, Mr. Kawata.
129. 311. Mr. Hisai, also a teacher at Kawabe Secondary School, declares that about the end of August 1960 he was told of a remark by the Education Superintendent to the effect that funds had been appropriated to set up a kindergarten at the school because only a few of the teachers were members of the union and that " those affiliated to the union had better leave it at the earliest possible date ". A few days later, declares Mr. Hisai, his headmaster said to him: " Don't you think that it would be disadvantageous if you remain a union member ?... I will co-operate with you if you retire from the union. If you remain in the union it is likely you will be adversely treated in respect of personnel affairs and salary problems. I advise you to reconsider being a union member."
130. 312. According to the statement of Mr. Nishiyama, teacher at Sakao Elementary School, pressure was put upon him to resign from the Ehime Prefectural Teachers' Union (the section of the Japan Teachers' Union for the prefecture). He states that when he was teaching on 7 September 1960 he was called into another room, where he found Mr. Omori, Chief of Education, and Mr. Kamikubo, the Chairman of the Education Commission, who asked him if he had changed his mind about remaining in the union and said that " if there is a union member among the teachers it will hinder the administration of the school ". As he left he says that they told him that they " were waiting for his desirable answer" concerning his union membership.
131. 313. According to the statement by Mr. Takeo Inoue, Chairman of the Executive Committee of the Ehime Prefectural Teachers' Union, one section of the union in the prefecture, the Shuso Teachers' Union, played a leading part in the teachers' struggle in 1956 and 1957 against the institution of the teachers " merit rating " system. He alleges that the 15 teachers transferred outside the Shuso area on 1 April 1958 included Messrs. K. Ishimaru, H. Onoe, Y. Ochi, A. Tamai and T. Yamauchi, all five members of the union Executive Committee, Mr. S. Takahashi, former Chairman of the Prefectural Teachers' Union, Mr. K. Takahashi, former executive member, Mr. Y. Tamai, member of the union's propaganda division, Mr. H. Morimatsu, active member of the union's youth division, and Messrs. V. Suzuki and E. Betsumiya, who had refused to resign from the union, and Mr. K. Watanabe, Chairman of the Executive Committee. Mr. Inoue alleges that the members of the town education commission and two influential Liberal Democrat members of the Prefectural Assembly habitually made anti-union remarks-for example, that Mr. K. Watanabe " would make a good headmaster if he were not the Chairman of the Executive Committee " of the union. As a result, it is alleged, almost the whole executive of the Shuso Teachers' Union were transferred out of the district and the three executive members who were not moved out of the district-Messrs. Akikawa, Tan and Kondo-were moved to remote mountain areas within the district.
132. 314. Mr. Inoue states that the teachers at Dowa Elementary School and Dowa Secondary School were victimised as active union members who had taken a prominent part in resisting the merit rating system, all the six teachers at the secondary school being transferred on 1 April 1959 and all except one of those who were union members at the elementary school also being transferred. In another part of the prefecture, it is alleged, unfair personnel transfers caused nearly half the members of the Onsen Teachers' Union to resign from it in order to avoid adverse treatment.
133. 315. Mr. Inoue states that in the prefecture 3,070 teachers who were union members had their increments postponed because of their participation in their union's resistance to the merit rating system-916 of these being increments falling due on 1 April, a higher figure than for any other quarter-but that those who resigned from the union had the postponement of their increment cancelled, while some who resigned early were given a special increment; fear of adverse treatment caused the membership of the Ehime Prefectural Teachers' Union to fall steadily from 9,664 in 1957 to 4,259 in August 1960. He states that there are something like 10,000 teachers in all the Prefecture. The biggest monthly losses of membership, according to his figures, were 733 in April 1958, 910 in April 1959 and 665 in April 1960. The next largest figures were 436 in January 1959, 312 in January 1960, 300 in July 1959. In July 1958, the complainants state, there were only four withdrawals. Mr. Inoue tabulates his figures in accordance with the school year, beginning on 1 April and ending on the following 31 March.
134. 316. In its communication dated 24 January 1961 the Government comments on the allegation that local public servants do not have the same protection as do workers in private industry against acts of interference covered by Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and that they are not protected by any " machinery appropriate to national conditions " as defined in Article 3 of the Convention. The Government states that, " since it is inconceivable that local public entities should infringe, by acts of interference, the union's right to organise, which is guaranteed by the Constitution and the laws.... there is no institution to afford redress for unfair labour practices against the unions " like that established for workers in private industry. But, declares the Government, there are special provisions in section 56 of the Local Public Service Law and there is an appeal system (sections 49, 50 and 51) under which local public servants can request examination of cases of dismissal and other unfair treatment adverse to their interests.
135. 317. The Government argues that compulsory education which local authorities must establish is part of the administration of the State and that teachers in Japan, therefore, are " public servants engaged in the administration of the State " within the meaning of Article 6 of the said Convention No. 98.
136. 318. The Educational Research Conference in Ehime Prefecture, states the Government, is an organisation voluntarily established by headmasters and teachers " who seceded from " the Japan Teachers' Union for the purpose of conducting educational research activities. The Government denies that any pressure was put on teachers to force them to leave the union, stating that, although the Chairman and Superintendent of the Ehime Prefectural Board of Education " had most properly pointed out illegal conduct on the part of the Teachers' Union, they have never made malicious abuse whatsoever on the union ".
137. 319. In its communication dated 9 May 1961 the Government states that an inquiry by the Ehime Prefectural Board of Education revealed that there is no truth in the statements adduced by the complainants in order to show that pressure was brought on Mr. Kitayama and other persons named by the complainants to persuade them to leave the Japan Teachers' Union. Nor is it true, declares the Government, that teachers who left the union were given advantages.
138. 320. According to the procedure for the examination of alleged infringements of trade union rights the Committee has expressed the hope that, where precise allegations are made, governments will formulate for objective examination detailed factual replies to such detailed factual charges as may be put forward. In all cases in which the information supplied by governments to which complaints have been communicated appears to be inadequate or of too general a character, the Committee has followed the practice of requesting the government concerned to supply it with more detailed information in order to enable it to express a considered view to the Governing Body.
139. 321. In the present connection, the Committee observed at its meeting on 29 and 30 May 1961, the complainants had supported their allegations by purported detailed reports of conversations by eight different named persons, and according to each of these statements specific anti-union acts were committed. In reply the Government had made a general denial and stated that the Ehime Prefectural Board-precisely the employer involved in each case - made an inquiry which revealed that the statements were not true.
140. 322. In these circumstances the Committee decided to request the Government to furnish more detailed observations on the respective pieces of evidence adduced by the complainants in support of their allegations.
141. 323. In its communication dated 3 October 1961 the Government, after referring to the powers of the Personnel Commissions in the Prefectures to give binding decisions in cases in which an employee alleges adverse treatment (see paragraphs 246 and 263 above), declares that, since the Committee submitted its 54th Report to the Governing Body, the Japan Teachers' Union has been representing the findings in that report as being adverse to the Government. Then the Government proceeds to comment on the situation in the Ehime Prefecture and on the specific alleged cases of anti-union discrimination concerning which further information was requested by the Committee.
142. 324. The Government declares that in August 1961 the Minister of Education sent two officials to Ehime Prefecture to investigate the matters raised in the complaint. Their findings were to the effect that the Education Research Conference in Ehime Prefecture was an " organisation freely conceived and formed for the purpose of educational research on the initiative of the school principals and teachers who had withdrawn from the Japan Teachers' Union " because they disagreed with its policy and activities; that " the members of the Japan Teachers' Union were not allowed to take part in the Conference in the light of the purpose of the setting up of the Conference "; that no education authority in the prefecture ever forced or urged teachers to leave their union; that neither favourable nor unfavourable treatment was ever given in respect of rises in salary or transfer for the reason that any person was or was not a member of the union.
143. 325. With regard to the statement of Mr. Ishikawa (see paragraph 304 above), the Government states that the six members of the executive of the Niihama Teachers' Union did not negotiate with Mr. Ozaki, the Guidance Chief of the Saijo Education Office, but that they visited him at his home and " merely had some conversations with him ". The Government denies the allegation that government grants of financial aid for educational research benefit only those who support the ideas of the Ministry of Education, and states that the grants are made to educational research organisations whether their membership comprises members of teachers' unions or not. The Government admits that Mr. Ozaki had dinner with the three teachers named by Mr. Ishikawa, but states that this was a reunion of old friends and was not a meeting to instigate secession from the union.
144. 326. With regard to the statement of Mr. Kitayama (see paragraph 305 above), the Government denies that the headmaster ever made the remark attributed to him by the complainants.
145. 327. With regard to the statement of Mr. Imura (see paragraph 306 above), the Government declares that the document mentioned was issued by the Ehime Research Conference itself and not by the Education Commission; the Ehime Research Conference is " not a public establishment but an autonomous body of teachers ".
146. 328. With regard to the statement of Mr. Ogawa (see paragraph 307 above), the Government denies that Mr. Fujiwara, the headmaster, invited teachers to participate in the Ehime Research Conference at the request of the education authority, and states that what he did was to " express his mere wish to teachers to consider possible participation " each person being " free to decide whether he or she should participate or not ".
147. 329. With regard to the statement of Mr. Takatoshi Inoue concerning Mr. Mizumoto and Mr. S. Yamaoka (see paragraphs 308 and 309 above), the Government declares that the allegation that the delay in their increments was discriminatory because of their union membership is " based on certain prejudice ". The reason, states the Government, was that the Prefectural Board of Education could not recognise their service as " good ", having regard both to their merit assessment and to the warnings they had received. The teacher alleged to have been given his increment because he seceded from the union is a headmaster. He was given his increment, declares the Government, because his merit assessment and his services were good; the statement that it was because he left the union is " a dogmatism tinctured with prejudice ".
148. 330. With regard to the statement of Mr. K. Yamaoka (see paragraph 310 above), the Government states that the headmaster, Mr. Horio, did talk with the two teachers concerned " about the present state of the union " but that " at that time he never invited them to secede from the union ". The Government states that the allegation that the school inspectors spoke ill of the union in an effort to bring about withdrawal from union membership " is dogmatic ".
149. 331. With regard to the statement of Mr. Hisai (see paragraph 311 above), the Government declares that no remark was ever made about the question of union membership in relation to the allocation of a subsidy for a kindergarten and that the headmaster never made to Mr. Hisai the remarks alleged. The Government adds: " It is true that Principal Yamanoichi talked to Mr. Hisai two or three times, each for ten minutes or so, saying that for the smooth operation of the school it was necessary to create an atmosphere in which all the teachers of the school, irrespective of being members or non-members of the union, could exchange opinions freely and frankly. But he had never instigated the secession from the union, suggesting the advantages and disadvantages mentioned in the statement."
150. 332. With regard to the statement of Mr. Nishiyama (see paragraph 312 above), the Government declares that the allegation that he was urged to leave the union is " a distortion of the facts ". The Government says that on the day in question the teachers held a small been party; in the course of this, Mr. Nishiyama was asked by the Chairman of the Board of Education " about the atmosphere of the teachers' room " but that he was never invited to leave the union. The Government claims that this is confirmed by other teachers who were there at the time.
151. 333. The Government then comments on the statements made by Mr. Takeo Inoue (see paragraphs 313 to 315 above).
152. 334. The Government states that 16 teachers were transferred to schools outside the Shuso District of Ehime Prefecture on 1 April 1958, including " the executive members of the Shuso Teachers' Union as listed " by the complainants; they were not transferred because they were union officers or active members but " as part of the normal personnel reshuffling designed for better educational effects with due regard to the evaluation of the individual records of service". Ten teachers listed in the statement appealed on the ground of adverse treatment to the Ehime Prefectural Personnel Commission on 9 May 1958; when the Commission had pronounced the transfer legitimate in three of the cases, the other seven persons withdrew their appeals. The ten teachers then began proceedings in the District Court on 7 June 1958, but " withdrew the case of their own accord on 19 March 1959 during the course of the hearing ". One person mentioned, Mr. S. Takahashi, was transferred, according to the Government, at his own request.
153. 335. With regard to the transfer of teachers at the two Nuwa schools (" Dowa " is not correct, states the Government), it is denied that union membership was the reason. The Government says that the teachers concerned committed " law-defying and subversive acts ", so that the villagers of Nuwa asked the Board of Education to send them away. Three of those concerned appealed to the Personnel Commission but withdrew their appeals.
154. 336. With regard to the contention that persons resigning from the union were favourably treated in respect of salary increments, the Government states that 3,775 teachers in the Prefecture became the subject of formal disciplinary action or informal warnings because of their participation in their union's illegal acts of dispute in opposition to the merit rating system; as a punishment, increments were postponed. No discrimination was made, declares the Government, between members and non-members of the union. The Government denies that postponement of increment was revoked in the case of teachers who left the union and states that the allegation as to special increments being given to those who resigned early " is an intended distortion of fact ". According to the applicable regulations, declares the Government, special increments are granted to a prescribed percentage of employees whose records are especially good; hence, there is " no discrimination between members and non-members of the union. It is a matter of course that those who committed illegal acts should not benefit by the special salary increment. The statements that those who remained in the union received unfavourable treatment and that the Prefectural Board of Education and the municipal boards were inviting union members to leave the union by giving them favourable treatment in regard to their salary increments and transfer of post are not true. These statements were made by strongly preconceived prejudice."
155. 337. Finally, the Government agrees that the membership of the Ehime Prefectural Teachers' Union has been decreasing yearly since 1958, but gives as the reason for this dissatisfaction among teachers because of the " law-defying and radical campaign policy of the Japan Teachers' Union ". Some members left the Ehime Union in July 1958, says the Government, because the union tended to hinder attendance at a summer course sponsored by Ehime Board of Education. The Government described this withdrawal as " the first case ". Then, says the Government, a large number of members left the union in protest against its " illegal united action against the merit rating system " on 15 September 1958. " It is erroneous," concludes the Government, " to state that the decrease was brought about by the employer's effort to disrupt the union."
156. 338. The Committee now has before it a considerable amount of detailed evidence, but a few points which are of crucial importance, especially having regard to Japan's ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), are not entirely clear. In particular, it would appear that an association or body called the " Ehime Educational Research Conference " was set up at some period in the years 1956 to 1958. According to the complainants the Conference was organised by the Prefectural Education Commission " to replace the union " and has authority to appoint teachers and to pursue educational research. According to the Government the Conference is " an organisation voluntarily established by headmasters and teachers who seceded from the Japan Teachers' Union for the purpose of conducting educational research activities ". The complainants and the Government (see paragraph 324 above) both say that members of the Japan Teachers' Union are excluded from the Conference, although they disagree as to the motives for this. The complainants allege that financial aid has been given by the central and/or prefectural education authorities to the Conference; the Government states that grants of financial aid are made to educational research organisations whether their membership includes members of teachers' unions or not.
157. 339. If indeed it is true that the Ehime Educational Research Conference is purely a body for educational research, founded because its members disagreed with the educational policy of the Japan Teachers' Union, there would not appear to be any ground for objection to it. In this connection the Committee considers that it would be desirable for it to have before it more definite information as to the structure, aims and functioning of the Ehime Educational Research Conference. The Committee, therefore, requests the Government to be good enough to state: (a) whether the Ehime Educational Research Conference is purely a body for the conduct of educational research or whether it is an organisation representing the occupational interests of its members vis-à-vis the authorities; (b) what is the nature of the contact or relations between the Conference and the Ehime education authorities and, especially, how far has it been assisted financially by those authorities or by the Government; and (e) whether the Conference has the power to appoint teachers as alleged. Further, the Committee requests the Government to furnish details as to the contents of the Constitution and rules of the Ehime Educational Research Conference.
158. 340. The Committee has always attached the greatest importance to the principle, embodied in Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan, that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. Having regard to the fact that this is the essential principle brought into question in the present allegations relating to members of the Ehime Prefectural Teachers' Union, a number of points would seem to call for further clarification.
159. 341. According to Mr. Inoue, the chairman of this union, the threat of disadvantageous treatment in respect of increments or adverse transfers or other prejudicial treatment caused the union to lose almost 60 per cent of its membership, the figure falling from 9,664 in 1957 to 4,259 in August 1960. Of the 5,405 members thus lost, it is alleged, 2,308 were lost in three months alone-April 1958, April 1959, April 1960; all the allegations relating to adverse transfers of personnel name 1 April, the opening date of the school year, as the effective date of such transfers, while 1 April is also alleged to have been the quarterly date on which the highest number of increments were postponed (see paragraph 315 above). In reply the Government denies that threats of disadvantageous treatment caused members to leave the union, stating that no such threats were ever made. The Government declares that members have left the union because they disagreed with its policies, citing certain resignations in July 1958 and larger secessions following the action taken by the union on 15 September 1958.
160. 342. In these circumstances the Committee requests the Government to state whether it accepts the figures given by Mr. Inoue as substantially correct, and, if so, whether it can suggest any explanation for the very high losses of members suffered each April by contrast with other months of the year; further, as it would appear that the union lost more than half the membership in three years, the Committee requests the Government to state which trade union is recognised at the present time by the Ehime prefectural education authorities as the trade union representing the occupational interests of the teachers vis-à-vis those authorities.
161. Allegations relating to Interference with the N. R. W. U and with the Adhesion of Workers to It
162. 343. The N.R.W.U, in its communication dated 20 February 1961, alleges that the management of the Japanese National Railways interferes with the right to organise in the following ways: (a) persuasion (through immediate supervisors) of workers to defect from the union and/or to join the splinter unions formed during the period when the management refused to bargain with the N.R.W.U, accompanied by promises of personal gain or threats of disadvantageous treatment; (b) interference through immediate supervisors with the workers' choice of officers when elections are held; (c) restrictions placed by supervisors on activities of N.R.W.U units; (d) consideration of a worker's loyalty to the N.R.W.U policy as a factor against him when compiling his merit rating; (e) discrimination against those who take part in N.R.W.U activities and favouritism towards those who do not take part.
163. 344. The complainant furnishes a number of examples of alleged interference.
164. 345. During managerial courses organised in the Kanayawa Railway Operating Division, it is alleged, the lecturers have criticised the union and stigmatised certain leaders as Communists.
165. 346. It is alleged that, in connection with a union election on 8 September 1959, a general meeting of the complainant's Fukui Branch was held and that an assistant stationmaster, Mr. Shago, used his official position to canvass on behalf of a Mr. Sada Kato, a known anti-unionist.
166. 347. Mr. S. Tokinda, assistant stationmaster at Kanayawa Station, it is alleged, entertained with food and drink some 40 assistant stationmasters and chief officers of the workshops, criticised the N.R.W.U, and persuaded them to appoint a preparatory committee for a new union of employees at the station. The complainant states that this meeting was called ostensibly to discuss services to passengers and an excursion trip but that these matters were not discussed at all.
167. 348. It is alleged that Mr. H. Iwakawa, stationmaster at Naoetsu and not a union member, assembled his staff on 29 February 1960 and delivered an address to them, in the course of which he made it understood that the fact that 30 officers of the complainant union were among the employees at the station would be borne in mind in connection with the merit ratings that were being made. On 9 March 1960, it is alleged, a supervisor at the station ordered union notices to be removed from the notice board; the assistant stationmaster, Mr. K. Ichimura, caused the complainant union's notice board to be removed from the place it had occupied since 1955 by members of a new regional union sponsored by the authorities. On 10 March 1960, it is alleged, Mr. Iwakawa told the complaining union's branch secretary not to collect union dues in the offices in future.
168. 349. On 11 March 1960, it is alleged, Mr. Y. Ogiwara, a vice-chairman of the rival union sponsored by the authorities at Naoetsu, called on Mr. Takenouchi, a member of the N.R.W.U, and told him that Mr. Ichimura, the assistant stationmaster, was worried about his allegiance to the N.R.W.U, reminded him of the promotions he had had and thus persuaded him to sign a membership form of the rival regional union, after which, on 20 March 1960, Mr. Ichimura said to Mr. Takenouchi: " I am very glad that you have made such a good decision i did not care what you did while you belonged to the N.R.W.U but, as you have joined the new regional union, I hope you will do your best without any worry."
169. 350. A conference of members of the new regional union at Naoetsu Station was held on 16 and 17 March 1960. It is alleged that the vice-chairman then said: " One who, having once joined the new regional union, returns to the N.R.W.U, will be adversely treated and would be unable to return in the employment of the National Railway. It is not I but the railway authorities who say this."
170. 351. On 3 March 1960, it is alleged, Mr. Y. Sugimoto, assistant stationmaster at Arai Station, spoke to two members of the N.R.W.U, Mr. E. Kakinoki and Mr. H. Karasawa, and told them to leave the N.R.W.U and join the rival regional union; as a result the two members and two other members of the N.R.W.U joined the regional union. Because the regional union did not protect their interests, it is alleged, Mr. Kakinoki and some others rejoined the N.R.W.U on 31 May 1960, and, on 10 August 1960, these persons were the only ones who did not receive an increment, although they were qualified for it. On 27 August, declares the complainant, Mr. N. Ozaki, the stationmaster, told them that they were being penalised for having returned to the N.R.W.U and that he had been blamed by the authorities for not preventing their return, adding: " It is the policy of the railway authority to crush the N.R.W.U and to have the second union alone."
171. 352. In its communication dated 1 May 1961 the Government cites the prospectuses of certain new unions in 1957 as evidence that they were formed voluntarily and, in general terms, denies interference with members of the N.R.W.U. The Government considers that the right of the workers or unions concerned to apply for remedy to the Public Corporation and National Enterprise Labour Relations Commission in the event of unfair labour practices of the kind referred to in Article 2 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the power of the Commission-for this purpose, consisting only of its " neutral public-interest " members-to order remedial action, ensure full protection. Of 18 cases of this kind submitted to the Commission so far, declares the Government, one was rejected, one was the subject of a remedial order and 16 were withdrawn by the applicants.
172. 353. At its meeting on 29 and 30 May 1961 the Committee noted that, in its reply, the Government confined itself to a general denial of the matters alleged and explained that, in the event of such interference as alleged, a remedy exists by way of application to the Public Corporation and National Enterprise Labour Relations Commission, this remedy having been pursued on a number of occasions. Observing that the complainants had submitted detailed allegations as to the conduct of a Mr. Shago in connection with a union election, as to actions by a Mr. S. Tokinda, by a number of officials at Naoetsu and by persons under their orders and by officials at Arai Station, the Committee decided to request the Government to furnish further observations on the matters raised in these allegations.
173. 354. The Government comments further on these allegations in its communication dated 16 September 1961, stating that the Japanese National Railways had made an investigation.
174. 355. With regard to the case of a union election (see paragraph 346 above), the Government states that an assistant stationmaster at Fukui Station, Mr. Takahashi, heard someone say at the station that one of his subordinates, Mr. Kato, was standing for a union election, and that he replied something like " Please be good to him ". The Government denies that he was canvassing or interfering in the election. No reference is made by the Government to Mr. Shago or to the union meeting mentioned by the complainants.
175. 356. With regard to the allegations relating to Mr. S. Tokuda (not Mr. S. Tokinda) (see paragraph 347 above), the Government gives the following account. Mr. Tokuda arranged a social gathering-a common custom in the cherry-flower season-attended by about 40 higher-grade employees of the station, who shared the expenses between them. This gathering was named, for convenience, " Meeting to Discuss Promotion of Passenger Service ". The Government denies that the purpose of the meeting was to establish a new union; Mr. Tokuda referred to the importance of closer co-ordination among assistant stationmasters and supervisors, but made no remarks constituting an interference with union activities. The Government states that neither Mr. Tokuda nor any of the " management side " at the station had any knowledge of the Constitution of a preparatory committee for a new union as alleged.
176. 357. With regard to the address by Mr. Iwakawa, stationmaster at Naoetsu (see paragraph 348 above), the Government cites the address which he delivered following his appointment. According to the version here given, he made various remarks as to the need for a sense of responsibility and made it clear that he would not tolerate anything contrary to laws and regulations or disobedience to orders; then he stated that he would evaluate the work of his supervisory staff of 30 and that they would prepare the merit rating of the men working under them.
177. 358. With regard to the case of the union notice board (see paragraph 348 above), the Government states that the Railway Workers' Union had moved its notice board in 1955 from the place where it had been authorised to put it to another unauthorised place; and that Mr. Iwakawa caused it to be put back in its original place. The Government states that on the opposite side of the corridor where the board was newly set up there is the notice board of the Niigata Regional Union, but that no discrimination is made between the two unions.
178. 359. On 4 June 1954 the management discontinued the practice of checking-off union dues. The Railway Workers' Union, according to the Government, began to collect union dues on pay days on the station premises and in working hours and this was stopped; the rival union is treated in the same way.
179. 360. With regard to the case of Mr. Takenouchi (see paragraph 349 above), the Government denies responsibility for any conversation between him and Mr. Ogiwara, and states that Mr. Ichimura never made the remarks alleged. Mr. Ichimura did call at Mr. Takenouchi's home and talk with him but not, says the Government, " about union problems."
180. 361. The Government says that the management had nothing to do with anything said by Mr. Ogiwara at a union meeting (see paragraph 350 above), and did not tell him what he should say, as alleged.
181. 362. With regard to the allegations as to events at Arai Station (see paragraph 351 above), the Government denies that assistant stationmaster Y. Sugimoto persuaded members of the Railway Workers' Union to leave it and join the new union and states that the management had nothing to do with the transfer of Messrs. Kakinoki and Karasawa to the new rival union or with their subsequent return to their old union. It is admitted that Mr. Kakinoki did not get his pay increase, but the Government states that this was due to defects in his work and that stationmaster Ozaki did not make the remarks alleged.
182. 363. In conclusion the Government denies that the management of the National Railways ever interfered with or discriminated against the N.R.W.U or discriminated against it with a view to assisting the development of the second union.
183. 364. The Government declares that all the cases listed by the N.R.W.U are at present being examined by the Public Corporation and National Enterprise Labour Relations Commission.
184. 365. In these circumstances the Committee, assuming that the Commission is fully apprised of the guarantees provided for in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Japan, requests the Government to be good enough to furnish detailed information concerning the findings of the Commission with regard to these cases, together with the reasons on which such findings are based.
185. Allegations relating to Matters Covered by the Negotiating Rights of Organisations of Civil Servants
186. 366. The Congress of Government Employees' Union contends that the current refusal of the Government to allow the " appointment or dismissal of any individual " to be the subject of negotiation is incompatible with Article 11 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in the light of the Observation concerning Denmark made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations in 1957.
187. 367. In its communication dated 9 May 1961 the Government states that it does not fully understand to what the complainants refer when they criticise the Government's attitude concerning the " appointment and dismissal of individuals ", but that no provision in the pending Bill to amend the National Public Service Law " prohibits entirely negotiations concerning appointment and dismissal ".
188. 368. In its observation relating to Denmark referred to above, the Committee of Experts on the Application of Conventions and Recommendations stated that it had " been obliged to consider to what extent the fact that even recognised organisations may not negotiate on the appointment or dismissal of any individual may result, especially in the case of dismissal in considerably restricting the exercise of the right to organise " (Article 11 of the said Convention), " since the very purpose of occupational organisations is to be able to defend the interests of their members ". In 1958, after having received further information from the Government of Denmark, the Committee of Experts observed that " any decision concerning transfer, demotion or disciplinary dismissal may be taken only after consultation with the recognised organisation (section 18, paragraph 6, of Act No. 301 of 1946).
189. 369. At its meeting on 29 and 30 May 1961 the Committee observed that the Government had stated that nothing in the amending legislation would prohibit the right to negotiate on such matters. As the allegation related, however, to a matter of current practice, the Committee decided to request the Government to furnish its observations on the allegation that it is the current practice of the Government to refuse to allow " the appointment or dismissal of any individual" to be the subject of negotiation with the employees' organisation.
190. 370. In its communication dated 16 September 1961 the Government declared that, under the existing law, negotiation is permitted with respect to the " appointment or dismissal of any individual when the matter is related to the working conditions of the employers ". In practice, declares the Government, such negotiation is taking place; but there cannot be negotiation with respect to disciplinary dismissal, by virtue of rule 14-0 of the National Personnel Authority that " negotiation shall not include disciplinary matters " (under the Bill, says the Government, " it is contemplated not to enact such provision "). The Government considers that employers are protected against unjustifiable disciplinary action, however, because the grounds for, and procedure and effect of, disciplinary action are prescribed by the National Public Service Law or by the rules of the National Personnel Authority. Further, if an employee considers that he has been adversely treated, he can appeal for review to the National Personnel Authority in accordance with the said law. In case of disciplinary action alleged to have been taken on the ground of having engaged in unlawful or improper union activity, the employee concerned may be represented " in practice ", when he defends himself against the action " in the hearings ", by a representative of the employees' organisation.
191. 371. It would appear that, under existing law and practice, negotiation may not take place with respect to disciplinary action against an employee, including dismissal, but that under the Bill to amend the National Public Service Law it is not intended to " enact such provision ". The existing situation, however, appears to be governed by the rule of the National Personnel Authority, rather than by statute.
192. 372. In these circumstances the Committee requests the Government to state whether, on the basis of the foregoing, the Committee is correct in interpreting the information now given by the Government as meaning that, when the Bill to amend the National Public Service Law is enacted, matters relating to disciplinary dismissal and other disciplinary action will, in law and in practice, become the subject of negotiation, and that, accordingly, rule 14-0 of the National Personnel Authority will be rescinded.
193. Allegations relating to the Registration of Organisations under the Local Public Service Law
194. 373. It is alleged by the All-Japan Prefectural and Municipal Workers' Union, in its complaint dated 10 June 1961, that trade union rights are infringed by the text and the application of the provisions of the Local Public Service Law.
195. 374. Under section 53 of the Local Public Service Law, declares the complainant, only the registered trade union may negotiate with the authorities of the local public body, acquire legal personality, have as full-time officers employees retaining their service status and have established by agreement the check-off of union dues. The complainant alleges that no room is left for any non-registered personnel organisation to carry on its activities, that an administrative agency decides as to acceptance, rejection or cancellation of registration without intervention by the courts and that where the employer (the local public body) has not set up a Personnel Commission, it is the head of the local public body himself who performs the above functions. This system, according to the complainant, is incompatible with the right of workers to set up organisations without previous authorisation and with the principle that organisation shall not be liable to be dissolved or suspended by administrative authority. The complainant goes on to cite a number of alleged cases in which the rights of unions of local government employees (sections or affiliates of the complaining organisation) have been infringed.
196. 375. The complainant states that on 18 August 1959 the Amagasaki Municipal Employees' Union revised its Constitution, in accordance with the provisions thereof, by direct secret ballot of the members. The main change made was to make membership open to all workers employed by the Amagasaki municipal government, whereas the previous Constitution had limited membership to the " regular service personnel " specified by section 3 of the Local Public Service Law. As a result the union set up four constituent branches with autonomous activities. Notice of changes in the previously registered particulars was filed on 23 August 1959 with the Mayor of the city according to law, there being no Personnel Commission. The same day, it is alleged, the municipal government refused to approve registration of the changes, on the ground that they would make the organisation cease to be a " personnel organisation " within the terms of section 52 of the Local Public Service Law because it proposed to admit to membership persons other than the employed personnel of the municipality. The complainant states that a compromise was reached on this aspect of the matter but that interference also took place with regard to the election of the officers of the union. According to the complainant, the Amagasaki union submitted notice of changes of officers to the municipal authority following the election, which the authorities refused to accept, on the ground that section 53 (3) of the Local Public Service Law stipulates that the election of union officers shall be in accordance with a procedure providing for " a majority vote of all members ", whereas the authorities would not accept the results notified on the ground that election by " a majority of the voters " did not satisfy the law.
197. 376. In the case of the Saijo Municipal Office Employees' Union, the union's Constitution provided that all elections should be conducted at the union Convention by direct secret ballot of the members but that no such election should be conducted if the number of candidates equalled the quorum of officers. The municipal authority, declares the complainant, refused to register the union because the latter provision in its Constitution infringed section 53 (3) of the Local Public Service Law.
198. 377. In 1959, it is alleged, the Federation of Tokushima Municipal Office Employees' Unions decided to apply to register the federation, comprising the unit organisation established solely by the general administrative service personnel (covered by the Local Public Service Law) and the unit organisation established solely by the industrial service personnel (covered by the Local Public Enterprise Labour Relations Law). The municipal authority refused registration on the ground that section 52 (2) of the Local Public Service Law permits federation only where all the organisations federating are covered by that Law alone.
199. 378. The All-Japan Prefectural and Municipal Workers' Union alleges that, itself, it has not been regarded as eligible for registration under the law and thus has no right to negotiate with the respective public bodies and cannot acquire legal personality.
200. 379. The complainant then goes on to cite the proposed amendments to the Local Public Service Law which were submitted on 25 March 1961 to the National Diet, as part of the legislative programme in connection with the proposal to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In the view of the complainant the pending Bill would substantially perpetuate the existing registration system, the only real changes being to provide that registration of a personnel organisation might not be denied on the ground that it had as officers persons other than those employed in the personnel service, and that persons who are dismissed may continue their membership for not more than one year.
201. 380. In its communication dated 2 October 1961 the Government points out that the local public service system is, subject to the general standards laid down by the provisions of the Local Public Service Law, governed by the separate by-laws issued by each respective local public body. Only the primary employees' organisations formed solely by the employees of the local public body concerned, to whom the Local Public Service Law and the local by-laws apply, or only federations of such primary organisations, " may be registered under the law, negotiate with the competent authorities on working conditions and conclude an agreement in writing ", such an agreement however, does not constitute a collective agreement within the meaning of the Trade Union Law. Thus, organisations formed under the Local Public Service Law are in quite a different position from those formed within the Local Public Enterprise Labour Relations Law. The All-Japan Prefectural and Municipal Workers' Union is " neither a primary employees' organisation nor a federation of these organisations under the Local Public Service Law, but is merely a de facto national federation comprising, together with the said employees' organisations and federations, trade unions formed by the employees of the local public enterprises under the Local Public Enterprise Labour Relations Law ". With respect to the proposal to amend these two laws on the same principles as underlie the proposals to amend the National Public Service Law and the Public Corporation and National Enterprise Labour Relations Law and to the powers of Personnel Commissions, the Government refers to the earlier observations which came before the Committee at its last session. Certain other matters adduced in the appendices to the complaint will be the subject of observations at a later date.
202. 381. The Government then comments on the allegations made with regard to the registration system under the existing Local Public Service Law (see paragraph 374 above) and to the cases raised with reference to specific organisations (see paragraphs 375 to 377 above).
203. 382. At the present time, states the Government, only an employees' organisation formed solely of employees of the local public body within the terms of the Local Public Service Law can register under the Law (with the Personnel Commission (or the head of the municipal body, where there is no Commission)), and such registered organisations or federations may negotiate on working conditions. Under the Bill to amend this Law an organisation will be able to negotiate whether it is registered or not and " no prohibition is placed on the authorities entering into negotiations with the employees' organisation when it has so proposed ". But then the Government states that the registration system is designed to establish normal labour-management relations " by adopting the principle that the authorities will be willing to negotiate with the registered organisations " and that all this was made clear in its earlier observations on the complaint of the Japanese Congress of Government Employees' Unions. Under the Bill to amend the Local Public Service Law, declares the Government, the legal personality granted to employees' organisations only when they are registered will not affect the existence and activity of the employees' organisations, cancellation of registration will not mean the dissolution of a legal person and the effecting or cancellation of registration will be the responsibility of the Personnel Commission or, alternatively, of the Equity Commission, described by the Government as a " third-party body independent of the head of the local public body " (the latter will therefore no longer have the functions in this respect that he has at present); there will be a right of appeal to the courts from decisions of the Personnel Commission or Equity Commission concerning questions of registration.
204. 383. Finally, the Government states that the decisions of the authorities regarding the organisations mentioned in paragraphs 375 to 377 above were consistent with the existing law and that the All-Japan Prefectural and Municipal Workers' Union cannot become a registered organisation under the existing law.
205. 384. When the Committee considered the allegations made with respect to the National Public Service Law and the proposals to amend that Law (see paragraphs 268 to 300 above), it confined its substantial examination to certain of the more fundamental points involved, as the amending Bill might be modified in the course of its consideration by the Diet, preferring to await the final outcome before formulating further conclusions. As the Government has stated that the Local Public Service Law is to be amended on the basis of principles similar to those taken into account in respect of the amendments to the National Public Service Law, the Committee, in the present case also, has considered only certain points which, it suggests, the Government might wish to bear in mind when the Local Public Service Law is being amended.
206. 385. With regard to registration of organisations, the Committee observes that one provision in the existing law which would appear to be clearly incompatible with the autonomy of workers' organisations-registration, in the absence of a Personnel Commission, by the head of the local public body which is the employer-is, according to the Government, to be repealed by the amending legislation, so that matters relating to registration will be the responsibility of the Personnel Commission or of another body, the Equity Commission, subject to an appeal to the courts. As the Commissions are, nevertheless, appointed by the local public body, the Committee suggests to the Government, having regard also to the observations made by the Committee with regard to Personnel Commissions in paragraph 267 (c) above and to the fact that Personnel Commissions already discharge a number of functions with regard, inter alia, to the making of recommendations concerning conditions of employment, that it may care to envisage the establishment of a system of registration by a registrar or other agency entirely independent of the Commission and of the local authorities and whose decisions would be subject to a right of appeal to the courts.
207. 386. The second point of which the Committee has considered it appropriate to take account at the present juncture is the fact that, as revealed by the specific cases mentioned in paragraphs 375 to 377 above and by the Government's reply, one of the conditions attached to the registration of a local public employees' union is that the election of its officers requires a majority vote of all the members and not merely a majority of those casting votes. The Government considers this to be a correct interpretation of the words " the personnel organisations must establish the procedures by a majority vote of all members through direct secret ballot in which all personnel who are constituent members shall have equal opportunity to participate " contained in section 53 (3) of the Local Public Service Law. It would seem that national public servants are covered by a similar provision in the rules of the National Personnel Authority. The law and practice of a number of countries require absolute majorities of a union's membership - at least on a first ballot - for certain matters which affect the basic existence of a union (changes of Constitution or objects, winding-up, seeking of voluntary registration, etc.), but it is not the normal practice to require such majorities in the case of matters relating to ordinary functioning of a union (election of officers, adoption of accounts, etc.). In such cases it is the normally accepted principle that, provided all the members in good standing are enabled freely to exercise their right to vote, a simple majority of the votes cast shall, subject to any contrary rule voluntarily adopted by the union itself, suffice for the valid election of union officers. Indeed, any departure from this principle would mean that, in the absence of a system of compulsory voting, a union's activities would be paralysed unless an exceptionally high vote were cast on every occasion in order to enable its officers to be elected, a situation in which, the Committee considers, the law of the land would be such as to impair the right of organisations to elect their officers and to organise their administration in full freedom. It is to be observed in this connection that no such requirement appears to be imposed under the Trade Union Law, the National Corporation and Public Enterprise Labour Relations Law and the Local Public Enterprise Labour Relations Law, thus giving effect to the generally accepted principle that it should be left to the workers' organisations themselves to make provision, in their rules, as to the majority of votes requisite for election to union office.
208. 387. A third point has been mentioned by both the complainant and the Government that the existing law prevents the registration of the All-Japan Prefectural and Municipal Workers' Union and that this organisation cannot negotiate directly with the prefectural or municipal authorities. In this connection the Committee recalls that, when it examined allegations concerning another union in a similar situation - the Japan Teachers' Union - it recommended the Governing Body, in paragraph 157 of its 54th Report, to express the view that, while the employing local authorities have the right to decide whether they will negotiate at the regional or national level on their side, the workers, whether negotiating at the regional or national level, should be entitled to choose as they wish the organisation which shall represent them in the negotiations.
209. 388. In these circumstances the Committee recommends the Governing Body:
210. (a) to suggest to the Government that it may care to envisage the establishment of a system of registration of local public employees' organisations by a registrar or other agency entirely independent of the Personnel Commissions and of the local authorities and whose decisions would be subject to a right of appeal to the courts;
211. (b) to remind the Government that it is the generally accepted principle that it should be left to the workers' organisations themselves to make provision, in their rules, as to the majority of votes requisite for election to union office;
212. (c) to reaffirm its view that, while the employing local authorities have the right to decide whether they will negotiate at the regional or national level on their side, the workers, whether negotiating at the regional or national level, must be entitled to choose as they wish the organisation which shall represent them in the negotiations;
213. (d) to express the hope that the Government will take into account the observations made in subparagraphs (a), (b) and (c) above in connection with the proposed amendment of the Local Public Service Law and, so far as applicable, of the National Public Service Law, and to adjourn further examination of these particular allegations for the moment.
214. Allegations relating to Restriction of the Scope of Organisations
215. 389. The All-Japan Prefectural and Municipal Workers' Union alleges that the employees of local public bodies covered respectively by the Local Public Service Law, the Local Public Enterprise Labour Relations Law and the Law for Educational Personnel are required to form separate employees' organisations or trade unions, those covered by the Local Public Enterprise Labour Relations Law being further divided into two groups for the purpose of the right to organise-" personnel " and " persons employed for simple labour ". At the same time " technical and supervisory personnel and others engaged in administrative duty " may not join the unions of other " personnel " or " persons employed for simple labour ". The consequence of the dual system of vertical and horizontal subdivision, declares the complainant, is to reduce the unit organisations to a very small size; the only larger organisation they can form is the " virtual " federation, but the latter cannot negotiate or acquire legal personality. The complainant contends that these restrictions will be maintained under the legislative amendments which are envisaged.
216. 390. The complainant refers to the case of the Industrial Council of Ooita Prefectural Government Workers' Unions. This organisation was set up by industrial public service personnel who are covered (by virtue of section 57 of the Local Public Service Law) by the Local Public Enterprise Labour Relations Law, within the jurisdiction of the Ooita Prefectural Government Workers' Union, affiliated with the complainant organisation. In 1960 the Industrial Council, it is alleged, was subjected to interference by the employers with regard to the election of its officers and, when it appealed to the Local Labour Relations Commission for a remedy, its appeal was not regarded as receivable until it had made certain revisions to its Constitution.
217. 391. The complainant then refers to the case of the Iwate Prefectural Government Medical Employees' Union-an organisation covered by the Local Public Enterprise Labour Relations Law and open to all the employees of the 30 hospitals in Iwate Prefecture. In 1959, it is alleged, the Prefectural Government revised the relevant by-law to change the scope of the employees ineligible for union membership as coming under the heading of managerial or supervisory " staff ineligible for any union membership by virtue of section 5-2 of the Local Public Enterprise Labour Relations Law, thus disqualifying for union membership 20 out of 27 chairmen of existing union branches and 274 of the union's 1,900 members.
218. 392. In its communication dated 2 October 1961 the Government confirms that local public employees are divided into general administrative employees-who may form an employees' organisation under the Local Public Service Law-and the employees of the local public enterprises or persons employed for simple labour, who can form a trade union under the Trade Union Law, subject to the provisions of the Local Public Enterprise Labour Relations Law. The former enjoy (local) statutory terms and conditions; the latter conclude collective agreements. Under the existing law, the general administrative employees, in order to be able to register and negotiate, must confine their membership to the said employees. The educational employees are in the same position. The employees of local public enterprises and persons employed for simple labour can, declares the Government, organise a trade union or a federation extending beyond the limit of one local public enterprise or local public body.
219. 393. Under the amending Bill, declares the Government, the requirement that the employees' organisation of the general administrative employees shall be formed exclusively by the employees of the local public body concerned and the requirement that the trade union shall be formed exclusively by the employees of the local public enterprises and persons employed for simple labour are not to be maintained. Therefore, says the Government, the contention that the policy of subdividing the union organisations into smaller units will be maintained even after the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), " is totally groundless ".
220. 394. The Government states (in paragraph 24 of the said communication dated 2 October 1961) that it intends to maintain the situation according to which " technical and supervisory personnel and others engaged in administrative duty " are distinguished from " persons employed for simple labour " and are treated, from the point of view of labour relations, in the same way as " general administrative employees ". With regard to the provision in section 5-1 of the Local Public Enterprise Labour Relations Law, according to which " those holding managerial or supervisory positions and those in charge of confidential affairs shall not be permitted to organise or affiliate with trade unions ", the Government adds information that, under the existing law, these categories are allowed to organise an employees' organisation under a Local Public Service Law. Under the amending Bill, section 5-1 will be deleted and the categories therein at present referred to will be able to organise a trade union but not to participate in the same trade union as the general employees.
221. 395. With regard to the case of the Industrial Council of the Ooita Prefectural Government Workers' Unions, the Government states that, before a trade union can avail itself of the Trade Union Law procedure which gives protection against unfair labour practices, the union and its Constitution must comply with the standards laid down in the Trade Union Law. Whether there is such compliance is to be decided by the public members of the Labour Relations Commission. In case of non-compliance, the Commission may, instead of disqualifying the union, recommend it to bring itself first into conformity with the Trade Union Law. In this case the Commission took the latter course and the union acted in accordance with the Commission's recommendations and was able to take action to avail itself of the procedures provided for in the Trade Union Law.
222. 396. With regard to the case of the Iwate Prefectural Government Medical Employees' Union, the Government refers to the provision in section 5-1 of the Local Public Enterprise Labour Relations Law excluding managerial and supervisory staff and those employed in a confidential capacity from membership of the union organised by the general employees of the local public enterprise, stating that this provision protects the trade union from domination by elements representing the interests of authority. Section 5-2 states that the inclusion of different grades in the managerial and supervisory category is determined by local by-laws in accordance with standards set by Cabinet order-the Government considers that this prevents the delimitation of the category being determined arbitrarily. The by-law operating in the case of the Iwate union is, says the Government, in conformity with the standards set by Cabinet order. The Government says nothing in refutation of the complainant's statement as to the number of officers and members who become disqualified for membership of the union under the by-law.
223. 397. The question as to the present separation, from the point of view of freedom to organise, of the different occupational categories employed by local public bodies raises certain complicated problems of interpretation which are not entirely clear from the documentation before the Committee. It would seem, however, leaving aside for the moment the question of supervisory employees, that the position is as follows. The " general administrative employees " of a local public body are the employees of the said body whose terms of employment are governed by by-laws and who fall within the provisions of the Local Public Service Law-these persons may form only an employees' organisation within that Law. Educational employees of a local public body can also form a union limited only to their category-also under the Local Public Service Law but separate from that of the " general administrative employees ". There, under the Local Public Enterprise Labour Relations Law, the " personnel " of a given enterprise may form a trade union limited to such "personnel ", as may the " persons employed for simple labour ". Further, the Government states that the employees of local public enterprises and persons employed for simple labour can organise a trade union or a federation extending beyond the limit of one local public enterprise or local public body. The Committee requests the Government to be good enough to state whether the above interpretation is correct and to explain: (a) whether all the " personnel " and the " persons employed for simple labour " by a local public enterprise can unite in the same union and whether all the employees of all the local public enterprises in a prefecture can form one union or federation for the prefecture, which has the right to negotiate collective agreements; (b) whether all the " general administrative employees " of all the local public bodies in a prefecture can unite in one employees' organisation; (c) whether the different organisations formed by employees covered respectively by the Local Public Service Law, the Local Public Enterprise Labour Relations Law and the Law for Educational Personnel can form one joint federation for a prefecture; (d) whether the term " persons employed for simple labour " refers only to certain employees of local public enterprises or includes also manual employees of local public bodies as well and, in the latter event, whether the latter persons can join the same local public enterprise employees' union.
224. 398. In view of the Government's statement as to the amendments to be made to the legislation (see paragraph 393 above), the Committee-again leaving aside the question of supervisory personnel-requests the Government to state whether the consequence of those amendments would be to enable all the general administrative employees of a local public body to unite in one trade union organisation with all the personnel and persons employed for simple labour of a local public enterprise, and whether one single organisation, competent to negotiate, could cover a whole prefecture.
225. 399. With regard to supervisory grades it would seem that the Government intends to maintain the separation, from the point of view of the right to organise, between these grades on the one hand and all the lower grades on the other hand. Here again, however, some points are not clear. It would seem that, in the case of each local public enterprise, the local public body responsible can designate by by-law the " persons holding managerial or supervisory positions and those in charge of confidential affairs " who, according to section 5-1 of the Local Public Enterprise Labour Relations Law, " shall not be permitted to organise or affiliate with trade unions ". The Committee requests the Government to state: (a) under what legal provisions do they now have the right, referred to by the Government (paragraph 394 above), to organise under the Local Public Service Law, and whether they can so organise jointly with " general administrative employees " of the local public body; (b) how their situation would be changed by the proposed legislative amendments; (c) who are the " technical and supervisory personnel and others engaged in administrative duty " referred to in paragraph 24 of the Government's communication dated 2 October 1961, and by what legislation their right to organise is governed; (d) whether, in view of the intention to maintain, under the amended legislation, the requirement that managerial and supervisory grades may only form organisations separate from those organised by the other employees, it is intended to permit these organisations to federate with those organised by the other employees.
226. Allegations relating to the Denial, under the Local Public Service Law, of the Right to Bargain Collectively and to Conclude Collective Agreements
227. 400. The All-Japan Prefectural and Municipal Workers' Union alleges that organisations of employees under the Local Public Service Law have the right to negotiate and conclude agreements which do not conflict with the by-laws of the local public body, but not the right to conclude collective agreements.
228. 401. The Government declares that the employees' organisations concerned can negotiate on various matters and can make representations as to their working conditions. They have statutory terms and conditions of employment, however, and so cannot conclude collective agreements in the ordinary sense of the term.
229. 402. The Committee observes that the present allegations add nothing to similar allegations examined and recommended to be dismissed in paragraphs 178 and 179 of its 54th Report. The Committee therefore recommends the Governing Body to decide that these allegations do not call for further examination.
230. Allegations relating to Collective Bargaining by Organisations of Employees of Local Public Enterprises
231. 403. The All-Japan Prefectural and Municipal Workers' Union alleges that collective bargaining is restricted because: (a) under the Local Public Enterprise Labour Relations Law matters affecting the management and operation of the local public enterprise are excluded from the scope of collective bargaining; (b) an agreement the provisions of which are in conflict with the by-laws shall not take effect to the extent to which it is in conflict with the by-laws unless the latter are amended accordingly; and (c) an agreement involving the expenditure of funds not available from the budget or funds of the local public enterprise shall not be binding upon the authority until an appropriate action has been taken by the assembly of the local public body concerned.
232. 404. The complainant refers specifically to an agreement concluded by the Fukuoka Prefectural Government Workers' Union with the prefectural Governor on 27 May 1960. This agreement provided that: (a) service personnel who joined the union should be allowed to attend any conference of the union so long as this did not hamper the normal operation of the administration's business; (b) if any changes were made in wages and other conditions of employment, the union would be informed in advance and its views would be respected; (c) any transfers or changes of employees should be notified to the union in advance; and (d) a check-off of dues would be operated. The Chief of the Public Service Division of the Autonomy Ministry, declares the complainant, objected to certain provisions in the agreement on the ground that they run counter to the duty assigned to the head of the local public body; in particular, personnel might leave their work in working hours only in special cases provided for in laws or by-laws and no agreement on this matter should have preceded the amendment of the by-laws, while, as regards changes of wages, the appointing authority (the Governor) should have power to decide as to special wage increments and no agreement should have been concluded which placed his power under restraint or restriction.
233. 405. The Government declares that matters affecting the management and operation of the local public enterprise are to be carried out in accordance with law and are not therefore a matter for collective bargaining. However, the relevant provisions have been so interpreted and approved as to permit even matters affecting management and operation to be subjects for collective bargaining where they relate to the working conditions of employees. The working conditions of employees of local public enterprises and of persons employed for simple labour are to be determined, says the Government, by collective agreement reached through collective bargaining between the authority and the trade union, pursuant to section 7 of the Local Public Enterprise Labour Relations Law. But, says the Government, certain matters such as " kinds of wages " are to be determined by by-law by virtue of section 38 of the Local Public Enterprise Law (Law No. 292 of 1952), so that an agreement may sometimes run counter to this by-law. To cope with such cases it is provided in section 8 of the Local Public Enterprise Labour Relations Law that the head of the local public body must submit a Bill to reverse or abrogate the pertinent by-law to the assembly of the local public body so that the agreement may cease to be in conflict with the by-law.
234. 406. The Government goes on to explain that the local public enterprise must operate within the limit of the budget approved by the assembly of such body. If an agreement would involve the budget being exceeded, the head of the local public body must refer the agreement to the assembly for approval (section 10 of the Local Public Enterprise Labour Relations Law). These provisions are intended better to implement the principle of that Law to the effect that " the working conditions of the employees of the local public enterprise and persons employed for simple labour must be determined by the collective agreement between the authority and the trade union through voluntary collective bargaining ".
235. 407. The Fukuoka Prefectural Government Workers' Union, states the Government, is an organisation of employees governed by the Local Public Service Law and is not able to conclude " collective agreements ". The question as to the legal propriety, before and after signature, of the " written agreement " entered into had been the subject of conflicting legal opinion.
236. 408. In the first place the Committee considers that the case of the Fukuoka agreement should not have been linked by the complainant with the present allegations, being related to the allegations dealt with in paragraphs 400 to 402 above. In view of the conclusions formulated in those paragraphs, the Committee considers it unnecessary to consider this particular aspect further.
237. 409. While section 7-1 of the Local Public Enterprise Labour Relations Law states that matters affecting the management and operation of the local public enterprise shall be excluded from collective bargaining, section 7-2 provides, without reservation, that matters concerning wages and other remuneration, working hours, recess, holidays and vacations, standards of promotion, demotion, transfer, discharge, suspension from office, seniority and disciplinary dispositions, safety and sanitation, accident compensation, and working conditions other than those mentioned " may be subject to collective bargaining and shall be appropriately provided for in all trade agreements ". Under section 8 the chief of the local public body, where an agreement has been concluded the terms of which are in conflict with the by-law of the local public body concerned, shall, within ten days after its conclusion, submit a Bill on the necessary revision or abrogation of the by-law, in order that the said agreement may cease to conflict with the by-law, to the assembly of the local public body; concerned for decision by it; unless there is revision or abrogation of the by-law in question, the agreement shall not take effect to the extent that the provision is in conflict with it.
238. 410. It would seem to be provided without equivocation that the wages and other conditions of employment of persons governed by the Local Public Enterprise Labour Relations Law are matters to be determined by collective agreement. The principle of the Law, indeed, as expressed by the Government (see paragraph 406 above) is that they " must " be determined by collective agreement. The implementation of such agreements may require modification of local by-laws. It is clear that the whole principle of settling matters by collective agreement would be ineffective unless it is recognised that there is an obligation to modify by-laws so as to secure compliance with collective agreements, and so the question of modification ceases to be within the discretion of the local public body.
239. 411. Under section 10 of the Local Public Enterprise Law, any agreement involving the expenditure of funds not available from the budget or funds of the local public enterprise shall not be binding upon the local public body concerned and no funds shall be disbursed pursuant thereto, until appropriate action has been taken by the assembly of the local public body concerned. Within ten days of the conclusion of such an agreement, the head of the local public body must submit it to the said assembly.
240. 412. In this connection the Committee draws attention to the principle expressed by the Governing Body, when it adopted paragraph 188 (e) (iii) of the Committee's 54th Report, that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by compulsory arbitration tribunals, and to express the view that the application of this principle should be effectively ensured in the case of the exercise of budgetary powers by a local public body in relation to collective agreements entered into by or on behalf of that public body.
241. 413. Having regard to the considerations set forth in paragraphs 410 and 412 above, the Committee requests the Government to state whether agreements submitted to the assemblies of local public bodies have been rejected, by reason of refusal by the assemblies to amend by-laws or allocate moneys, as the case may be, and, if so, on how many occasions, and what can be done to render agreements effective if they are so rejected.
242. Allegations relating to Acts of Interference with Regard to Unions Affiliated to the All-Japan Prefectural and Municipal Workers' Union
243. 414. The All-Japan Prefectural and Municipal Workers' Union alleges that there have been acts of interference with regard to unions covered by the Local Public Service Law and that no appropriate remedies have been available; acts of interference are alleged also with regard to affiliates of the complainant covered by the Local Public Enterprise Labour Relations Law. The complainant declares that whereas the unions and their members covered by the Local Public Enterprise Labour Relations Law enjoy the remedies prescribed by the Trade Union Law, much less protection is afforded by the Local Public Service Law.
244. 415. The complainant cites the case of the Akita Prefectural Government Employees' Union, covered by the Local Public Service Law, alleging that by virtue of " confidential instructions " issued by the authorities, the union was split and there was interference with the union elections. The Industrial Council of Ooita Prefectural Government Workers' Unions, claimed by the complainant to be governed by the Local Public Enterprise Labour Relations Law, is alleged to have suffered interference with regard to its elections, but that its application for a remedy was refused on the ground that it came within the scope of the Local Public Service Law. With regard to the Shizuoka Municipal Employees' Union, it is alleged, the municipal authorities printed and distributed forms to be signed by members of the union and signifying their resignation from the union. Other acts of interference by the Gumma government are alleged, as well as a number of cases of individual union members alleged to have been interfered with because of participation in union activities. Various acts of interference by authorities at Saijo, Hammatsu, Kawaguchi and Tanabe are alleged.
245. 416. It is alleged that the Government intends to amend the Local Public Service Law to provide that the statutory remedies in respect of adverse treatment shall not apply in the case of an employee who violates his duty as defined in the by-laws and regulations of a local public body and the rules issued by agencies of the public body.
246. 417. Finally, the complainant alleges that, although local public employees are not " public servants engaged in the administration of the State ", the Government regards them as falling within Article 6 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and claims accordingly that they are not covered by the guarantees provided for in that Convention.
247. 418. The Government states that, as it pointed out in reply to the complaint of the Japan Teachers' Union, the remedies afforded by the Local Public Service Law are different from the remedies under other legislation, because of the duty of the public employees to devote themselves to public service, to comply with the by-laws, etc., of the public bodies and to obey the orders of their superiors. Any breach of these obligations cannot be excused on the ground that it is performed on behalf of an employees' organisation.
248. 419. In the Government's view the local public bodies are a fundamental component of the organisation of governing the State, which is ensured by their joint co-operation with the central Government. In the same way as national public servants, local public employees have statutory terms and conditions of employment; the Government claims therefore that because of this fact they are " public servants engaged in the administration of the State " and that the Committee has already dealt with this point in paragraph 179 of its 54th Report.
249. 420. The Government declares that all the specific cases of alleged interference with trade unions and their members cited by the complainants (see paragraph 415 above) are being inquired into and that observations thereon will be forwarded.
250. 421. In these circumstances the Committee requests the Government to be good enough to forward these observations as soon as possible and adjourns further examination of these allegations until they have been received.
251. Allegations relating to Legislative Interference with Collective Negotiations concerning the Check-off of Union Dues
252. 422. The All-Japan Prefectural and Municipal Workers' Union alleges that it is intended to amend the Local Public Service Law so as to prohibit the operation of the check-off.
253. 423. The Government declares that the proposed amendment will prohibit the check-off unless it is authorised by the " by-laws or by laws ".
254. 424. The Committee considers that it is the generally accepted practice for a voluntary check-off to be a matter for negotiation by collective agreement and that an employer is normally free to enter or not to enter into such an agreement. It would appear that local public bodies have so far been free in this regard in Japan in respect of local public employees and their organisations.
255. 425. The Committee requests the Government to explain whether the proposed amendments would leave the local public body free to issue a by-law, in its legislative capacity, leaving it or its agents free to decide, as employer, whether to enter into agreements with employee organisations under the Local Public Service Law containing provision for the operation of a voluntary check-off.
256. Allegations relating to the Abolition of the Full-Time Union Officer System
257. 426. The All-Japan Prefectural and Municipal Workers' Union alleges that proposed amendments to the Local Public Service Law will abolish the " on leave without pay " system now applicable to local public employees serving as full-time union officers.
258. 427. The Government declares that this amendment will be the consequence of another amendment to enable persons other than public employees to be elected as officers of their organisations.
259. 428. The same allegations in a broader legislative context were examined by the Committee at its meeting in May 1961, when, in paragraph 177 of its 54th Report, it recommended the Governing Body to decide that, subject to the reservations contained in paragraphs 175 and 176 thereof, the allegations did not call for further examination.
260. 429. In paragraphs 175 and 176 of the 54th Report the Committee observed that under the subsisting law an organisation may appoint as its officers only persons who are engaged in the occupation for which it caters and who, if no dispensation is given, are obliged by civil service regulations to devote their time exclusively to these civil service duties. Such an organisation can appoint a full-time officer only if he is given leave of absence; he remains an employee, and therefore eligible to be an officer, only if such leave of absence is accompanied by retention of status. So long as the law remains as it is, therefore, the Committee considered that only the retention of the present system would enable organisations to organise their administration. But the Committee went on to express the view that, if a trade union has the right to elect as its full-time officers persons from outside the occupation of the members for which it caters, as the Government says will be the position under the new legislation, the employers concerned could no longer be regarded as being under an obligation to give leave of absence from their work, for a period of long duration, without payment of wages but with retention of status, to persons engaged in such occupation for the purpose of acting as full-time union officers.
261. 430. The Committee therefore recommends the Governing Body to decide that, subject to the reservations made in paragraph 429 above, the present allegations do not call for further examination.