Rapport définitif - Rapport No. 139, 1974

1. 221. The Committee examined this case at its May 1973 Session, when it submitted to the Governing Body an interim report contained in paragraphs 74 to 171 of its 138th Report, which was approved by the Governing Body at its 190th Session (June 1973).
2. 222. The present case should be seen against the background of the general considerations expressed by the Committee in the introduction to Cases Nos. 737 to 744, which are considered in the present report, and in which the events which have recently taken place in Japan concerning labour relations in the public sector in that country are set out. The recommendations contained in the Report of the Advisory Council on the Public Service Personnel System, to which the above-mentioned introduction refers, are equally applicable to the sector with which the present case is concerned. The Committee will proceed with an examination of the different allegations contained in the complaint and the replies of the Government thereto, as well as of the latest information received, and refer to the pertinent recommendations of the Advisory Council and will then formulate its conclusions and recommendations.
3. 223. The complaint is contained in a communication dated 9 October 1972 addressed to the Director-General of the ILO by the Japan Postal Workers' Union (ZENTEI), the General Council of Trade Unions of Japan (SOHYO), the Postal, Telegraph and Telephone International (PTTI) and the International Confederation of Free Trade Unions (ICFTU).
4. 224. By further communications dated 4 and 20 November 1972 the PTTI forwarded additional information in support of the complaint, and by a further communication dated 27 December 1972 the ZENTEI forwarded additional information in support of the complaint. The PTTI also forwarded further additional observations in communications dated 25 April and 31 August 1973.
5. 225. The complaint and additional information in support thereof were transmitted to the Government, which forwarded its observations thereon in communications dated 21 December 1972, 6 and 12 February, 14 May, and 13 and 15 October 1973.
6. 226. Japan has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• General Observations by the Complainants
  227. 227 In their communication of 9 October 1972 the complainants allege that the Government of Japan in general, and the Ministry of Posts and Telecommunications, in particular, have deliberately avoided the observance in practice of the International Labour standards concerning trade unions rights and, furthermore, have specifically violated certain provisions of Conventions Nos. 87 and 98, which Japan has ratified. In particular, the Ministry of Posts and Telecommunications has consistently refused to bargain collectively in good faith with the representative union of postal workers, the ZENTEI. In addition, the complainants continue, the Japanese Ministry of Posts and Telecommunications has interfered with and limited the right of workers' organisations to organise and the right of workers to join organisations of their own choosing and to enjoy adequate protection against acts of anti-union discrimination in respect of their employment. (Convention No. 87, Articles 1 and 11, and Convention No. 98, Article 1.) Lastly, and contrary to the recommendations of the Fact-Finding and Conciliation Commission on Freedom of Association (Dreyer Report, 1965), severe disciplinary action continues to be taken against strikers in the post office, as elsewhere in the public services, of the most universal, rigid and damaging kind, in such a way as intentionally to aggravate the effects of the malpractices already cited.
  228. 228 In its communication of 27 December 1972, the ZENTEI states that negotiations took place with the Ministry, and that an agreement over bonus and some other working conditions was reached. No agreement, however, was reached on such fundamental issues as anti-union practices, discrimination in promotion and training and punishment for trade union activities. The complainants add that the coverage of these questions by the discussions with the Government does not hinder the Committee on Freedom of Association from dealing with their complaint.
• General Observations by the Government
  229. 229 With regard to the complaints in general, the Government states that its views are wholly different from the contentions set out in the complaint. The allegations, state the Government, are either on matters which have already been settled through voluntary talks between labour and management in the postal services, or based on a mistaken understanding of the system or its operation in the postal services.
  230. 230 As the postal services depend in a very high degree upon manpower, the maintenance of stable relations with the trade unions is essential to their growth and development.
  231. 231 The Ministry of Posts and Telecommunications has therefore always dealt with the problem of establishing stable labour-management relations as a matter of importance. Thus, it is absolutely impossible for the Ministry to adopt a policy whereby the ZENTEI is ignored or regarded with hostility; in fact it has never adopted such a policy. If the personnel-management policy of the Ministry of Posts and Telecommunications were, as stated in the ZENTEI's complaint, in the present-day democratic and mass-communication-minded society, it would be subjected to such public criticism that the Ministry could not maintain it.
  232. 232 The practice of settling disputes through voluntary talks between labour and management has been firmly established in the postal services. In particular, when the ZENTEI submitted in April and December 1970 a number of demands concerning the personnel management of the Ministry of Posts and Telecommunications, an agreement was reached following earnest talks between the two sides concerning the attitudes which both labour and management should take for the establishment of stable labour-management relations. Since then, the Ministry has been endeavouring to implement this agreement and make it an established practice.
  233. 233 The Government, in its communication of 12 February 1973, explains that, at the request of the ZENTEI, an exhaustive series of talks was held between 30 October and 27 November 1972 and that, in spite of acts of dispute committed by the ZENTEI in the course of those talks, agreement was reached on all the end-of-the-year demands made by the ZENTEI, including the demand on general personnel management.
  234. 234 According to the Government, agreement was also reached on such fundamental issues as anti-union practices, discrimination in training and promotion and punishment for trade union activities. It was agreed, mainly, to continue further efforts in order to normalise labour-management relations on the basis of the agreements concluded in 1970 and, on the question of disciplinary action, to continue talks regarding the recovery of wages lost as a result of such action. The Ministry, continues the Government, maintains its policy of having talks in good faith with the trade unions so that any problems they raise may be solved.
  235. 235 In conclusion the Government explains that the situation in the postal services is developing rapidly and that rationalisation programmes and mechanisation are taking place. These programmes may seriously affect the working conditions of postal workers, and the Ministry has made it a rule to explain to the unions its long-term rationalisation plans. In implementing these programmes regard is had to the various collective agreements concerning reorganisation of facilities in the postal services and personnel transfers. The ZENTEI, adds the Government, has opposed the rationalisation plans and any consequent reduction of staff, and has submitted demands which cancel out the whole purpose of rationalisation.
  236. 236 In addition to supplying copies of certain collective agreements concluded with the union, the Government, in its latest communication, supplies copies of certain circular notices on personnel management which have been issued to postmasters and directors of local postal offices concerning measures to be taken towards the improving of labour-management relations.
• Collective Bargaining
• Allegations relating to the Refusal to Bargain Collectively
  237. 237 The complainants allege in their communications that in the case of almost every claim for increased wages or improved conditions by the ZENTEI, the postal management has responded with a simple, categorical refusal. Whenever wages are raised or conditions improved, the improvements come, and are to be seen to come, from the unilateral decision of the management. The effects are: persistently embittered industrial relations, regular dispute action, and poor wages and conditions. Further, this pattern is intentionally maintained with a view to falsely minimising the influence of the union in the eyes of postal workers. The complainants add that the three items which the management is officially prepared to admit within the scope of collective bargaining are basic wages, normal weekly hours and annual holidays and leave. Even on these matters, however, continue the complainants, the management's response to claims has been a formal, usually vague one, giving no precise counter offer. The complainants allege that no effort is made to arrive at an agreement. What happens is that there is consultation and any final decision is left to management. Any improvements have been the result of arbitration through the KOROI, although, continue the complainants, citing various examples, claims regarding unfair labour practices which have been rejected by the KOROI have subsequently been upheld by the courts, a fact which leads the complainants to believe that the KOROI is not a wholly impartial body, even in matters relating to wage claims.
• Allegations relating to the Refusal to Admit Certain Issues to Collective Bargaining
  238. 238 The complainants state that the scope of collective bargaining in the public service, as laid down in section 8 of the Public Corporations and National Enterprises Labour Relations Law (PCNELR Law), includes, besides matters concerning wages and other remuneration, working hours and holidays: (a) "matters concerning the standards of promotion, demotion, transfer, discharge, suspension from office, seniority and disciplinary disposition"; (b) "matters concerning safety, health and accident compensation for work"; and (c) "matters concerning working conditions other than those provided for in the preceding items". However, continue the complainants, section 8 also states that these matters "may be subject to collective bargaining and may be provided for in a collective agreement, provided that matters affecting the management and operation of the public corporation and national enterprise shall be excluded from collective bargaining". Further, state the complainants, section 16 of the same law lays down that "any agreement involving the expenditure of funds not available from the appropriate corporation budget or corporation funds shall not be binding upon the Japanese Government and no funds shall be disbursed pursuant thereto until appropriate action has been taken by the Diet"
  239. 239 The scope of collective bargaining as thus laid down in the Law, continue the complainants, is then further severely restricted by the administrative policy of the Ministry of Posts and Telecommunications (together with other public enterprises). According to the complainants, the widest possible interpretation is given to the phrase "matters affecting the management and operation of the public corporation and national enterprise", an interpretation so wide as to exclude all matters other than basic wages, normal weekly hours, annual holidays and leave. It will be noted, state the complainants, that some of these, e.g. standards for promoting union members to higher positions, i.e. the negotiation of criteria other than the imposition of criteria by the management alone for the promotion of postal workers, are explicitly said to be matters which may be included in the scope of collective bargaining, according to section 8. The complainants supply an excerpt from the text book for managers issued by the Personnel Bureau of the Ministry in which a list of subjects is given on which, it is stated, collective bargaining is not considered possible.
  240. 240 The complainants state that their allegations are, therefore, twofold: that Japanese law, in section 8 of the PCNELR Law and especially the phrase "management and operation", tends to limit the scope of collective bargaining in the public service, contrary to Convention No. 98, and that this tendency in law is made absolute in the practice of the national enterprise managements, including, especially, the post office.
  241. 241 Further, continue the complainants, even concerning those matters on which a pretence of bargaining is made, viz. basic wages, normal weekly hours and annual holidays, the Japanese Government has not, in the words of Convention No. 98, "taken measures appropriate to national conditions ... where necessary, to encourage and promote the full development ... of machinery for voluntary negotiation between employers ... and workers' organisations I in that the provisions of the PCNELR Law, section 16 actually militate against the "full development and utilisation of machinery for voluntary negotiation". It is submitted by the complainants that one essential pre-requisite of meaningful voluntary negotiation is that the parties to the negotiations should have the authority necessary to reach and implement an agreement. In the case of Japan, even if the postal management were to enter into collective bargaining and in some measure grant any claim of the ZENTEI whose, implementation required post office expenditure beyond its budget, this would, according to section 16, be subject to the decision of the Diet, which is not a party to the negotiations. This fact is, of course, used by the postal management in its attempts at public justification of its inflexible attitude when faced with wage claims.
  242. 242 The complainants provide a list of subjects on which they state that no agreement has ever been concluded despite repeated requests by the ZENTEI to negotiate on them. These subjects include job assignment, job classification and grievances arising there from, promotion of union members, vocational training of union members, suspension and grievances arising there from, disciplinary actions and the use of facilities for union activities. The authorities, continue the complainants, even refuse to take these matters up for discussion at the bargaining table. As for grievance-handling machinery, continue the complainants, this is currently subject to a collective agreement dated 1 January 1972. The machinery functions at the national, regional and local levels. According to the complainants, however, this machinery is virtually useless and little resort is had to it.
• Allegations relating to the Refusal to Bargain Regionally and Locally
  243. 243 The complainants state that the complete refusal by the postal management to negotiate, or even discuss, with the ZENTEI, matters which affect postal workers who are members of the union at the local level, or on which decisions are to be taken locally, constitutes an infringement of the spirit of Convention No. 98. The complainants add that regional and local bargaining is all the more necessary since there is no trace of fully developed national agreements, nor any readiness on the part of management or the Government to negotiate such agreements. According to the complainants, the managerial policy is against the regional or local negotiation or discussion of any matters other than overtime work and deductions from pay, on which matters employers are legally bound to consult with employees' representatives. The complainants add that it is the contention of the employers that there is no other subject on which they are obliged to negotiate with the local or regional representatives of the ZENTEI.
• Reply by the Government concerning the Alleged Refusal to Bargain Collectively
  244. 244 The Government explains that the Ministry of Posts and Telecommunications is a state administrative agency which carries out the administrative business pertaining to the postal services and telecommunications. The employees engaged in the postal services covered by the ZENTEI's complaint are legally subject to treatment different from that of general national public employees and public corporation employees.
  245. 245 The Government supplies the following information concerning the postal services. These services are operated by some 17,000 post offices located all over the country in an organic and comprehensive way. The postal services are of a highly public character and are closely related to national life and economy. They are also called upon to provide services to the people all over the country at a low cost and in a fair manner. For these and other reasons, they are operated as a state-run business by the Ministry of Posts and Telecommunications, which is a state agency, and the employees engaged in the postal services are classified as national public employees. In respect of its organisation, finance, etc., the Ministry of Posts and Telecommunications is subject to various laws applicable to the state administrative agencies including the State Administrative Organisation Law, Finance Law, etc. and in this respect it differs from the public corporations, such as the national railways, which are public legal persons and independent of the State. Moreover, the fundamental matters pertaining to the status and service of the employees engaged in the postal services are provided by various laws and regulations, including the National Public Service Law (NPS Law), and they are thus subject to treatment which is different from that of the public corporation employees to whom the NPS Law, etc. is not applicable.
  246. 246 Since the postal services have the character of an enterprise, labour relations in the postal services are subject to treatment which is different from that in the general administrative agencies. Namely, labour relations in respect of national public employees working in the general administrative agencies are covered by the NPS Law, while the labour relations of employees engaged in the postal services are covered by the PCNELR Law.
  247. 247 The Government supplies the following information regarding the system of collective bargaining in the postal services. In terms of the PCNELR Law, collective bargaining in a public corporation shall be carried out exclusively between negotiators representing the public corporation, etc. and negotiators representing the union (section 9 of the PCNELR Law).
  248. 248 The negotiators representing the public corporation must be nominated by the said corporation and those representing the union by the said union, and each must in advance present the list of negotiators to the other party (section 10 of the same Law). It is prohibited as an unfair labour practice for the public corporation to refuse to bargain collectively with the negotiators representing the union without fair and appropriate reasons (section 7 of the Trade Union Law, the provisions of which are applied by virtue of the provisions of section 3, paragraph 1, of the PCNELR Law). Where any unfair labour practice has been committed, the worker or trade union may have recourse to the Public Corporation and National Enterprise Labour Relations Commission (KOROI) (section 25-5 of the PCNELR Law).
  249. 249 Concrete rules concerning collective bargaining between the Ministry of Posts and Telecommunications and the ZENTEI are laid down by a collective agreement. Thus collective bargaining is conducted at the following three levels id accordance with the 1960 Collective Agreement concerning the Formula and Procedure of Collective Bargaining, a copy of which is supplied:
• Levels of Bargaining - Parties to Bargaining
• Bargaining at the central level- Ministry proper and union central headquarters
• Bargaining at the regional level- Regional Postal Services Bureau and union headquarters at the corresponding level
• Bargaining at the branch level- Post offices, etc. and union branch at the corresponding level
  250. 250 In the Collective Agreement concerning the Application for Conciliation, Mediation and Arbitration, the procedure and method of application for conciliation or mediation to the KOROI are laid down in cases where no settlement has been obtained by collective bargaining.
  251. 251 With regard to the allegation that in the case of almost every claim for increased wages or improved conditions by the ZENTEI, the postal management has responded with a simple, categorical refusal, and that this pattern is intentionally maintained with a view to minimising the influence of the union in the eyes of postal workers, there are no facts to support this, state the Government, especially since many collective agreements have been concluded.
  252. 252 As regards the allegations that the KOROI is neither a fair nor an impartial body, the Government explains that wage disputes in public corporations are normally settled eventually by an award made by the KOROI. This, states the Government, is not the result of any lack of good faith in collective bargaining, but due to the fact that the wage demands are excessive. In 1970, 1971 and 1972 the wage demands of the ZENTEI were only partially met by the KOROI, on the principle that wages in the public corporations, etc. should be fixed on the basis of wages in the private sector. Arbitration by the KOROI, continues the Government, involves a full hearing of representations from both labour and management, and the eventual award contains the whole of the substantial agreement reached between the parties at the mediation stage of the KOROI.
  253. 253 In accordance with section 20 of the PCNELR Law, the public interest members of the KOROI are appointed by the Prime Minister, with the consent of both Houses of the Diet, from among persons appearing on a list of candidates prepared by the Minister of Labour after hearing the opinions of employers and workers.
  254. 254 With regard to the allegation that KOROI decisions have subsequently been reversed by the courts, the Government explains that of the 42 cases in which the KOROI gave decisions, only 14 were appealed to the Courts. The latter confirmed the KOROI's decisions on 60 of the total of 75 issues which were submitted. The fact that differences in judgement could exist between the KOROI and the Courts is, according to the Government, a matter which is irrelevant to the impartiality of the public interest members of the KOROI.
• Reply by the Government concerning the Alleged Refusal to Admit Certain Issues to Collective Bargaining
  255. 255 Section 8 of the PCNELR Law provides that matters affecting the management and operation of the public corporation and national enterprise shall be excluded from collective bargaining.
  256. 256 The ZENTEI contends in its complaint that these provisions tend to restrict the scope of collective bargaining. In connection with these provisions, however, the Government points out that it is necessary to take note of the following points. First, among matters affecting the management and operation of public corporations, there are those which directly or indirectly affect working conditions (for instance, mechanisation of the work in the post office leading to a change in the hours of service, etc.). In such cases, all the working conditions affected by the said matters can be made subject to collective bargaining. This is an established interpretation of the provisions of section 8 of the PCNELR Law, and section 8 is being applied accordingly. Secondly, section 8 of the Law excludes matters affecting the management and operation of public corporations, etc. from the scope of matters subject to collective bargaining since public corporations are either national enterprises or public legal persons wholly owned by the State. Accordingly, states the Government, the management and operation of these public corporations should, as provided for by laws and regulations, be carried out by persons who are in a position to assume responsibility to the whole people for the management and operation of them. It is therefore considered reasonable that the trade unions should not enter into collective bargaining over matters affecting the management and operation of public corporations and impose limitations on such matters by means of collective agreement. At the same time, continues the Government, the provisions of section 8 of the Law do not deprive the authorities of public corporations of the right to talk with the trade unions concerned over matters affecting the management and operation of them and, at the discretion of the authorities, to adopt union views voluntarily. In fact, states the Government, in each of the public corporations, including the postal services, even as regards matters affecting their management and operation of them, which affect, in some way, working conditions, consultations are held between labour and management.
  257. 257 The Government explains that, as for the implementation of measures for the mechanisation, modernisation and rationalisation of the postal services, in particular, a collective agreement entitled "Basic Points of Understanding concerning the Consultation on Plans to Reorganise Facilities for the Postal Service" and other similar collective agreements have been concluded between labour and management. On the basis of these agreements, copies of which are supplied by the Government, permanent machinery has been established for the purpose of securing that, prior to the implementation of any individual measures or programmes, joint consultation is undertaken between both parties at the central and regional levels. In practice, this consultation machinery has brought about active consultation activities. The Government adds that, with a view to helping to obtain better understanding of the present situation and future course of the postal services, a labour-management roundtable conference (composed of five from each of the labour and management sides, the authorities' side being represented by the Deputy Vice-Minister of the Ministry of Posts and Telecommunications and Ministry's Director-General concerned, while the unions' side is represented by Deputy Chairmen and members of the Central Executive Committee) is convened quarterly at the central level under agreement between labour and management when the budget is being drawn up, or when an important policy decision is to be taken, and at this conference necessary information and constructive views are exchanged between labour and management. Further, continues the Government, six-man Committees are established at the central and regional levels respectively, in order to exchange views frankly between labour and management on various problems which have arisen between labour and management. In addition, states the Government in its latest communication, these Committees were established in April 1970 by mutual agreement between the Ministry and the unions in order to contribute to normal labour-management relations. The six-man Committee, adds the Government, has achieved a great deal and in view of its achievements, a six-man subcommittee was established in August 1971 to deal with the problems of transfers and promotions and the selection of trainees. This subcommittee has, according to the Government, dealt with 355 cases to date, all of which have been settled.
  258. 258 As regards the allegation that the authorities have adopted a policy that restricts the scope of collective bargaining and that they have excluded from its scope matters other than basic wages, basic hours of work and normal rest days and holidays, under section 8 of the PCNELR Law, this, contends the Government, is contrary to the facts, as is the allegation that the provisions of section 8 of the said Law have tended to result in restrictions on the scope of collective bargaining in public corporations and national enterprises.
  259. 259 The Government continues that account should be taken of the fact that employees engaged in the postal services have the status of national public employees, and that the basic conditions of their status and employment relations are provided for in detail in the NPS Law and other relevant legislation. While matters concerning the working conditions of the postal employees are, in principle, decided by collective bargaining, collective bargaining cannot result in such conditions of work as are contradictory to or inconsistent with the relevant legal provisions. The scope of collective bargaining on the conditions of work of the postal employees is restricted by this fact and to this extent, compared with that of the employees of, for example, the Japanese National Railways, who do not have the status of national public employees. The postal employees accordingly enjoy by law fairness in their treatment and a guarantee of their position as national public employees.
  260. 260 The Government adds that, according to section 16 of the PCNELR Law, where a collective agreement entails the expenditure of funds not available from the appropriated budgets or funds of the public corporations, etc., the Government shall refer the agreement to the Diet to obtain its approval thereof, and that when the agreement has been approved by the Diet, it shall become effective as from the date specified in it. A proviso to section 35 of the said Law stipulates that an arbitration award by the Public Corporation and National Enterprise Labour Relations Commission (KOROI) which entails the expenditure of funds not available from the appropriated budget or funds is to be dealt with in the same way as the case of a collective agreement referred to above. With regard to the allegation that these provisions constitute a restriction on collective bargaining, the Government points out that it is necessary to take note of the following. The provisions of sections 16 and 35 of the said Law are intended to achieve harmony between the need for respect for the Diet's right to consider the state budget, on the one hand, and that for collective agreements or arbitration awards, on the other. The Constitution of Japan explicitly stipulates that the state budget (including that for the postal services) shall be deliberated and determined by the Diet. It is also provided that since the budget of public corporations has close and inseparable relations with the state finance and, further, with the national economy, it shall by law be submitted, together with the state budget, for the Diet's approval. The Government states that the provisions of sections 16 and 35 of the PCNELR Law do not deny the validity of collective agreements or arbitration awards which entail the expenditure of funds not available from the appropriated budgets or funds, but admit their validity on condition that they have been approved by the Diet.
  261. 261 As for the actual implementation of sections 16 and 35 of the PCNELR Law, the Government explains that there are no cases in which collective agreements were dealt with as agreements which were difficult to implement for reasons of appropriated budgets or funds. The Government adds that, as regards the application of the said provisions to the arbitration awards given by the Public Corporation and National Enterprise Labour Relations Commission, (KOROI), excluding the immediate post-war years, the Commission has given 363 arbitration awards, with respect to all public corporations and national enterprises since its establishment in its present form in 1956 up to the present. This figure included a considerable number those in which there was a problem implementation because of the lack of appropriated budgets or funds. All these awards, however, states the Government, were implemented in full, after the necessary financial measures had been taken.
  262. 262 As for the allegations that no agreement has ever been concluded on such subjects as job assignment, classification, promotion, training, etc., the Government, in its latest communication, provides detailed explanations. The assignment of jobs is decided on the basis of the National Public Service Law and a series of Regulations laid down by the National Personnel Authority. The Government contends that there has been no case where the ZENTEI has raised a demand for concluding a collective agreement on this issue. On the question of transfer the Government points out that there is a current agreement in force which regulates transfers necessitated as a consequence of the modification of post office facilities. As for ordinary transfer, the ZENTEI's demands have not so far been met because of basic disagreement. On promotion, the Government indicates that this does in fact constitute a matter for collective bargaining and an agreement already exists. The claims of the ZENTEI, however, concerning standards for promotion to supervisory posts have not been able to be met by the Ministry and no agreement has been reached on this issue. The Government explains that the training of postal employees is governed by the Postal Services Personnel Training Law and regulations made hereunder. The Ministry, however, continues the Government, exchanges opinions with the union when a union proposal is made concerning the implementation of a training programme. Concerning the allegation that there is no collective bargaining on the question of suspension, the Government points out that a three-year collective agreement on this matter was concluded on 16 December 1971. The Government adds that the Ministry does consider the question of disciplinary action and grievances to be suitable for collective bargaining although because of the legislation and regulations, there is little room for negotiation on these matters. In any event, states the Government, the ZENTEI has never demanded a collective agreement on the criteria for disciplinary action by proposing a specific plan. Further, according to the Government, at the end of 1971 and 1972, agreement was reached with the unions concerning certain conditions for the use of official premises for union activities.
  263. 263 The Government, in the latest communication, admits a certain lack of effectiveness in the use of the grievance handling procedure. This, however, states the Government, is primarily attributable to the union's attitude in declining to bring cases before the available machinery, and attempting to settle every problem through collective bargaining.
• Reply by the Government concerning the Alleged Refusal to Bargain Regionally and Locally
  264. 264 The Government explains that collective bargaining in the postal services takes place at the central, regional and branch levels. The postal services, which have some 17,000 workplaces, are required to provide the people throughout the country in a fair way with the services on an integrated basis as an enterprise. Since this requirement gives rise to the need to unify the working conditions of the employees engaged in these workplaces, their conditions of work should generally be determined at the central level. Therefore, continues the Government, those conditions are determined in the form of concrete and detailed collective agreements through negotiations at the central level, taking into account such elements as the volume of work at a workplace and the category and content of the job. In other words, the system is so arranged that there is no need to conduct collective bargaining on these matters at the regional and branch levels. Thus, the scope of matters for collective bargaining at the branch level (a branch of the union is established for one or several post offices and constitutes, in the case of the ZENTEI, the smallest and sole unit of its organisation which stands as a party to collective bargaining at the workplace) is naturally limited.
  265. 265 The Government adds that this mechanism for determining the conditions of work at the central level is not unrelated to the form of organisation of the union. Thus' the union (Central Headquarters) which is a party to collective bargaining at the central level is an organisation directly organised by individual postal workers in the workplaces throughout the country, and has competency and responsibility for determining the conditions of work of its constituent members.
  266. 266 The Government adds, however, that with a view to effecting smoother communication between labour and management at the workplaces, the Ministry of Posts and Telecommunications has had de facto consultations with the branch of the union and, where the branch of the union is organised to cover several post offices, with the employees in each post office.
  267. 267 In particular, pursuant to an agreement reached at the end of 1970 between labour and management, the two parties held a consultation at the central level to study desirable methods of communication between labour, and management at the workplace, which led to the conclusion in October 1972 of collective agreements, including a Memorandum of the Rules for Consultation. Thus, states the Government, consultation at the level of the workplace has been institutionalised and according to the Government's latest communication, came into effect on 1 April 1973. The Government adds that this consultation system is expected to play an important role in the stabilisation of labour-management relations in the future.
  268. 268 Further, with a view to examining matters concerning the prevention of labour accidents at workplaces and the maintenance and improvement of workers' health, the Collective Agreement on Safety and Health Committee was concluded in September 1970 and Committees composed of employer and worker members have been established and are actually working. The Government transmits a copy of this agreement. According to the Government, about 300 collective agreements (including basic agreements and implementation agreements), have so far been concluded on matters concerning labour relations such as collective bargaining, grievance handling and recourse to a third party organ as well as on matters concerning conditions of work such as salary, hours of work, various allowances, annual holidays and the transfer of personnel in connection with various rationalisation measures.
  269. 269 As regards collective bargaining in the "operational sector" the Advisory Council on the Public Service Personnel System recommended that the managements of the three public corporations, the five national enterprises and the local public enterprises should be given greater authority to negotiate with their employees and be empowered to conclude agreements on as many matters as possible.
  270. 270 As regards the relations between matters pertaining to management and operations on the one hand and conditions of work on the other, the Advisory Council recommended that conditions of work affected by decisions relating to management and operations should also be matters for labour-management negotiations.
  271. 271 Further, it is considered necessary to improve the machinery of management for dealing with matters connected with labour-management relations, at both the national and the local levels, with a view to facilitating talks between labour and management.
• Conclusions of the Committee
  272. 272 The Committee notes from the detailed allegations transmitted by the complainants that the main questions involve the alleged refusal by the Ministry of Posts and Telecommunications to enter into proper collective bargaining with the ZENTEI, even on such basic matters as wages, hours of work and holidays, the alleged refusal by the Ministry to admit other issues, including job assignment and classification, promotion, training and disciplinary measures, to collective bargaining, and the alleged refusal by the Ministry to bargain at the regional or local level. The complainants also mention as allegations the failure of the Public Corporation and National Enterprise Labour Relations Commission (KOROI) to reach impartial decisions in connection with their claims, as well as the fact that any awards given by the KOROI involving expenditure in excess of the Ministry's budget require to be approved by the Diet.
  273. 273 The Committee has noted from the observations made by the Government that in terms of section 7 of the Trade Union Law, it is an unfair labour practice for a public corporation to refuse to bargain collectively with a union without fair and appropriate reasons. According to the Government, collective agreements exist concerning bargaining at central, regional and branch levels, and provide a procedure for conciliation or mediation by the KOROI in cases where no settlement is reached. The Government has supplied copies of various collective agreements which are currently in force and the Committee notes the Government's statement that, on the basis of these, permanent machinery has been established to ensure that consultation takes place between the parties at both central and regional levels. The Committee also notes with interest the establishment of a labour-management round-table conference which is held quarterly at the central level, and of a six-man Committee and subcommittee at central and regional levels in which exchanges of views take place on labour-management problems. The views of the complainants and those of the Government are at variance regarding the effectiveness of this machinery.
  274. 274 Closely linked are the allegations concerning the Government's refusal to bargain and its refusal to admit certain issues to bargaining on the grounds that they are interpreted as falling under section 8 of the Public Corporation and PCNELR Law, under which any matters affecting the management and operation of the public corporation and national enterprise shall be excluded from collective bargaining.
  275. 275 On the important question of the exclusion by the Ministry of certain issues from collective bargaining by virtue of section 8 of the PCNELR Law the Committee recalls that the Fact-Finding and Conciliation commission on Freedom of Association, in its Report concerning Persons Employed in the Public Sector in Japan, in observing that the application of this provision could give rise to grave difficulty in practice, stated that, while certain matters could reasonably be regarded as clearly appertaining primarily or essentially to the management and operation of government business, there were many questions which affected both management and operation and conditions of employment, including such matters as personnel strength or manning and personnel transfers. Matters of this nature, the Committee pointed out, should not be regarded as outside the scope of collective bargaining in an atmosphere of mutual good faith and trust. From the information at its disposal it would appear to the Committee that, on such questions as personnel strength or manning and personnel transfers the ministry of Posts and Telecommunications has shown itself to be disposed to negotiate with the unions concerned, and indeed on the question of transfers a collective agreement has been in force since 1962.
  276. 276 The Committee considers that the many detailed situations and examples contained in the allegations and to which detailed replies have been supplied by the Government are adequate to give the Committee an over-all picture of the system of collective negotiations in the postal services in Japan as well as an indication of the effectiveness and the shortcomings of this system in practice. The Committee takes the view that it would be more useful to confine its conclusions to the situation in general, as it appears from the information before it, rather than conclude on the individual issues contained in the complaints.
  277. 277 The Committee has noted that the legislation concerning public corporations and national enterprises contains detailed provisions concerning the methods and procedures of negotiation and that, in practice, this has been supplemented as regards the postal services by additional machinery for collective bargaining and for consultation under collective agreements, and more recently, by the establishment of the six-man Committee and subcommittee procedure at central and regional levels. It would seem that it is not the machinery itself but its effectiveness which gives rise to the present allegations. In this connection, it would appear to the Committee, on the information before it, that, while the complainants have submitted a certain amount of information which would, in some instances, justify the allegations made, the information supplied by the Government indicates that a great deal of negotiation and consultation on a wide variety of issues has taken place, although not always producing a large measure of agreement.
  278. 278 In the first place, the Committee wishes to recall that Convention No. 98, dealing with the promotion of collective bargaining, covers all public servants who do not act as agents of the public authority and consequently, amongst these, employees of the postal and telecommunications services. The Committee considers that, while obvious efforts are being made to encourage and extend consultation and negotiation, little progress can be made towards an improvement in labour relations in this sector without a major change in the rigid attitudes adopted both by the union and by the Ministry.
  279. 279 The Committee has previously stated that the question whether one party adopts an amenable attitude or an uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties within the law of the land. This, however, does not exclude the importance which the Committee attaches to the principle that both employers and trade unions should bargain in good faith, making every effort to come to an agreement, particularly when unions are not allowed to have recourse to strike action in the public service or in essential services. The Fact-Finding and Conciliation Commission emphasised in its report that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence.
  280. 280 The Committee has also noted that in all matters, including job assignment, training and other conditions of work, postal workers, in their capacity as national public employees, are governed by the relevant legislation and other regulations. Although it would seem that, even on these matters, there is some degree of consultation or bargaining, the Committee, having due regard to the system prevailing in Japan, wishes to point out that the existence of legal regulations should not in that country prevent any possible improvements which might be made in these matters by means of collective bargaining.
  281. 281 As for the subsidiary allegations concerning the implementation of awards made by the KOROI being subject to approval by the Diet in the event of insufficient funds being available to the appropriate corporation, the Committee observes that the complainants give no recent examples of any awards made by the KOROI regarding the postal services which have not been implemented for lack of sufficient funds. In this connection the Committee has, in other cases concerning Japan, already indicated that arbitration awards should be promptly implemented.
  282. 282 The Committee notes with interest that, following talks between the parties in November 1972, agreement was reached on some issues. The Committee expresses the hope that, as indicated by the Government, further efforts will be made to continue talks between the parties in good faith with a view to resolving outstanding questions.
  283. 283 In these circumstances, the Committee recommends the Governing Body to call attention to the considerations and principles expressed in paragraphs 275 and 277 to 282 above, and particularly:
       • (a) to recall the importance which it attaches to the principle that both employers and unions should bargain in good faith, this being particularly important in the public service or in essential services where recourse to strike action is prohibited;
       • (b) to recall that the existence of legal regulations covering matters which affect both management and operation and conditions of employment should not, in view of the system prevailing in Japan, prevent any possible improvement which might be made by means of collective agreement.
  284. Discrimination against the ZENTEI and Its Members
• Allegations of the Complainants
  284. 284 The complainants submit that as a deliberate attempt to break the union, to bankrupt it financially and to discredit it in the eyes of members and potential members, the Japanese Ministry of Posts and Telecommunications has persistently encroached on the right of workers freely to join an organisation of their choice. The complainants state that the outcome of joining the ZENTEI is important sanctions and disadvantages; on the other hand, those who make the alternative choice (not joining, or leaving, the ZENTEI) ZENTEI) are seen to enjoy important advantages at the hands of the management. In addition, the management uses "training" or "education" as a means of slandering the ZENTEI organisation.
  285. 285 The complainants claim that, in the total absence of any criteria agreed between the management and the union for such matters as promotion, selection for training or disciplinary action, all these matters, which are of the greatest importance to individual workers, are determined solely by a jealously guarded managerial prerogative. This prerogative is used by the Japanese Ministry of Posts and Telecommunications to discriminate against three groups: those who are members of a splinter union, or at least not members of the ZENTEI; those whose position is not clear, and those who are members of, and loyal to the ZENTEI. This threefold classification tallies with the threefold classification made daily of all employees' work performance. Promotion, wages and other matters of personal administration hang on this classification: so does selection for training programmes, which are usually essential for promotion or pay rises.
  286. 286 The complainants point out that employees are rated in relation to work performance, but that this classification is made with union activity in mind. Preference is given to workers having no connection with the ZENTEI or who belong to another union having the management's approval. The Ministry has admitted that union activity was a criteria in the rating of employees and undertaken to alter this practice. To date, however, continue the complainants, no change has been evident. In this connection, the complainants supply certain "instructions" issued by the Assistant Chief, Controlling Section, Personnel Department, Sapporo Regional Postal Administrative Bureau, which indicate that, in the drawing up of personal records of employees for classification purposes, a points system is used which is highly unfavourable for those employees who are members of the ZENTEI.
  287. 287 According to the complainants, discrimination against ZENTEI members is also apparent in the selection, by heads of workplaces, of persons who shall undergo training. Since training is essential for promotion to higher posts, selection for training is a matter of serious concern to the workers. The complainants add that a recent practice of the Ministry has been to include a few ZENTEI members, during training, amongst a larger group of trainees hostile to the ZENTEI, thus subjecting them to severe pressure to withdraw from the union after the training. The need for modernisation and rationalisation in the postal service is presented in such a way that progress is said to depend on the weakening of the ZENTEI's influence. The complainants supply extracts from documents issued by the Sapporo Regional Postal Administration Bureau, which indicate discrimination against ZENTEI members in the selection of trainees.
  288. 288 ZENTEI members are also discriminated against in matters of reassignment, promotion and transfer, and figures compiled by the union demonstrate that members have left the union either immediately before or after being granted a transfer. The tables compiled by the complainants also show that there have been many more promotions of non-ZENTEI members than of members of the ZENTEI.
  289. 289 Discrimination in matters of commendation and discipline, continue the complainants, citing specific cases, is also apparent. Discretionary commendations are withheld from ZENTEI members who would normally have expected to receive them, and at the same time, disciplinary actions against ZENTEI members have been more severe than those meted out to non-members, or to members of another union.
  290. 290 Furthermore, add the complainants, authoritative statements and instruction books prepared by the Ministry, as well as official instructions to supervisors, are aimed at slandering the ZENTEI.
  291. 291 The complainants state that the hostility of the management to the ZENTEI became more intense after 1966. In that year, according to official Ministry figures, the percentage of ZENTEI members compared with the total number of Postal Ministry employees eligible for membership of the union decreased by 15 per cent over that of the preceding year. Since then, the percentage has been on the decrease every year. Compared with a percentage of 87.1 in the peak year of 1963, the rate decreased from 84.1 in 1966 to 70.8 in 1971. This decrease in the membership of the ZENTEI since 1966 totalled 70,000 persons. Such a trend towards decrease in membership is not a uniform one in all regions at all times, but rather takes the form of spreading from one specific area to another, where massive withdrawals from the union occur. The figures supplied by the complainants are trade union figures which record the number of members leaving the ZENTEI in a given year, not the net membership decline. In one particular instance, continue the complainants, the majority of local members left the union within three days.
• Reply by the Government
  292. 292 The Government explains that section 7 of the Trade Onion Law, which, by virtue of the provisions of section 3, paragraph 1, of the PCNELR Law, is applied mutatis mutandis to the labour relations of the employees of public corporations, etc., including the postal services, prohibits the under-mentioned practices of employers as unfair labour practices, and thereby protects workers against anti-union discriminatory treatment in employment, and protects trade unions against employers' interference in the establishment of trade unions, the exercise of their functions and the administration of trade unions.
  293. 293 In the case where a public corporation, etc., has committed any unfair labour practice as mentioned above, the Public Corporation and National Enterprise Labour Relations Commission (KOROI), which is a tripartite administrative body exercising its authority independently of the general administrative power, will, in accordance with the stipulation of section 25, paragraph 5, of the PCNELR Law, conduct an investigation and hearing, on the basis of a complaint by a worker or a trade union, following a quasi-judicial procedure and will issue such remedial order as may be necessary. A worker or a trade union may also receive a remedy for an unfair labour practice from a law court under the ordinary procedure for lawsuits.
  294. 294 The Government states that, in view of the fact that, in the postal services, the degree of dependence upon manpower is extremely high, the Ministry of Posts and Telecommunications aims at creating an orderly working environment, developing the ability of the employees and improving their welfare, and has actively promoted various measures on personnel administration. In order to implement such measures smoothly, the Ministry of Posts and Telecommunications has given explanations to the unions in advance, wherever possible, so as to obtain their understanding and co-operation. It has given strict guidance to ensure that there is no discriminatory treatment towards employees based on their affiliation with a particular union, and no act which amounts to interference with the unions' organisation.
  295. 295 The Government adds that it is not correct that the Ministry of Posts and Telecommunications has given instructions with a view to slandering the ZENTEI, particularly in the course of the training of the employees.
  296. 296 The training of employees in the Ministry of Posts and Telecommunications, continues the Government, is provided for "improving the efficiency of national services under the jurisdiction of the Minister of Posts and Telecommunications and realising their satisfactory operation", in pursuance of the "Ministry of Posts and Telecommunications Employees Training Law". That no particular union is slandered during such training has been declared by the Ministry to the union and communicated to the subordinate organs of the ministry. Furthermore, some union officers have been invited to particular training courses to give a lecture on the philosophy of their union and the Ministry has expressed to the union's side its intention of continuing to invite them in the future.
  297. 297 Furthermore, with regard to the allegations that the members of the ZENTEI have been discriminated against in the selection of trainees in the training which is indispensable for promotion and upgrading the Government explains that it is not required in the ministry of Posts and Telecommunications for the employees to go through training for promotion to the posts of Assistant Superintendent (shunin) and Supervisor (shuji). Training for these posts is provided after the employees have been promoted to such posts. Under such circumstances, the Government contends that the members of the ZENTEI cannot be discriminated against. Training prior to promotion is open to all the employees who want to receive it and who are qualified to take the test for the selection of trainees, and the trainees are selected from among those employees following the results of an impartial written test and an interview. It is a matter of course that the employees are not discriminated against on account of their affiliation with a particular trade union. This is also clear from the fact that many members of the ZENTEI are actually receiving such training. Therefore, states the Government, the allegation of the ZENTEI is contrary to the facts. The Government, in addition, states that the two parties had talks in December 1970 as a result of which it was agreed, that, if any problem should arise as to the selection of trainees, the parties would, at the request of the union, discuss the problem at a meeting of the six-man subcommittee. According to the Government, no such requests have since been made by the ZENTEI. As regards the specific case concerning the Sapporo Regional Postal Service Bureau, the Government explains that the selection criteria for participants in the training course did not include a discriminatory element based on affiliation with a particular union. This fact, continues the Government, was explained to the ZENTEI at a session of the central six-man Committee in December 1970. With regard to the above-mentioned "instructions" the Government indicates that this matter was resolved at the same session.
  298. 298 With regard to the allegation in the ZENTEI's complaint that the members of the ZENTEI are discriminated against in the case of promotion, upgrading, transfer, official commendation etc., the Government states that this contention is quite incorrect.
  299. 299 The Government explains that, with regard to the appointment of the personnel, including promotion, upgrading and transfer, it is provided in section 33 of the NPS Law that the "appointment of an employee shall be made entirely on the basis of the result of his examination and the merit of his performance of duties or other demonstrated abilities". Further, with regard to upgrading, the minimum qualifications necessary for upgrading are specifically provided for in the Collective Agreement on Salary System as from 1 April 1955. In some cases, adds the Government, the fact that an employee has been subjected to disciplinary action may constitute a reason for his work performance being evaluated as unsatisfactory. The measure of requiring postal employees to sign written undertakings that they would not go on strike, the Government adds, was in fact taken in some local post offices in order to counteract illegal strikes. This practice was, however, never used to obtain material to be used in affecting promotions or upgradings. The Government states that, when the unions took up this question, the Ministry, in 1970, directed all post offices to discontinue the practice.
  300. 300 On the question of alleged discrimination in the transfer of personnel, the Government explains that the ministry cannot accept the union's claim that transfers should be affected only in accordance with an employee's wishes. Such wishes, adds the Government, are taken into consideration, but transfers are made basically in accordance with the merit principle stipulated in the National Public Service Law, on the basis of operational needs. The Government denies that affiliation with any union played any part in the transfers from post offices to regional postal service bureaux.
  301. 301 The Ministry of Posts and Telecommunications has given strict guidance to the appointing officers in each organ of the Ministry so that fair and impartial treatment may be given on the basis of the principles laid down in the above-mentioned legislation, etc., and thus, contends the Government, there exists no discriminatory treatment based on affiliation with a particular trade union.
  302. 302 The Government adds that, when any complaint or grievance has been filed by an employee or a trade union over these personnel measures, it will be investigated and any necessary action will be taken in the grievance adjustment board established under the PCNELR Law or the subcommittee of the six-man Committees established by the agreement between labour and management in December 1970.
  303. 303 As regards the work performance rating system the Government explains that the Ministry of Posts and Telecommunications does not at present apply a work performance rating system to rank-and-file employees on a nation-wide uniform standard except for managerial staff. In taking the personnel measures mentioned above, it is a matter of course that every appointing officer comprehensively takes into consideration such various factors as the ability, aptitude, experience, results of service performance, etc. of the employee, with a view to securing impartiality in the personnel measures. In this case, "union activity" is never used as a criterion. The Government states that the ZENTEI's allegation on this score is, therefore, completely contrary to the facts.
  304. 304 On the system of official commendation in the Ministry, the Government states that this has been implemented on the basis of the Regulations on the Official Commendation of the Ministry of Posts and Telecommunications and its purpose is to reward, by means of official commendation, those who have made a great contribution or rendered distinguished services to the postal services, and at the same time to develop the postal services by promoting employees' motivation and improving the efficiency of their work performance. Qualifications for receiving this official commendation are clearly specified in the Regulations. Therefore, those who receive official commendation are selected in an impartial way based primarily on their achievements. According to the Government, their union affiliation never constitutes a factor in their selection. On the other hand, continues the Government, disciplinary sanctions are applied in an appropriate manner according to the actual circumstances surrounding the act committed, pursuant to section 82 of the National Public Service Law. Again, the Government contends, there cannot be any discrimination as a result of one's union affiliation.
  305. 305 In addition to supplying specific replies in answer to the detailed allegations of specific cases of alleged anti-union discrimination made by the complainants, the Government states that the Ministry of Posts' etc., has always taken the view that the solution of labour-management problems should be sought through voluntary efforts between the parties and this the Ministry has endeavoured to do. The Government adds that the bringing up of cases which have already been settled or which have not given rise to any problem between the parties can only generate mutual distrust and is not conducive to establishing healthy labour-management relations.
  306. 306 As regards the allegations that the decrease in the ZENTEI's membership in the past few years has been due to the ministry's "interference with the ZENTEI organisation and membership" the Government states that while the greater majority of the employees in the postal services affiliate with the ZENTEI and the All-Japan Postal Workers' Union (ZENYUSEI), the membership of the ZENTEI has decreased and that of the ZENYUSEI increased in the past few years. According to the Government, the ZENYUSEI was organised in 1965 (the membership at the time of its formation was about 23,000 persons) and since then it has aimed at "achieving the membership of 50,000 persons" as one of its most important objectives. The criticism of the ZENTEI's anti-rationalisation struggles increased in 1967 to 1968, and, because of the occurrence of cases of violence by ZENTEI members in 1969 and 1970, the ZENYUSEI strengthened its activities to expand the organisation, with the result that its membership reached 50,000 persons in 1971. These activities have been further continued with the aim of "establishing the organisation of 100,000 persons", and, at present, its membership has reached about 60,000 persons. The Government adds that according to the ZENTEI's fundamental policy for 1971, the ZENTEI admitted that the causes of the decrease of union membership were, among others, that under the present operation of the union, the union could not have any hold on its members, that the union activities did not fully respond to the changes in the attitude of the members and that the union's leadership is not effective. The Government states that, on the basis of such self-reflection, the ZENTEI has come to stress the importance of the union's operation with strong leadership and disciplined activities.
• Conclusions of the Committee
  307. 307 The Committee has taken note of the allegations made by the complainants of the numerous instances of acts of anti-union discrimination against members of the ZENTEI, and of the Government's detailed replies thereto. From the information available it would appear that a number of such acts had been committed in the past. The Government points out that machinery - in the form of the KOROI, as well as the ordinary law courts - is available in respect of acts of anti-union discrimination which in effect would be tantamount to unfair labour practices under the Trade Union Law. The Committee is left without any doubt that under the present system, workers who have participated in strike action and who have been disciplined as a result run the risk of seriously jeopardising their chances of promotion or other kind of advancement in the enterprise. This question is linked with the problem of strike participation and the disciplinary action which is taken thereafter. The Committee is of the opinion that any form of discrimination of the kind mentioned by the complainants would not be conducive to good labour-management relations. In any case the Committee considers that complaints against acts of anti-union discrimination should normally be examined by national machinery, which in addition to being speedy should not only be impartial but be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.
  308. 308 In these circumstances, the Committee recommends the Governing Body to draw attention to the considerations set forth in the preceding paragraph and to invite the Government to ensure that no anti-union discrimination takes place in respect of postal and telecommunications workers.
• Disciplinary Sanctions Against Strikers
• Allegations of the Complainants
  309. 309 The complainants state that since the decision of the Supreme Court in 1966, penal sanctions such as fines and imprisonment are no longer laid on workers taking strike action. In their place, however, continue the complainants, there has been an intensification of the use of administrative disciplinary sanctions in the form of dismissal, suspension from office, reduction in pay, reprimand and warning. All striking postal workers are subjected to one or other of these sanctions on the occasion of every strike, and in recent years the proportion suffering the more severe sanctions has increased. The complainants add that the heavy financial losses incurred by individual striking members of the ZENTEI are in fact made up to them by the union, since otherwise the effect on individual members would be crippling. The ZENTEI itself bears the financial load of these penalties and this fact is known to the management. The complainants allege that it is with the purpose of crippling the union financially that these disciplinary sanctions are taken against the members.
  310. 310 The complainants further allege that the practice of disciplining strikers, in conjunction with the refusal to bargain collectively on matters of pay, and to bargain at all on other issues or at the local level, constitutes in Japan a system of industrial relations in which the only genuine avenue open to workers' organisations that wish to represent their members' grievances is one automatically attended by arbitrary sanctions. Similarly, add the complainants, the insistence on managerial prerogative in matters of promotion, selection for training, pay increments and merit generally takes on a special significance when it is used in conjunction with the use of such prerogative to discriminate against union members in the assessment of "merit".
  311. 311 With further reference to disciplinary actions, the complainants make reference to the recommendations of the Fact-Finding and Conciliation Commission concerning Persons Employed in the Public Sector in Japan, and, in particular, to the 132nd Report of the Committee on Freedom of Association, in paragraph 82 of which (Case No. 686, Japan), the Committee stated that: "With regard to the sanctions imposed on workers, the Committee considers that an inflexible attitude on the application of sanctions which are provided for by law is not conducive to the harmonious development of labour relations. Such a situation can arise, in particular, as a result of sanctions introducing permanent wage differentials among workers, as described by the Railways authority. In this connection, it is to be recalled that the Committee and the Fact Finding and Conciliation Commission have already suggested to the Government considering whether it might not care to take steps to reduce the rigidity and severity with which disciplinary measures are applied in the public sector." The complainants add that the Supreme Court in the ruling of the ZENTEI Tokyo Central Post Office Case (26 October 1966) accepted the view expressed in the Report of the Fact-Finding and Conciliation Commission, and urged that the trade union rights of workers in the public sector should be respected on an equal footing with those of workers in the private sector, and that restrictions on strikes and punishments on account of striking should be relaxed. However, the Japanese Government and its Ministry of Posts and Telecommunications have, on the contrary, increased the number and severity of these sanctions.
  312. 312 The complainants supply a table of statistics showing that some 128,430 workers have been subjected since 1954 to sanctions by the Ministry of Posts and Telecommunications. These sanctions have taken various forms, such as discharge, dismissal, suspension, reduction in pay, reprimand or warning. The complainants point out that it should not be overlooked that all participants in strikes were punished and that the table indicates that punishments have escalated year by year. It should be particularly noted, continue the complainants, that disciplinary punishments have become severer after the Supreme Court ruling on the ZENTEI Tokyo Central Post Office case had made penal sanctions through the courts impossible. At present all participants in strikes are subject to disciplinary punishments and those who participate in strikes which last more than two hours are generally disciplined with reductions in their pay. (Those who were subject to punishments lighter than "reduction in pay" had taken part in the strike for a lesser time than that called for by the union because of differences in the times of starting work.) Before 1961, rank-and-file participants in strikes were disciplined only by warnings, which impose a lesser economic loss. Those who were dismissed or suspended from office are officers of the union branches, the prefectural organisations and the national headquarters who played, in the eyes of the Ministry, a leading role in the strike.
  313. 313 The complainants continue that strike participants are subject to the punishments mentioned in the table supplied by the complainants in addition to the loss of pay for the hours not worked during the strike. Those workers so disciplined are also subject to the economic and social disadvantages. These disadvantages continue to affect workers punished so long as they work in the Ministry of Posts and Telecommunications.
  314. 314 The complainants give the following explanations regarding the disadvantages mentioned above: (a) Warning: Three warnings warrant a reprimand; otherwise this is the only punishment not immediately and in the long term attended by economic loss. (b) Reprimand: This entails postponement of the normal annual increment of pay. Its effects therefore last the length of service and afterwards, since at each subsequent stage the worker reprimanded is at a lower stage on the incremental scale than his fellows, including the time when he comes to retire. Since pensions are a certain proportion of final salary they are also less for these workers. (c) Reduction in pay: This is the worst punishment that can be administered to the rank and file of workers on a mass basis, since all greater punishments involve the worker not reporting for work either temporarily or permanently; if these punishments were given on a mass basis there would be no work done in the post offices. The usual reduction in pay is 10 per cent for three successive months, and the disadvantages connected with the reprimand are also attendant on workers so punished. (d) Suspension from office: This is usually for, e.g., full-time union officers. It lasts, with loss of pay etc. for about 3 to 6 months. (e) Discharge and dismissal: Dismissal involves the permanent loss of the post in the Ministry of Posts and Telecommunications, while discharge also carries with it the ineligibility for any other government employment for two years.
  315. 315 The complainants state that various other disadvantages affect strikers, connected with one or other of the above six punishments, for example, (a) Discrimination in upgrading and Promotion. Strike participants are discriminated against in promotion and upgrading to the higher wage scales. Such punishments are inflicted not only upon workers who took part in a strike, but also upon those who expressed their readiness to participate in it. (b) Discrimination in transfer. In the nation-wide services operated by the Ministry of Posts and Telecommunications, employees who wish to work in particular regional areas because of their birth place, family, or other reasons, are, in quite a number of cases, obliged to work in other areas irrespective of their wishes. In such cases, and particularly in the case of recent recruits, it is customarily provided in the conditions at the time of entering employment that a worker shall be transferred to the place of his choice after a certain length of service. However, strike participants are denied this when the time comes. (c) Denial of eligibility to Commendation and its benefits. All those who have worked in the Ministry for thirty years are to be awarded a commendation for their long years of service (regulations). This commendation includes a scroll of appreciation, and certain economic benefits and special welfare treatment. However, strike participants are denied eligibility for this commendation. (d) Disadvantages in receiving lump-sum severance pay. Severance pay in Japan is considered a form of deferred payment of wages. Disadvantages for strike participants are twofold: firstly, severance pay is calculated in proportion to the last salary in the service, and therefore lower in the case of a strike participant, as explained above; secondly, severance pay is calculated on the basis of the special increment (two further steps up in the wage scale), except for strikers. (e) Disadvantage in pensions. The Ministry of Posts and Telecommunications has a pension scheme comparable to pension schemes within the framework of national social security systems in many other countries. The fund is contributed to by both employer and employee equally. However, strike participants are at a disadvantage, because the calculation of the pensionable amount is made on the same basis as that of severance pay (item (d)). Employees become eligible for a pension after twenty years of service. But those who have been suspended from office on account of strike participation receive a lower pension from the fund to which they have been contributing even, during their time of suspension from office.
  316. 316 It is to be noted, emphasise the complainants, that the duration of these strikes, or walkouts, to which punishments are applied, is, in the main, only two hours. Those strikes in the years 1958 to 1963 for which numbers of the punished are given in the table were all of two hours' duration, and no more, for all participants. According to the complainants, the Ministry of Posts and Telecommunications disciplined 2,119 members in 1972, including 3 dismissed and 10 suspended from office. They were the participants in two strikes which took place on 20 April 1972 (2 hours) and 27 April 1972 (1 day).
  317. 317 With regard to the financial losses suffered by the ZENTEI in connection with these punishments, the complainants explain that in the year 1971-72 the total expenditure of the fund was ¥ 325,235,092, and the total for the last fifteen years is over ¥ 5 billion. The special contribution to this fund is approximately one-third of the ordinary membership contribution.
• Reply by the Government
  318. 318 The ZENTEI contends that those employees of the public corporations who have violated the prohibition against acts of dispute suffer too severely from disciplinary sanctions. In this connection the Government states that International Labour Conventions Nos. 87 and 98 do not deal with the question of the right to strike. The Japanese Government therefore considers that this question is one of application by the domestic laws, which prohibit acts of dispute by the employees of the public corporation, etc., and impose such sanctions as dismissal or disciplinary action on employees who have violated the laws.
  319. 319 The Government explains that employees of the public corporation, etc. including the postal services, are prohibited from committing acts of dispute under the provisions of section 17 of the PCNELR Law. Nevertheless, the Government states, the members of the ZENTEI regularly resort to strikes, not only in concert with the other SOHYO affiliated unions, but also every year in late December when the Post Office is at its busiest. Also ZENTEI workers engage in annual "leave-taking struggles" which consist in workers' applying for annual leave at the same time in large numbers and thus effectively paralysing the postal service. Employees who have committed any act of dispute in violation of this prohibition may be subjected not only to dismissal under the provisions of section 18 of the same Law, but also to disciplinary action, in the case of employees of the public corporation, under each public corporation law, and, in the case of employees working in the national enterprise including the postal services, under the NPS Law. They may also be subjected to the system of warning under the rules of the public corporation, etc. In the Ministry of Posts and Telecommunications, as in other public corporations and national enterprises, there is a warning system whereby an official announcement is made by the Minister of Posts and Telecommunications (Rule of Warning against the Employees of the Postal Services). The action of warning is different from disciplinary action and is a sort of corrective measure without any substance of sanction, to be taken in order to admonish and suggest cautions to those who have committed acts which do not warrant the imposition of disciplinary actions.
  320. 320 As an example of a judgement rendered by the Supreme Court dealing with the provisions of sections 17 and 18 of the PCNELR Law, the Government mentions the judgement of the Grand Bench dated 26 October 1966 (judgement rendered in the Case of the Japan Postal Workers' Union of Tokyo Central Post Office). This judgement, states the Government, altered the precedent of the Supreme Court, and stated that the provisions of section 1, paragraph 2, of the Trade Union Law, which provide for exemption from criminal liability against acts of dispute, are applicable to acts of dispute committed by employees of public corporations, etc.; on the other hand, continues the Government, it is also stated in the judgement that "the work performed by the employees of the so-called five national enterprises and three public corporations is, though in varying degrees and whether directly or indirectly, equally closely related with the interests of national life as a whole. Thus, there is no doubt that any suspension or abolition of their work may impair the interests of national life as a whole and bring serious hindrances to national life". According to this judgement, continues the Government, the provisions of section 17, paragraph 1, of the PCNELR Law, which prohibit acts of dispute by the employees of the public corporation, etc., are consistent with the provisions of article 28 of the Constitution of Japan, and employees who have violated the provisions of section 17, paragraph 1, of the PCNELR Law cannot be exempted from civil liability including dismissals under the provisions of section 18 of the said Law.
  321. 321 The Government states that the Ministry of Posts and Telecommunications has constantly drawn the attention of the employees to the fact that they should not participate in acts of dispute prohibited by law. However, continues the Government, the ZENTEI, which has established the policy of "organising repeatedly powerful struggles (strikes) over and beyond the positive law under the basic conception that the right to strike is not something to be given, but to be won by the workers' own struggle$" (ZENTEI's guidance document "On the Activities of the Ad Hoc Committee on Trade Union Right" (8 February 1972)), has carried out strikes according to a schedule worked out in advance, irrespective of the existence of unavoidable circumstances, with a view to making the PCNELR Law, which prohibits acts of dispute, a dead letter.
  322. 322 The Ministry of Posts and Telecommunications, adds the Government, has hitherto taken proper and appropriate disciplinary action against leaders of and participants in strikes under the provisions of the above-mentioned laws, examining carefully the content and degree of the violations, and, in the cases where the degree of participation was minor, actions of warning as mentioned above have been taken instead of disciplinary actions. The Government states that it is not the case that disciplinary action is being taken intentionally against strikers in greater numbers or that severe action is being taken, and that there is no substance in the allegation that disciplinary action is taken with the intention of retaliating against, or crippling financially, the union.
  323. 323 The Government explains that the yearly difference in the total numbers of disciplinary actions is due to the difference in the scale of strikes (such as the number of participants and the duration of strikes) as well as the degree of each person's participation. Where the employees are not satisfied with such disciplinary actions, they are guaranteed the right to file (in application of the relevant laws) an appeal for review with the Personnel Authority and a lawsuit with a law court. It states further that it is incorrect to allege that the system of sanctions is inflexible or continuously more severe. The Government points to the example of the one-day strike in April 1972 which resulted in a one-tenth reduction in pay for two months, whereas a similar strike in April 1973 was met with a one-tenth reduction in pay for only one month.
  324. 324 The Government states that it is not the case that strike participants, only for the reason of their participation in strikes, are subjected to disadvantages other than the loss of pay for the hours not actually worked during the strike, dismissal and disciplinary actions. However, adds the Government, when the evaluation of service records is required in the operation of the systems of pay raise, upgrading and promotion, transfer, commendation, etc., the fact that the employees concerned have been subjected to disciplinary action may constitute a reason for the conclusions to be reached that their service record has not been good. All persons who have been subjected to disciplinary action are subject to a similar evaluation, regardless of the reasons for the said disciplinary action; this does not mean that only those who have been subjected to disciplinary action for having participated in the acts of dispute are given a specially disadvantageous evaluation. In any case, the Government states, the annotation on his record of the fact that a worker has been disciplined is only taken into account for a limited period in relation to promotions and commendations: one year in the case of a reprimand, two years if there has been a reduction in salary, and three years if suspension from duty is imposed. After the expiration of these periods the fact that a worker has been disciplined is no longer taken into account when promotion for him is considered.
  325. 325 In connection with the allegation that when workers have been subjected to disciplinary actions, the normal annual pay raise will be postponed and this disadvantageous wage dealing will last until their retirement, the Government states that this results from the mechanism of the prevailing wage system in Japan. In other words, a worker's wages go up, in proportion to his length of service, with a fixed amount of wage increment every year (periodical pay raise). In this case, a person with a specially good service record is granted the wage increment in excess of the standard amount (special pay raise), while a person with a poor service record is given a smaller wage increment than the said standard amount (so-called postponement of the periodical pay raise).
  326. 326 In the case of the Ministry of Posts and Telecommunications, also, such a wage system is in operation under collective agreements (Collective Agreement on Salary System as from 1 April 1955 and Collective Agreement on Standards of Ineligibility for Pay Raise). The Government states that, while in the Collective Agreement concerning Salary System as from 1 April 1955, it is provided that in the case of the employees in the postal services, their pay shall be periodically raised by four steps once every year on condition that they have fulfilled their duties with good results, it is also provided in the Collective Agreement concerning Standards of Ineligibility for Pay Raise concluded in pursuance of the terms of the said Collective Agreement that, when an employee has been subjected to a disciplinary action, etc., the number of steps for his periodical pay raise shall be the number of steps obtained by deducting a certain number of steps from four steps, depending upon the kind and severity of the disciplinary action, etc.
  327. 327 With regard to the system of the special pay raise, the Government states that no collective agreement has yet been concluded in spite of the proposal which has been made by the Ministry of Posts and Telecommunications since 1968. As for the Ministry of Posts and Telecommunications, it does not consider it desirable at all for the employees who have been subjected to disciplinary actions not to be given an opportunity to recover a delayed pay raise since their service record may be excellent in the subsequent years. The Ministry has, therefore, made a proposal regarding a system of a special pay raise to the union's side, for the main purpose of correcting this practice. As a result of a talk held between labour and management in November 1972 on this subject, the Government adds that it has been agreed to continue talks on how to make the employees subjected to disciplinary actions recover from the disadvantages in basic pay resulting from such actions. The Government claims, however, that the complainant has categorically rejected any system of special increments proposed by the authorities and since the question of wages is subjected to collective bargaining under the terms of the PCNELR Law the Ministry cannot institute any wage reform in this direction without the agreement of the unions. As regards lump-sum severance payments, retirement pensions and wage increments, the Government explains that while all these can be affected in the case of an employee who has been subjected to disciplinary action, nevertheless it is not the case that every participant in strike action is dealt with in the same way. In each case, the Ministry takes into account the kind and severity of the disciplinary action applied, irrespective of the reasons therefor, in computing the reduction in the amount of the respective payments.
  328. 328 In its communication dated 15 October 1973, the Government explains that, even though the problem of disciplinary sanctions imposed on individuals who participated in illegal acts of dispute was not mentioned in the Report of the Advisory Council on the Public Service Personnel System, these sanctions were meted out appropriately. As regards the problem of recovering wage differences caused by the detrimental effect of sanctions on the periodical increments, consultations are being carried on at present pursuant to the terms of the agreement concluded between the Government and the unions in April 1973.

B. B. The Committee's conclusions

1. 333. In all these circumstances the Committee submits certain recommendations both on the individual issues examined in this report and on the case as a whole.
2. 334. As far as the individual issues are concerned, the Committee recommends the Governing Body:
   • (a) with respect to the allegations relating to collective bargaining
   • (i) to recall the importance which it attaches to the principle that both employers and unions should bargain in good faith, this being particularly important in the public service or in essential services where recourse to strike action is prohibited;
   • (ii) to recall that the existence of legal regulations covering matters which affect both management and operation and conditions of employment should not, in view of the system prevailing in Japan, prevent any possible improvement which might be made by means of collective agreement;
   • (b) as regards the allegations respecting discrimination against the ZENTEI and its members, to draw attention to the principles and considerations expressed in paragraph 307 and to invite the Government to ensure that no discrimination takes place in respect of postal and telecommunications workers;
   • (c) as far as the allegations relating to disciplinary sanctions against strikers are concerned, to recall the suggestion made to the Government concerning the application of these sanctions, in particular as regards the permanent disadvantages in remuneration which result from the application of sanctions to strikers, as well as the detrimental consequences on the career of the workers concerned which may ensue.