Rapport intérimaire - Rapport No. 138, 1973

1. 74. 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).
2. 75. By further communications dated 4 and 20 November 1972 and 25 April 1973 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.
3. 76. 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 1973 and 14 May 1973. In the last mentioned communication the Government indicates that it will send its observations on certain additional points raised by the complainants.
4. 77. 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
  78. 78 In their communication of 9 October 1972 the complainants allege, generally, that the Government of Japan (and in particular the Ministry of Posts and Telecommunications) has deliberately avoided the observance in practice of the international labour standards concerning trade unions rights and, furthermore, has 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, 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.
  79. 79 In its communication of 27 December 1972, the ZENTEI states that negotiations took place with the Ministry, and 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.
• Observations by the Government
  80. 80 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 of the postal services, or are based on a mistaken understanding of the system or its operation in the postal services.
  81. 81 As the postal services are a service which depend in a very high degree upon manpower, the maintenance of stable relations with the trade unions is essential to the growth and development of the services.
  82. 82 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, such policy would be subjected to such public criticism that the Ministry could not maintain it.
  83. 83 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.
  84. 84 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 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 made on general personnel management.
  85. 85 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.
  86. 86 In conclusion the Government explains that the situation in the postal services is developing rapidly and 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.
  87. 87 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
  88. 88 The complainants allege is their communications that in the case of almost every claim for increased wages or improved conditions from ZENTEI, the postal management has responded with a simple, categorical refusal. At such times as 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 in the eyes of postal workers the influence of the union. The complainants add that the three items which the management is officially prepared to admit within the scope of collective negotiation 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. 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
  89. 89 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 in case "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
  90. 90 The scope of collective negotiations as thus laid down in the Law, continue the complainants, is then severely further 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.
  91. 91 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.
  92. 92 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..." in that the provisions of PCNELR Law section 16 actually militate against such "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 measures grant, any claim of 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.
  93. 93 The complainants provide a list of subjects on which they state no agreement has ever been concluded despite repeated requests by ZENTEI to negotiate on them. These subjects include job assignment, job classification and grievances arising therefrom, promotion of union members, vocational training of union members, suspension and grievances arising therefrom, 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. This 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
  94. 94 The complainants state that the complete refusal by the postal management to negotiate, or even discuss, with ZENTEI, matters which affect postal workers' members of the union at 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 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.
• Government's Replies Concerning the Alleged Refusal to Bargain Collectively
  95. 95 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.
  96. 96 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.
  97. 97 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 labour relations of the employees engaged in the postal services are covered by the Public Corporation and National Enterprise Labour Relations Law (PCNELR Law).
  98. 98 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).
  99. 99 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, whose provisions 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) (sections 25-5 of the PCNELR Law).
  100. 100 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 in accordance with the 1960 "Collective Agreement concerning the Formula and Procedure of Collective Bargaining", a copy of which is supplied:
• Levels of Bargaining - Parties in Bargaining
• Bargaining at the central level - Ministry proper and union's central headquarters
• Bargaining at the regional level - Regional Postal Services Bureau and union's regional headquarters at the corresponding level
• Bargaining at the branch level - Post offices, etc. and union's branch at the corresponding level
  101. 101 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 for cases where no settlement has been obtained by collective bargaining.
  102. 102 With regard to the allegation that in the case of almost every claim for increased wages or improved conditions from 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.
  103. 103 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 as a 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.
  104. 104 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.
  105. 105 With regard to the allegation that KOROI decisions have subsequently been overturned by the courts, the Government explains that, in the cases cited by the complainants, most of the items covered by the order of the KOROI were supported by the Tokyo District Court, and all the cases concerned were now pending before the Tokyo High Court. 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.
• Government's Replies Concerning the Alleged Refusal to Admit Certain Issues to Collective Bargaining
  106. 106 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.
  107. 107 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 the 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 unions' views voluntarily. In fact, states the Government, in each of the public corporations, including the postal services, even as regards matters affecting the management and operation of them, which affect, in some way, working conditions, consultations are held between labour and management.
  108. 108 The Government explains that as for the implementation of measures for 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 is 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 at the time of budget compilation, 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.
  109. 109 As regards the allegation that the authorities have adopted such a policy as to restrict 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.
  110. 110 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 relationships are provided for in detail in the NPS Law and other relevant legislation. While matters concerning 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 for 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.
  111. 111 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 in 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 the condition that they have been approved by the Diet.
  112. 112 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 of those in which there was a problem of implementation because of the lack of appropriated budgets or funds. All of these awards, however, states the Government, were implemented in full, after the necessary financial measures had been taken.
  113. 113 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. 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 training of postal employees is governed by the Postal Services Personnel Training Law and regulations made thereunder. 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.
  114. 114 The Government, in the latest communication, admits to 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.
• Government's Replies Concerning the Alleged Refusal to Bargain Regionally and Locally
  115. 115 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 the negotiations at the central level, taking into account such elements as the volume of work at a workplace and the category and content of a job. In other words, the system is so arranged that there is no need to conduct collective bargaining on these matters at regional and branch levels. Thus, the scope of matters for collective bargaining at the branch level (a branch of the union is established far 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 level of the workplace) is naturally limited.
  116. 116 The Government adds that such mechanism for determining the conditions of work at the central level is not unrelated to the form of organisation of the union. Namely, 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.
  117. 117 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 so organised as to cover the several post offices, with the employees in each post office.
  118. 118 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 suitable methods of communication between labour and management at the level of 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.
  119. 119 Further, with a view to examining matters concerning prevention of labour accidents at workplaces and 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 transfer of personnel in connection with various rationalisation measures.
• Discrimination Against the ZENTEI and Its Members
• Allegations of the Complainants
  120. 120 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 ZENTEI has important sanctions and disadvantages; on the other hand, those who make the alternative choice (not joining, or leaving 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.
  121. 121 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 ZENTEI; those whose position is not clear, and those who are members of, and loyal to ZENTEI. This threefold classification tallies with the threefold classification made daily of all employees' work performance. Promotion, wages and other matters of personnel administration hang on this classification: so does selection for training programmes, which are usually essential for promotion or pay rises.
  122. 122 The complainants point out that employees are rated in relation to work performance, but this classification is made with union activity in mind. Preference is given to those 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 undertook 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.
  123. 123 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.
  124. 124 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 in the case of non-ZENTEI members than in the case of members of the ZENTEI.
  125. 125 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.
  126. 126 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.
  127. 127 The complainants state that the hostility of the management of 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 who are 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 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 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.
• Government's Replies
  128. 128 The Government explains that section 7 of the TU 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 certain 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, exercise of their functions or administration of trade unions.
  129. 129 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 lawsuit.
  130. 130 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.
  131. 131 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.
  132. 132 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 that it will continue to invite them in the future.
  133. 133 Furthermore, with regard to the allegations that the members of the ZENTEI have been discriminated against in the selection of trainees, the Government explains that, though such training is indispensable for promotion and upgrading, for the promotion to the posts of Assistant Superintendent (Shunin) and Supervisor (Shuji), it is not required in the Ministry of Posts and Telecommunications for the employees to go through any training. 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 arises 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.
  134. 134 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 inappropriate.
  135. 135 The Government explains that, with regard to the appointment of the personnel, including promotion, upgrading and transfer, it is provided for 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.
  136. 136 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 only be affected in accordance with an employee's wishes. Such wishes, adds the Government, are taken into consideration, 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.
  137. 137 The Ministry of Posts and Telecommunications has given strict guidance to the appointing officers in each organ of the Ministry so that a 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.
  138. 138 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.
  139. 139 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 those 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, the 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.
  140. 140 On the system of official commendation in the Ministry, the Government states that this has been applied on the basis of the "Regulations on the Official Commendation of the Ministry of Posts and Telecommunications" and its purport 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 NPS Law. Again, the Government contends there cannot be any discrimination as a result of one's union affiliation.
  141. 141 Besides 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.
  142. 142 As regards the allegations that the decrease of ZENTEI's membership in the past few years has been due to the Ministry's interference with the ZENTEI organisation and members, the Government states that, while the great 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 against ZENTEI's anti-rationalisation struggles increased in 1967 to 1968 and because of the occurrence of cases of violence by ZENTEI's members in 1969 to 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.
• Disciplinary Sanctions Against Strikers
• Allegations of the Complainants
  143. 143 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 ZENTEI are in fact made up to them by the union, otherwise the effect on individual members would be crippling. 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.
  144. 144 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 local level, constitutes in Japan a system of industrial relations in which the only genuine avenue open to workers' organisations who 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".
  145. 145 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 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 Facting-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.
  146. 146 The complainants supply a table of statistics showing that some 128,430 workers have been subjected to sanctions since 1954 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 since the Supreme Court ruling on the ZENTEI Tokyo Central Post Office case 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 shorter 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, Prefectural organisations and the national headquarters who played, in the eyes of the Ministry, a leading role in the strike.
  147. 147 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.
  148. 148 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's 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 of 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 ineligibility for any other government employment for two years.
  149. 149 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.
  150. 150 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). The PTTI stated that, on 14 April 1973, the Ministry announced the punishment of 6,326 members of the ZENTEI on charges of participation in the union's campaign conducted from 17 to 26 November 1972, which did not involve strike action.
  151. 151 With regard to the financial losses suffered by ZENTEI in connection with these punishments, the complainants explain that in the year 1971-72 the total expenditure of the fund was ¥325,335,092, and the total for the last fifteen years is over ¥5,000 million. The special contribution to this fund is approximately one-third of the ordinary membership contribution.
• Government's Replies
  152. 152 The ZENTEI contends that those employees of the public corporations who have violated the prohibition upon the acts of dispute are suffering too severely from disciplinary sanctions. In this connection the Government states that the ILO 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 of the domestic laws, which prohibit acts of dispute of the employees of the public corporation, etc., and impose such sanctions as dismissal or disciplinary action on employees who have violated the laws.
  153. 153 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. 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 enterprises 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 the case of other public corporations and 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 actions 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.
  154. 154 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 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 TU Law, which provides for exemption from criminal liability against acts of dispute, is 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 of 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.
  155. 155 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.
  156. 156 The Ministry of Posts and Telecommunications, adds the Government, has hitherto taken proper and appropriate disciplinary actions 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, nor is there any substance in the allegation that disciplinary action is taken with the intention of retaliating against, or crippling financially, the union.
  157. 157 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.
  158. 158 The Government states that it is not the case that strike participants, only for the reason of their participation in strike, 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 record 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 actions 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.
  159. 159 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 a 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).
  160. 160 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.
  161. 161 With regard to the system of 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 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 special pay raise to the union's side, for the main reason 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 as a result of such actions. As regards lump sum severance payments, retirement pensions and wage increments, the Government explains that while all of 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.
• Latest Developments
  162. 162 The Committee understands that the following developments have taken place in the course of the last few months.
  163. 163 On 29 March 1973 the General Council of Trade Onions of Japan (SOHYO) - of which the ZENTEI is an affiliated organisation - organised its annual "spring offensive" and put forward certain claims to the Government. These claims included increased wages, recovery of the right to strike and the withdrawal of disciplinary measures already imposed on public sector personnel.
  164. 164 On 26 April 1973, following a series of meetings between the Government and the unions, the spring labour offensive developed into a 72-hour general strike involving a number of unions in the public and private sectors.
  165. 165 On 27 April 1973 a meeting was held between the Government and the Spring Offensive Joint Struggle Committee, and on 28 April 1973 the parties reached an agreement as a result of which it was possible to terminate the strike.
  166. 166 This agreement consisted of seven points construed in the following terms: (i) the parties anticipate that the Third Council on the Public Service Personnel System, now deliberating the question of basic labour rights, will soon issue its conclusions in full cognisance of the current situation, and the parties will respect the Council's recommendations, (ii) the Government will exert its efforts towards the normalisation of labour-management relations, (iii) the Government understands, and will give careful consideration to the ILO's recommendations and the reports of the Committee on Freedom of Association, (iv) the matter of disciplinary measures shall be dealt with in a fair and careful manner, (v) the parties shall continue to discuss the question of restoration of deferred pay increases resulting from past disciplinary actions, (vi) the results of the consultations held by the Labour Minister, the Welfare Minister and the minister in charge of General Affairs will be duly respected, and (vii) upon conclusion of the present agreement, the strike shall be considered terminated.
  167. 167 The Third Advisory Council on the Public Service Personnel System, established for the deliberation of basic matters pertaining to labour relations in public corporations and national and local public bodies, has met three times since February 1973 (2 and 16 April and 7 May) and, according to the Government, following work carried out by the public interest members of the Council on such basic matters as the right of public employees to organise, bargain collectively, strike, etc., an interim report will be submitted to the meeting of the Advisory Council, scheduled to be held on 25 June 1973. It is understood that the mandate of the Third Advisory Council is due to expire on 3 September 1973.

B. B. The Committee's conclusions

1. 168. It would appear from the facts set forth above that the main questions involved in the present case - which deals with workers in the postal and telecommunications services - relate essentially to collective bargaining, anti-union discrimination and disciplinary sanctions taken against strikers. The Committee also notes that a series of questions involved in the present case, which also relate more generally to their categories of the public sector, are the subject of discussion in the Advisory Council on the Public Service Personnel System, whose work is due to be completed at the beginning of September 1973.
2. 169. The Committee hopes that these discussions will lead to a satisfactory solution being found to the problems raised. The Committee, accordingly, proposes to reach its conclusions at its session in November 1973, account being taken of any new developments which might be brought to its attention.
3. 170. More generally, the Committee considers that it would be useful meantime to point out certain principles which relate to the questions at issue in the present case:
   • - Thus, as regards collective bargaining, 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; in addition, the existence of legal regulations covering matters which affect both the management and operation and conditions of employment should not prevent any possible improvement which might be made by means of collective agreement.
   • - The harmonious development of labour relations requires adequate protection to be afforded to workers against all acts of anti-union discrimination at any level; in addition, harmonious labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action or as a result of these sanctions having, automatically, detrimental consequences on the career of the workers concerned.