Rapport définitif - Rapport No. 139, 1974

95. Various trade union organisations have presented a series of complaints containing allegations concerning the violation of trade union rights in the public sector in Japan. These complaints refer to disciplinary sanctions imposed on strikers, anti-union practices, personnel and equity commissions which operate in the local public service sector, the system of trade union registration, the force of law of collective agreements, the right to organise of fire-fighting personnel, the employees of courts of law, the right to strike, the weakening of collective bargaining and interference in trade union activities.

1. 95. Various trade union organisations have presented a series of complaints containing allegations concerning the violation of trade union rights in the public sector in Japan. These complaints refer to disciplinary sanctions imposed on strikers, anti-union practices, personnel and equity commissions which operate in the local public service sector, the system of trade union registration, the force of law of collective agreements, the right to organise of fire-fighting personnel, the employees of courts of law, the right to strike, the weakening of collective bargaining and interference in trade union activities.
2. 96. The workers included in the complaints come under different categories and the legislation governing labour relations, according to the category concerned, is essentially as follows: the Public Corporation and National Enterprise Labour Relations Law (1948)1, the Local Public Enterprise Labour Relations Law (1952), the National Public Service Law (1947) and the Local Public Service Law (1950).
3. 97. The Committee recalls that in the past it has already had to examine in some detail various allegations also concerning the public sector in Japan, some of which referred to issues similar to those raised in the present cases. After the Committee considered a case concerning the public sector between April 1958 and December 1963, the Government agreed in April 1964 that it be submitted to the Fact-Finding and Conciliation Commission on Freedom of Association. The Commission published its report in July 1965.3 A few days before, on 14 June 1965, Japan ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
4. 98. On the basis of a suggestion put forward by the Fact-Finding and Conciliation Commission a regular exchange of opinions was initiated between Government and union representatives, and this gave rise to the establishment of an Advisory Council on the Public Service Personnel System formed of members representing the public interest, employers and workers. This Council met on numerous occasions after its establishment and began a new series of deliberations in February 1973 after the present complaints had been received.
5. 99. On 28 April 1973 the Government and union representatives came to an agreement which was able to put an end to a general strike in which several unions of both the public and the private sectors were involved. 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.
6. 100. On 3 September 1973 the Advisory Council wound up its sessions and adopted its Report on Labour Relations in the National and Public Service and in the Public Corporations. The Council considers that the present situation in labour-management relations in the public sector in Japan should not be allowed to continue unchanged, that there is an urgent need to eliminate mutual distrust between labour and management, to normalise labour-management relations and to establish orderly labour-management practices, and that the problem of the right to strike of public employees may be settled under the Constitution of Japan as a matter of legislative policy connected with the circumstances in which members of workers' organisations work and other matters. In this report it is indicated that pending revision of the existing systems on the basis of the report, the utmost efforts should be made along the lines recommended in it, with a view to improving labour-management relations. According to statements of the Chief Cabinet Secretary the Government intends to endeavour to make effective the substance of the report with a view to normalising labour-management relations in the public sector. The Government will decide its position on each issue dealt with after making a careful study taking into account the deliberations of the Council. According to the latest information from the Government, a Liaison Council on Public Employees' Problems has been established which will proceed with an examination of the way of materialising the substance of the recommendations in the report.
7. 101. The Advisory Council's report contains a series of recommendations on various aspects of labour relations in the public sector. These recommendations refer in particular to collective bargaining in the non-operational sector and in the operational sector, the latter consisting of public corporations and national and local enterprises; to working conditions which are affected by decisions concerning management and operations and which ought to be the subject of collective bargaining; to the registration of trade unions; to the improvement of management's machinery 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; and to the right to organise of fire-fighting personnel. These issues are related to the questions raised in several of the allegations.
8. 102. On the basis of the Report of the Advisory Council the Government considers that the various matters included in the allegations constitute internal issues and that it is appropriate that these be resolved within the country itself in conformity with the actual situation prevailing in Japan.
9. 103. The Committee notes these developments with interest and considers that it must examine the different allegations with reference in each case to the Advisory Council's recommendations. In the formulation of its own recommendations the Committee will, as always, be guided by the principles of freedom of association and the decisions to which it has come in the course of some years of examination of the numerous cases which have arisen. The purpose of the Committee's examination is not only to point out any possible anomalies which may exist in labour relations in the public sector, but rather, and above all, to contribute through its recommendations to the establishment of an atmosphere of confidence and mutual understanding in Japan and to a solution of the existing problems by means of a system of adequate standards and procedures.
10. 104. The complaints and additional information were submitted by the General Council of Trade Unions of Japan (SOHYO) jointly with the following trade unions on the dates indicated; the Japan Prefectural and Municipal Workers' Union (JICHIRO) on 1 November 1972 (Case No. 737); the Japan Teachers' Union (NIKKYOSO), the World Confederation of Organisations of the Teaching Profession (WCOTP) and the World Federation of Teachers' Unions (FISE) on 19 October 1972, with a communication in support of this complaint submitted by the International Federation of Free Teachers' Unions (IFFTU) on 4 November 1972 (Case No. 738); additional information in this case was furnished by NIKKYOSO and SOHYO on 15 March 1973; the All Japan Telecommunications Workers' Union (ZENDENTSU) and the Postal, Telegraph and Telephone International (PTTI) on 30 October 1972; the complainants also supplied additional information on 1 February 1973 (Case No. 739) ; the Japanese Joint Struggle Council of State Public Service Workers' Unions (KOKKO-KYOTO) on 20 October 1972 and 8 February 1973 (Case No. 740); the All Printing Agency Workers' Union (ZEN INSATSU), the All Mint Agency Workers' Union (ZEN ZOHEI) and the Alcohol Monopoly Workers' Union (ALCOHOL SEMBAI) on 25 October 1972 (Case No. 741); the Japan Monopoly Corporation Workers' Union (ZEN SEMBAI) on 25 October 1972 (Case No. 742); the All Forestry Workers' Union of Japan (ZEN-RIN-YA) on 30 October 1972 (Case No. 743); the All Agriculture and Forestry Ministry Workers' Union (ZENNORIN) on 14 February 1973 (Case No. 744).
11. 105. Complaints were also submitted by the SOHYO jointly with the Japan Senior High School Teachers' Union (NIKKOKYO) (Case No. 745), the All Japan Federation of Municipal Transport Workers Unions (TOSHIKOTSU), with the support of the International Transport Workers' Federation (Case No. 753) and the All Japan Water Supply Workers' Union (ZENSUIDO) (Case No. 755). The Government sent its observations on these complaints, but the Committee has not yet been able to examine the cases, which, however, raise problems similar to those of the other complaints mentioned above.
12. 106. These complaints were transmitted to the Government which forwarded its observations thereon in communications dated 15 May 1973 (Case No. 737), 21 May and 22 August 1973 (Case No. 738), 15 May and 5 July 1973 (Case No. 739), 21 May 1973 (Case No. 740), 15 May 1973 (Case No. 741), 15 May 1973 (Case No. 742), 29 May and 17 September 1973 (Case No. 743), 21 May 1973 (Case No. 744) and 15 October 1973 (all these cases). The Committee was unable to examine certain allegations made in Case No. 737 concerning which the observations of the Government were transmitted on 15 October 1973.
13. 107. Japan has not only ratified the Freedom of Association and Protection of the Right to organise Convention, 1948 (No. 87), but also the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Disciplinary Sanctions on Strikers
• Cases Nos. 737, 738, 739, 740, 741, 742, 743 and 744
  108. 108 The complainants allege that they have been obliged to engage in strikes and other acts of dispute in order to improve their salaries and conditions of work. In respect of some of the complaints, the complainants allege that the Government is supposed to grant increases in salaries in line with the recommendations of the National Personnel Authority, but that the authorities are often dilatory in their implementation of the recommendations and the unions are thus constrained to resort to strike or other action in order to force the authorities to comply. In other cases the complainants allege that strike action is necessary because wage recommendations are unsatisfactory or because the authorities use delaying tactics in negotiations. The strikes themselves, state the complainants, are usually very short (ranging from one-half hour to one-half working day and only in the most exceptional cases are they a day in length). Other collective action which is considered by the authorities to constitute "acts of dispute" subject to sanctions consist in wearing union ribbons with slogans or engaging in mass demonstrations.
  109. 109 The complainants point out that in spite of the recommendations of the 1965 Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan to the contrary, the public authorities have engaged in ever increasing impositions of disciplinary sanctions on workers who have engaged in acts of industrial dispute. These sanctions are both more widely and more severely applied than they were at the time of the Report. In fact in some cases, notably those of the workers in the Nippon Telephone and Telegraph Public Corporation and those employed by the National Forest Agency, on an average each member of the union has been disciplined at least twice. Union officers and activists receive particularly harsh treatment and the sanctions imposed on them are much heavier than those received by the rank and file members. In one case sanctions were imposed almost one year after the strike had taken place.
  110. 110 The sanctions cause particular hardships, the complainants allege, because of the permanent effects which they have. Apart from the fact that the worker who has engaged in a strike is not paid for the time during which he was not working, any sanction automatically entails a diminution in the amount of annual wage increment and diminishes also the amount of annual "diligence allowance", a type of bonus, to which the worker is entitled or even disqualifies him entirely from receiving it. Because the wage system in the public service in Japan is based upon a series of annual increments ranging over the entire career of the worker, the loss of one annual increment means that he is permanently kept behind his colleagues who have not been disciplined until the end of his service. Further, since pensions and allowances for sickness and severance are based on the salary earned by the particular worker, the prejudice wrought by the imposition of the sanction continues even after retirement as it lessens the amount of pension. Also, in the case of workers who have been suspended, one-half of the time for which they are suspended is deducted from their continuous service record, which also has a detrimental effect on their pensions. It is customary in some of the services represented in this complaint for workers who have given long service to the corporation or authority to receive a written commendation which is usually accompanied by some sort of emolument, but those who have been disciplined do not qualify for this either.
  111. 111 The complaint presented by the All Forestry Workers' Union of Japan (ZEN-RIN-YA) points out further that until 1967 the disciplined worker was restored to the position he would have been in, had he not been sanctioned after two years but in that year the Agency unilaterally terminated this arrangement and informed the complainant ZEN-RIN-YA that it would not return to its pre-1967 policy unless the Union agreed that there would be no more strikes and that there would be a greater measure of co-operation between labour and management particularly in relation to the Forest Agency's plans for reorganisation.
  112. 112 The complainants explain that it is the policy of all of the unions involved in the present cases to compensate their members for any financial losses incurred as a result of the imposition of disciplinary sanctions which are imposed because of participation in union-ordered acts of dispute. Most submit detailed charts showing the large amounts of money involved, which total hundreds of thousands of yen. Because of these payments the unions are in great financial difficulty and are considerably weakened. It is the contention of the complainants that this situation is being brought about purposely by management with the aim of undermining the unions. Several of the complainants also point out the fact that this constant and severe imposition of sanctions is very demoralising in its effects on the workers and has caused a certain amount of disaffection from the unions affiliated with SOHYO.
  113. 113 The complainants point out further that there is no effective recourse against the imposition of these sanctions by management. In some of the services statutory appeal lies to the Public Corporation and National Enterprise Labour Relations Board, the KOROI, but the complainants find this body ineffectual and the proceedings before it very drawn out because of the part-time status of its members. Those employed at the municipal and prefectural levels may appeal to either the Personnel Commissions or the Local Equity Commissions and both of these are accused of being biased and dilatory. In some cases grievances may be brought before the National Personnel Authority, which is also alleged to be biased. If, on the other hand, the union members apply to the courts in relation to these sanctions the proceedings prove to be both very extended and very expensive. Examples are given of cases pending at first instance for a number of years and in one case, because of repeated appeals by the Government, there has still been no final decision in the courts although proceedings were begun fifteen years ago.
  114. 114 In its replies the Government takes the position that under the law of Japan strikes and other acts of dispute in the public services are illegal and the sanctions which are imposed as a result of these illegal acts are only such as are provided for by law. The Government states that great care is always taken to impose sanctions only upon those who are responsible for illegal acts and the extent of the punishment is determined by the extent of the participation of the particular worker in the illegal act. Strikes in the public service in Japan are prohibited because the State owes to the public uninterrupted service in these areas vital for the national well-being and in any case, the Government argues, the strikes are unjustified. It states that the recommendations of the National Personnel Authority as regards wages are always promptly and fully implemented. It explains that the recommendations of the National Personnel Authority on wages are based on a system under which this body inquires into the level of wages in the private sector and fixes those in the public sector accordingly. It is thus sometimes impossible to fix the new annual wage levels until some clear trend is discernible in the private sector, and thus rises may not be declared in the public sector until some time after they have been granted in certain private industries. Once the NPA has made its recommendations, however, the Government states, there is never any delay in implementation. There were sometimes delays of a month or so before 1970 but this is no longer the case. The Government also explains that in cases where negotiations take place in the public sector, account must be taken of wages paid to employees in private enterprise. Delays and difficulties in the fixing of these wages reflect on collective bargaining in the public sector. Further, the Government points out, strikes are sometimes decided long before the negotiations take place or are often of a political nature, such as opposition to the Viet-Nam War and the terms of the Okinawa Reversion. The latter is particularly true of the JICHIRO and NIKKYOSO, the Government claims.
  115. 115 The Government also states that International Labour Conventions Nos. 87 and 98 do not extend to the question of strikes in the public service and that in consequence all of the complaints relating to disciplinary sanctions because of participation in strikes are matters of Japanese domestic law. The Government claims also that the reason why there have been more and more extensive impositions of disciplinary sanctions is that the complainants have escalated their industrial dispute campaigns since the Report of the Fact-Finding and Conciliation Commission on Persons Employed in the Public Service in Japan. It notes also that not all types of collective union action are prohibited and that demonstrations or similar types of action outside of working hours and not on government property are protected under the Japanese Trade Union Law.
  116. 116 The Government states that the financial consequences of disciplinary sanctions are the normal consequences of the latter. Persons engaging in illegal acts of dispute are not paid for the time during which they engaged in such acts on the principle of "no work, no pay". Further, since by engaging in such acts workers show less of a responsibility towards their jobs and the public than those who have remained at their posts, it is logical that the former should not be given such a great amount of diligence allowance at the end of the year as the former. Since, too, the amount of the annual increment is determined by reference to the worker's service record, obviously anyone who has been disciplined, for whatever cause, will not qualify for as great an amount. The law fixes the relation of salaries to pensions and allowances so that it is perfectly normal for the latter to be affected when salaries are not as high as they might otherwise have been, the Government argues. Nevertheless, the Government indicates, there is a means at the disposal of workers for reinstating themselves in the position they would have occupied had they not been disciplined. This can be accomplished by means of special allowances and bonuses for particularly excellent service. The Government also denies that sanctions influence promotion in any way and points to the fact that many union members who have been disciplined are at present enrolled in training courses whose results form the basis for future promotion. According to the Government the pre-1967 arrangement with regard to the ZEN-PIN-YA concerning wage reinstatement after two years of discipline was undertaken on the sole initiative of the Forest Agency, which decided in 1967 that it was not right to accord special treatment only to employees who had incurred disciplinary sanctions because of illegal union activities. The ZEN-RIN-YA asked that the measure be continued for those disciplined in 1965 and 1966 and the Agency agreed to do this on the conditions stated in the complaint but the onion refused to agree.
  117. 117 The Government takes the position that any financial difficulties in which the unions may find themselves are purely internal matters for the unions and not in any sense the business of the Government.
  118. 118 The Government points out that there are ample means of recourse for those union members who feel that they have been wronged in the imposition of disciplinary sanctions. The Government denies that the KOROI is unsatisfactory. It explains that it is an independent tripartite body, and those that the five members who represent the public interest are appointed by the Prime Minister with the consent of both Houses of the Diet from a list of persons proposed by the Minister of Labour after hearing the opinions of the members representing the employers and the workers. The latter have their own representatives on this body who number three each. The Government adds that in practice the opinions of workers' and employers' members are respected to the fullest extent. These members are also appointed by the Prime Minister on the recommendation of labour and management respectively. The Government defends the part-time status of KOROI members on the grounds that in this way impartial knowledgeable persons can be obtained on a basis other than that of ordinary civil servants. As regards the National Personnel Authority, the Government explains that it is composed of persons of outstanding character, experienced in personnel administration, who are appointed by the Cabinet with the approval of the Diet, and that no two of its members may belong to the same political party. If the proceedings before the Personnel and Equity Commissions are sometimes very extended this is in large measure attributable to the uncooperative attitude of the unions which use all sorts of means to disrupt the proceedings.
  119. 119 In its communication dated 15 October 1973, the Government explains that even though the problem of disciplinary sanctions imposed on individuals who had participated in illegal acts of dispute were 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.
  120. 120 Further it is of interest to note with respect to the issues examined that the Advisory Council recommended that collective bargaining on conditions of work other than pay and benefits should be encouraged in the non-operational sector and, in cases where negotiation has failed, some such means of settlement as adjustment of differences by an appropriate body should be considered. With regard to the pay and benefits of national public employees, recourse should be had, for the time being, to the system of recommendations by the National Personnel Authority. However, a system should be established under which the opinions of both employees and management would be heard before making these recommendations.
• Conclusions of the Committee
  121. 121 The Committee observes that this series of allegations is essentially concerned with the taking of disciplinary action against employees in the public sector who participate in strikes which are prohibited by law and with the nature of such action.
  122. 122 The Committee has repeatedly stated that the right of workers and their organisations to strike is generally recognised as a legitimate means of defending their occupational interests, and that where this right is restricted or even prohibited in the civil service or in essential services there should be adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. In the opinion of the Committee, the restriction or prohibition should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards should be fully and promptly implemented.
  123. 123 The public servants on behalf of whom the complaints have been lodged enjoy no right to strike. Nevertheless the National Public Service Law and the Local Public Service Law, which are applicable to certain categories of these public servants, contain no provisions relating to conciliation or the arbitration of disputes. In these circumstances, the Committee recommends the Governing Body to draw attention to the principles and considerations set forth above.
  124. 124 As concerns the disciplinary sanctions imposed on strikers, the Committee has noted, in particular, the explanations given by the Government relating to the circumstances in which strikes have taken place. The Committee considers that strikes of a purely political nature and strikes decided systematically long before the negotiations take place, do not fall within the scope of the principles of freedom of association. The Committee has also noted the information supplied according to which disciplined workers were restored after two years to a position of parity with their colleagues in wages and allowances, and sanctions were imposed almost one year after a strike had taken place. In this connection, the Committee wishes to state that it is not convinced that the imposing of sanctions must be regarded as inevitable whenever a strike takes place. The Committee wishes to point out that a flexible attitude in the application of sanctions is more conducive to the harmonious development of labour relations. The Committee recommends the Governing Body to draw attention to the considerations set forth in this paragraph and to recall the suggestions made to the Government concerning the application of disciplinary sanctions, in particular as regards the permanent disadvantages in remuneration which result from the application of such sanctions on strikers, as well as the detrimental consequences on the careers of the workers concerned which may ensue.
• Allegations relating to Anti-Union Practices
• Case No. 737 (Prefectural and Municipal Workers)
  125. 125 The complainants allege that the trade unions affiliated to the JICHIRO suffer the consequences of infringement of trade union rights by managerial officials who are in sympathy with the government and the prefectural and municipal authorities and who indulge in unfair labour practices. In substantiation of these allegations the complainants mention several examples, including the following: in the Fukuoka Prefecture the authorities terminated an agreement with the employees' union allowing certain trade union activities during office hours, and also banned a union meeting. The authorities have founded an organisation, the "Fukuyo-kai", composed mainly of managerial personnel, and any employee who does not belong to this organisation is treated in a discriminatory manner with regard to wage increments and promotion. Officials and active members of the union affiliated to the JICHIRO are transferred to their disadvantage without warrant. Certain chiefs have tried to induce some employees to run in union elections or express their support for the "Fukuyo-kai". In the Shiga Prefecture a union was formed consisting mainly of management personnel, who distributed forms for giving notice of resignation from the union affiliated to the JICHIRO and for enrolment in the new union. Personnel management officials openly stated that members of the original union would be at a disadvantage with regard to promotion, and other discriminatory measures were taken against them.
  126. 126 In its reply the Government contests these allegations, stating that there have been some instances where local public employees in disagreement with the JICHIRO's policies have formed their own organisations, but that neither the Government nor the local authorities have been involved in any way. Under the Local Public Service Law public employees are not permitted to engage in trade union activities during office hours except in such cases as are prescribed by local ordinance. In the Prefecture of Fukuoka an ordinance has been enacted specifying the cases in which such activities are allowed. Trade union meetings in government buildings are not prohibited, but permission to hold them must be obtained from the authorities. Staff are promoted on the basis of qualifications, and employees who have been disciplined do not qualify for promotion for a certain period. In the case referred to by the complainants, the authorities had no intention of treating "Fukuyo-kai" members more favourably. As for transfers, these are based on vocational aptitude, length of service, etc., and no account is taken of union membership. The Government denies that managerial officials interfered in union elections, and states that every official, irrespective of his position, is as free as any other citizen to express his opinions. The Government likewise denies that managerial officials of the Shiga Prefecture incited employees to join the new union, and declares that it is unthinkable that officials with authority over personnel management should have made remarks to the effect that members of the employees' union would be at a disadvantage with regard to promotion. No officers or members of that union have ever been transferred to their disadvantage, and no-one has ever appealed on such grounds to the local personnel commission.
  127. 127 The Government concludes by stating that the provisions of the Trade Union Law, including those prohibiting so-called unfair labour practices, do not apply to local employees' organisations, but that, on the other hand, the Local Public Service Law not only guarantees the right to organise (section 52) and to bargain collectively (section 55) but also prohibits unfair interference with the exercise of such rights, stipulating that personnel shall not be subjected to adverse treatment on account of the fact that they are members of an employees' organisation, that they have attempted to form or join such an organisation or that they have acted legitimately on behalf of that organisation (section 56). Both the Government and the local authorities have respected these provisions.
• Case No. 738 (Teachers)
  128. 128 The complainants allege that some local prefectures continue to discriminate against union members. The Ehime Prefectural Education Committee granted a special wage increase in 1970 on a selective basis and a markedly high proportion (93 per cent) of NIKKYOSO members did not benefit, ostensibly on the grounds of "bad service". Other examples of discrimination in paying increments are alleged for 1963 and 1967-69 in the same prefecture.
  129. 129 The complainants also allege that the educational authorities use staff transfers as retaliatory measures against union leaders and activists. This treatment consists in sending such people for relatively extended periods to far outlying areas or moving them about frequently, often separating married couples in which both the husband and wife teach. The complainants state in great detail, by way of example, two cases of this sort in Agawa County, Kochi Prefecture.
  130. 130 The complainants allege that local and central governmental authorities are openly supporting morally and financially "Councils for Educational Research", established by the authorities without consultation with the union and directed by school managerial staff (principals and head teachers) and which in one case distributed anti-NIKKYOSO literature and in another heard an allegedly anti-union speech at its inaugural ceremonies given by the superintendent of Fukuoka Prefecture of which the complainants quote an excerpt. These councils, which have sometimes been established by former union members, claim the complainants, constitute an official attempt to organise an anti-union movement. All teachers are nevertheless required to attend council meetings.
  131. 131 The complainants allege that many union members were refused annual paid leave which was requested for one day to go to a special union Convention in Toyama Prefecture on 8 October 1969. Permission was given for only one teacher from each school to go whereas many schools have the right to be represented by a delegation of from two to three teachers. The board of education had scheduled a prefectural sports meeting for the same day and since a large number of teachers would be involved it refused to grant leave to more than one from each school to go the Convention. The complainants allege that the educational superintendent of Takaoka City admitted that this was an infringement of trade union rights. Nevertheless, four teachers who attended the Convention without leave received written admonitions and a decreased diligence allowance at the end of the year.
  132. 132 The Government replies in respect of special increases that they are ex gratia and teachers are not entitled to them as of right. It explains in detail how such increments are accorded by the setting of a quota by the local prefectural board of education for those "who have displayed especially good job performance". To qualify, a teacher must obtain a certificate of good job performance from his superior. The Government further contends that there could have been no discrimination against union members since the board did not even know who were or were not members of the union. There had not been any meetings between the board and the local union for several years and the NIKKYOSO gave no list of its members to the board. According to the annual prefectural survey of labour unions, the local prefectural teachers union had 1,000 members in 1971 but the complainants place the figure at 420. Only 340 persons were excluded from the increment for bad job performance. Others were excluded because of long absenteeism or other substantial reasons such as disciplinary sanctions. The 138 union members who were excluded according to the complainants represent at most only 37.4 per cent of the 340 and not 93 per cent as alleged by the complainants.
  133. 133 The Government further explains that the personnel transfers complained of were carried out as part of a comprehensive personnel interchange programme in Agawa County, determined on the basis of educational efficiency, personnel balance and individual needs, and dictated in part by the fact that in that county 60 per cent of teachers have their principal living base in Kochi City whereas 54 per cent of elementary and secondary schools are in remote areas. Someone must inevitably be sent to such schools from Kochi City. Transfers have nothing to do with union activities, the Government contends, and it states that every effort is made not to separate families. In some of the particular cases cited the real difficulty was that certain local boards of education wished to rid themselves of these people because of their poor relations with parents and other staff members. Also staff transfers were instituted by the need for teachers with particular specialisations in particular schools.
  134. 134 On the question of research councils, the Government explains that the primary function of these councils is, as their name implies, research. They are not unions and their purposes are entirely distinct from those of organisations like the NIKKYOSO. Prospectuses issued at the inception of the research council in Kita-Kyushu City contained no anti-union references and the educational superintendent of Fukuoka Prefecture did not, according to the Government, make any remarks in his inaugural address which were disparaging to the NIKKYOSO. The anti-union literature complained of was not distributed by the council or used at any of its meetings. It is true that the educational authorities subsidise these councils but it is natural, the Government states, that such vocational bodies should be supported by the authorities since they improve the quality of teaching. Consultation with local teachers' unions and the NIKKYOSO respecting the establishment of such councils does take place. The Government says that in the case of the educational research Committee of the Kita-Kyushu City board of education the NIKKYOSO was consulted on seven occasions but refused to accept that the Committee should be chaired by the chairman of the research Committee of the school principals' council and that council officers should be appointed by the chairman and Committee members determined by reference to the research structure in each school. Only after it became clear that further negotiation would be fruitless did the board proceed unilaterally with the inauguration of the Committee.
  135. 135 In any case, the Government contends, these councils are instruments for the improvement of the professional skills of the teaching staff as a whole and it recalls the opinion of the Governing Body Committee on Freedom of Association in its 54th Report that "the determination of broad lines of educational policy, although a matter on which it may be normal to consult teachers' organisations, is not one for collective bargaining between such organisations and educational authorities". On the question of compulsory attendance at meetings of the research Committees the Government points out that the duties of teachers as defined by the Kita-Kyushu City board of education include the duty to undertake research pertaining to their teaching and that this is a matter of educational policy and not one for collective bargaining. In any case, research topics are not unilaterally imposed on teachers and are established only after taking into account the desires of teachers themselves.
  136. 136 In respect of the allegation concerning the refusal of annual leave to attend the special union Convention, the Government answers that this allegation is groundless. It points out that the 8 October date for the prefectural sports meeting had been set as early as 22 April 1969. It was only in mid-September 1969 that the union decided to have its Convention on the same date. The board of education requested them to change it, particularly as it was unusual to have its Convention on a weekday. When the union refused to change the date a compromise was reached whereby one teacher from each school would be permitted to attend. The Government claims that the fact that at least one teacher from each school was permitted to attend is surely evidence that there was no existing plot for the systematic obstruction of union meetings.
• Case No. 740 (State Public Service Workers)
  137. 137 The complainants allege that the authorities have committed various acts discrimination against trade unionists, and other anti-union practices. They offer numerous examples in support of their contentions. They allege that the Ministry of Finance has, by various means, tried to induce members to secede from the ZENKOKUZEI (National Tax Office Workers' Union) and the ZENZEIKAN (All Japan Customs Employees' Union), with the result that membership of these two bodies has dwindled markedly.
  138. 138 As regards the ZENZEIKAN, the complainants note the following facts, which they consider instances of anti-union discrimination. The rules governing special wage rises are not applied to members of the union, with only rare exceptions. Trade unionists' annual wage increases are commonly postponed, on the grounds of inadequate output. ZENZEIKAN members considered not to be of moderate persuasion have been very largely eliminated from vocational training courses. There is also, the complainants maintain, discrimination in housing, and members are shifted from post to post against their will, while they are far less often promoted than non-members. Statistical tables, giving comparative data, are submitted in support of these claims.
  139. 139 As regards the ZENKOKUZEI, the complainants adduce examples to show that in Osaka, Sendai, Sapporo, Nagoya, Kanazawa, Tokyo and elsewhere, members of this union have suffered "discrimination in the field of promotion". In Osaka, the authorities are said to have refused special wage increases to trade union members. In Sapporo, trade unionists also suffer from discrimination as regards vocational training. The complainants quote instances in which high officials have endeavoured to persuade people to cease membership of the union, or not to join if they are not already members. Moreover, in Nagoya, the authorities have prevented the dissemination of trade union publications in offices and the posting of trade union notices on notice-boards. Lastly, the complainants quote instances in which the authorities have declined to negotiate with the union on matters such as the award of bonuses, special permits, travel allowances, abolition of simultaneous day and night duties, etc. As with the ZENZEIKAN, the complainants include statistical tables with comparative figures.
  140. 140 The complainants refer to the National Personnel Authority, the body called upon to consider complaints about sanctions and anti-trade union practices. They allege that hearings by the Authority are excessively lengthy, and that trade union representatives are not given the right to discuss sanctions against trade unionists with the Authority.
  141. 141 As regards the ZENZEIKAN, the Government explains that if its membership has fallen off, this is because many members have disagreed with the union's violent tactics and decided to set up another organisation. It contests the allegations about discrimination, observing that wage increases are granted on the basis of "service record"; that vocational training courses are given to selected staff with an eye to their own needs, the characters of the persons concerned, their future prospects, and the requirements of the service; that promotion depends on the skill and qualifications of those concerned; that there has been no discrimination in the allotment of housing, and that transfers from one post to another are made with an eye to official requirements. In no instance, insists the Government, has there been anti-union discrimination, and the action taken has always been in accordance with current legislation.
  142. 142 The Government offers, with regard to the decrease in membership of the ZENKOKUZEI, an explanation similar to that given in relation to the ZENZEIKAN, and asserts that it is attributable to the union's espousal of radical views. As regards allegations concerning discrimination in promotion, the Government notes that promotion depends on an assessment of an official's personality, skill, ability to adapt, performance, and so on, and that "experience, ability, and service records", as well as seniority, are taken into account. Similarly, special wage increases are granted to those officials who have distinguished themselves in the performance of their duties. Experience and skill are the criteria used in choosing persons for training courses. In fact, the authorities do not know who the union members are (although they know the names of the union leaders), so that discrimination is impossible. The figures adduced by the complainants, according to the Government, have no statistical significance. Furthermore, neither the union nor any public servant has complained about such matters to the National Personnel Authority.
  143. 143 The Government examines in detail the cases in which high officials are said to have approached certain persons with the suggestion either that they resign from the union or that they refrain from joining it. In one particular instance, a Tax Training College Instructor, acting as official adviser to public servants, paid a routine visit to one of the persons concerned to discuss family matters and points connected with that person's duties. At no time did the instructor urge the official to withdraw from the ZENKOKUZEI. As regards yet another instance, the Government states that what appears to have happened was that a member of the executive board of a rival union tried to persuade someone else not to join the ZENKOKUZEI; it was not a question of a high official dissuading a subordinate one from joining. In fact, the incident had arisen from trade union rivalry, with which the authorities had had nothing whatsoever to do.
  144. 144 The Government justifies the action taken in prohibiting the distribution of trade union publications, urging that such distribution is inadmissible in working hours. As regards the posting of trade union notices, the head of an office refused the use of a notice-board to the union on perceiving that the latter had one member only, and rescinded this decision when membership increased to at least two. The complainants alleged that the authorities had declined to negotiate on certain matters; the Government says that these matters were ones with regard to which local authorities were not empowered to enter into collective bargaining. Such matters as wage increases, staff changes, promotions, housing allocations, travel allowances, overtime bonuses and the like were points for decision by the higher tax authorities, or were laid down by law.
  145. 145 The Government makes reference to the complaints made against the National Personnel Authority, explaining that during the last few years, hearings have been very drawn out but that this is because the number of group appeals arising from illegal union activity has recently increased and the cases are of a complicated nature. Trade unions cannot submit complaints to the Authority, but officials can choose anybody they wish to represent them in individual instances. It is perfectly normal, the Government considers, for trade union leaders to share in the examination of cases which have a bearing on trade union activities.
• Case No. 743 (Forest Agency Workers)
  146. 146 The complainants allege that the Forest Agency is sponsoring a second union among agency employees.
  147. 147 The complainants further allege that there is a policy of weakening the Union through transfers of union executives. The Chairmen of Kikuchi and Yatsushiro district executive Committees were transferred without any prior consultation with the Union in spite of the fact that there was an undertaking that local union executive officers should not be transferred without consultation with the union. The complainants note that in these districts these were the only two men who remained in the ZEN-RIN-YA after the secession of all the other members in the region. Similarly in the Asahigawa region there is a policy of dispersing union members, and young activists, particularly, are sent to the mountains or to the Audit Section where there are many managerial staff members.
  148. 148 The complainants explain that, according to the present work rules, union activity is permitted during work hours only with the permission of the employer. This is used to interfere in union affairs. In Hakodate, for example, permission is given only if the agenda of the union or executive Committee is supported and approved of by management. The complainants allege that management is entirely arbitrary in its granting of permission for leave for any union activity and does not adhere to the criterion of whether or not it will hamper business.
  149. 149 There is also a union allegation that the Agency is conducting an overt anti-strike campaign and if a strike is proposed official warnings are issued to individual workers as well as threats of punishment. The complainants allege that the Chief of the Teshio District Forest office threatened two members with dismissal if they participated in further strikes and in the Kanazawa district a member was forced to sign an oath not to follow any further union instructions.
  150. 150 The Government sets out the provisions of the trade union law dealing with unfair labour practices. It states further that labour-management relations in the Forest Agency are good and based on mutual trust and good faith. The Government denies that the Agency has had any part in the formation of a second union or is now seeking to foster it and denies also that the Agency has transferred persons because of their union affiliations.
  151. 151 As regards the transfers of union officers, the Government points out that those persons had been at their posts for a long time. As early as 6 August, the ZEN-RIN-YA was consulted on the question of reassignment for those individuals as well as for some other union officers. When it became clear that agreement could not readily be reached, the Agency postponed the official announcement of transfer and continued negotiations. The Regional Office of the Agency and the Regional Headquarters of the ZEN-RIN-YA met on this issue six times and when it became impossible to delay these transfers any longer, top-level talks were held and the individuals concerned notified that the transfers would be announced on 1 September. Nevertheless Agency officials met twice more with the union before the actual announcement. The ZEN-RIN-YA, with the agreement of the Agency, applied to the Kyushu Local Mediation Commission of the KOROI on the matter and at the suggestion of the latter body conciliation talks were arranged. Thereafter the Commission notified both parties that conciliation proceedings would not be continued. To accommodate the Union the Agency postponed the carrying into effect of the transfers for another twelve days. The Government declares that the history of the case shows that the authorities acted entirely in good faith in the matter. The Government notes that judicial settlement of the issue is now pending.
  152. 152 The Government notes further that in the Asahikawa region only two officers of the Regional Forest Office Branch of the ZEN-RIN-YA (out of a total of 22 such officers) were transferred to the Audit Section. Other union members transferred were not officers and it was of no interest to the Agency how active they were in union affairs.
  153. 153 The Government states that in principle union activity should be conducted outside working hours. At times, in order to accommodate the union, the employer may, if necessary, permit employees time off for union activities when it seems inevitable that they be carried out during working hours. Such time is referred to as union leave and is a privilege, not a right. It is therefore reasonable, the Government says, that a few minimal questions be asked before granting union leave, in order to determine whether or not the union activity must be conducted during working hours or to see that it is not used to conduct or plan illegal activities. Nevertheless, although the agenda is requested there is no requirement to supply a detailed report of proceedings, the Government states, and this is true also for the Hakodate region.
  154. 154 Since strikes in the Agency are illegal, the Government states, management has every right to attempt to prevent such acts of dispute and even a duty to do so. The Government states that it has investigated the allegation concerning supposed threats made in the Teshio district and the oath extracted under stress in the Kanazawa district. It states that in the first case the members were really asked whether or not they had reported for work on the day of the strike and that the Kanazawa allegation was quite simply untrue. As a result of talks with the ZEN-RIN-YA the Forest Agency has instructed its officials to clear up any misunderstanding there may have been in this respect.
• Conclusions of the Committee
  155. 155 The Committee finds itself confronted by largely contradictory statements from the Government and the complainants and it would be difficult for it to reach conclusions on all of the issues raised. Although the information which the Committee has at its disposition with regard to some of the cases is insufficient to substantiate the complaints, it would appear that in others antiunion acts have been committed, particularly in relation to the councils for educational research (Case No. 738) and, from the statistics which give a basis of comparison between the situation of the members of the All Japan Customs Employees' Union (ZENZEIKAN), the National Tax Office Workers' Union (ZENKOKUZEI), and that of other workers, as far as these organisations are concerned also. The Committee recalls that Convention No. 87 provides that each State for which it is in force undertakes to take all necessary and appropriate measures to ensure that workers may exercise freely the right to organise. Nevertheless, the Committee considers that complaints against acts of anti-union discrimination should normally be considered by national machinery, which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.
  156. 156 In these circumstances the Committee recommends the Governing Body to draw attention to the principles and considerations set forth in the previous paragraph and to invite the Government to take such steps as may be appropriate to ensure that no acts of anti-union discrimination take place in the public sector.
  157. 157 As regards the allegations concerning collective bargaining, the Committee would recall that Convention No. 98, which deals with the promotion of collective bargaining, is not applicable to public servants acting as agents of the public authority. However, if in accordance with national law or practice, collective bargaining does take place and involves such public servants' or state employees who do not belong to this category, the authorities should be free to decide whether they will negotiate at the local or national level, while the workers, for their part, should be entitled to choose as they wish the organisation which shall represent them in negotiations.
• Allegations relating to the Personnel Commissions and the Equity Commissions
• Case No. 737 (Prefectural and Municipal Workers)
  158. 158 The complainants claim that the Personnel Commissions and the Equity Commissions do not function effectively to safeguard working conditions and to resolve the problems arising as a result of unfair labour practices. These commissions have the following functions: (1) the Personnel Commissions have to present reports on wages and working conditions every year, if necessary; (2) they may make appropriate recommendations, where necessary, at the request of public employees; (3) they are required to give rulings on appeals lodged by public employees against disciplinary action taken against them. The Equity Commissions are competent only in respect of the second and third of these functions. According to the complainants, the shortcomings of these commissions are due to the fact that there are too many of them, that there are not enough full-time members, that the commissions are not impartial and that trade unions are not able to request them, on behalf of their members, to take action regarding working conditions. The complainants cite various recommendations made in 1965 by the Fact-Finding and Conciliation Commission on Freedom of Association, asserting that these recommendations have not been implemented by the Government.
  159. 159 In its reply the Government cites the provisions of the Local Public Service Law relating to the appointment of members of these commissions, declaring that these measures leave no room for doubt as to the impartiality and neutrality of the commissions. In particular, the Law provides that members shall be appointed by the head of the local public body, with the consent of the local council, from among "persons of highest moral character and integrity, in known sympathy with the principle of local autonomy and the democratic and efficient administration, and possessing knowledge and sound judgement concerning personnel administration". The Government contends that, bearing in mind the qualifications commission members must have, it is desirable that it should be possible for them to serve part-time, which does not hinder the rapidity with which cases can be examined, since the preparatory work is done by the full-time secretarial personnel. According to the Government, the delays in the redress procedures in the commissions are in reality attributable to the unions themselves, which encourage all their members concerned to file complaints in concert and make use of these procedures as a means of collective bargaining, and to the behaviour of the large numbers of workers who attend the hearings. The Government further states that under the existing system a union is not in itself authorised to demand action by the commissions for the improvement of working conditions because these conditions concern individual employees. However, it is possible for representatives of the union to make claims on behalf of employees.
• Conclusions of the Committee
  160. 160 The Committee observes that the allegations refer to matters already examined both by the Committee itself and by the Fact-Finding and Conciliation Commission, and the information available is basically the same, except as concerns the explanations furnished by the Government as to the attitude of the unions and the employees when filing complaints with the Personnel Commissions and the Equity Commissions and during the hearing of these complaints. The Committee takes note of these explanations, according to which the delays in these procedures are largely attributable to the behaviour of the unions themselves and of the workers, who attend the hearings in great numbers.
  161. 161 With specific regard to the allegation relating to the lack of impartiality of the commissions, the Committee observes that it appears from the information supplied by the complainants that of a total of 171 commission members, 46 are jurists (including former judges) and 109 are managers or senior executives in undertakings and corporations, former managers or senior executives or former senior civil servants. All the members are appointed by the local public bodies - i.e. the employers - with the consent of their assemblies.
  162. 162 In these circumstances, the Committee recommends the Governing Body to suggest to the Government once again that it may care to consider what steps can be taken to ensure that the various interests are fairly reflected in the numerical composition of the commissions, and to consider also the advisability of providing that each of the parties concerned shall have an equal voice in the appointment of the members of the commissions.
  163. 163 With regard to the allegation relating to the rights of trade unions vis-à-vis the Personnel Commissions and the Equity Commissions, in order to enable the unions to develop their occupational activities and bearing in mind the conclusions of the Fact-Finding and Conciliation Commission, the Committee recommends the Governing Body to suggest to the Government that it consider the adoption of measures granting trade unions the right to make claims to these commissions in respect of wages and other conditions of work.
• Allegations relating to the Trade Union Registration System
• Case No. 737 (Prefectural and Municipal Workers)
  164. 164 The complainants allege that, under the law, if a union of local public service employees extends beyond a single locality it is unable to register as a trade union. A union is likewise disqualified from registering if its members are not all employees of the same public enterprise - i.e. if some of its members are employed by a local public body and others by a local public enterprise. A union which is not registered is denied corporate status and as a result is not entitled to own buildings. A non-registered union is also prejudiced in respect of collective bargaining, and is not allowed to have full-time officers entitled to preserve their status as public officials. The complainants claim that the Government uses the legislation to compartmentalise the organisation of unions, and cite a number of examples to illustrate the difficulties encountered and the prejudice suffered in connection with the acquisition of property, collective bargaining and the appointment of union officials.
  165. 165 The Government does not deny that the registration system is as described in the complaint, but points out that although registered unions are granted by law certain facilities not available to other organisations, whether trade unions or not, non-registered organisations are not placed at a disadvantage. Non-registered organisations are not restricted in any way as regards their formation, existence or activities. The requirement that to be eligible for registration a union must limit its membership to the personnel of one local public body and not include persons working for local public enterprises stems from the fact that the wages and working conditions of the former are determined by local ordinance while those in public enterprises are determined by collective agreement.
  166. 166 Referring to the difficulties and disadvantages alleged by the complainants, the Government explains, as regards the acquisition of real estate by a non-registered trade union, that it may register such property under the terms of the Civil Code, as being owned by a separate body with legal personality established for the purpose. According to the Government, corporate status is of little practical importance to trade unions, as is borne out by the fact that the overwhelming majority of registered organisations have not applied for it, although they could do so at will.
  167. 167 With regard to collective bargaining, the Government points out that, as a result of an amendment made in 1965 to the Local Public Service Law, an unregistered trade union now has the right to bargain collectively. In the case of registered unions, local authorities must readily accept any proposal to negotiate made by such an organisation (section 55(1) of the Local Public Service Law); this does not mean, however, that local authorities can refuse a request for negotiation from a non-registered union without justifiable grounds. In fact, the Government has never heard of an instance where local authorities refused to negotiate with a union without justifiable grounds on account of its not being registered. The Government states that the examples of refusal to negotiate cited by the complainants relate to cases prior to the amendment of the law in 1965.
  168. 168 Concerning the full-time union officer system, although the Government considers that it is natural that officers engaged exclusively in union business should be employed by the union as its own personnel, it nevertheless decided, as an exceptional measure, to allow registered trade unions to have full-time officers who retain their status as public employees, in the interests of maintaining smooth labour-management relations in a country where the so-called enterprise-based trade union reflects the general pattern of trade union organisation.
  169. 169 As regards registration of trade unions, the Advisory Council on the Public Service Personnel System recommended that the system of registration should continue to exist, but that, where a non-registered employees' organisation requests management to negotiate with it, management should endeavour not to reject the request arbitrarily when there is no sound reason for rejecting such a request. The status of a juridical person should be granted independently of the registration system.
• Conclusions of the Committee
  170. 170 The Committee observes that the legislation imposes restrictions upon the registration of unions of local public service employees and that these restrictions are related to the structure and composition of the union concerned. Non-registration of a union impairs its rights as regards the acquisition of real estate, collective bargaining and the appointment of officers. As regards collective bargaining, in particular, the Committee observes that under the terms of the Local Public Service Law (section 55), the authority concerned is "in a position to respond" to any request for negotiation made by a registered organisation, but that it may refuse to respond, and therefore to negotiate, in the case of a non-, registered organisation.) Even though, according to the Government's' explanations, in practice no difficulties appear to arise with respect to collective bargaining by non-registered organisations, and other legal avenues are open to them for the acquisition of property, the effect of the registration system is to perpetuate the horizontal and vertical subdivision of local public employees' organisations into small units, as already pointed out by the Fact-Finding and Conciliation Commission. In addition this system gives rise to problems in the light of the principles of freedom of association as set forth in Convention No. 87.
  171. 171 In these circumstances, the Committee recommends the Governing Body to draw the Government's attention to the desirability of considering the necessary changes so as to enable local public service employees effectively to establish organisations of their own choosing, and so as to accord to these organisations full rights in respect of the furtherance and protection of the interests of the workers whom they represent.
• Allegations relating to the Legal Force of Collective Agreements
• Case No. 737 (Prefectural and Municipal Workers)
  172. 172 The complainants allege that, under the terms of the Local Public Enterprises Labour Relations Law, unskilled workers are entitled to conclude a collective agreement, but that if an agreement entails expenditure which is not provided for in the budget of the public enterprise in question, the agreement cannot take effect until certain measures have been taken. In the case of other local public service employees the relevant law permits the conclusion of collective agreements in so far as they are not contrary to the laws and regulations of the local governments. According to the complainants these provisions are not enough to guarantee the right to bargain collectively and the healthy development of labour-management relations is frequently impeded.
  173. 173 In its reply the Government refers first of all to the bargaining rights of local public employees who do not work for a local public enterprise or perform unskilled jobs. The pay and working conditions of such local public service personnel are fixed by ordinance, and a written agreement concluded between a personnel organisation and the authorities of a local public body may take effect only if it does not conflict with such ordinances, regulations or rules. Secondly, as concerns personnel who work for enterprises operated by a local public body and unskilled workers, the Government explains that they may negotiate collective agreements in respect of specific working conditions, but that in the event of their being in conflict with the ordinances within whose limitations they have been concluded or necessitating expenditure not budgeted for, the local authorities must submit to the assembly a bill to amend or repeal the ordinances in question so as to eliminate the inconsistencies, or seek the assembly's approval for the expenditure in question.
• Conclusions of the Committee
  174. 174 The Committee observes that those local public service employees who are acting as agents of the public authorities may exercise the right to bargain collectively within certain limits, notwithstanding the fact that under Article 6 of Convention No. 98 they could have been exempted from the measures the Government was required to take under Article 4 of that Convention to encourage and promote the development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements. In these circumstances the Committee considers that the Government has not acted in a manner inconsistent with Convention No. 98, and accordingly recommends the Governing Body to decide that this aspect of the case does not call for further examination.
  175. 175 With regard to employees of local public enterprises and unskilled workers, the Committee observes that in the event of the necessary funds not being available under the relevant budget the taking effect of any collective agreements they may conclude will depend upon the approval by the local assembly of the expenditure in question. The Committee accordingly recommends the Governing Body to draw the attention of the Government to the principle that freely negotiated collective agreements should take effect without delay.
• Allegations relating to the Right of Firemen to Organise
• Case No. 737 (Prefectural and Municipal Workers)
  176. 176 In their communication of 10 February 1973 the complainants allege that local fire service personnel are denied the right to form unions, being analogous, in the Government's opinion, to police personnel. The complainants enumerate the powers vested by law in firemen in case of fire, such as authority to restrict traffic, enlist the assistance of bystanders and enter private homes, pointing out that there is a marked difference between these powers and those conferred upon policemen. According to the complainants there is no inconsistency between the right to organise and the need for firemen to maintain strict discipline in the performance of their duties.
  177. 177 In its reply the Government states that it has always understood that the fire service was to be included under the heading of "police", and that under the terms of Article 9 of Convention No. 87 it is for national laws or regulations to determine whether such personnel are to enjoy the right to organise. Both the fire service and the police have the task of maintaining public safety and order. The functions of the fire service are to prevent and control fires and to minimise the damage caused by floods, etc., while the duty of the police is to protect personal rights and freedom and maintain public safety and order. There is mutual co-operation between the two services, and each complements the other. Referring to the powers of firemen, the Government reiterates those mentioned in the complaint, but adds that firemen do not have the right to carry and use weapons, arrest people or carry out police checks. The Government points out that in the past the Committee has considered firemen in Japan to be comparable to the police (12th Report, Case No. 60, paragraphs 33 to 36, and 54th Report, Case no. 179, paragraphs 93 and 94).
  178. 178 As concerns the disciplinary aspect, the Government states that it is generally recognised that in order for the fire service to utilise its personnel and equipment efficiently and perform its duties effectively, it is necessary to maintain rigid discipline and to take prompt, severe and legally compelling action. These specific duties seem to be fundamentally incompatible with the right to organise, the concept of which stands on the assumption that labour and management are in confrontation. But, although the general local public employees at present do not have the right to strike, as stated before, they repeatedly carry on illegal strikes under the guidance of the JICHIRO, causing a good deal of social disruption. From this fact, there can be no assurance at all that the fire service personnel alone will be able to maintain rigid discipline as they do now and perform their fire-fighting operations" properly without carrying on strikes once they are given the right to organise.
  179. 179 With regard to the firemen the Advisory Council on the Public Service Personnel System recommended that the present system under which they are prohibited from organising should be retained for the present, but that further study should be made, paying attention to future deliberations in the ILO.
• Conclusions of the Committee
  180. 180 The Committee takes note of the viewpoints expressed by the complainants and by the Government, and infers that the latter is on the whole opposed to granting firemen the right to organise for fear that the exercise of this right may undermine the discipline necessary for the performance of their duties and lead to the outbreak of strikes. The Committee considers that the right to organise and the right to strike are two different matters, and that the former does not necessarily involve the latter, as has happened in the case of civil servants and workers in essential services. Moreover, practical experience has shown that strikes can take place without the workers concerned being organised into a trade union, as witnessed by the Government's own account of the action taken by certain firemen. In the earlier reports referred to by the Government, the Committee treated firemen within a more general context, considering allegations concerning the refusal of the right to organise in the public service. Subsequently Japan ratified Convention No. 87 and the specific question of the fire service was examined by the Committee of Experts on the Application of Conventions and Recommendations. The Committee recommends the Governing Body with respect to the allegations relating to the right to organise of firemen, who, in Japan, although having special characteristics, are not members of the police or the armed forces, to point out to the Government the opinion expressed by the Committee of Experts on the Application of Conventions and Recommendations according to which the provisions of Convention No. 87 do not allow for the exclusion of this category of workers from the right to organise under Article 9 of the Convention, but to recall also that the right to organise and the right to strike are two different matters, and that the former does not necessarily involve the latter.
• Allegations relating to Employees of Courts of Law
• Case No. 740 (State Public Service Workers)
  181. 181 The complainants explain that, although under the National Public Service Law court employees are deemed to be on special government service, the said Act applies, mutatis mutandis, to matters concerning the legal status of court officers and their working conditions. The Japanese Supreme Court has three essential duties: (a) administration of justice; (b) to act as employer to court employees; and (c) to act as an impartial body called upon to settle labour-management disputes on unfair labour practices and anti-union discrimination. The complainants maintain that acting as an employer, the Supreme Court can impose sanctions or commit unfair labour practices, while its employees can only appeal to the court itself, which acts as judge and jury in its own cause. Such a system, the complainants maintain, is quite unjust and moreover, the court as an employer is characterised by an oppressive attitude towards those who work for it. For instance, trade union activities are forbidden in court precincts. Nor, during working hours, may employees wear badges or ribbons bearing trade union slogans.
  182. 182 In its reply, the Government does not deny that the description given by complainants of the court's functions is a fair one, but declares that the court occupies a special position among the organs of the State, being obliged, in its judicial as well as its administrative duties, to remain totally independent of all other bodies. Such independence could not be maintained if, as the complainants allege, disputes involving court employees had to be referred to some other body. Moreover, the Government adds, the court sets up commissions consisting of qualified persons who are not part of the judiciary and other members designated from amongst the court employees who are not connected with staff administration. The court takes due account of the views expressed by such boards in making its decisions. Hence, the Government declares, it cannot be maintained that officials have no means of defending their interests. With regard to trade union activities in court precincts, they ought, the Government feels, to be reduced to a minimum; in this respect, official policy is flexible. As regards the ban on wearing ribbons bearing trade union slogans, such practices are not permissible during working hours and moreover are incompatible with the duties of the officials concerned. In the instance quoted by the complainants, officials who had disobeyed the order to take their ribbons off had been admonished, either verbally or in writing, and that did not constitute a disciplinary sanction.
• Conclusions of the Committee
  183. 183 The Committee recommends the Governing Body to take note of the information provided by the Government and express the hope that the established grievance procedure is such that anti-union acts against court employees shall not occur.
• Allegations relating to the Right to Strike
• Case No. 741 (Printing, Mint and Alcohol Monopoly Workers)
  184. 184 The complainants state that as employees of national public enterprises they are subject to the provisions of the PCNELR Law and the National Public Service Law, under both of which workers are prohibited from striking. They argue that, since they cannot legally resort to strike action, they are in a permanently disadvantageous position vis-à-vis their employer.
  185. 185 The complainants argue that work stoppages in the Mint, the printing of money and postage stamps, and in the production and distribution of alcoholic beverages would not directly affect the welfare of the general public or the life of the nation.
  186. 186 The Government states that the basic status and terms of employment of workers engaged in national enterprises is determined by the National Public Service Law but because the enterprises are of a commercial nature the labour relations of these employees come not under the National Public Service Law, but under the PCNELR Law. Under section 17 of the latter all strikes are prohibited and by virtue of section 18 anyone engaged in such strikes may be dismissed. Under section 82 of the National Public Service Law any employee within its scope engaging in illegal acts of dispute, including all strikes, may be dismissed, suspended or reprimanded or have wages reduced.
  187. 187 The Government points out that it has always been stated to be the policy of the ILO that Convention No. 87 does not deal with the right to strike in the public service. Therefore, it states, the issue which the complainants raise is one not of violation of Convention No. 87, but of the interpretation and application of national laws.
  188. 188 The Government explains that the right to strike is not accorded to workers in the three public enterprises because of both the particular character of the enterprises and the special nature of labour relations with employees of these enterprises. Instead, labour disputes involving these employees are referred for conciliation, mediation, or arbitration to the KOROI, whose decisions are binding on both parties.
• Case No. 742 (Monopoly Corporation Workers)
  189. 189 The complainants state that the ZEN SEMBAI represents 34,000 workers in the tobacco and salt industries, both of which in Japan are operated by the Japan Monopoly Corporation, a state corporation whose profits form part of the National Revenue. Because they are employees of a public corporation the workers of the Japan Monopoly Corporation come within the purview of the PCNELR Law, which prohibits workers from engaging in acts of dispute. This prohibition, the complainants allege, is contrary to the principles contained in International Labour Conventions Nos. 87 and 98.
  190. 190 The complainants allege that although they have the right to organise, to bargain collectively and, to a limited extent, to conclude collective agreements, deprived of the right to strike they cannot negotiate with the employer on an equal footing in relation to wages or to means of industrial reorganisation and rationalisation or to general working conditions, and thus have been kept at levels inferior to those of comparable workers in the private sector.
  191. 191 The complainants contend that their employment situation is entirely analogous to that of many workers in the private sector, particularly in the food industry, where workers do enjoy the right to strike. Further, persons employed by independent subcontractors in the tobacco industry (for delivery and retailing) also enjoy the right to strike. The complainants stress that in other countries in which the tobacco industry is managed by a state monopoly (e.g. Austria, France or Italy) the workers have the right to strike. Thus, state the complainants, there is no rational ground upon which strikes should be prohibited by the Japan Monopoly Corporation.
  192. 192 In its reply the Government explains that the Japan Monopoly Corporation is a public corporation established and governed by its own statute, independent of the Government except that its capital is provided by the State and hence its finances are subject to the control and supervision of the Diet.
  193. 193 The Government points out that it has always been stated to be the policy of the ILO that governments ratifying Conventions Nos. 87 and 98 are not obliged to accord the right to strike to workers in the public sector.
  194. 194 Although the workers have not the right to strike, says the Government, adequate machinery for settling disputes exists and there is always the possibility of having recourse to the KOROI, a tripartite Board of Arbitration entirely independent of the Government, whose awards are binding on both parties. Satisfactory collective negotiations have taken place on conditions of work and reorganisation and rationalisation of the salt and tobacco industries and collective agreements on the basis of these negotiations have been concluded between the Corporation and the Union. Also the workers in public corporations enjoy guarantees as to status and services which those in the private sector do not have. The Government points to the fact that it has always respected and implemented KOROI decisions since the end of its post-war financial difficulties.
  195. 195 The Government disagrees that the workers' situation is analogous to that in the private sector. It argues that the tobacco and salt monopolies are important means of enabling the authorities to obtain revenue and that decreases in such revenues caused by labour disputes are reflected directly in the national and local Treasuries: (revenues of the Japan Monopoly Corporation correspond to 3.7 per cent of annual tax revenues and to 2.7 per cent of annual local revenues). Also the Government argues that the State is by virtue of its monopoly under an obligation to maintain a stable, regular supply of tobacco and salt and that the latter, at least, is indispensable to the everyday life of the nation. Comparisons with other countries, it states, are misleading because of fundamental differences in culture and tradition. On all of these grounds the Government feels that workers in public corporations should not have the right to strike.
  196. 196 With regard to the right to strike in the "operational sector", three divergent opinions in the Advisory Council on the Public Service Personnel System were expressed. There was, nevertheless, unanimous agreement that a thorough study should be made of the question relating to the organisation and operation of public corporations and national and local public enterprises.
• Conclusions of the Committee
  197. 197 The Committee has always taken the view that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. It has considered, as a general principle, that the right to strike of workers and their organisations is generally recognised as a legitimate means of defending their occupational interests, but it has also indicated that the right to strike may be restricted or prohibited in certain essential undertakings or services in the strict sense of the term, provided that adequate protection is given to the workers to compensate them for the limitations thereby placed on their freedom of action with regard to disputes affecting such undertakings or services.
  198. 198 More particularly, in a previous case relating to Japan, which also referred to the tobacco and alcohol monopolies, the Committee recommended the Governing Body to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because their interruption may cause public hardship and those which are not essential according to this criterion, and to suggest to the Government that it examine this aspect of the matter. The Fact-Finding and conciliation commission on Freedom of Association expressed the same view in its report (paragraph 2139). It also indicated that "it cannot be accepted that the activities of all public corporations and national and local enterprises are equally essential. In those which are less essential, the public interest does not require that all strikes be equally prohibited" (paragraph 2136).
  199. 199 The Committee considers that the Government has not made out its case that the Mint, the Government Printing Service and the state alcohol, salt and tobacco monopolies constitute genuinely essential services according to the criterion expressed above. Although it might be said that stoppages of work by the workers concerned could cause public inconvenience, it does not appear possible to consider that they could bring about serious public hardship. The Committee therefore recommends the Governing Body to draw the attention of the Government to the principles and considerations set forth above and to the desirability of re-examining the situation with regard to the right to strike of the workers in these state undertakings.
• Allegations concerning Weakening of the Collective Bargaining Process
• Case No. 743 (Forest Agency Workers)
  200. 200 The complainants allege that by negotiation they agreed on suitable units of collective bargaining with the Agency management, taking account of the particular nature and geographic extent of the Agency's operations. Now under the pretext of centralisation of labour administration, the Agency refuses to negotiate at the local level with units previously agreed upon. This, the complainants contend, is an attempt to suppress union activity.
  201. 201 The complainants allege that the Agency is slow to implement collective agreements and, in the case of improvements of conditions of daily-paid workers, took six years to implement them. Further, the Agency will not negotiate respecting unit prices for piece-work and suitable sites for checking in and out of work.
  202. 202 The Government replies that the collective bargaining process in national enterprises is stipulated in the PCNELR Law and the National Personnel Service Law. Section 8 of the former provides that "matters affecting the management and operation of the public corporation and national enterprise shall be excluded from collective bargaining". The Government explains that such undertakings should be operated according to those laws and regulations representing the national will and by persons in a position to assume responsibility to the entire nation for their management and operation. Thus not even trade unions can enter into collective bargaining on matters affecting the management and operation of public corporations and national enterprises and impose limitations on such matters by means of legally binding collective agreements. It is an established practice, however, to regulate actual working conditions by collective bargaining. The Government states that the Agency has not broken the collective agreement concerning collective bargaining but that it must be remembered that there is a concerted attempt to standardise conditions at the national level, and on three occasions the Agency has abrogated collective agreements found to be in conflict with the law. It points out that many of the agreements were made before the PCNELR Law was applicable to various Agency workers. It was, therefore, necessary to suppress these when the Law was made applicable to the Agency.
  203. 203 The Government asserts that every effort has been and continues to be made to improve the conditions of daily-paid workers. Their wages, fixed at rates determined by the KOROI, have been increasing every year at a rate faster than those of monthly paid employees. They receive the same allowances as monthly-paid workers. The Government asserts that there is a collective agreement concerning the method of establishing wages for piece-work labourers. This provides that the daily wage provided for in the agreement is to be divided by the standard work performance rate. The latter is a per diem production quota set by the District Forest Chief on the basis of conclusions reached in a Committee formed of union and management representatives. It is only if this Committee fails to agree on a suitable rate that the Chief can set a rate which appears to him reasonable and equitable.
  204. 204 The Government explains further that the operations of the Agency are very scattered and actual work sites are subject to frequent change. This makes it difficult to ascertain whether employees have in fact reported to work on time. Thus appropriate sites have to be established for this purpose. In the case of workers coming on foot, labour and management agree on suitable sites and for those using the Agency's commuter bus service the time of reporting in and leaving is checked at the actual work site. The Government states that negotiations between management and labour are currently being held on the problems of those who must commute over large distances.
• Case No. 744 (Ministry of Agriculture and Forestry Workers)
  205. 205 The complainants note that pursuant to section 108 of the Public Service Law they can neither bargain collectively nor conclude collective agreements but allege that previously the Ministry nevertheless recognised bargaining units at various levels and acted in accordance with the conclusions reached at negotiations undertaken at these levels. Since 22 September 1970, however, there has been in force a vice-ministerial order abolishing negotiation at the local level so that even specifically local working conditions cannot be negotiated locally. The complainants contend that this order was made for the purpose of repressing union activity by strengthening the organisation of personnel administration within the Ministry and intensifying centralisation.
  206. 206 The complainants further contend that because of this order management can reject or modify negotiations unless the items on the bargaining agenda, the number of negotiators and the place of negotiation comply with the Vice-Ministerial Order. They allege also that the Government is being excessively legalistic in its approach to collective bargaining.
  207. 207 The Government explains that collective bargaining actually takes place in the approximately 1,600 subordinate branches of the Ministry. The ZENNORIN bargains at three different levels. However, since many of the working conditions of national public employees are provided by law, the bargaining capacity of the subordinate branches as well as that of the Ministry itself is limited. Moreover, the subordinate branches of the Ministry cannot bargain on matters outside their competence and matters concerning the administration and operation of government business. The requirements of prior notification of agenda, place, negotiators, etc., are stipulated in the National Public Service Law itself (section 108-5(5)), and section 108-5(7) provides that, when these conditions are not met, the negotiations may be broken off. These bargaining rules were introduced for the purpose of preventing disorderly bargaining, which had caused disturbances in the past. However, there is no intention on the part of the Ministry to restrict the activities of the trade union in an unreasonable manner, as claimed by the complainants. The Government adds that the reason it issued a Vice-Ministerial Order defining the new bargaining procedures was that the union did not accept the Ministry's offer to negotiate on this issue.
  208. 208 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. As regards collective bargaining in the non-operational sector, see paragraph 120.
  209. 209 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.
• Conclusions of the Committee
  210. 210 In respect of the allegations relating to units for collective bargaining in the Forest Agency the Committee recalls its view expressed in paragraph 188(f) of the 54th Report (Case No. 179 relating to Japan) that employing authorities have the right to decide whether they will negotiate at the regional or national level; on the other hand, the workers, whether negotiating at the regional or national level should be entitled to choose as they wish the organisations which shall represent them in the negotiations.
  211. 211 As regards the allegations concerning the Forest Agency's refusal to bargain collectively in certain matters the Committee recalls the view expressed by the Fact-Finding and Conciliation Commission in paragraphs 2229 and 2231 of its report that the application of section 8 of the PCNELR Law, referred to by the Government, may give rise to grave difficulties in practice. The Commission continued: "There are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment. It must be recognised, however, that there are many questions which affect both management and operation and conditions of employment." The Commission then gave examples of personnel strength and personnel transfers, and to these the Committee would add, in the present case, sites for checking in and out of work and particularly questions concerning piece-work rates. The Committee takes note of the fact that the Forest Agency has engaged in negotiations with the ZEN-RIN-YA on matters beyond the scope of mere "working conditions" as understood hitherto under section 8 of the PCNELR Law with the aim of improving mutual understanding and communication between labour and management.
  212. 212 The Committee recommends the Governing Body to draw the attention of the Government to the above considerations in relation to the scope of matters to be covered by collective bargaining and to express the hope that the authorities concerned will always be guided by principles of good faith and reasonableness in the determination of the scope of matters properly appertaining to "management and operation", which are excluded from collective bargaining.
  213. 213 As regards the allegations which refer to the right of collective bargaining at local levels by public servants of the Ministry of Agriculture and Forestry, the Committee notes that, according to the information available, such collective bargaining actually takes place according to certain procedural rules and on matters for which the local branches of the Ministry are competent. The Committee wishes to recall that Convention No. 98, which deals with the promotion of collective bargaining, does not apply to public servants who act as agents of the public authority.
• Allegations concerning Interference with Trade Union Activities
• Case No. 744 (Ministry of Agriculture and Forestry)
  214. 214 The complainants allege that when a member wishes to engage in union activity during service time he must apply for leave with pay and that management tends to refuse such leave. The same attitude is displayed in relation to "brief absences" for union activity during working hours even if they will not interfere with business in any way.
  215. 215 Further, the complainants state that the authorities are openly engaging in an anti-strike campaign and have, in some cases, threatened certain members with dismissal if they remain on strike.
  216. 216 The Government replies that paid leave is always granted unless it would disrupt the business of the enterprise. Thus, where large numbers of employees have requested leave at the same time in order to participate in acts of dispute, this has been refused because it would considerably disrupt normal business. Section 6, rule 17-2, of the National Personnel Authority Regulations, permits temporary leave without pay for union activities for thirty days annually in the case of union officers. The Government states that the Ministry of Agriculture and Forestry is not aware of any difficulties caused to the union by this system. The Government also denies that specific members of the union have been threatened with dismissal.
• Conclusions of the Committee
  217. 217 The Committee notes that the main question at issue is related to leave of absence for trade union activities during working hours. The Committee has taken note, in particular, of the information supplied by the Government, and in the light of this information it recommends the Governing Body to decide that this aspect of the case does not call for further examination

B. B. The Committee's conclusions

1. 218. In all these circumstances the Committee submits certain recommendations both on the individual issues examined in this report and on the cases as a whole.