Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Japan (Ratification: 1965)

The Committee notes the Government's reports on the application of the Convention and the comments submitted by the General Council of Trade Unions of Japan (SOHYO). It also notes the discussions that took place in the Conference Committee in 1987.

The comments made by the Committee in its previous observations dealt with, on the one hand, the prohibition of strikes by public servants (which are enforceable by disciplinary sanctions) and, on the other hand, the denial to fire-fighting personnel of the right to organise in trade unions.

1. On the first point, the Committee notes the statement by the Government representative to the Conference Committee in 1987 to the effect that the Government had not taken a rigid and inflexible attitude with regard to this issue and nor would it do so in the future. As it does not appear from the Government's report that there have been any developments in the situation in this respect, the Committee is bound to reiterate its previous conclusions, namely that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. In the Committee's opinion, such a prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Moreover, if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties. Such awards, once rendered, should be rapidly and fully implemented. The Committee has also pointed out that penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association. In these cases, the sanctions should be proportional to the offences committed, and penalties of imprisonment should not be imposed in the case of peaceful strikes. The Committee once again requests the Government to re-examine the situation regarding the right to strike and penal sanctions in the light of the above principles and to continue supplying information on any development concerning the application of these principles.

2. With regard to the denial to fire-fighting personnel of the right to organise in trade unions, the Committee notes that, according to SOHYO, the Government has taken no steps to continue discussions on this subject with the parties concerned in the country. The Government has therefore, according to SOHYO, maintained its position of not recognising the right of fire-fighting personnel to organise in trade unions. With reference to the reports of the Committee on Freedom of Association of 1954 and 1961, referred to in the Government's previous report, SOHYO considers that the conclusions adopted by that Committee on that occasion do not deal principally with the situation of fire-fighters and it refers to a 1973 report of the Committee on Freedom of Association in which it points out that the terms of Convention No. 87 do not permit the exclusion of this category of workers from the right to organise in trade unions. SOHYO also states that, contrary to the Government's statements, the workers' organisations concerned have never approved the Government's position on the denial to fire-fighting personnel of the right to organise in trade unions.

In its report, the Government refers once again to the 1954 and 1961 reports of the Committee on Freedom of Association which, in its opinion, deal with the situation of fire-fighters, and it refers to a national agreement concluded by a tripartite commission in 1958. It reaffirms that, in its opinion, the legislation forbidding the right to organise in trade unions of fire-fighting personnel is not in violation of Convention No. 87. The Government is therefore examining this question as a domestic issue in a long-term perspective. It has accordingly exchanged opinions on several occasions with the parties concerned (eight times in 1988) and in particular with workers' organisations. The issue has also been examined at the Inter-Ministerial Conference on Public Employees' Problems.

While noting these explanations, the Committee is bound to recall the position that it has constantly adopted in this respect, namely that it does not consider that the functions of this category of workers are of such a nature as to warrant their exclusion from the right to organise under Article 9 of the Convention. In the Committee's opinion, it would not be in conformity with the Convention to deny the right to organise to any category of worker other than the armed forces and the police. However, the Committee emphasises once again that the right to organise does not necessarily imply the right to strike and that the fire-fighting services must be considered as an essential service in the strict sense of the term in which the right to strike may be subject to prohibition.

The Committee hopes that the discussions between the parties concerned can be continued on the basis of the principles and considerations set out by the Committee so that the issue of the right to organise of fire-fighting personnel can be resolved at the national level.