Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) dated 4 August 2011, ZENTOITSU (All United) Workers’ Union on 7 October 2010, the National Confederation of Trade Unions (ZENROREN) dated 21 September 2011, and the Japanese Trade Union Confederation (JTUC–RENGO) dated 30 August 2011 with regard to the issues previously raised by the Committee.

Denial of the right to organize of firefighting personnel and prison officers. The Committee recalls its long-standing comments concerning the need to recognize the right to organize for firefighting personnel.

The Committee notes that the Government indicates in its report that a committee on the right to organize of fire defence personnel was established within the Ministry of Internal Affairs and Communications in January 2010 to study the right to organize of firefighting personnel in view of both respect for basic labour rights and assurance of reliability and safety for the people. The Government also indicates that, following consultations, this committee released its report in December 2010; the report ascertained that no practical obstacles in terms of fire service operations could be identified which might arise as a result of granting the right to organize and considered five different methods of restoring the right to organize as well as the option of improving the current Fire Defense Personnel Committee System. The Committee observes the Government’s indication that there was no agreement within the committee on the restoration of the right to organize and that a final decision on this issue is yet to be made by the government after further examination based on the state of the civil service reform in consideration of calls for a national debate and the mission of the fire service to protect lives, people and property so as to provide improvement to government services and retain the trust of the population. The necessary examination will be carried out in the future with the basic direction of granting it, in conjunction with the examination of the basic labour rights of local public service employees.

In respect of prison officers, the Committee notes that, while JTUC–RENGO indicates that the Government has not initiated any specific examination on the issue of granting the right to organize to prison officers, the Government states that it has re-examined the right and concluded not to include it in the Reform Bills. The Government reiterated that prison officers are considered to be included in the police and are therefore denied the right to organize in accordance with Article 9 of the Convention. The Committee recalls once again that the functions exercised by prison officers should not justify their exclusion from the right to organize.

The Committee draws the attention to the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2177 and 2183 (357th Report, paragraphs 727–730) in respect of the right to organize of firefighting personnel and prison officers. It recalls once again the importance it attaches to the right of all workers, including firefighters and prison officers, to form and join organizations of their own choosing. The Committee takes note of the measures contemplated by the Government with a view to granting the right to organize to firefighting personnel, as well as the developments in relation to the Basic Concept of the Labour–Employer Relations System of Local Public Service Employees and it trusts that the Government will supply in its next report the additional legislative measures taken or contemplated in order to ensure the right to organize to firefighting personnel, as well as any new developments in respect of prison officers, and, in the meantime, requests the Government to permit the de facto organization of firefighting personnel without penalty.

Prohibition of the right to strike of public servants. The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2177 and 2183 (357th Report, paragraph 730) to the effect that public sector employees, like their private sector counterparts, should enjoy the right to strike, with the possible exceptions of public servants exercising authority in the name of the State and workers employed in essential services in the strict sense of the term. Moreover, public employees who may be deprived of this right should be afforded appropriate compensatory guarantees.

The Committee notes that the Government states in its report that an “Advisory Group on Basic Labour Rights (Right to Strike) of National Public Service Employees” was set up in November 2010 under the Minister of Civil Service Reform and issued its report in December 2010. The Committee observes that, according to JTUC–RENGO, the report presents mechanisms that, while preserving the public interest, encourage autonomous settlement as much as possible even when negotiations fail, including through: (1) the introduction of private labour laws such as the prohibition of strikes in security facilities; (2) the establishment of a framework for public utilities utilizing special mechanisms such as notification of strikes and compulsory arbitration; and (3) introduction of compulsory arbitration mechanisms applied only to the cases critical for the preservation of public interest. The Government further indicates that, in the context of the civil service reform and pursuant to the four civil service reform related bills (“the Reform Bills”) submitted to the Diet on 3 June 2011, an autonomous labour–employer relations system will be introduced granting to national public service employees in the non-operational sector the right to negotiate working conditions and to conclude collective agreements. The Committee observes that the Reform Bills do not recognize the right to strike of public servants and takes note that Supplementary Provision 11 of the Draft Act on Labour Relations of National Public Service Employees, submitted to the Diet on 3 June 2011 as part of the Reform Bills, provides that “taking into consideration the status of enforcement of this Act including the status of operation of collective bargaining and the status of operation of the system for conciliation, mediation and arbitration, and the status of public opinion on the implementation of the autonomous labour–employer relations system, the Government shall examine the right to strike of national public service employees. And then, necessary measures are to be taken based on the outcome of the examination.”

The Committee further notes the Government’s indication that under the new labour relations system, the existing compensatory mechanisms for the denial of the right to conclude collective agreements and the right to strike will be abolished as the right to conclude collective agreements will be granted. While the Reforms Bills provide for the suppression of the recommendations functions of National Personnel Authority at the national level, the Basic Concept of the Labour–Employer Relations System of Local Public Service Employees proposes the equivalent suppression of the Personnel Commission recommendation functions at the local level. The Committee further notes that ZENROREN considers that the provision of the bill concerning compulsory arbitration providing that “arbitration procedure shall begin upon the request of the Minister, the Board of Audit or the Prime Minister” would set an obstacle to good labour management negotiations under a labour relations system that denies the employees’ right to strike.

The Committee asks the Government to provide information on the progress made in reviewing the question of the right to strike and to indicate in its next report the measures taken or envisaged to ensure that public servants who are not exercising authority in the name of the State and workers who are not working in essential services in the strict sense of the term may exercise this right without sanction, and that those whose right to strike may be restricted (e.g. hospital workers) benefit from sufficient compensatory guarantees in order to safeguard their interests namely, adequate, impartial and speedy conciliation and arbitration procedures, in which the parties have confidence and can participate at all stages, and in which the awards, once made, are binding and fully and promptly implemented. The Committee further asks the government to provide detailed information on the compensatory guarantees available to those civil servants who may be deprived of the right to strike under the new labour relations framework being contemplated for the public service.

The Committee further notes the Government’s response to the ITUC regarding the restrictions to the labour rights of employees of state-run companies, private companies considered to have “high social responsibility” (such as electricity and coal mining businesses), public welfare undertakings (including transportation, postal and communications services, water, electricity and gas, medical and public health, etc.) and Specified Independent Administrative Institutions. The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and to employees of essential services in the strict sense of the term and that in borderline cases, one solution might be not to impose a total prohibition of strikes, but rather to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 158). The Committee requests the Government to provide, in its next report, further information on the basic labour rights of employees of state-run companies, private companies with “high social responsibility” and public welfare undertakings and any measures taken or contemplated by the Government to minimize the restrictions on their rights, such as a negotiated minimum service.

Reform of the civil service. The Committee notes that in Cases Nos 2177 and 2183 the Committee on Freedom of Association requested that the Government continue to take steps to ensure without delay the promotion of full social dialogue aimed at effectively addressing the measures necessary for the implementation of the freedom of association principles embodied in Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

The Committee notes that the present Government has taken the following steps since it came into power in September 2009: (1) establishment of an Employee–Employer Relation System Examining Committee composed of academic experts, labour representatives and employer representatives; this committee finalized a report entitled: “Toward measures for an autonomous labour–employer relations system” on 15 December 2009 which compiled findings of case studies of systems where public service employees in the non-operational sector are granted the right to conclude collective agreements in order to provide materials for the Government’s consideration of a new system; (2) the Government submitted to the Diet the “Amendment Bill for the National Public Service Employees Law” on 19 February 2010 which provided for the establishment of central control of personnel affairs of executive public service employees and, in a supplementary provision, for the establishment of “an institution with the powers and responsibilities needed to implement a transparent and autonomous labour–employer relations system” (the deliberation of the Bill was not completed during the session of the Diet and was dropped in June 2010); (3) the Government adopted on 5 April 2011 the “whole picture of the reform based on the Civil Service Reform Law, etc.” which is a package of government policies on detailed measures and the schedule for the realization of all the reforms specified in the Civil Service Reform Law, including the introduction of the autonomous labour–employer relations system; (4) the Government drafted four civil service reform related bills (“the Reform Bills”) on the basis of the whole picture: the Amendment Bill for the National Public Service Employees Law, the Draft Act on Labour Relations of National Public Service Employees, the Draft Act for Establishment of the Civil Service Office and the Draft Act on Arrangement of relevant Acts Incidental to Enforcement of the Amendment Bill for the National Public Service Employees Law were all submitted to the Diet on 3 June 2011; and (5) on 2 June 2011, the Ministry of Internal Affairs and Communications released its Basic Concept of the Labour–Employer Relations System for Local Public Service Employees.

The Committee notes that, throughout the abovementioned process, the Government held consultations with employees’ organizations including JTUC–RENGO, RENGO–PSLC, ZENROREN and the National Public Service Employee’s Unions (KOKKOROREN) at various levels. The Committee also observes that ZENROREN has expressed its lack of satisfaction with the consultation process and its outcome.

The Committee further notes that, according to the Government, once the Reform Bills are adopted by the Diet, a new framework will be established in the national public service where both parties of labour–employer relations negotiate and determine autonomously the issue of working conditions and promote reform of the personnel management and remuneration system, responding to changing circumstances and new political issues. The Committee particularly notes that this new framework includes granting the right to conclude collective agreements to national public service employees in the non-operational sector, establishing a Civil Service Office and suppressing the National Personnel Authority and its recommendation functions, treatment of the right to strike of national public service employees and basic labour rights of local public service employees. While taking due note of this information and of the progress made by the Government in moving forward the civil service reform process, the Committee observes that, according to JTUC–RENGO, the Reform Bills were not brought under deliberation during the 177th ordinary session of the Diet which ended at the end of August 2011.

Further noting the efforts of the Government to hold systematic consultations with interested parties, including the social partners, the Committee wishes to stress once again that the reform process which will establish the legislative framework of industrial relations in the public sector for many years to come is a particularly appropriate opportunity to hold full, frank and meaningful consultations with all interested parties on all the issues which create difficulties with the application of the Convention and whose legal and practical problems have been raised by workers’ organizations over the years. The Committee expresses the firm hope that the Government will vigorously pursue its efforts to complete the ongoing civil service reform in a continuing spirit of social dialogue in order to find mutually acceptable solutions to all the issues raised and to bring the law and practice into full conformity with the provisions of the Convention. The Committee requests the Government to continue providing information on the progress made in its next report and to supply relevant laws upon adoption by the Diet.

The Committee takes note of the observations made by the ITUC concerning the large number of atypical workers in Japan and the practical obstacles to their right to organize and bargain collectively. In this regard, the Committee notes with interest the information provided by JTUC–RENGO concerning a judgment in April 2011 by the Supreme Court which links the categorization of workers to the actual conditions of work. The Committee trusts that the criteria laid out in this judgment will ensure that the guarantees afforded under this Convention fully apply to all workers, including those who are formally working as subcontract workers or contract labourers.