Definitive Report - Report No 124, 1971

Case No 398 (Japan) - Complaint date: 30-APR-64 - Closed

1. 49. This case was first considered by the Committee at its session in November 1965, when it decided to request the Government to furnish additional information on certain aspects of the case. The case was further considered by the Committee in May 1966, November 1966 and February 1967, and then at its sessions in November 1967 and May 1968, on both of which occasions it submitted further interim conclusions. At its sessions in May 1969, November 1969, February 1970 and May 1970 the Committee repeated its request for further information on the case.
2. 50. At its session in November 1970, when the case was again examined by the Committee, further interim conclusions were submitted to the Governing Body, which are to be found in paragraph 191 of the Committee's 120th Report, and the Government was again requested to supply additional information concerning certain aspects of the case. The Committee, at its session in February 1971, adjourned its examination of the case in view of the fact that information transmitted by the Government on 16 February 1971 arrived too late to permit examination of the substance of the case. The Government also sent to the Director-General of the ILO a further communication dated 7 April 1971 containing additional information concerning the case.
3. 51. Japan has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations relating to Delay in Legal Proceedings
  52. 52 The Government appended to its communication dated 16 February 1971 a summary of the judgments rendered by the Fukuoka High Court in the appeals of twenty-five of the twenty-seven trade unionists whose applications for reinstatement had been dismissed by the Fukuoka District Court on 24 April 1967 (see paragraphs 229-234 of the 101st Report). The Government states in this communication that one of the appellants subsequently withdrew his appeal and that, on 2 November 1970, the Fukuoka High Court dismissed twenty-three of the appeals as being groundless. In one case, however, that of Mr. Araoka Isamu, the Court held that his position with the company should be preserved in terms of the contract of employment concluded with the company. In this case the Court found that although the appellant had, in fact, trespassed in the premises of the Mikawa Mine of the Miike Mining Plant, which the members of the Miike Coal Miners' Union had been prohibited from entering as a result of the lockout, this act had been committed on impulse and accidentally by the appellant, who was in an abnormal state of excitement. The Court held that, in the circumstances, the act did not constitute misconduct sufficient to justify discharge or disciplinary dismissal under the labour agreement or rule of employment. This appeal was, accordingly, upheld and a court order granted. The Government further states in this communication that the company entered appeals in the cases of the three trade unionists whose applications for reinstatement were granted by the Fukuoka District Court in April 1967, but subsequently withdrew its appeal in one of these cases.
  53. 53 At its session in November 1970 (120th Report) the Committee had requested the Government to keep it informed of the outcome of the legal proceedings which were still pending in respect of another trade unionist, referred to in the original complaint, Mr. C. Endo, who was dismissed on 6 April 1959. The Government's communication of 16 February 1971, however, again contains no information concerning this matter.
  54. 54 In these circumstances the Committee recommends the Governing Body:
      • (a) in the case of the appeals in respect of twenty-four of the trade unionists originally dismissed, to take note of the judgments rendered by the Fukuoka High Court;
      • (b) to deplore that in the case of Mr. C. Endo, despite the time which has elapsed since application was made to the Fukuoka District Court on 21 April 1959, for preservation of his position, no decision appears to have been reached by the Court; and
      • (c) once again to draw the Government's attention to the importance it attaches to expeditious proceedings, in the absence of which an offended employee will feel a growing sense of injustice, with consequent harmful effects on industrial relations, and the risk of potential violation of trade union rights inherent in the absence of expeditious court proceedings in cases involving dismissals.
  55. Other Allegations Outstanding
  55. 55 These allegations referred to the discharge of ten officers of the Miike Coal Miners' Union (paragraphs 45 to 52 of the 92nd Report); discrimination against union members in respect of recruitment, wages and work assignment and payment of accident compensation (paragraphs 58 to 77 of the 92nd Report); and the repudiation of collective bargaining with the Miike Coal Miners' Union and interference with the Union (paragraphs 78 to 96 of the 92nd Report). Since 1966 the Committee has requested the Government to supply information relating to these allegations and to forward the texts of decisions of the Fukuoka District Court, the Central Labour Relations Commission and the Fukuoka Prefectural Labour Relations Commission in respect of the matters referred to in paragraphs 52, 75, 77, 94 and 96 of the 92nd Report. At its session in November 1970 the Committee recommended the Governing Body to repeat the request to the Government for the supply of this information and the relevant texts (120th Report, paragraph 191 (b)).
      • (a) Allegations Relating to the Repudiation of Collective Bargaining with the Miike Coal Miners' Union
  56. 56 In its communication dated 16 February 1971 the Government states that, with regard to the allegations relating to the repudiation of collective bargaining with the Miike Coal Miners' Union (paragraphs 78 to 89 of the 92nd Report), it is not in a position to judge whether such an individual case constitutes an unfair labour practice, since it is exclusively within the competence-under section 27 of the Trade Union Law-of the Labour Relations Commission of the Court, being bodies independent of the Government, to decide whether or not any act committed by an employer constitutes an infringement of the right to organise. The Government points out that in the case in question no redress has been sought by the aggrieved parties before either the Labour Relations Commission or the Court. The Committee, in view of the nature of its responsibilities, cannot consider itself bound by any rule that national procedures must be exhausted such as applies for instance to international claims tribunals; it must, however, have regard in examining the merits of a case, to the fact that a national remedy, whose procedure offers appropriate guarantee, has not been pursued. In this connection, the Committee notes that the complainants have not made any use of the special procedure available to them for legal redress in case of unfair labour practice. It accordingly recommends the Governing Body to decide that this allegation does not call for further examination.
      • (b) Alleged Discrimination against Union Members in Respect of Work Assignment
  57. 57 In its communication the Government indicates that, on 26 June 1969, a compromise was reached in respect of the complaints regarding discrimination in the assignment of jobs to certain members of the union (referred to in paragraphs 65 to 68 of the 92nd Report), and the complainant union withdrew the case which had been pending before the Fukuoka Prefectural Labour Relations Commission since December 1964. In its communication dated 7 April 1971 the Government explains that the effect of the compromise-which was reached on 26 June 1969-was that the Company would give to the complainant union the same treatment in assignment and transfer as it gave to the rival union. The Committee, accordingly, recommends the Governing Body to decide that this aspect of the complaint does not call for further examination.
      • (c) Other Allegations
  58. 58 With regard to the other outstanding allegations the Committee recalls the following facts:
      • (a) as regards the ten union officers, an application for maintenance of their status was initially submitted to the Fukuoka District Court on 1 October 1963 and on 25 December 1965 the parties were making preparations for testimony (paragraphs 48 and 51 of the 92nd Report);
      • (b) as regards the allegations concerning discrimination against union members in respect of recruitment, wages and work assignment, a complaint of unfair labour practices was filed with the Fukuoka Prefectural Labour Relations Commission on 27 November 1961. An order granting part of the remedy sought was made by the Commission on 31 August 1964, but both parties, being dissatisfied, requested, on 18 September 1964, a review by the Central Labour Relations Commission (paragraph 72 of the 92nd Report);
      • (c) as regards interference with the union, complaints were originally filed with the Fukuoka Prefectural Labour Relations Commission on 10 and 12 March 1960. The Commission made an order granting part of the remedy sought, and both sides, being dissatisfied, requested, on 18 September 1964, a review by the Central Labour Relations Commission (paragraph 92 of the 92nd Report).
  59. 59 The Government states in its communication dated 16 February 1971 that cases are now under examination by the Fukuoka District Court, the Fukuoka High Court or the Central Labour Relations Commission in connection with those allegations.
  60. 60 In these circumstances, the Committee, being of the opinion that proceedings which are excessively lengthy can result in a denial of justice, recommends the Governing Body to draw the attention of the Government to the principle expressed in paragraph 54 (c) above.

The Committee's recommendations

1. 61. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations outstanding: for the reasons given in paragraphs 56 and 57 above, to decide that these allegations do not call for further examination; and
   • (b) with regard to the allegations relating to delay in legal proceedings:
   • (i) in the case of the appeals in respect of twenty-four of the trade unionists originally dismissed, to take note of the judgments of the Fukuoka High Court;
   • (ii) to deplore that, in the case of Mr. C. Endo, as well as in the cases of the other trade unionists mentioned in paragraph 58 above, despite the time which has elapsed since these cases were brought before the courts, no final decisions appear to have been reached;
   • (iii) to urge the Government, for the reasons expressed in paragraph 54 (c), to take all necessary steps to ensure that in cases involving dismissal, judicial proceedings are expeditious; and to express the hope that the cases at present before the Fukuoka District Court, the Fukuoka High Court and the Central Labour Relations Commission will be brought to a speedy conclusion, and that the decisions will be communicated to the Governing Body.