Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Case No 1991 (Japan) - Complaint date: 12-OCT-98 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 152. The Committee last examined this case, which concerns allegations of anti-union discrimination arising out of the privatization of the Japanese National Railways (JNR) taken over by the Japan Railway Companies (the JRs), at its November 2006 meeting. Stressing that some of the issues in the present case, particularly those in the field of labour relations, did not lend themselves to strictly judiciary solutions, the Committee welcomed the communication from the complainant National Railways’ Workers’ Union (KOKURO) indicating its desire to find a negotiated political solution to the matters raised. It further took note of KOKURO’s request for ILO assistance and advice in bringing the parties together to that end, and requested the Government to give serious consideration to receiving such assistance from the ILO with a view to reaching a conclusion satisfactory to all parties concerned in this long-standing labour dispute. The Committee requested the Government to keep it informed of developments in this matter [see 343rd Report, paras 106–119].
2. 153. In their communication of 1 June 2007, the complainants KOKURO and the Railway Headquarters, All Japan Construction, Transport and General Workers’ Union (Railway HQ, KENKORO) state that, since the Committee’s last examination of this case, they had established a coalition comprising the four bodies of the 1,047 KOKURO and KENKORO members dismissed as a result of the privatization of the JNR, as well as the four groups of complainant unions and supporting organizations – the National Liaison Committee of KOKURO TOSODAN, the plaintiffs’ group of the lawsuit against the Japan Railway Construction Corporation (TEKKENKODAN), the plaintiff’s group of the lawsuit against the JRTT (the Japan Railway Construction Transport and Technology Agency – the legal successor to the JNR), the All National Railway Locomotive Engineers’ Union (ZENDORO) SOGIDAN and the plaintiffs of the lawsuit against the JRTT, the KOKURO, Railway HQ of KENKORO, the Central Solidarity Committee for Support of the JNR Struggle, and the Joint Conference for JNR Struggle. This unity had in turn issued a written agreement stating that it would negotiate with the Government and the JRTT for a thorough settlement of the dispute. The complainants indicate that they had issued a statement on 16 March 2007: (1) demanding that the Government commence negotiations and make every effort toward a settlement based on the recommendations in the Committee’s 343rd Report, and (2) declaring that the coalition’s constituent groups would assume all necessary responsibilities regarding the settlement.
3. 154. According to the complainants, although the 15 September 2005 Tokyo District Court decision in the lawsuit against the Japan Railway Construction Corporation (TEKKENKODAN) was, on the whole, unsatisfactory, it was significant in that it recognized the existence of unfair labour practices – the first time a judicial authority had done so – ordered compensation for the plaintiffs, and clearly identified the party that would assume responsibilities in any settlement involving the non-hiring of the complainant’s members by the JRs. In the wake of this decision, 507 KOKURO members commenced a lawsuit claiming hiring discrimination before the Tokyo District Court, so that at present almost all of the 1,047 dismissed workers have become plaintiffs in one lawsuit or another naming the JRTT as defendant.
4. 155. The complainants indicate that they are prepared to start negotiations with the Government and the JRTT on a “concrete demands for a settlement” platform encompassing the issues of employment, pensions and compensation payment. A practical resolution to these unified concrete demands would be sought, taking into account the 22 December 2003 Supreme Court decision, the 15 September 2005 decision of the Tokyo District Court in the TEKKENKODAN lawsuit, and the ILO recommendations that “the workers concerned be fairly compensated” and that a negotiated political solution to the matters in the present case be concluded that is “satisfactory to all parties concerned”.
5. 156. With respect to the pending lawsuits, the complainants state that the broad intention of these actions is to promptly reach a political settlement. The complainants had issued a statement to the same effect on 5 December 2006, at the time of the filing of the KOKURO lawsuit against hiring discrimination, and had also stated, at the time of the filing of the unfair labour practices lawsuit on 27 December 2004, that the lawsuit had been filed as the Government had yet to set up negotiations for a settlement and that they would continue to demand to enter into negotiations. Though they were not in a position to choose between a resolution of the issues at hand by the courts or by a settlement, their absolute priority is a “political settlement through negotiations”; once negotiations were set up and progressed the lawsuits would be reconsidered accordingly.
6. 157. On 13 April 2007, the complainants requested the Ministry of Health, Labour and Welfare (MHLW) and the Ministry of Land, Infrastructure and Transport (MLIT) to: (1) make efforts towards a prompt settlement of the JR’s non-hiring case on the latter’s twentieth anniversary; and (2) to set up negotiations between the JRTT and the coalition of groups mentioned above. In response, however, the Government had merely stated that it would report the requests to the upper bodies and indicated that, having done everything it should have, it was not prepared to take any further steps. The Government also declined to comment on the ongoing lawsuits or respond to the Committee’s recommendations in its 343rd Report. The complainants further state that they had requested negotiations with the MLIT on 14 July 2006 and submitted the “concrete demands for settlement” to the MHLW on 14 September 2006. The Government’s responses were perfunctory, however, acknowledging only the formal receipt of the requests and thus demonstrating the Government’s insincere attitude towards reaching a settlement on the issues concerned. Furthermore, although the Government had claimed that it could not act unless all the parties concerned were united, its insincere attitude persists in spite of the fact that the complainants have now assembled, for the purpose of jointly negotiating a settlement, a unity of all the parties concerned.
7. 158. The complainants indicate that they strongly desire to reach a settlement with respect to the non-hiring of workers by the JRs, particularly in light of the twenty years that had elapsed since the incident occurred and the difficulties suffered by those dismissed and their families. As of 31 March 2007, 699 local councils, including 18 prefectural assemblies, have passed a total of 1,059 resolutions based on the Local Autonomy Law requesting an early settlement of the dispute. Finally, the complainants state that the conclusion of the trial in the ZENDORO action before the Tokyo District Court concerning unfair labour practices will be on 25 July 2007, and that for the lawsuit against the JRTT on 20 September 2007; both decisions are anticipated to be handed down before the year’s end.
8. 159. In a communication of 27 February 2008 the complainants indicate, in respect of the ZENDORO action, that on 23 January 2008 the Tokyo District Court issued a decision ordering the defendant JRTT to pay 5.5 million yen to each of the plaintiff ZENDORO members as compensation for damages incurred. The Court’s decision recognized that unfair labour practices had been committed by the JRTT, in particular by discriminating against the union’s members in drafting lists of candidates for hiring. The decision also condemned the JRTT for breaching its obligation to maintain neutrality among unions and causing serious psychological damage to the plaintiffs. The next case involving the JRTT would be decided by the District Court on 13 March 2008. The complainants state that the 23 January 2008 decision was nevertheless a problematic one, as the Court had rejected its core demands of compensation for lost wages and pension benefits. They add that the JRTT has appealed the decision to the Tokyo High Court. The complainants, emphasizing that it has been over 20 years since the workers were dismissed and concerned that everything cannot be settled in the courts, reiterated their desire to see a negotiated political settlement to their demands.
9. 160. In a communication dated 9 January 2008, the Government provides a summary of background information concerning the case that it had previously submitted and states, with respect to the current situation, that in December 2006 KOKURO and its 530 members filed a suit for compensation in the amount of 30.9 billion yen. This latest action included, more than 900 of the 1,047 dismissed union members are now involved in six cases pending in the Tokyo High Court, the Tokyo District Court and Yokohama District Court; the Tokyo District Court will render judgement on the ZENDORO case in late January 2008. In four of these cases, KOKURO and the other involved parties are appealing primarily to establish an employment relationship with the JRTT on the premise of JNR’s unfair labour practice. They are also seeking compensation for damages caused by the unfair labour practice and fulfilment of the obligation to re-employ dismissed workers at their local JR companies.
10. 161. The Government contends that KOKURO and the other concerned parties were critical of the Four Party Agreement. The ILO had previously recommended that a negotiated solution be sought on the basis of this Agreement, which aimed for a political and humanitarian resolution to the dispute, but was considered by KOKURO and its affiliates to constitute an unfair labour practice. While seeking to further their objectives by means of the law, the coalition of four bodies and four groups interested in the dispute claim are, at the same time, claiming that it is not possible to resolve everything through court judgements and that they are therefore planning to unify their organizations for a political resolution, as well as to negotiate with the Government and the JRTT with “employment, pension and resolution money” as their unified demand.
11. 162. The JRTT claims, in respect of the pending cases, that KOKURO and the other concerned parties clearly acted to lower their work records and performance. They campaigned against reform of the JNR and were uncooperative throughout that process. Some also violated the rules of employment. Such reduced performance was reflected in their work records, which in turn served as the basis for the JNR’s list of new employees; for this reason the percentage of members of KOKURO and other concerned parties not placed on the list was larger than those of others.
12. 163. The Government states that the plaintiffs in these cases are appealing in order to establish an employment relationship with the JRTT and hold local JRs liable for lost wages. However, the defendant JRTT maintains that the amount of five million yen per person for pain and suffering awarded in the first trial of the TEKKENKODAN case on 15 September 2005 was unreasonable, as it did not consider the hiring conditions of JNR workers by JR Hokkaido and JR Kyushu at the time of the division and privatization of JNR – which the Government had previously submitted information on to the Committee – nor did it consider the counselling and other re-employment support measures taken on behalf of those in need of re-employment. The plaintiffs’ and defendant’s opinions as to the appropriate compensation amount greatly diverge. Finally, the Government states that it has taken all necessary measures in respect of this matter, which was now pending in the courts between the plaintiffs and the JRTT, and that it would be extremely difficult to undertake any new measures.
13. 164. The Committee takes note of the above information. It recalls once again that it has dealt with this case in some depth since 1998, with two detailed examinations on the merits (318th and 323rd Reports) and five follow-ups (325th, 327th, 331st, 334th and 343rd Reports). Since its first examination, and on each occasion throughout its treatment of this case, the Committee has consistently urged the parties concerned to engage in serious and meaningful consultations with a view to reaching a satisfactory solution to the underlying dispute. In light of its previous recommendations, and moreover in view of the complainants’ expressed desire to seek a settlement to the matters concerned, the Committee, while recognizing the divergence of views between KOKURO and the JRTT, observes that it is apparently not currently possible to bring the parties together with a view to rapidly finding a negotiated solution to these matters that have been pending for two decades now. Noting that six cases on the issues concerned are pending, the Committee trusts that the courts will bring a rapid resolution to this long-standing dispute. It requests the Government to keep it informed of developments in this respect, and to transmit copies of the court judgements in the various pending cases as soon as they are handed down.