Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 343, Noviembre 2006

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

1. 106. 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 June 2004 meeting. Noting the complexity of the factual and legal issues, the Committee expressed its regret that no solution acceptable to all workers’ organizations could be found, including on the basis of the Four-Party Agreement that it had urged the parties to accept as far back as its November 2000 session, since it considered that it offered a real possibility of speedily resolving the issue of non-hiring by the JRs. Taking into account the Supreme Court ruling of December 2003, the serious nature of the allegations, as well as the serious social and economic consequences that resulted for a large number of workers, the Committee invited the Government to pursue discussions with all parties concerned in the spirit of political and humanitarian considerations that once prevailed, in order to resolve the issues, and requested it to keep it informed of developments [see 334th Report, paras. 25-34].
2. 107. In a communication dated 26 December 2005, the National Railways Workers’ Union (KOKURO) explains that it has repeatedly approached the Government and the Japan Railway Construction Transport and Technology Agency (JRTT) to pursue discussions, based on ILO recommendations. Whilst the Government maintained its position that it had already made all efforts that it could make, it stated in the Diet that it “would closely monitor the developments between the parties”. On 15 September 2005, the Tokyo District Court ruled, in a case initiated against the JRTT by a group of dismissed workers and the families of deceased employees (in total 297 workers), that the JNR had treated the plaintiffs unfairly by giving general low marks to KOKURO members during the hiring process; the Court ordered the JRTT to pay most plaintiffs a compensation of 5 million yen. The Court, however, dismissed other aspects of the claim, i.e. continuation of employment and payment of salaries after dismissal. KOKURO underlines that the case is pending before the Tokyo High Court and will take years to be completed, that the average age of dismissed workers is 52, and that 31 of them have already died; it has therefore started discussions with all other trade unions concerned to overcome past differences over the Four-Party Agreement and adopt a common stance in discussions with the Government, in order to achieve a comprehensive political settlement.
3. 108. In its communication dated 10 October 2006, KOKURO recalled that almost 20 years have passed since the original incident of this case happened, i.e. the drawing up of the recruitment candidate lists for new JR Companies. A much desired solution has not been found yet despite the facts that both the labour commissions and the Court confirmed the fact that there were unfair labour practices in the process of this JNR privatization, that genuine efforts to solve this dispute were made by the political parties and that the ILO Committee on Freedom of Association has made recommendations several times.
4. 109. As the report in June 2003 of the Committee on Freedom of Association pointed out, finding a fair solution is a matter of urgency, given the number of affected workers who have already died (41 out of 1,047 workers as of September 2006) or passed retirement age. It also pointed out that further delay will make whatever solution ultimately found increasingly illusory. It should also be noted that, for KOKURO and its majority of affected workers who have not yet started a court case against JRTT, the statute of limitations, which is said to be three years following the Supreme Court judgement on 22 December 2003, will run out soon.
5. 110. The affected workers and unions including KOKURO therefore are united in seeking a negotiated political solution within this year and to this end are jointly approaching the JRTT and the Government. KOKURO has also discussed this matter with the other trade unions namely JR-RENGO and JR-SOREN and they expressed their readiness to support an early solution. However, we have to say that there is very little time left to realise a political solution based on humanitarian considerations.
6. 111. In order to avoid further prolonging the dispute at any cost, KOKURO, in consultations with another complainant KENKORO and four groups of the affected workers, in addition to efforts made within Japan, have decided to ask the ILO for its more active assistance and involvement in finding a solution. KOKURO believes that, for instance, the ILO’s good offices and advice to set up a table for the discussions with all parties concerned would surely be a great help for finding a solution.
7. 112. If a process for a solution will be established through ILO assistance and involvement, the union side will take it as the last chance for a solution and commit to the process with full strength in order to realise a solution. KOKURO sincerely hopes that positive considerations will be given to its request and that the ILO will approach the Government of Japan to obtain its full cooperation.
8. 113. In a communication dated 25 September 2006, the Government, although not a contesting party in the “JRTT lawsuit”, provided additional information on the Tokyo District Court judgement and the current situation.
9. 114. The so-called “JRTT lawsuit” was a case filed against JRTT on 28 January 2002 by members of KOKURO and the deceased workers’ families (approximately 300 people) who opposed the “Four Party Agreement”. The workers were not hired by the JRs when they started and did not find new employment at the end of the three-year period during which assistance such as job placement was offered by the JNR Settlement Corp. and finally were dismissed from the JNR Settlement Corp. following the expiration of the said law on 1 April 1990.
10. 115. The plaintiffs insisted that the dismissal in this case was illegal and therefore had no effect, and requested: (a) confirmation of the existence of employment relations with JRTT; (b) payment of salaries after the illegal dismissal; and (c) payment of consolation money, and so on.
11. 116. Against the above complaint, JRTT insisted that: (a) the dismissal in this case was not illegal because the employment contract was terminated by the dismissal procedure provided by the rules of employment, following the expiration of the Re-employment Promotion Act; and (b) the right to claim compensation for damage including consolation money had expired because of the completion of prescription.
12. 117. In the Tokya District judgement on this case rendered on 15 September 2005, the Tokyo Districk Court ruled that: (a) the employment relations were not confirmed; and (b) the need to pay the salaries were not confirmed either. It also ruled, however, that there was unfair labour practice by JNR in the process of making the employment list for JRs, therefore it ordered consolation money of 5 million yen for each plaintiff (except for a few plaintiffs). Both plaintiffs and defendants appealed the judgement to the Tokyo High Court and this case is now pending there. The Government will provide the ILO with details of its development as needed. The Government adds that three other similar lawsuits have been filed and are pending before the Tokyo District Court. Moreover, according to the Government, KOKURO is said to have made an organizational decision in July 2006 that the workers who belong to KOKURO and have not filed any lawsuits yet (approximately 600 people) would newly file a lawsuit against the JRTT.
13. 118. In conclusion, the Government indicates that it has taken all possible measures under the law, since the time around the reform of the JNR, and made necessary efforts under the “Four Party Agreement” from a humanitarian viewpoint. Such efforts, however, proved fruitless due to the lack of consensus among KOKURO members. In addition, under the circumstances that KOKURO is not able to obtain understanding or consent of other parties concerned like other JR trade unions, the Government finds it difficult to take any new measure and would hardly obtain the public understanding thereon. The Government requests the ILO’s full understanding of the above situation. Finally, in a communication dated 30 October 2006, the Government states that it has not ascertained the statement made in the complainant’s latest communication that it is ready to support an early solution. The Government considers that there has been no change in the attitude of the other parties concerned, such as the other JR trade unions. It requests the Committee to give full consideration to the long history and complex background of this case and the Government’s previous submission.
14. 119. The Committee notes all the above information and in particular the Tokyo District Court ruling of 15 September 2005. 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 four follow-ups (325th, 327th, 331st and 334th Reports). Stressing that some issues, particularly in the field of labour relations, do not lend themselves to strictly judiciary solutions, the Committee welcomes the indication in the latest communication from KOKURO of its desire to find a negotiated political solution to the matters raised. It further takes due note of KOKURO’s request for ILO assistance and advice in bringing the parties together to that end. It requests the Government to give serious consideration to receiving such assistance from the ILO with a view to reaching a conclusion which is satisfactory to all parties concerned in this long-standing labour dispute. The Committee requests the Government to keep it informed of developments in this matter.