Rapport intérimaire - Rapport No. 41, 1960

1. 174. The original complaint of the General Council of Trade Unions of Japan was addressed directly to the I.L.O on 30 April 1958, and was transmitted to the Government of Japan by a letter dated 12 May 1958. The International Confederation of Free Trade Unions and the International Transportworkers' Federation informed the I.L.O, by communications dated 16 May and 23 May 1958 respectively, that they supported the above-mentioned complaint. These two communications, together with a further complaint dated 22 May 1958, received from the Postal, Telegraph and Telephone International (Berne), were transmitted to the Government by a letter dated 4 June 1958. The last-mentioned organisation furnished further information in a communication dated 25 August 1958, transmitted to the Government on 29 August 1958.
2. 175. The Government of Japan forwarded its observations on the above complaint of the General Council of Trade Unions of Japan in a communication dated 9 October 1958. The Government forwarded further observations in respect of the same complaint in a communication dated 6 November 1958.
3. 176. A further complaint was presented on 22 September 1958 by the All-Japan Postal Workers' Union. This complaint was forwarded, on 8 October 1958, to the Government of Japan. Additional information was forwarded by this complainant in a letter addressed to the I.L.O on 6 October 1958 and transmitted to the Government on 17 October 1958 ; the General Council of Trade Unions of Japan supplemented these allegations by a further communication dated 26 November 1958, transmitted to the Government on 18 December 1958. The complaint of the All-Japan Postal Workers' Union was supported by the International Confederation of Free Trade Unions in a communication dated 3 November 1958, transmitted to the Government on 26 November 1958. The General Council of Trade Unions of Japan forwarded further allegations in a communication dated 20 October 1958, transmitted on 30 October 1958 to the Government.
4. 177. At its meeting in Geneva on 13 November 1958, the Committee examined only one aspect of the various complaints that were before it - that comprised in certain allegations relating to restrictions on trade union membership and elections of officers - and postponed its consideration of the remaining allegations until its following session. With respect to the allegations examined, it submitted certain recommendations to the Governing Body in an interim report, which was approved by the Governing Body at its 140th Session (Geneva, 18-21 November 1958).
5. 178. Further observations were forwarded by the Government of Japan in three communications dated respectively 26 and 31 January and 25 February 1959. Some of these observations related not only to the matters indicated in paragraph 177 above but also to the various allegations to which the Government did not refer in the replies which it forwarded prior to the meeting of the Committee in November 1958. The complainants presented additional information in two communications dated 19 and 24 February 1959. At its meeting in February 1959, the Committee presented a further interim report to the Governing Body (see paragraph 182 below). Further information was submitted by the complainants in communications dated 10 March and 14 May 1959. Additional observations were furnished by the Government of Japan in two communications both dated 22 May 1959. At its meeting in May 1959, the Committee presented a further interim report to the Governing Body (see paragraph 183 below). The conclusions contained therein were communicated to the Government of Japan by the Director-General in a letter dated 8 June 1959. The Government forwarded further observations in a communication dated 26 October 1959.
6. 179. Japan has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

• Allegations relating to Restrictions on Trade Union Membership and Election of Officers
  180. 180 The most essential point made in these allegations, which were analysed more fully in paragraphs 7 to 12 of the Committee's 32nd Report, is the contention that section 4 (3) of the Public Corporation and National Labour Relations Law, 1948, as amended and the similar provision in section 5 (3) of the Local Public Enterprise Labour Relations Law, place two restrictions on the exercise of trade union rights, because, firstly, union membership is limited to the public corporation or national enterprises concerned and, secondly, only such employees are eligible to serve as officials of the union. Because the complaining organisations were not considered to have observed these restrictions in their entirety, it was alleged, the competent authorities refused to bargain with the Locomotive Engineers' Union and the All-Japan Postal Workers' Union, the legality of this action being contested in the courts by the Locomotive Engineers' Union.
  181. 181 After examining these allegations and the Government's observations thereon, the Committee, at its meeting in November 1958, for the reasons indicated in paragraphs 15 to 19 of its 32nd Report, made the following recommendations to the Governing Body in paragraph 20 of that Report which reads as follows
  20. 20 In these circumstances, the Committee recommends the Governing Body:
      • (a) to draw the attention of the Government to its view that the fact that a trade union official or executive member who is dismissed by the management of a public corporation or national enterprise loses not only his employment but also his right to participate in the administration of his trade union means that the management could in this way interfere with the right of workers to elect their representatives in full freedom, a right which constitutes one of the essential aspects of freedom of association ;
      • (b) to request the Government to be good enough to furnish a copy of the judgment already given by the Tokyo District Court in the case instituted by the Locomotive Engineers' Union ;
      • (c) to request the Government to furnish its observations on the alleged refusal of the competent administrations to negotiate with the Locomotive Engineers' Union and the All-Japan Postal Workers' Union on the ground that their officers included persons who had been dismissed from their employment ;
      • (d) to take note of the Government's statement that it is examining the question of the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and to request the Government to be good enough to inform the Governing Body as to the results of this examination.
  21. These recommendations were approved by the Governing Body at its 140th Session (Geneva, 18-21 November 1958).
  182. 182 At its meeting in February 1959 the Committee had before it further observations from the Government, contained in communications dated 26 and 31 January 1959, which deal to a large extent with the other allegations to be examined later, two communications from the complainants dated 19 and 24 February 1959 containing comments on the Government's observations, and, finally, a letter dated 25 February 1959 from the Government. After examining these various documents, the Committee submitted a further interim report to the Governing Body in paragraph 9 of its 33rd Report, which reads as follows:
  9. 9 With regard to the case relating to Japan (Case No. 179), the Committee had before it, in addition to new communications from the complaining organisations dated 19 and 24 February 1959 which had been received very shortly before it met, a letter dated 25 February 1959 from the Government of Japan by which the Government forwarded further observations embodying important decisions which had just been taken by the Japanese Cabinet. In this latest document, the Government declared that the Cabinet had decided to ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and, to this end, to abrogate certain provisions in its legislation governing public corporations and national enterprises appearing to be incompatible with the Convention ; at the same time, other legislative measures would be taken which the Government regards as necessary for the purpose of securing the normal operations of the undertakings in question. The Government stated, however, that there were certain conditions which must be fulfilled before the Cabinet would set in motion the procedure for ratifying the Convention. In these circumstances, the Committee decided to take note of the Government's statement as to the Japanese Cabinet's decision to amend the legislation and to ratify the Convention, to express its confidence that the Japanese Government will overcome promptly the remaining difficulties in the spirit of the Convention which it has decided to ratify with a view to ensuring that no delay is allowed to occur in initiating the procedure or ratification and securing full application of the Convention, and to adjourn its examination of the case until its next session and request the Government to keep it informed concerning further developments in this connection.
  183. 183 The Committee considered the matter further at its meeting on 25 and 26 May 1959, when it had before it new communications from the complainants dated 10 March and 14 May 1959 and two letters from the Government, both dated 22 May 1959. After considering these documents, the Committee submitted a further interim report to the Governing Body in paragraph 10 of its 36th Report, which reads as follows:
  10. 10 With regard to the case relating to Japan (Case No. 179), which was dealt with in the Committee's 32nd Report and in paragraph 9 of its 33rd Report, the Committee had before it, in addition to new communications from the complainants dated 10 March and 14 May 1959, two letters dated 22 May 1959 from the Government. In the first of these letters, the Government stated that, with regard to the problem of the ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it was seriously examining the necessary steps to be taken, in accordance with the principle laid down at the Cabinet meeting on 20 February 1959, and would not fail to keep the I.L.O informed of future progress in the matter. As indicated in paragraph 9 of the Committee's 33rd Report, the Government had stated that, at the time in question the Cabinet had decided to ratify the above-mentioned Convention and, to this end, to abrogate certain provisions in its legislation governing public corporations and national enterprises appearing to be incompatible with the Convention ; at the same time other legislative measures would be taken which the Government regarded as necessary for the purpose of securing the normal operation of the undertakings in question, while certain conditions would have to be fulfilled before the Cabinet would set in motion the procedure for ratifying the Convention. In the second letter the Government stated that, pursuant to the foregoing, the meeting of vice-ministers concerned had begun to study the readjustment of the relevant laws, as a prerequisite to ratification of the Convention. In these circumstances the Committee, taking note of these statements by the Government, decided to express the hope that the difficulties referred to above will be resolved in the near future, to request the Government to keep it informed of any further developments in the situation and to adjourn its examination of the case until its next session. The member of the Committee of Japanese nationality was not present during the consideration of this case.
  184. 184 These conclusions of the Committee were transmitted to the Government by the Director-General in a letter dated 8 June 1959. On 26 October 1959 the Government forwarded further observations.
  185. 185 There has been one further development since the last meeting of the Committee. In its Report submitted to the Conference in 1959, the Committee of Experts on the Application of Conventions and Recommendations made the following observation in respect of the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) ratified by Japan:
• The Committee has noted that, under section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law, officers of a trade union must be employed in the undertaking in which the trade union recruits its members. Consequently, in the event of the dismissal of a trade union officer, the trade union must appoint a successor to him. It has appeared to the Committee that this provision may facilitate acts of interference on the part of the managements of such undertakings and that, in order to ensure fuller application of Article 2 of the Convention which provides that, in particular, workers' organisations shall enjoy adequate protection against any acts of interference, it would be desirable for the provisions in question to be repealed or amended.
• The following is an extract from the report of the Conference Committee on the Application of Conventions and Recommendations containing the account of the ensuing discussions on the matter in that Committee in June 1959:
• (Japan : ratification 1953) A Government representative made the following statement:
• In Japan freedom to dismiss workers was restricted in law and practice, particularly as regards workers employed by enterprises covered by the Public Corporation and National Enterprise Labour Relations Law and the Local Enterprise Labour Relations Law. The status of workers of these enterprises was guaranteed by law ; they could be dismissed only on one of specified grounds (e.g. negligence, breach of laws, etc.) and no arbitrary dismissal was possible. Under the Trade Union Law dismissal on account of union membership or proper union activities was prohibited and there existed special remedial procedures. The Government considered that there already existed adequate protection against acts of interference, as required by Article 2 of the Convention, and that there was no room for interference by managements in union affairs under section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law or section 5 (3) of the Local Public Enterprise Labour Relations Law. The Government had, however, decided as its basic position to abrogate these two subsections, after having examined them independently of Convention No. 98. It was expected that the internal conditions necessary for this abrogation would be fulfilled in the near future.
• The Workers' members made the following statement:
• This case was very serious ; it concerned not only the non-application of Article 2 of Convention No. 98 but also the existence of legislation which permitted actual interference in the trade unions. The dismissal of a trade union leader automatically made it impossible for the dismissed worker to carry out his duties as a trade union leader. In these circumstances it was easy for the employer, and in this case this meant the Government, to leave a union without its leader in order to make its functioning difficult and, if the trade union refused to change its leader, to refuse to negotiate with this trade union under the pretext that the law would be violated by the trade union. The representative of the Japanese Government had stated that his Government was prepared to revoke section 5 (3) of the Local Public Enterprise Labour Relations Law, as well as section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law. This change was necessary to ensure the application of Article 2 of Convention No. 98. It would also permit ratification o€ Convention No. 87.
• The Government representative stated in reply:
• The Government was convinced that the legislation, and in particular section 7 of the Trade Unions Law, ensured adequate protection against the acts of interference envisaged by Article 2 of Convention No. 98. Furthermore, the Government was free to refuse to take part in collective bargaining. Finally, under the law a worker dismissed because of his trade union activities could be reinstated if the facts were established according to the procedure laid clown.
• The Japanese Workers' member stated that up to the present many workers in the public sector had been dismissed but there was no case where one had been reinstated.
• The Workers' members added that the Government's reply was not satisfactory. In fact the employer was trying to force a trade union to exclude certain leaders, which was contrary to Convention No. 98. The Minister of Labour of Japan had himself stated in the Diet on 27 March 1959 that it would be difficult to ratify Convention No. 87 as long as the Postal Workers' Union retained its present leadership. But it should be known whether the Japanese Government intended to apply Convention No. 98 by revoking the contrary legislative provisions ; and thus trade unions in nationalised undertakings, and in particular that for postal workers, could operate under protection from acts of interference by the management of these undertakings and the Government. The Committee should note in its report that Japan did not ensure the application of Article 2 of Convention No. 98.
• The Committee expressed the hope that the legislative provisions mentioned in the observations of the Committee of Experts would be revoked as proposed by the Government.
• The Committee considers it appropriate to express its concurrence in the observation of the Committee of Experts and the hope expressed by the Conference Committee on the Application of Conventions and Recommendations and to recommend the Governing Body to endorse this conclusion and to draw it to the attention of the Government.
  186. 186 In its communication dated 26 October 1959 the Government repeats in substance the arguments set forth in its earlier observations and refers again to the statements which it has already made and of which the Committee has taken formal note at previous meetings. The Government then goes on to explain the present position in relation to the question of ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), declaring as follows:
• At the 43rd Session of the International Labour Conference, Mr. Kuraishi, the then Minister of Labour, clarified the fundamental position of the Government by stating:
• "With regard to the Convention concerning freedom of association and protection of the right to organise, my Government decided in February last to ratify this Convention in accordance with my Government's basic labour policy to promote the development of a free and democratic labour movement in my country.
• I believe that the various internal conditions necessary for this ratification will be fulfilled in the near future. I wish to make it clear that, upon the fulfilment of the said conditions, the procedure for the ratification of the Convention will be taken."
• It is the definite position of the Japanese Government to ratify Convention No. 87.
• Now that the Japanese Government has decided to ratify Convention No. 87, the Government considers that the present complaints have fundamentally been solved already. The Government is now endeavouring to get fulfilled the internal conditions necessary for the speedy realisation of the ratification of Convention No. 87 and the abrogation of Article 4, paragraph 3 of " the Law ".
  187. 187 The Government then proceeds to define the internal conditions that must be filled before the ratification procedure can be set in motion. It explains moreover that the Diet will not support Bills to abrogate section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law and to ratify the Convention until these " substantial conditions " have been met. The substantial conditions are : " (1) to take action to amend related laws and regulations in order to stabilise labour-management relations and secure the normal operation of the public corporation and national enterprise, and (2) for both labour and management concerned to observe national legislation and endeavour to establish fair and just labour practices."
  188. 188 The Government re-states the reasons why section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law was enacted and the role that it has played in the national economy, and declares that it " will take the procedures for ratifying Convention No. 87 after the labour-management relations between Zentei (the All-Japan Postal Workers' Union) and its employer are normalised "-in other words, when the union has followed the line taken by other unions of ceasing to maintain in office or to re-elect to office persons who have been dismissed. The Government maintains that the union is defying the law as it now stands and that this cannot be tolerated, even though it may be intended to repeal the legal provisions in question subsequently. Again, the Government refers to the various postal workers' strikes that took place in recent years and contends that the dismissals of the persons involved were justified because of the unlawful acts of dispute committed by them. The Government states : " At present it is Zentei alone that is demanding the ratification of Convention No. 87 while maintaining an unlawful situation. It is impossible for the Government to tolerate such an attitude ... the union should observe the existing laws including ... Article 4, paragraph 3, of the Law." The Government declares that the stand it has taken on this point is supported by public opinion and cites various press statements in support of this view.
  189. 189 In conclusion, the Government states that it "is at present exerting all possible efforts to overcome internal difficulties in ratifying the Convention and abrogating the above-mentioned provision. The Government has not the slightest intention of delaying the ratification of the Convention .... The present difficulties the Government is facing in ratifying the Convention and abrogating Article 4, paragraph 3 of the Law and the disputes in connection with the ratification and abrogation are problems which should, in their nature, be dealt with as domestic affairs, and it is expected that the problems will be settled in the near future. "
  190. 190 When it considered the case at its meeting in November 1958, the Committee also had before it, as mentioned in paragraph 7 above, allegations to the effect that, because they retained as officers workers who had been dismissed from their employment, the National Railway Workers' Union, the Locomotive Engineers' Union and the All-Japan Postal Workers' Union had been denied recognition for collective bargaining purposes by the employing administrations concerned (but that bargaining had been resumed with the National Railway Workers' Union after it had replaced the officers concerned) and that the Locomotive Engineers' Union was contesting the legality of the employers' actions in the courts. These allegations were analysed more fully in paragraphs 10 to 12 of the Committee's 32nd Report. The Committee, in paragraph 20 of its 32nd Report, recommended the Governing Body to request the Government to furnish a copy of the judgment given by the Tokyo District Court in the case of the Locomotive Engineers' Union and to furnish its observations on the alleged refusal of the competent administrations to negotiate with the said union and with the All-Japan Postal Workers' Union.
  191. 191 In its communications dated 26 and 31 January 1959, the Government refers to a report (a copy of which is furnished) made on 24 September 1958 to the Minister of Labour's tripartite Advisory Committee on Labour Problems by the Subcommittee that it appointed to examine the problems attending any possible ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). After expressing its view that the Convention does not deal directly with the questions of the right to strike and of union security and dealing with certain other points, the Subcommittee's report considers the issue raised by the provisions in section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law and section 5 (3) of the Local Public Enterprise Labour Relations Law prohibiting persons other than those actually employed in the category concerned from belonging to an organisation of employees of a public corporation or national enterprise or from serving or continuing to serve as officers of such an organisation. The Subcommittee concludes in this report that the first prohibition is " in contravention of the principle " that workers without distinction should have the right to join organisations of their own choosing (Article 2 of the Convention), and that the second prohibition is " in contravention of the principle " that workers' organisations should have the right to elect their representatives in full freedom (Article 3 of the Convention).
  192. 192 The Government deals with the implications of the above conclusions and implicitly admits that abrogation of the legal provisions mentioned in the preceding paragraph would be necessary before it could ratify the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, declares the Government, careful consideration needs to be given to the domestic labour situation and to labour-management relations before the repeal of the legal provisions in question could be contemplated. The Government feels that those provisions have helped to protect the growth of democratic trade unionism in the public corporations and national enterprises and to ensure the normal functioning of such undertakings, which are of paramount importance to the national life and economy. The Government explains at some length that dismissals have not been made arbitrarily so as to prevent union officers from continuing to serve as such. The law restricts the right to dismiss employees in the undertakings in question to cases in which the employees have neglected their duties or have violated laws and regulations, as, for example, by engaging in unlawful acts of dispute. Dismissal because an employee has performed proper trade union activities is prohibited by law as an unfair labour practice. The particular union officers concerned in the complaints lost their status as officers because they were dismissed for unlawful acts of dispute and this was not, according to the Government, an interference by management with the freedom of electing union officers.
  193. 193 The Government then goes on to state that the refusal of the railway and postal authorities to bargain with the unions of their own employees because they retained in office persons who had been dismissed for performing unlawful acts of dispute was in accordance with law. In support of this argument the Government furnishes, as requested by the Governing Body, the text of the judgment given by the Tokyo District Court in the case instituted by the Locomotive Engineers' Union. The essential findings in this judgment are that the retention in office by the union of persons dismissed from the employment concerned was contrary to section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, that the said legal provision does not infringe the national Constitution, that the union by retaining such officers ceased to be a union of " the employees " and that the refusal of the administration to bargain with a union not consisting solely of " the employees " was not an unfair labour practice according to law. Subsequently, states the Government, the Locomotive Engineers' Union replaced the officers concerning whom the dispute arose, and collective bargaining has been resumed. The All-Japan Post Workers' Union has also instituted legal proceedings, which are still pending, but the issues involved are the same as those raised in the case of the locomotive engineers, in which judgment has been given. In its communication dated 26 October 1959, the Government refers to this action as still pending and to another action having been instituted by officials of Zentei dismissed for unlawful strike activity to seek a declaration by the court that their dismissal was null and void. The Government considers that, in accordance with its own jurisprudence, the Committee should adjourn its examination of the case until the judgments in these actions have been given.

B. B. The Committee's conclusions

1. 194. There is no disagreement concerning the fact that the prohibition of persons from continuing to serve as officers of their own union after being dismissed from their employment is in accordance with the law of Japan as it exists at present. There remains, however, the further question as to whether the law in this connection is in accordance with the principle enunciated in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) that workers' organisations should have the right to elect their representatives in full freedom. The fact that the legal provision in question does infringe this principle is confirmed in the conclusions set forth in the report of the Subcommittee of the Minister of Labour of Japan's Advisory Committee on Labour Problems which the Government itself has brought to the notice of the Committee on Freedom of Association.