Interim Report - Report No 32, 1960

1. 3. The 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. 4. The Government of Japan forwarded its observations on the 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. 5. 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, which has not yet furnished its observations thereon. 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 forwarded further allegations in a communication dated 20 October 1958, transmitted on 30 October 1958 to the Government. 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. Finally, on 21 October 1958, the Pan-Cyprian Federation of Labour alleged in general terms that public employees do not have the right to organise in Japan. In view of the detailed allegations on this matter already before the Committee, this communication has not been transmitted to the Government.
4. 6. 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
  7. 7 It is alleged by the General Council of Trade Unions of Japan that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, 1948, as amended, places two restrictions on the exercise of trade union rights, because, first, union membership is limited to the employees of the public corporation or national enterprises concerned, and secondly, only such employees are eligible to serve as officials of the union. The complainant declares that this provision infringes the guarantee of the right to organise and to bargain and act collectively contained in article 28 of the Constitution of Japan and is contrary to section 1 of the Trade Union Law, 1949, as amended, which states that the purpose of the Law is to protect the autonomous self-organisation of workers in trade unions so that they may negotiate collectively through representatives of their own choosing.
  8. 8 The General Council of Trade Unions of Japan annexed to its complaint a copy of the report of the Joint I.T.F./I.C.F.T.U. Mission to Japan (18-29 November 1957). In their own communications to the I.L.O. (see paragraph 3 above), in which they support the above complaint, the International Transport workers' Federation and the International Confederation of Free Trade Unions request the Committee on Freedom of Association to consider the evidence furnished in this report during its examination of the case. This Mission expresses the view that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law is inconsistent with the provisions of Articles 2 and 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and that, although Japan has not ratified it, the Government should nevertheless abide by the spirit and intent of the Convention. While admitting that, when this Law was enacted in 1948, the necessity for section 4 (3) may have appeared persuasive to a government then concerned with preventing the trade unions from falling under the dominance and leadership of "totalitarian influences and ideologies ", the Mission considers that the general situation has become stabilised and no such necessity now exists. The existing clear restrictions on freedom of association among Japanese workers, if carried to extremes, would, states the report, completely destroy what it is intended to create, namely, " a strong, mature and responsible trade union movement ". Section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law is likewise criticised in the report, dated 7 May 1958, of its own mission to Japan, submitted as evidence by another complainant, the Postal, Telegraph and Telephone International. In its communication dated 3 November 1958 the International Confederation of Free Trade Unions declares that, on 24 September 1958, the National Labour Problems Deliberation Council, a tripartite advisory body to the Japanese Minister of Labour, issued a unanimous statement to the effect that 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 (which is similar) are incompatible with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  9. 9 The General Council of Trade Unions of Japan, the Postal, Telegraph and Telephone International (adducing the report of its Mission), as well as the remaining complainant, the All-Japan Postal Workers' Union, all make allegations as to the situation which has ensued when section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law is not complied with.
  10. 10 According to the General Council of Trade Unions of Japan, the National Railway Workers' Union and the Locomotive Engineers' Union have been denied recognition because they have maintained as officers persons who have been dismissed from their employment and so become disqualified under the Public Corporation and National Enterprise Labour Relations Law. The National Railway Workers' Union, at its congress in June 1957, and the Locomotive Engineers' Union, at the meeting of its Central Committee in May 1957, unanimously elected as their officers persons who had been dismissed from their employment. In consequence, it is alleged, the National Railway Corporation instructed all its local directors that " unless the union is elected as a representative body with conditions consistent with section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, any collective negotiations shall be rejected ", thus completely denying the autonomy of the union. Subsequently, the unions made formal requests for bargaining with respect to their economic demands and, it is alleged, the Corporation replied early in 1958 that, as the request was put forward through a dismissed employee, Mr. J. Nakamura, Chairman of the Locomotive Engineers' Union, it was not regarded as a valid request because Mr. Nakamura was not a legitimate union representative.
  11. 11 Already, on 24 July 1957, the two unions, whose rules provided that dismissed employees should not lose their membership, had taken proceedings in the Tokyo District Court, asking for an order to oblige the Corporation to bargain with them on the ground that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law violates article 28 of the Constitution of Japan. While the action was pending, the Chairman of the Public Corporation and National Enterprise Labour Relations Commission attempted, on 25 October 1957, to mediate in the dispute by making a proposal that the unions should choose new representatives who had not been dismissed from their employment and withdraw their court action and that negotiations on the unions' economic demands should then begin. This proposal had no binding force, but the complainant regards the intervention as an interference with trade union freedom. While objecting in principle, the National Railway Workers' Union found it expedient to act in the manner suggested. The Locomotive Engineers' Union rejected the proposal and, on 2 November 1957, the District Court dismissed its complaint. In its findings, states the complainant, the court recognised that the trade union was qualified as a trade union under the Constitution and that the chairman was " a representative of the union ", but that, nevertheless, the Locomotive Engineers' Union could not be regarded as a trade union under the Public Corporation and National Enterprise Labour Relations Law because it did not consist solely of employees but included dismissed employees among its members. The union lodged an appeal with the Tokyo High Court and states that some time will elapse before the final judgment is given.
  12. 12 Events of a somewhat similar nature are alleged by the Postal, Telegraph and Telephone International and the All-Japan Postal Workers' Union. According to these allegations, the All-Japan Postal Workers' Union, at its annual congress on 8 to 12 July 1958, re-elected as union officers all those who had been dismissed from their employment by the Postal Administration, including President Nogami and Vice-President Takaragi, following certain stoppages of work that occurred in various post offices on 27 March 1958. The Government, it is alleged, invoking the same legal provisions as it did in the case of the railway workers' unions, refused to recognise the duly elected officers and said that there would be no negotiations with the union. The All-Japan Postal Workers' Union, stating that it can no longer engage in collective bargaining or conclude collective agreements, annexes to its complaint purported copies of proposals of a Mediation Committee according certain " fuel allowances " to postal workers and of the reply from the Postal Administration to the effect that it could not accept the proposals because the union was not in a position to carry out collective bargaining. The Postal, Telegraph and Telephone International adds that, in addition to refusing to negotiate with unions whose officers include dismissed employees, the competent authorities also abrogate existing agreements.
  13. 13 The Government declares that the limitations imposed by section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law reflect what is in fact a tendency in the trade union movement in Japan and do not " substantially limit " the right to organise. The provision permitting only employees of the undertakings concerned to be members or officers of the unions of such employees is, according to the Government, designed to ensure the normal operation of the public corporations and enterprises and actually is in accordance with the tendency of the trade union movement and has never been declared unconstitutional by the courts. The Government states further that the issue raised in connection with workers who have been discharged (for having performed unlawful acts of dispute) has never been raised in the case of workers discharged or retired for other reasons or in connection with the formation of the unions of railway employees and of employees in allied industries. In its communication dated 6 November 1958, the Locomotive Engineers' Union withdrew its appeal to the Tokyo High Court.
  14. 14 In its general observations on the complaints as a whole, the Government declares that the right to organise is guaranteed by the Constitution and that existing trade union legislation, under which the workers enjoy the right to organise as generally recognised in international concepts, " is intended to protect and promote the sound development of the trade union movement ". When compared with those of workers in the private sector, the rights of employees of the railways and other public corporations and national enterprises are " in view of their importance to the public interest, more or less limited ". But, the Government contends, even in their case due consideration has been given so as to guarantee the right to organise and, with a view to ensuring this freedom as much as possible, it is carefully studying the present limitations. In its later communication dated 6 November 1958, the Government states that section 4 (3) of the Public Corporation and National Enterprise Labour Relations Law, in the light of its relation to the Freedom of Association and Protection of the Right to Organise Convention, 1948, is being carefully studied by the tripartite Advisory Committee on Labour Problems, attached to the Japanese Ministry of Labour, and that its views on the question of the ratification of the Convention will be forwarded in the near future.

B. B. The Committee's conclusions

1. 15. There are four main issues before the Committee in connection with these allegations. The first is that membership of the unions of employees of the public undertakings in question is restricted to such employees and is forfeited if their employment ceases for any reason ; the second is that only members may be elected as officers ; the third is that they cease to be eligible to serve as officers when, through losing their employment, they are no longer eligible for membership ; the fourth is that raised by the allegations that the administrations of the corporations or national enterprises, on the instructions of the Government, refuse to recognise or bargain with unions which do not remove from their posts officers who have been dismissed from their employment.
2. 16. The restriction of membership in public employees' organisations exclusively to public employees exists in a certain number of countries, but with the proviso, as a general rule, that they may adhere freely to inter-union organisations. The latter point has not been raised directly in the allegations now being considered. The Committee, while recognising in one case that a provision that government employees could organise only in unions catering for them exclusively may be reasonable in certain circumstances, pointed out that the restriction was one which it might be desirable to reconsider at an appropriate time.
3. 17. With respect to the requirement that officers of a union must also be employees in the trade or occupation concerned, both the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association have expressed their views. The Committee of Experts has stated that a provision requiring that trade union leaders, or at least a certain proportion of them, must belong to the occupation in respect of which the organisation carries on its activities (and the situation of public employees in Japan was one of the nine instances referred to) might in certain cases involve a limitation of the right of a workers' organisation to elect its representatives in full freedom. Again, in Case No. 30 relating to Malaya, the Committee on Freedom of Association examined a provision by which union officers other than the secretary must be or have been engaged or employed, and two-thirds of them must actually be engaged or employed, in the industry or occupation concerned. Although the Committee did not pursue this matter further, having regard among other things to the then recent origin of the trade union movement in Malaya, it pointed out that this restriction was one which it might be desirable to reconsider at an appropriate time ; moreover, when it so decided not to pursue the matter further in that instance, the Committee had before it the consideration that the restriction did not apply to the secretary and also permitted one-third of the officers to be persons who had been but might have ceased to be employees in the trade or occupation for which the union catered?.
4. 18. In the present case, however, the restriction goes further. Not only must all the officers of a union of employees of a public corporation or national enterprise be employees in the undertaking concerned when they are appointed but the loos of their employment entails both loss of union membership and cesser of eligibility to continue to serve as union officials. A somewhat similar situation was examined by the Committee in Case No. 105 relating to Greece. In Case No. 105 the Committee noted that pending legislation would have had the effect that the dismissal by his employer of a bank employee who was a member of his union executive would automatically involve his forfeiture of his union office on his ceasing to carry on his occupation as a bank employee. The Government in that case argued that the provision was justifiable because it was intended to maintain in the administration of the trade unions persons actually carrying on the occupations which they represented, but the Committee took the view that the fact that a member of a union executive who was dismissed by the management of the bank would lose not only his employment but also his right to participate in the administration of his trade union meant that the management could in this way " interfere with the right of the workers to elect their representatives in full freedom, a right which constitutes one of the essential aspects of freedom of association ". The Committee also took into consideration the fact that at the material time there existed no legal provisions expressly stipulating that trade union officers could not be dismissed from their employment during their period of office.
5. 19. The Committee considers that there is a close analogy between the provisions of Japanese legislation now under review and those which it examined in Case No. 105, and even between the arguments put forward by the Governments of Japan (see paragraph 13) and of Greece with a view to justifying the legislation in question. There is, however, a further consideration. One of the unions affected in the present case, the Locomotive Engineers' Union, after contesting the legality of these provisions in the District Court of Tokyo, and having lost its case in that court according to a judgment delivered on 2 November 1957, instituted an appeal in the Tokyo High Court, but stated that some time would elapse before the final judgment was given. The Government now states that the union withdrew its appeal on 29 September 1958. The Committee has followed the practice in earlier cases - of not proceeding to examine matters which are the subject of pending judicial proceedings-provided that these proceedings are attended by proper guarantees of due process of law-when it has appeared that the pending judicial decision may make available information of assistance to the Committee in appreciating whether or not allegations are well-founded. In the present case proceedings would appear to be no longer pending but the Committee nevertheless considers that the text of the judgment already given in the Tokyo District Court would be of material value to it when examining the merits of these allegations.