Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 328, Junio 2002

1. 371. In communications dated 20 December 2000, 18 January 2001 and 15 February 2002, the Okayama Prefectural High-School Teachers’ Union presented a complaint of violations of freedom of association against the Government of Japan.
2. 372. The Government furnished its observations in communications dated 13 July and 31 October 2001, and 6 February and 2 May 2002.
3. 373. Japan has ratified 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. The complainant’s allegations

1. 374. In its communications dated 20 December 2000 and 18 January 2001, the complainant alleges that the Okayama Prefectural Government violated the principles of freedom of association by deciding to delay the implementation of recommendations made by the Okayama Prefectural Personnel Commission relating to wage increases for local public employees including teachers working in public high schools and schools for disabled students, who are members of the Okayama Prefectural High-School Teachers’ Union. These wage increases were recommended for the 1997 and 1998 fiscal years, but the Okayama Prefectural Government delayed their implementation for nine months.
2. 375. The complainant then gives a detailed explanation of the background to this situation. In the 1997 fiscal year, the implementation of the Okayama Prefectural Personnel Commission’s recommendation to increase wages by 0.98 per cent (3,793 yen on average) was deferred until January 1998 whereas it should have been implemented in April 1997. Similarly, in the 1998 fiscal year, the implementation of the Personnel Commission’s recommendation to increase wages by 0.71 per cent (2,801 yen on average) was deferred until January 1999 whereas it should have been implemented in April 1998. In the complainant’s view, these measures are unfair and due to the delay in the implementation of the recommendations, 51,964 yen on average equivalent to the wage increase for 13.7 months in the 1997 fiscal year and 38,373 yen on average equivalent to the wage increase for 13.7 months in the 1998 fiscal year have yet to be paid. The complainant demands that the recommendations be implemented in full to recover the losses caused by the delay in their implementation by the Okayama Prefectural Government.
3. 376. Moreover, although the Government cites the financial situation as a reason for the delay, the complainant does not consider this motive to be a sound justification at all. In both the 1997 and 1998 fiscal years, the financial situation facing the national Government was the same as that of the Okayama Prefectural Government. However, the national Government fully implemented the recommendation of the National Personnel Authority (NPA) for a wage increase for national public employees. Moreover, all local governments, except for the Okayama and Osaka governments, fully implemented recommendations for wage increases for local public employees. In addition, the complainant agrees that it cannot be denied that the Okayama Prefectural Government is in a dire financial situation with its outstanding prefectural bond amounting to 963,575,000,000 yen in 1997 and 1,010,426,000,000 yen in 1998. But the dire financial situation is not because personnel expenses for public employees are high, but because the Government has invested in sloppy and useless public works. This also reflects what is mentioned in the report of the Okayama Prefectural Financial Reform Council, the consultative body to the Okayama Governor (a copy of this report is attached to the complaint). Judging from this report alone, the Okayama Governor and the national Government should take political responsibility and the Okayama Prefectural Government should not cite its financial difficulties as a pretext for delaying the implementation of personnel recommendations. The complainant goes on to describe in detail cases which demonstrate how ineffectively the Okayama Prefectural Government invests in public works (a copy of such examples is attached to the complaint and reproduced in Annex I).
4. 377. The complainant points out that, pursuant to the decision to delay the implementation of the wage increase, 999 members of its organization submitted "request statements" (a copy of such a statement is reproduced in Annex II) to the Okayama Prefectural Personnel Commission in order for it to issue once again its recommendation relating to the wage increase to the Okayama Prefectural Government. Given that, on 17 December 1997, the Personnel Commission had expressed its regret to the Okayama Prefectural Assembly that its recommendation was not fully implemented, the complainant had believed that the Personnel Commission would once again issue its recommendation to the Okayama Prefectural Government. Instead, in a decision dated 5 August 1998, the Personnel Commission decided to reject the complainant’s request (a copy of the Okayama Prefectural Personnel Commission’s decision is reproduced in Annex III). The Personnel Commission sympathized with the request statements indicating, "We express our sincere regret (at the delay in implementation of our recommendation) even considering the financial difficulties" and that "it is needless to say that a salary recommendation by the Personnel Commission should be fully respected". However, the Commission rejected the complainant’s petition indicating that its recommendation had no legal power to influence the Governor in his right to present bills, or the Prefectural Assembly in its right to vote.
5. 378. By not issuing its recommendation to the Okayama Prefectural Government once again, the complainant contends that the Personnel Commission abdicated its official responsibility as an institution set up to compensate public employees for the restrictions placed on their basic labour rights. In the complainant’s view, this decision clearly demonstrates the Personnel Commission’s inability to correct the measures taken by the Okayama Prefectural Government and shows that the personnel recommendation system does not adequately serve as a compensation for the restrictions placed on public employees’ basic labour rights.
6. 379. This point of view is reinforced by the fact that for the 1999 fiscal year, the National Personnel Authority and each local personnel commission recommended a 0.3-month reduction in the lump-sum payment not only for national public employees, but also for all local public employees including the Okayama public employees. As a result, even if the recommendation for a 0.26 per cent raise in basic wages were carried out, the recommended reduction in the lump-sum payment would bring about a serious situation in which the total annual remuneration would be reduced. While recommendations for a reduction in lump-sum payment have been made in the past, the complainant contends that this is the first time that such a recommendation had been made under which the total annual remuneration had fallen as a result of the decrease in the lump-sump payment exceeding the rise in the basic pay rate. According to the complainant, it is totally incompatible with the purpose of the personnel recommendation system for the Personnel Commission to issue a recommendation to reduce the remuneration of those who do not have any say regarding their remuneration because they are prohibited from participating in direct labour-management negotiations. Moreover, the Personnel Commission went ahead in issuing this recommendation despite repeated requests by the complainant not to do so. In relation to the components of remuneration such as lump-sump payment, the complainant points out that it is customary for each local personnel commission to follow the NPA’s recommendation. In Japan, negotiations by public employees are not accompanied by the right to conclude collective agreements or by procedures for mediation and arbitration in case of a breakdown in negotiations. If public employees try to exercise the right to strike, they will be punished. In light of these restrictions, the above recommendation to reduce their remuneration is extremely unfair.
7. 380. Furthermore, the complainant points out that as the current members of the Okayama Prefectural Personnel Commission are appointed by the Governor, so the neutrality and impartiality of the Commission (as well as the prefectural personnel commissions) are questionable. In addition to that, a system whereby the opinion of labour is heard, is yet to be developed adequately. The members of the Okayama Prefectural Personnel Commission are appointed by the Okayama Governor, with the approval of the Okayama Prefectural Assembly, from among the candidates selected by the Governor. These candidates are nominated by the personnel section of the Okayama Prefectural Government. When the personnel section nominates the candidates, there are no procedures which allow a labour union to nominate the candidates, to recommend personnel commission members or submit its own opinions on the matter. In addition, it is only once a year that the complainant has an opportunity to personally see the members of the Personnel Commission and submit claims to them. Moreover, only one out of the three members of the Personnel Commission attends this meeting. Although the complainant has been requesting the executive office of the Personnel Commission for two or more meetings to submit its claims and that all three members of the Commission attend such meetings, its requests have not been accepted as yet.
8. 381. Finally, the complainant contends that the recommendation to reduce remuneration is unfair in light of the current working conditions of public school teachers. According to the complainant, 57 per cent of all high-school teachers in Okayama Prefecture go to work during their holidays. Eighty-two per cent work overtime on working days, and 23 per cent work overtime for ten hours or more during the week. In Japan, teachers in the public service do not get paid overtime allowance or for working during holidays. Moreover, they cannot easily take a day off due to the shortage of teachers. This has been the situation for a long period of time. Finally, the complainant anticipates more recommendations from the Personnel Commission to reduce remuneration in the future. Hence, the complainant questions the fundamental purpose or usefulness of such a personnel recommendation system. It demands a full recovery of the right to bargain collectively including the right of public employees to conclude collective agreements as well as the guarantee of speedy and impartial procedures for mediation and arbitration leading to a decision binding on both parties in case of a breakdown in negotiations.
9. 382. In its communication of 15 February 2002, the complainant organization comments on the impending civil service reform which, in its opinion, does not guarantee the rights of public servants as provided for in Conventions Nos. 87 and 98.

B. The Government’s reply

1. 383. In its communication dated 13 July 2001, the Government first of all proceeds to describe in detail the system of determination of wages of local public service personnel. It points out that employees of prefectural high schools, including members of the Okayama Prefectural High-School Teachers’ Union can organize employee organizations and negotiate with the proper authorities. However, they are obliged to attend to their duties in the public interest as servants of the whole community. Moreover, their salaries and other working conditions are stipulated in by-laws established by the local assembly composed of public representatives. Therefore, they do not have the right to conclude collective agreements and are prohibited from carrying out strikes. However, compensatory measures to make up for the restrictions on such fundamental labour rights have been sufficiently provided through the following laws (Local Public Service Law, sections 14, 24, 26, 46 and 49-2 and others).
2. 384. First of all, salaries, working hours and other working conditions are guaranteed by by?laws established by the local assembly composed of public representatives. Secondly, the law stipulates that local public bodies shall take the appropriate measures as the occasion arises so that salaries, working hours and other working conditions are adapted to the prevailing social conditions (section 14, Local Public Service Law) and that the Personnel Commission, which is an independent and impartial agency, shall make recommendations to the chief executive and assembly to ensure that the employees’ salary scales are adapted to the prevailing social conditions in accordance with the so-called principle of meeting prevailing conditions. Moreover, the local public employees’ status, appointment and dismissal, service discipline, etc., are prescribed by the Local Public Service Law. Their status is therefore guaranteed by the law. Furthermore, local public employees may submit a request to the Personnel Commission so that the appropriate measures may be taken regarding salaries, working hours and other working conditions. The law prescribes that salaries shall be determined by taking account of living expenses, and the salaries of national and other local public employees, salaries in the private sector and other circumstances (section 24, Local Public Service Law). In advance of making recommendations, the Personnel Commission carries out fact-finding surveys concerning salaries in the public and private sectors. At the same time, when requested, the Commission accepts opinions and requests for concrete improvements by interviewing employee organizations.
3. 385. The Government emphasizes that the prefectural governments have been endeavouring to implement the recommendations of personnel commissions under a basic policy that such recommendations are to be respected. In such matters, local public employees enjoy the benefit of appropriate salaries as a matter of both legislation and fact. While the prefectures attempt to implement salaries in accordance with the recommendations of personnel commissions, there are some cases however in which the recommendations cannot be implemented completely. Yet even in such cases, instead of entirely suppressing the recommended raise in salaries, the prefectures just postpone the implementation of the wage increase recommended for a certain period. Thus, personnel commissions’ recommendations are respected as much as possible. In any event, from now on, the Government expects that the Prefectures will implement raises in salaries recommended by personnel commissions.
4. 386. The Government then goes on to explain the circumstances that led up to the delay in the implementation of the Okayama Prefectural Personnel Commission’s recommendation for the 1997 fiscal year. On 3 October 1997, the Okayama Prefectural Personnel Commission made a recommendation to the Okayama Prefectural Assembly and the Governor of Okayama by virtue of the provisions of the Local Public Service Law, regarding reform of the salary scales respecting employees in the regular service. This recommendation was to raise the average monthly salary including allowances of the administrative service personnel of the Okayama Prefecture, which was 385,288 yen as of 1 April 1997, by an average of 3,793 yen (0.98 per cent). The source of revenue necessary in implementing the salary reform as the Commission had recommended was about 3 billion yen. After the recommendation was made, the Okayama Prefecture authorities carefully examined how to treat the recommendation. However, after comprehensively examining such factors as the prevailing socio-economic conditions, critical financial conditions, and in view of promoting administrative and financial reforms, it was decided to postpone the implementation of the recommendation for nine months until 1 January 1998 as an unavoidable measure in view of the financial crisis.
5. 387. The Okayama Prefecture authorities notified this decision to the Okayama Prefecture Quadripartite Joint Struggle Congress on 2 November 1997, and to the complainant on 1 December and asked for their understanding. The Government explains that the Okayama Prefecture Quadripartite Joint Struggle Congress is an organization made up of the Okayama Prefecture Employees’ Labour Union (membership: 4,868), Okayama Prefecture Public Enterprise Bureau Labour Union (110), Okayama Prefecture Teachers’ Union (8,588) and Okayama Prefecture Public School Teachers’ Union (40). A great majority of the Okayama prefectural personnel are members of this organization, although the Okayama High-School Teachers’ Union (2,565 members) is not a part of this Congress. Before notifying the above decision, the Okayama Prefecture authorities had negotiated repeatedly with the Quadripartite Congress, its constituent unions, and the complainant, to explain the Prefecture’s severe financial conditions. Finally, on 28 November 1997, the Okayama Prefecture authorities reached an agreement on the above decision with the Quadripartite Congress, although it could not reach an agreement with the complainant. The Governor of Okayama then submitted an ordinance bill to the Okayama Prefectural Assembly on 17 December 1997 which was adopted on the same day, and the Prefecture implemented the salary increase by an average of 0.98 per cent from 1 January 1998. Due to the postponement in the implementation of the salary increase to 1 January 1998, the source of revenue necessary in reforming the salary scales decreased to about 1.2 billion yen.
6. 388. The Government then describes the circumstances that led up to the delay in the implementation of the Okayama Prefectural Personnel Commission’s recommendation for the 1998 fiscal year. Based on the provisions of the Local Public Service Law, on 6 October 1998, the Okayama Prefectural Personnel Commission made a recommendation to the Okayama Prefectural Assembly and the Governor of Okayama respecting reform of the salary scales for employees in the regular service. This recommendation was to raise the average monthly salary of the administrative service personnel of Okayama Prefecture, which was 392,647 yen as of 1 April 1998 by an average of 2,801 yen (0.71 per cent). The source of revenue necessary in implementing the salary reform as the Commission had recommended was about 1.8 billion yen. After the recommendation was made, the Okayama Prefecture authorities carefully examined how to treat this recommendation. After a comprehensive examination of such factors as the prevailing socio-economic conditions, critical financial conditions, and the need to promote administrative and financial reforms, it was decided to postpone the implementation of the recommendation for nine months until 1 January 1999 as an unavoidable measure in view of the financial crisis.
7. 389. The Okayama Prefecture authorities notified this decision to the Okayama Prefecture Quadripartite Joint Struggle Congress on 26 November 1998 and to the complainant on 30 November 1998, and asked for their understanding. The Okayama Prefecture authorities reached an agreement on the above decision with the Quadripartite Congress. The Governor of Okayama then submitted an ordinance bill to the Prefectural Assembly on 10 December 1998. The Bill was adopted on 16 December 1998, and the Prefecture implemented the salary increase by an average of 0.71 per cent from 1 January 1999. Due to the postponement in the implementation of the salary increase to 1 January 1999, the source of revenue necessary in implementing the reform decreased to about 500 million yen.
8. 390. The Government then turns to the issue of the "request statements" submitted by the complainant to the Okayama Prefectural Personnel Commission. The Government refers to this as an "Application for action on working conditions" and explains that this is a system whereby prefectural personnel may submit a request to the Personnel Commission to recommend that the authorities concerned can take the appropriate measures concerning salaries, working hours and other working conditions (section 46, Local Public Service Law). It is one of the compensatory measures for the restrictions on the basic trade union rights of local public employees. The Okayama Prefectural Personnel Commission rejected the application for action on working conditions though it saw it regrettable that the Prefecture did not implement the recommendation as is. According to the Government, the decision of whether or not to accept the application for action on working conditions is to be made voluntarily by the Personnel Commission by taking into account this system’s purpose. The fact that the Commission rejected this application filed by the complainant does not constitute any ground for claiming that the said system is not functioning to compensate for the restrictions placed on the basic trade union rights of local public employees.
9. 391. The Government then describes the circumstances that led to the recommendation of the Okayama Prefectural Personnel Commission for the 1999 fiscal year. The Okayama Prefectural Personnel Commission had conducted various surveys on salaries of employees in the private sector, those of national and other local public employees, as well as on the cost-of-living expenses. The results were as follows: (1) in April 1999, the salaries of private sector employees exceeded those of local public employees by an average of 861 yen (0.22 per cent); (2) during the period from May 1998 to April 1999, the average annual amount of bonuses and other special benefits of private sector employees was lower than the average annual amount of the term-end allowance and the diligence allowance paid to local public employees.
10. 392. On 11 August 1999, the National Personnel Authority (NPA) submitted a report on and made a recommendation to revise the salaries of national public service employees to the Diet and the Cabinet. This recommendation mainly proposed that the average annual salary of administrative service personnel, which was 6.423 million yen, be decreased by about 95,000 yen (1.5 per cent) to 6.328 million yen. The recommendation suggested that this be done, inter alia, by reducing the term-end allowance and special allowances by the equivalent of 0.3 months.
11. 393. Based on the abovementioned survey results and the NPA remuneration recommendation, the Okayama Prefectural Personnel Commission made the following recommendations: (1) to increase the average monthly salary including allowances of administrative service personnel by 1,033 yen (0.26 per cent) from the present 398,128 yen; and (2) to reduce the term-end allowance and the term-end special allowances by 0.3-month equivalent to ensure balance with the payment of bonuses and other special benefits of private sector employees and national public service personnel. According to the Government, if the salaries are revised based on this recommendation, the average annual salary of the administrative service personnel, which is 6.533 million yen at present, will decrease by about 97,000 yen (1.5 per cent) to 6.436 million yen. However, even if employees’ annual salary should decrease as a result of this recommendation, the resultant salary levels are in harmony with the prevailing social conditions and are reasonable and appropriate. In other prefectures also, more or less the same recommendations have been made. Therefore, this recommendation is compatible with the purpose of the system of recommendation by the Personnel Commission. It shows that the function of the Personnel Commission to take measures to compensate for the restrictions on public employees’ basic trade union rights is fully operational, and the recommendation is not an unfair one.
12. 394. As regards the contention that teachers are not paid holiday allowances and overtime allowance, the Government points out that teachers are not paid these allowances, in view of the special nature of their duties and mode of work. In place of these allowances, they are entitled to a system whereby their salaries are increased (by 4 per cent of their monthly salary) which is not granted to general administrative service personnel. Therefore, there is no ground to the contention that the teachers are not paid fairly in view of their working conditions.
13. 395. Concerning the procedure for the appointment of the members of the Personnel Commission, the Government explains that the Personnel Commission is an agency of the local public body, main duties of which are, in addition to making recommendations in respect of salary scales, to ensure public employees’ rights and benefits by investigating their working conditions and actions detrimental to their interests taken by the employer. For this reason, the members of the Personnel Commission are required to be persons of the highest moral standing and integrity, in known sympathy with the principle of local autonomy and democratic and efficient administration, and possessing knowledge and sound judgement concerning personnel administration. Moreover, their appointment requires "the consent of the assembly" (section 9, Local Public Service Law). In view of the function of the Personnel Commission, such a procedure is appropriate, and there is no need to change this procedure. Furthermore, in the Okayama Prefecture and in line with the above procedure, a university professor, a lawyer, and a former prefectural employee have been appointed as members of the Prefectural Personnel Commission. Moreover, the Okayama Prefectural Personnel Commission meets with the complainant twice a year, at the time of the Shunto spring offensive (usually March) and sometime before issuing the recommendation (usually September). These meetings are attended by one Commission member and the Secretary-General, respectively. The contents of these meetings are reported in the meeting of the Personnel Commission held immediately afterwards. The contents of the requests made by the complainant are reported by the secretariat in detail to the Commission members.
14. 396. In conclusion, the Government contends that, in Japan, with respect to local public employees, employee organizations have the right to negotiate with the authorities concerned regarding working conditions. These negotiations are designed for employee organizations to discuss working conditions and to request the authorities to take the appropriate measures, and for the authorities to discuss the demands with the employees’ organizations with sincerity. If the two reach an agreement, the authorities concerned are required to implement the agreement with sincerity (section 55, Local Public Service Law). Moreover, salaries and other working conditions are regulated by ordinances. There is also the personnel commission recommendation system. For these and other reasons, although local public employees do not have the right to conclude collective agreements, the compensatory measures for the restrictions placed on their basic trade union rights are fully guaranteed by law. Finally, in a communication dated 31 October 2001 the Government indicates that reform of the public service personnel system is under consideration in Japan at this moment in time. An outline of this reform is expected. Consideration of this reform covers all aspects of the public service personnel system.
15. 397. In a communication dated 6 February 2002, the Government indicates that the Cabinet adopted "the Plan for Civil Service Reform" on 25 December 2001. The Plan sets forth that the Government reform the civil service system by:
    • - establishing a new appointment system that properly reflects competence and achievement;
    • - securing diverse human resources from the private sector;
    • - establishing appropriate rules of outplacement, which has been an issue of great public criticism.
      • The Government adds that taking into consideration concerns about ensuring the stable and continuous management of the public service, it has decided to retain the current restrictions on the fundamental labour rights of civil servants. Hence, the recommendation system of the NPA and the Personnel Commission, which is one of the compensatory measures for the restrictions on the fundamental labour rights of national and local public employees, will be maintained. The Government recognizes the importance of making full and adequate use of the system and intends to request the local governments to respect the recommendation for a proper implementation of the salary revision. The Government recalls that the Okayama Prefecture did not entirely suppress the salary increase but only postponed its implementation for nine months. For the 1997 postponement, the Prefecture has made agreements with the Okayama Prefecture Quadripartite Joint Struggle Congress which represents a great majority of the Okayama Prefectural employees. As regards 1998 and 1999, the prefectural authorities has received the agreement of the complainant itself. This case is isolated and concerns a minority union and the prefectural authorities. In spite of this fact, the allegations deny the local public service employees system that has so far functioned properly as a whole, which is hardly acceptable. The Supreme Court of Japan has ruled that even if salary scales are not revised as the commission recommends, it should not be concluded that the Personnel Commission is not serving its compensatory function if it was truly unavoidable in the prefectural financial conditions.
    • 398. In its communication of 2 May 2002, the Government states that it is still in the process of preparing its observations on the complainant’s communication and that, as two more complaints have been filed by other trade unions concerning the Civil Service Reform, it would rather submit its observations on all these cases at once, in time for the November 2002 meeting of the Committee.

C. The Committee’s conclusions

1. 399. The Committee notes that since its last session, it has not received any substantive reply from the Government, which has merely asked the Committee to adjourn the case once again. The Committee recalls that, when it considered and adjourned this case at its March 2002 meeting, it requested the Government "to send urgently its observations on the latest communication of the complainant [i.e. that of 15 February 2002] so that it may take these into account when it examines the case at its next meeting" [327th Report, para. 8].
2. 400. The Committee notes that the allegations in this case concern the failure on the part of the Okayama Prefectural Government to implement in full the recommendations made by the Okayama Prefectural Personnel Commission relating to wage increases for local public employees, including teachers working in public high schools and schools for disabled students, who are members of the Okayama Prefectural High-School Teachers’ Union (the complainant). The allegations additionally relate to the recommendation of the Okayama Prefectural Personnel Commission to reduce the lump-sum allowance for local public employees for the 1999 fiscal year resulting in a reduction of the total annual remuneration of those employees. According to the complainant, these recommendations undermine the fundamental purpose and usefulness of the personnel commission system which was set up to compensate public employees for restrictions imposed on their trade union rights. Accordingly, the complainant demands a full recovery of the right to bargain collectively, including the right to conclude collective agreements, as well as the guarantee of speedy and impartial procedures for mediation and arbitration leading to a decision binding on both parties in case of a breakdown in negotiations.
3. 401. As regards the alleged delay in the implementation of the recommendations of the Okayama Prefectural Personnel Commission for the 1997 fiscal year, the Committee notes in effect that the Personnel Commission’s recommendation to increase wages by 0.98 per cent was deferred until January 1998 whereas it should have been implemented in April 1997. The same thing happened in 1998 when the Personnel Commission’s recommendation to increase wages by 0.71 per cent was deferred until January 1999 whereas it should have been implemented in April 1998. According to the complainant, due to the delay in the implementation of these recommendations, 51,964 yen per person on average, equivalent to the wage increase for 13.7 months in the 1997 fiscal year, and 38,373 yen per person on average, equivalent to the wage increase for 13.7 months in the 1998 fiscal year, were not paid to the complainant’s members, amongst others. The Committee observes that the Government does not dispute these figures; rather it acknowledges in its own reply that, due to the postponement in the implementation of these salary increases, the source of revenue needed to reform the salary scales decreased from 3 billion yen to 1.2 billion yen for the 1997 fiscal year and from 1.8 billion yen to 500 million yen for the 1998 fiscal year. According to the Government, however, these measures were unavoidable in view of the financial crisis and the Okayama Prefectural Government carefully considered a number of factors such as the prevailing socio?economic conditions, critical financial conditions and the need to promote administrative and financial reforms before deciding not to implement in full the Personnel Commission’s recommendations.
4. 402. The Committee notes that the Personnel Commission is an independent regulatory body set up under the Local Public Service Law to make recommendations concerning wages, working hours and other working conditions as a compensatory measure for the prohibition on the right to strike of local public employees. This personnel commission system follows much the same objectives and functions as the system set up for national public servants in the form of the National Personnel Authority which is regulated under the National Public Service Law.
5. 403. At the outset, the Committee considers it appropriate to recall that teachers should have the right to bargain collectively [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 793].
6. 404. The Committee notes that, in the present case, while referring to the right of collective bargaining that teachers should enjoy, the complainant organization makes allegations on the system of wage fixing for this category of personnel and on the system of recommendations by the personnel commissions.
7. 405. So far as the impartiality of the personnel commissions is concerned, the Committee notes that, according to the complainant, all three members of the Okayama Prefectural Personnel Commission (as well as other local personnel commissions) are appointed by the Okayama Governor with the approval of the Okayama Prefectural Assembly. The candidates for the Personnel Commission are nominated by the personnel section of the Okayama Prefectural Government. Furthermore, during the course of these nominations, there are no procedures which provide for employees’ organizations to nominate any such candidates, to recommend personnel commission members or submit their own views on the candidates selected. The Government does not contest these observations but confines itself to asserting that members of the personnel commissions are required to be persons of the highest moral standing and integrity, in known sympathy with the principle of democratic and efficient administration, and possessing sound knowledge and judgement concerning personnel administration.
8. 406. In this regard, the Committee would recall that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides on which the successful outcome even of compulsory arbitration really depends is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 549]. The Committee has also stated on another occasion that the appointment by the minister of all five members of the Essential Services Arbitration Tribunal calls into question the independence and impartiality of such a tribunal, as well as the confidence of the concerned parties in such a system. The representative organizations of workers and employers should, respectively, be able to select members of the Essential Services Arbitration Tribunal who represent them [see Digest, op. cit., para. 550]. Finally, the Committee would refer to the views of the Fact-Finding and Conciliation Commission on Freedom of Association concerning persons employed in the public sector in Japan which stated:
   • The commissions (personnel commissions), with few exceptions, consist of three members each and it would appear from the evidence that no substantive or practical safeguards have been provided to ensure that the members chosen for those commissions possess and are generally recognized to possess the requisite impartiality. As the Committee on Freedom of Association has pointed out, consideration should be given to providing that the composition of these commissions should not be merely impartial but such that their impartiality commands general confidence, and to ensuring that the workers’ organizations should have some voice in their appointment. The law provides that all members of each commission are appointed by the head of the local public body with the consent of the local assembly but this arrangement can hardly be accepted as conforming to the recommendations of the Committee [Report of the Fact?Finding and Conciliation Commission on Freedom of Association concerning persons employed in the public sector in Japan, para. 2152, ILO Official Bulletin (Special Supplement), Vol. XLIK, No. 1].
9. 407. In light of the principles enunciated above and with regard to the issue of the impartiality of the personnel commissions concerned, the Committee would request the Government to take the necessary steps to ensure that: (i) the members of personnel commissions are persons whose impartiality commands general confidence; and (ii) workers’ organizations have a meaningful voice in the appointment of the members of these personnel commissions.
10. 408. As regards the issue of how far the personnel commissions can be regarded as arbitration bodies which compensate the local public employees for the prohibition on basic trade union rights, the Committee notes the complainant’s contentions that the Okayama Prefectural Personnel Commission clearly demonstrated its inability to correct the measures taken by the Okayama Prefectural Government through its decision of 5 August 1998. The complainant contends that, pursuant to the decision of the Okayama Prefectural Government to delay the implementation of the wage increase recommended by the Okayama Prefectural Personnel Commission for the 1997 fiscal year, 999 members of its organization submitted "request statements" to the Personnel Commission in order for it to issue its recommendation once again (a copy of a request statement is reproduced in Annex II). The complainant had believed that the Personnel Commission would once again issue its recommendation to the Okayama Prefectural Government since it had expressed its regret to the Okayama Prefectural Assembly that its recommendation had not been fully implemented. Instead, in a decision dated 5 August 1998, the Personnel Commission decided to reject the complainant’s request (a copy of the Personnel Commission’s decision is reproduced in Annex III). The Government’s viewpoint is that the fact that the Personnel Commission rejected this application filed by the complainant does not constitute any ground for claiming that the said system is not functioning to compensate for the restrictions placed on the basic trade union rights of local public employees.
11. 409. The Committee, for its part, notes that in its decision the Okayama Prefectural Personnel Commission recognizes that the personnel commission recommendation system is maintained as compensation for the restrictions imposed on the trade union rights of public employees and that it is virtually the only means of salary improvement for those public employees who may not be involved in the conclusion of their own salaries. The Personnel Commission further regrets in its decision that the date of commencement of the revised salaries differs from the date set out in its own recommendation, even considering the financial difficulties of the Prefecture. The Committee notes that the Personnel Commission nevertheless decided to reject the complainant’s application because:
    • Although it is without question that a salary recommendation by the Personnel Commission should be fully respected, it is also clear that, in the light of the system of salary recommendation, such a recommendation has no legal power to influence the Governor in his right to propose bills, or the Assembly in its right to vote (see Annex III; emphasis added).
    • The Committee notes that the Okayama Prefectural Personnel Commission itself acknowledges that its recommendations are not legally binding upon the parties concerned even if its recommendations are the only means through which public employees may see an improvement in their salaries. The Committee therefore is bound to conclude that, with regard to salaries, working hours and other working conditions, the Personnel Commission does not appear to be an arbitration body but an advisory body. The Committee reached similar conclusions in a previous case concerning Japan [58th Report (Case No. 179), paras. 204-431] wherein it stated that:
    • For this purpose it is necessary to consider the sections of the Local Public Service Law referred to by the Government (see paragraph 246 above). Sections 46-48 of the Local Public Service Law relate, according to the general heading, to the powers of the Personnel Commission with regard to "an appreciation for action on working conditions". Section 46 gives the personnel the right to apply to the Personnel Commission with regard to pay, working hours and other working conditions. Section 47 provides that the Commission must examine the case, pass judgement thereon and "take actions on its own accord with regard to matters within its powers, or, with regard to other matters, make necessary recommendations to the agency of the local public body which has powers over the matter under consideration". Section 48 enables the Commission to fix the rules for its own procedure.
    • It has been made quite clear both in the complaints and by the Government that the fixing of salaries, hours and general conditions of work is a matter over which the local public body has exclusive powers (see paragraph 255 above) and that this is a matter on which the Commission can only make recommendations (see paragraph 246 above). It would appear, therefore, that, so far as these matters are concerned, the Personnel Commission is an advisory and not an arbitral body.
    • Sections 49-51 and 60 of the Local Public Service Law cited in part by the Government (see paragraph 246 above) related to quite another matter. Under the heading of "appeal for review of adverse action" these sections give the Personnel Commission power to give binding decisions in cases in which "a member of the personnel" has been subjected to a disciplinary punishment or other adverse action.
    • The Committee considers, therefore, that, on the evidence before it and according to the provisions of the Local Public Service Law, the Personnel Commission does not appear to be an arbitration body but an advisory body so far as representations on wages and other conditions of employment are concerned. The Government states that no other arbitration machinery exists or is envisaged.
12. 410. The Committee notes from the above that sections 49-51 and 60 of the Local Public Service Law give the Personnel Commission power to give binding decisions in cases in which the local public employees consider that they have been subjected to an adverse action against their will and appeal to the Personnel Commission for review of that action. In view of what the Committee stated earlier on its conclusions about the need to provide for adequate, impartial and speedy conciliation and arbitration proceedings in which the awards are binding on both parties in the event that the right to strike is prohibited in the public service, the Committee considers that personnel commissions should have the power to give binding decisions not only in cases where local public employees have been subjected to a disciplinary punishment or other adverse action (sections 49-51 of the Local Public Service Law) but also with regard to salaries working hours and other working conditions (sections 46-48 of the Local Public Service Law). The Committee accordingly requests the Government to take the appropriate measures to amend the relevant provisions of the Local Public Service Law so that personnel commissions have the power to give binding decisions with regard to salaries, working hours and other working conditions of local public employees. It also requests the Government to keep it informed of developments in this regard and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
13. 411. As mentioned earlier by the Committee, in addition to being denied the right to strike, local public employees do not enjoy any right to participate in any negotiating machinery for the determination of their terms and conditions of employment, including wages. The sole compensatory factor for the denial of these rights would appear to be, for the time being, the existence of the Personnel Commission and the benefits that the workers enjoy as a result of the implementation of the recommendations of that Commission to increase wages. The adequacy of this compensatory factor, accordingly, depends on the full and prompt implementation of wage increases recommended by the Personnel Commission. The Committee accordingly can only express its regret that, in the case before it, the recommendations of the Okayama Prefectural Personnel Commission were not fully implemented for two years successively. While fully appreciating that, in times of economic crisis or difficulty, governments may judge it necessary to impose restrictions on the normal process of wage determination, nevertheless, in the present case, where public employees in the non-operational sector (i.e. all national and local public employees other than those employed in public corporations or enterprises) are denied not only the right to strike, but also the right to bargain collectively, it considers it all the more important that the recommendations of the Personnel Commission be fully implemented. In this regard, the Committee takes due note of the Government’s assurances that, from now on, the prefectural governments will implement the personnel commissions’ recommendations. The Committee therefore expresses the firm hope that future recommendations of the personnel commissions will be fully and promptly implemented.
14. 412. Finally, the Committee notes the complainant’s demand that it be given the right to bargain collectively including the right to conclude collective agreements in view of the fact that the personnel recommendation system does not serve as adequate compensation for the restrictions placed on its basic trade union rights. The Government points out that employees of prefectural high schools, including members of the Okayama Prefectural High-School Teachers’ Union can negotiate with the proper authorities. However, they are obliged to attend to their duties in the public interest as servants of the whole community. Moreover, their salaries and other working conditions are stipulated by by-laws established by the local assembly composed of public representatives. Therefore, they do not have the right to conclude collective agreements and are prohibited from carrying out strikes.
15. 413. In this regard, the Committee would recall that similar arguments had been put forward by another Government regarding the special status and responsibility of teachers in society to justify restrictions on their basic trade union rights [see 286th, 291st and 294th Reports (Case No. 1629) and 304th 306th, 307th and 311th Reports (Case No. 1865)]. The Committee had emphasized then, as it does now, the importance of teachers being able to exercise freely: (i) the right to organize; and (ii) the right to bargain collectively their terms and conditions of employment, notwithstanding their special status under national law.
16. 414. Moreover, the Committee has drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector [see Digest, op. cit., para. 804]. Article 4 provides that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. Finally as regards public school teachers (including those who are members of the complainant organization) the Committee is of the view that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service [see Digest, op. cit., para. 793]. In view of the foregoing, the Committee requests the Government to take appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public school teachers, in conformity with Articles 4 and 6 of Convention No. 98. It asks the Government to keep it informed of any developments in this regard
17. 415. Finally, the Committee notes the various communications concerning the reform of the public service personnel system, whereby the Government explains that the whole system is under consideration (letter of 31 October 2001), that the Cabinet adopted a plan of reform on 25 December 2001 (letter of 6 February 2002) and that, as two other complaints have been presented by other trade unions on this issue, it would rather submit its observations on all these cases at once (letter of 2 May 2002). Considering that the present case may be dealt with independently of the reform of the public service personnel, the Committee will address these issues in the two other complaints concerning specifically and directly said reform.

Annex I

1. Examples provided by the complainant of large-scale and ineffective public spending by the Okayama Prefectural Government
2. Okayama Airport
3. Okayama Airport opened with a 2000 metre runway in March 1998 and the runway was extended to 2,500 metres in March 1993. The catchphrase at this extension of the runway was "This extension will make possible international airline flights to Beijing, Hong Kong, Manila, Bangkok and Honolulu." But now the only remaining international airline is the one to Seoul with four flights a week and no more than 100 passengers on one flight.
4. In spite of this situation, under the slogan "Aim to be the leading airport in western Japan", the Okayama Prefectural Government is extending the runway to 3,000 metres at a cost of as much as 34.7 billion yen. The demand forecast that the number of passengers will be 470,000, about seven times the present number of 70,000 or more per year, is completely unrealistic. In addition, because the Japanese Government ranks Okayama Airport as a third class airport (a local airport), it will pay only 3.5 billion yen of the 34.7 billion yen extension cost. So the burden of the Okayama Prefectural Government will amount to 31.2 billion yen.
5. Port construction
6. The Okayama Prefectural Government is now advancing work to construct an artificial island (a base for cargo containers) including two berths with water depths of 12 metres, as a cost of 100 billion yen, at Tamashima in Okayama Prefecture.
7. But because of the current economic slump, there is no prospect that demand for containers will increase, and bitter competition among existing ports is lowering the utilization ratio of each port. The Japanese Shipowners’ Association, a representative body of port users, is taking a negative attitude toward the construction of new port facilities, saying "We don’t need deep-water berths. Making a new wharf will only bring about high charges." There are already large port facilities such as Okayama Port, Mizushima Port and Uno Port in Okayama Prefecture, and dozens of large ports (Kobe Port and Hiroshima Port have berths with water depths of 14 metres) in the Seto Inland Sea. So container ports are already in excess of supply.
8. In addition to the abovementioned artificial island at Tamashima, the Okayama Prefectural Government has a plan to construct another artificial island at Saidaiji, but it is clear that these are not necessary at all.
9. Expressway construction
10. The Okayama Prefectural Government has started the construction of the Okayama-Mimasaka Way (an expressway) on a budget of 100 billion yen.
11. The Okayama Prefectural Government already ranks fifth in expressway construction ratio out of 47 prefectural and city governments throughout Japan. Even if the Okayama-Mimasaka Way is completed, drivers will be able to save at most 15 minutes in the area between Okayama City and Tsuyama City which is expected to be used the most. We cannot help but say that it is a waste of money to pay out as much as 100 billion yen for the convenience of 15 minutes.
12. Tomada Dam
13. In spite of strong objections from local residents, the Okayama Prefectural Government is going to construct Tomada Dam in the upper reaches of the Yoshii River in Okustu Town, Tomada County, Okayama Prefecture at a cost of 200 billion yen.
14. At the beginning of the plan, Tomada Dam was designed to be used for power generation and agricultural water, but later in the high-growth period, the purpose of it was changed to a multi-purpose dam laying stress on industrial water, and further changed to a regional water system laying stress on public water supply. Such a frequent change in the purpose of the Tomada Dam construction in itself reflects the thoughtlessness of the plan. That is to say, the construction of the dam is not a real necessity.
15. Even as to the present purpose of the dam as a regional water system, because as much as 123,000 tons of water out of 400,000 tons of estimated water supply is in excess, the Okayama Prefectural Government is paying 16.4 billion yen per year to the Okayama Prefectural Regional Water Service Centre as advance money. The Okayama Prefectural Government will have to send water to the municipal governments on the border of Hiroshima Prefecture far away from Tomada Dam in order to sell the planned volume of water. Moreover, it will take another 100 billion yen to construct such a long waterline.
16. Kibi Plateau City
17. Kibi Plateau City was constructed at a cost of 70 billion yen in its first stage to make a city with a population of 30,000, destroying the precious natural environment of Kibi Plateau, but the present number of residents in Kibi Plateau City is only 1,600. In regards to building lots which have been put on sale recently, only 46 lots were bought out of 420 lots.
18. In spite of this situation, the Okayama Prefectural Government is going to start its second stage of construction work at twice the cost of its first stage.
19. Kurashiki Tivoli Park
20. “Tivoli Park” was originally planned to be constructed in Okayama City under the sponsorship of Mr. Nagano, then Governor of Okayama, but met with strong opposition from Okayama citizens. At last it was constructed in Kurashiki City.
21. Though Tivoli Park is only a leisure facility and essentially not a business for a municipal government to be engaged in, the Okayama Prefectural Government had already paid out 40 billion yen and paid another 4.4 billion yen in 1999.
22. Annex II
23. A "request statement" submitted by the complainant to the Okayama Prefectural Personnel Commission to reissue its recommendation once again to the Okayama Prefectural Government
24. Petition for action
25. I hereby request, in accordance with section 46 of the Local Public Service Law, that actions be taken pertaining to working conditions as stated below.
26. Record
27. 1. Petitioner
28. Title of position: Teacher
29. Name:
30. Address:
31. Date of birth: 6 July 1938
32. Place of employment: Okayama School for Handicapped Children
33. 2. Actions requested
34. That the salary of the petitioner be revised as indicated below:
35. n Let the monthly salary for the position of teacher in the grade _____ and pay step _____ be 479,700 yen retroactively to April (month) 1997.
36. n Let the monthly salary for the position of teacher in the grade _____ and pay step _____ be _____ yen retroactively to _____ (month) 1997.
37. n Let the monthly salary for the position of teacher in the grade _____ and pay step _____ be _____ yen retroactively to _____ (month) 1997.
38. 3. Reasons for petition for action
39. The reference for determining the wages of local public employees is provided in section 24 of the Local Public Service Law. Cost of living, clearly indicated to be a part of such reference by the result of the investigation conducted by your esteemed Personnel Commission, has undoubtedly been increasing. In addition, the salaries of those employed by private enterprises within the Prefecture surpass the standard of the salaries of those employed by the Prefecture by 0.98 per cent, as evident from your esteemed Commission’s investigation. Therefore, your esteemed Commission recommended the prefectural authorities and the Chairperson of the Prefectural Assembly to raise the salaries of employees of the Prefecture by 0.98 per cent retroactively to April 1997. However, the prefectural authorities unilaterally concluded to postpone implementation of this recommendation for nine months until 1 January 1998 on the basis of "financial difficulties". This constitutes an unlawful act infringing on your esteemed Commission’s rights as provided in paragraph 1 of section 8, section 25 and section 26 of the Local Public Service Law. Further, implementation of such a recommendation, where the recommendation is made as a "compensational action" for the limitations of the basic labour rights of public employees, to the full extent thereof, is a matter of course in advanced nations, as is often pointed out by the ILO.
40. Therefore, in the light of the principle of adaptation to general social conditions, as provided in section 14 of the Local Public Service Law, it is only natural to raise the petitioner’s monthly salaries.
41. 4. Description of the bargaining by petitioner
42. or employees’ organization
43. The employees’ organization (Okayama Prefectural High-School Teachers’ Union, Executive Committee Chairperson: Takashi Uchida), of which the petitioners are members, conducted bargaining with the Okayama Prefectural Board of Education for the implementation of the recommendation by your esteemed Personnel Commission. However, the prefectural authorities showed no intention of changing their position, in which they claimed the date of implementation of the recommendation should be delayed. As such, the bargaining broke down and has not recommenced since 1 December of last year.
44. 5. Attachments
45. _____ (month) _____ (day), 1998
46. Name of the petitioner: ____________________ (seal here)
47. (Submitted to:) The Personnel Commission of Okayama Prefecture
48. (Attention:) Mr. Tsutomu Yokota, Chairperson
49. Annex III
50. Decision by the Okayama Prefectural Personnel Commission to reject the "request statement" submitted by the complainant
51. Petitioner: High-school teachers in
52. Okayama Prefecture, 999 persons in all
53. With reference to the petition for action received on 17 June 1998, which was submitted by the abovementioned party concerning their employment conditions, the Personnel Commission of Okayama Prefecture has made its decision as follows.
54. Decision
55. The abovementioned petition for action is unacceptable.
56. Reasons
57. 1. The aim of the petition
58. The petitioners have requested, with reference to the grades and pay steps of salaries that were granted them in and after April 1997, to revise, retroactively to April 1997 or any month thereafter in which a salary raise was granted, the salaries to corresponding values in the salary schedule provided in the 1997 Recommendation of Salaries which the Committee had presented to the Chairperson of the Prefectural Assembly and to the Governor.
59. The petitioners assert the following as the reasons for the petition:
60. 1. that the unilateral decision by the prefectural authorities to postpone implementation of the recommendation for nine months until January 1998 on the basis of financial difficulties was an unlawful act infringing on the rights of the Personnel Commission;
61. 2. that an implementation of a recommendation by the Personnel Commission, where such recommendation is made as a "compensational action" for the limitations of the basic labour rights of public employees, to the full extent thereof, is a matter of course in advanced nations, as is often pointed out by the ILO; and
62. 3. that, in the light of the principle of adaptation to general social conditions, it is only natural to raise the petitioners’ monthly salaries according to the recommendation.
63. 2. Decision of the Commission
64. 1. The Commission, having surveyed the actual salaries of prefectural employees and those of private enterprises within the Prefecture, the cost of living, and the National Personnel Authority’s recommendation on salaries, and having considered the matter comprehensively on the basis of provisions in the Local Public Service Law (Law No. 261, 1950), presented its report on 3 October 1997 to the Chairperson of the Prefectural Assembly and to the Governor concerning the salaries of Okayama prefectural employees in regular service, and recommended that their salaries be raised by 0.98 per cent on the average retroactively to April 1997.
65. 2. The prefectural authorities, in response to the recommendation, duly recognized and considered the importance of the system of salary recommendation and, as a result of prudent discussions in the light of the critical financial condition of the Prefecture, presented a Bill to revise the Remuneration Law on 17 December 1997, in which a revised salary scheme was recommended to commence on 1 January 1998 as an emergency evasion measure to avoid the financial crisis the Prefecture was faced with at the time.
66. Upon receipt of the Bill, the Prefectural Assembly underwent deliberations based upon the recommendation by the Commission and conducted hearings with the Commission, and reached an approval thereof as drafted.
67. 3. The Commission, recognizing that the system of salary recommendation is maintained as a compensational action for the limitations of the basic labour rights of public employees, and that it is virtually the only measure of salary improvement for those public employees who may not be involved in the conclusion of their own salaries, requested that the recommendation of salaries be respected and that the content thereof be fully implemented. The Commission regrets that the date of commencement of the revised salaries differed from the Commission’s recommendation, even considering the financial difficulties of the Prefecture.
68. However, the Governor of the Prefecture received the salary recommendation, prepared a bill to revise the law based on a comprehensive judgement encompassing various conditions relevant to the setting of remuneration of public employees as stated in the Local Public Service Law, with due appreciation of the importance of the salary recommendation system, and presented the Bill to the Prefectural Assembly where a final decision was reached taking general conditions and circumstances into consideration.
69. Although it is without question that a salary recommendation by the Personnel Commission should be fully respected, it is also clear that, in the light of the system of salary recommendations, such a recommendation has no legal power to influence the Governor in his right to propose bills, or the Assembly in its right to vote. In this sense, it does not constitute an unlawful act, as asserted by the petitioners, if the outcome of the salary revision, concluded via the above-explained process, did not agree with the salary recommendation presented by the Committee; rather, it was inevitable.
70. Therefore, while the aim of the petitioners is duly understandable, the petition for action is unacceptable.
71. Thus the judgement stands as stated in the Decision above.
72. 5 August 1998.
73. Personal Committee of Okayama Prefecture,
74. Tsutomu Yokota, Committee Chairperson,
75. Hiroshi Fukuda, Committee member,
76. Jungo Sugita, Committee member.