ILO CFA 331st Report Case 2177

516. The Committee examined these cases at its November 2002 meeting, where it presented an interim report, approved by the Governing Body at its 285th Session [see 329th Report, paras. 567-652].

517. In communications dated 26 December 2002 and 28 March 2003, the complainant JTUC-RENGO (Case No. 2177) submitted the information requested by the Committee as well as additional information. The complainant ZENROREN (Case No. 2183) submitted additional information in a communication dated 18 March 2003. The Government submitted its observations in communications dated 26 December 2002, 31 March and 15 April 2003.

518. In a communication dated 17 February 2003, Union Network International (UNI) associated itself with the complaint in Case No. 2177.

519. 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. Previous examination of the case

520. At its meeting in November 2002, the Committee made the following recommendations [see 329th Report, para. 652):
(a) The Government should reconsider its stated intention to maintain the current restrictions on the fundamental labour rights of public employees.
(b) The Committee strongly recommends that full, frank and meaningful consultations be held soon with all parties concerned on the rationale and substance of the public service reform to obtain a wider consensus on the subject, and with a view to amending the legislation and bringing it into conformity with freedom of association principles. These consultations should notably address the following issues, concerning which the legislation and/or practice in Japan are in violation of the provisions of Conventions Nos.87 and 98:
(i) granting fire-defence personnel and prison staff the right to establish organizations of their own choosing;
(ii) amending the registration system at local level, so that public employees may establish organizations of their own choosing without being subject to measures tantamount to prior authorization;
(iii) allowing public employees’ unions to set themselves the term of office of full-time union officers;
(iv) granting public employees not directly engaged in the administration of the State the right to bargain collectively and the right to strike in conformity with freedom of association principles;
(v) as regards workers whose collective bargaining rights and/or right to strike may be legitimately restricted or prohibited under freedom of association principles, establishing appropriate procedures and institutions, at national and local level, to compensate adequately these employees deprived of an essential means of defending their interests;
(vi) amending the legislation so that public employees who exercise legitimately their right to strike are not subject to heavy civil or criminal penalties.
(c) The Committee requests the Government and RENGO to inform it as to whether the 18,000 employees transferred to independent administrative institutions were able to establish or join organizations of their own choosing without prior authorization.
(d) The Committee requests the Government to provide it with the court decision concerning the case at Oouda-cho (Nara Prefecture).
(e) The Committee also requests the Government to engage into meaningful dialogue with the trade unions concerning the scope of bargaining matters in the public service.
(f) The Committee requests the Government and the complainants to provide further information on the prevailing law and practice as regards the procedure of redress for unfair labour practices.
(g) The Committee requests the Government to keep it informed of developments on all the above issues and to provide copies of the proposed legislative texts.
(h) The Committee recalls to the Government that the technical assistance of the Office is available should it so desire.
(i) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

B. Additional information from the complainants

521. In its communication of 26 December 2002, RENGO states in general that the Government has not shown any positive attitude to improve the situation by accepting the Committee's recommendations. Quite the contrary, the Government's representative said in the Governing Body that the Committee's recommendations were "unacceptable"; that view was endorsed locally by the Minister of Public Management, Home Affairs, Posts and Telecommunications, who added that the Committee did not have a full understanding of the situation and that it was inappropriate for the Committee to advise the Government to reconsider its policy of maintaining the existing restrictions on the basic labour rights of public service employees, as this is a purely domestic issue. Faced with this attitude, RENGO representatives on 29 November 2002 requested the Chief Secretary of Cabinet to: (a) fully accept the Committee's recommendations and to redevelop the reform plan so as to give basic labour rights to public servants; and (b) hold immediate consultations with the trade unions concerned to develop this plan, in line with international labour standards. Similar requests were made to the Minister in charge of administrative reform, the Minister of Public Management, Home Affairs, Posts and Telecommunications, and the Minister of Health, Labour and Welfare. While the Chief Secretary of Cabinet promised he would examine RENGO's requests, he did not give any concrete indication on how the Government would respond to the Committee's recommendations. Replying to questions in the Diet, the Government only stated that it would make further approaches to have its position fully understood. In summary, the Government shows no intention of accepting the recommendations and is proceeding with the reform based on the general principles in order to submit the relevant bills to the next ordinary session of the Diet, in early 2003.

522. Regarding the question asked by the Committee [329th Report, para. 652(c)] on the trade union situation in independent administrative institutions (IAIs), RENGO recalls that there are now two such categories of institutions: "non-specified IAIs" whose workers are not public service employees, and "specified IAIs" whose workers have the status of public employees. Before the change, all these institutions were national government organs; all their employees had public service status in what the Government calls the "nonoperational sector" (i.e. white-collar workers) and came under the National Personnel Authority (NPA) system. The change has had concrete consequences on labour relations: specified IAIs, being run on a self-paying basis, are now covered by the National Enterprises and Specified Independent Administrative Institutions Labour Relations Law (NELRL). As a result, workers who used to be members of the same organizations are now divided and covered by different labour legislations; in view of the restricted collective bargaining rights that organizations with a mixed membership would enjoy under the existing registration system, registered employees' organizations with members to be covered by different labour laws had no choice but to reorganize.

523. RENGO gives specific examples of situations experienced by its affiliates:

- The Japan Agriculture, Forestry and Fisheries Ministry Workers' Union (ZENNORIN) had a membership of about 28,000 workers in the non-operational sector (white-collar employees). As 17 agencies of the ministry were reorganized into IAIs, the trade union was forced to be divided to satisfy the requirements of the registration system, which RENGO considers as a violation of freedom of association. A new ZENNORIN regrouping 21,500 employees was established in the ministry, and 17 trade unions (under the Trade Union Law), with a total membership of about 6,500, were established in the IAIS.

- The All Hokkaido Development Bureau Workers' Union (ZENKAIHATSU) had a membership of about 6,000 workers in the non-operational sector. As the Development Engineering Institute of the ministry was reorganized into an IAI, the union was forced to be divided into two trade unions, one for white-collar workers and another one for the IAI, which RENGO considers as another example of violation of freedom of association.

524. RENGO alleges that, as further reorganizations into IAIs will be promoted under the Government’s policy, freedom of association will be violated even further. As for ordinary IAIs (whose workers do not have public employee status) no violation of freedom of association has been reported since all agencies reorganized into IAIs so far were not unionized. However, it is evident that similar problems will be experienced once agencies with organized workers will be reorganized into IAIs. RENGO believes that this type of violation would not occur in principle if the Government were to accept the Committee's recommendation [329th Report, para. 652(b)(iv)] to grant the right to bargain collectively and the right to strike to public servants not directly engaged in the administration of the
State, and to abolish the existing system of registration.

525. Regarding the question asked by the Committee on the court’s decision in the Oouda-cho case [329th Report, para. 652(d)] RENGO states that the Nara District Court held that the ruling issued on 1 February 1999 by the Oouda-cho Equity Committee to suspend the registration of the employees' organization should be cancelled. RENGO considers that the court's decision included some positive points and was an appropriate one in the specific case; nevertheless, the court did not go far enough in examining the substance of the rule concerning the scope of managerial personnel of Oouda-cho ("the rule") as it did not touch on the constitutionality of the rule and the need to revise it. Such decision only maintains
the existing Government's position and past case law, and avoids any judgement on the legitimacy of the legislation, which entails a serious problem which infringes freedom of association and the fundamental rights of organizations. While not totally satisfied with the decision, RENGO hopes that it would restore the rights of the dissolved organization and freedom of association, and would contribute to the normalization of labour-management relations. The complainant requests that the Government accept the court decision as a final one and implement it, and that it revise the rule and the legislation.

526. As regards the procedure of redress for unfair labour practices [329th report, para. 652(f)] RENGO states that under existing legislation, labour relations of public servants and the rights of their organizations are dealt with differently according to different duties. Since these organizations are covered by different laws such as the National Public Service Law (NPSL), the National Enterprises Labour Relations Law (NELRL), the Local Public Service Law (LPSL) and the Local Public Enterprises Labour Relations Law (LPELRL) there occur cases where, for the same cause within the same institution, one organization may resort to relief measures while another one has no such recourse. One of the issues raised in the complaint concerned employees' organizations not covered by the Trade Union Law and facing restrictions of their right to organize and therefore hindered in the pursuit of their objectives as employees' organizations. For instance, in the town of Ariake-cho (Kagoshima Prefecture), white-collar municipal employees and their union are covered by the LPSL, while blue-collar municipal workers and their union (the Operational Employees' Council) are covered by the LPELRL. The mayor proposed both in June 1999 to increase their weekly working hours, and implemented the proposal the following month without negotiations or agreement. The Operational Employees' Council was entitled to file a complaint of unfair labour practice with the Labour Relations Committee of the Kagoshima Prefecture, where the parties ultimately agreed to solve this issue through collective bargaining in future. By contrast, the union representing white-collar employees had no access to legal relief. RENGO alleges that this differential treatment clearly violates the right to organize, and that the existing registration system which cannot prevent such violations infringes Conventions Nos. 87 and 98. The complainant demands that the legislation be revised so that trade union rights be equally guaranteed to both public and private sector workers.

527. In its communication of 28 March 2003, RENGO indicates that there has been no progress and that its representatives met again on 24 February 2003 with the Chief Secretary of Cabinet who, whilst saying that the Government would sincerely consult/negotiate with employees' organizations, mentioned that the Government had no intention to press for revision of the public service system. RENGO also reiterated their previous demands with the Minister in charge of administrative reform, who stated that the Government is now working on amendments of the NPSL based on the general principles, and intends to consult trade unions occasionally. No other progress was achieved in the Diet. In spite of repeated demands, it has become clear that the Government has no intention of holding the "full, frank and meaningful consultations" recommended by the Committee. The Government meanwhile continues its work on the amendments based on the general principles, and maintains its intention to submit the bills to the current session of the Diet, which will close by 18 June 2003. This amounts to an outright rejection of the Committee's recommendations. Finally, the Office of Administrative Reform Promotion has submitted the bills to the ministries concerned for comments on 28 March 2003; as such bills are usually presented to Cabinet two weeks after the conclusion of official consultations with the ministries, the bills in question here may have already been enacted before the Committee may have a chance to examine them.

528. In its communication of 18 March 2003, ZENROREN states that the Government is of the view that the public service reform is purely a domestic matter, and that there are no appropriate consultations with trade unions. ZENROREN points out as regards the labour relations regime in IAIs that seven trade unions, including the administrative employees section of KOKKO-ROREN and the Transport Ministry All Workers' Union, have been forced to reorganize as they had mixed membership. The Japan National Hospital Workers' Union (JNHWU-ZEN-IRO) now faces the same problems since state-run hospitals will be converted into IAIs in April 2004. As the transition from state-run institutions into IAIs requires division and reorganization of existing trade unions, there is a risk that the strength and ability of unions to carry out their activities will be considerably affected. The core of the problem lies in the current system of registration of employees' organizations, which ZENROREN says should be abolished. The Government plans to introduce a bill on the establishment of local IAIs, which means that municipal employees will be facing the same organizational problem if that bill is adopted.

C. The Government's reply

529. In its communication of 26 December 2002, the Government states that the purpose of establishing IAIs is to separate the functions of policy-making from policy execution, as part of the process of administrative reform. The National Enterprise and Specified Independent Administrative Institutions Labour Relations Law (NELRL) applies to employees of specified IAIs (who have the status of public employees); their right to bargain collectively, including the right to conclude collective agreements, is guaranteed. In addition to policy execution duties already transferred to IAIs in 2001 and 2002, the administration of the Statistics Bureau, the Mint Bureau and the Printing Bureau is to be transferred to specified IAIs in April 2003, and such a transfer is also planned in April 2004 as regards national hospitals and sanatoria. By transferring in this way more duties to IAIs, the Government has expanded the scope of public employees whose rights to bargain collectively and to strike are guaranteed. Therefore, as regards the Committee's recommendation 652(c), the right to organize of employees transferred to specified IAIs is guaranteed by article 4(1) of the NELRL.

530. In its extensive communication of 31 March 2003 (summarized below) the Government states that it is currently negotiating and consulting with the parties to revise the National Public Service Law. In mid-February, the Government presented a specific plan, including major issues such as the introduction of a competence grade system and a reform of the recruitment system (see annex) and requested discussions thereon. Several high-ranking officials, including the Chief Secretary of Cabinet and the Minister in charge of administrative reform met with RENGO and assured them that the Government wished to maintain dialogue with employees' organizations and to have frank and meaningful negotiations and consultations with them.

531. The Government describes the history of labour relations in the civil service, back to 1946. While there exist some restrictions on the fundamental labour rights of public employees due to their distinctive status and the public nature of their duties, appropriate compensatory measures, such as the National Personnel Authority recommendation system, are guaranteed. The present system is well accepted in the country.

532. Recalling the rationale for promoting the establishment of IAIs (i.e. separating policymaking from policy execution) the Government submits that fundamental rights of public employees are being steadily expanded under that system. Employees transferred in specified IAIs (some 64,000 persons as of 1 January 2003, or 12.6 per cent of the national public employees) retain their status of public employees and are covered, like employees of national enterprises, by the NELRL: they have the right to bargain collectively and to conclude collective agreements. For employees transferred in non-specified IAIs (some 2,000 persons as of 1 January 2003) the restrictions on fundamental labour rights are lifted as they become non-public employees; they are covered by the Trade Union Law, have the right to bargain collectively, to conclude collective agreements and the right to strike. Now under consideration is the case of the National Universities Corporation which concerns 125,000 persons, who would also become non-public employees and whose restrictions on fundamental labour rights would be lifted; this is scheduled to commence in fiscal year 2004.

533. As regards the rights of fire defence personnel, the Government repeats its previous arguments that the functions of firefighters correspond to those of police forces mentioned in Article 9 of Convention No. 87, when one compares the historical background, the duties involved, their authority and the rank system. The Government also reiterates its previous arguments on the importance and role of the fire defence personnel committees; under that system, firefighters have achieved pay and working conditions similar to, or better than, those of other administrative employees. The Government is determined to do its best to improve their working conditions, with the participation of firefighters and that of fire defence personnel committees.

534. Concerning the right of employees of penal institutions, the Government repeats its previous arguments that the functions of prison guards correspond to those of police forces mentioned in Article 9 of Convention No. 87. Their exclusion from the right to organize is due to the specific nature of their duties, which makes it necessary for these employees to be subject to specially rigid control and strict discipline. These employees enjoy pay and working conditions similar to, or better than, those of other administrative employees; the salary scale is the same as that of police officers. Working conditions are improved under the National Personnel Authority recommendations system: in 1998 for instance, the NPA recommended a new and special rank in the salary scale, taking into special consideration the duties of prison officers, and the consequential amendments were adopted and implemented that same year.

535. As regards the registration system of employees' organizations [329th Report, para. 652(b)(ii)], the Government indicates that there is no authorization required for the establishment of employee's organizations, as the registration system does not impose any restriction on the establishment of employees' organizations. Local public employees can set up organizations of their own choosing without previous authorization or procedures tantamount to such authorization. Employees of local governments are allowed to organize beyond a local government boundary and organizations may join federations and confederations. The registration system has been established to verify that organizations are democratic and independent bodies, and imposes no other restriction. The Government adds that, whether an employees' organization is registered or not makes no substantial difference in acquiring corporate status or capacity to negotiate. The registration system therefore does not have the effect of subdividing trade unions, and there is no problem as regards application of Convention No. 87.

536. Dealing with the Committee's recommendation on the system of leave of absence for fulltime union officers [329th Report, para. 652(b)(iii)], the Government indicates that the system in question is nothing but a privilege that allows the granting of leaves of absence to public employees to let them engage exclusively in the activities of employees' organizations as officers of these organizations, while retaining their status as public. The upper limit of leave of absence for full-time union officers has been raised twice by the Diet and is presently set at seven years. This system is far more generous than the one prevailing in the private sector, where employees are not automatically entitled to such rights. According to the Government, the Committee of Experts has already concluded in its 1994 report that this question does not fall under Article 1 of the Convention. The Government therefore considers that there is no problem in this respect.

537. As regards the right to bargain collectively and the right to strike of public employees not directly engaged in the administration of the State [329th Report, para. 652(b)(iv)], the Government reiterates its previous argument that while there exist some restrictions on the fundamental labour rights of public employees due to their distinctive status and the public nature of functions performed, they enjoy appropriate compensatory measures such as the National Personnel Authority system. Such compensatory measures also exist in respect of public employees in the non-operational sector. Public employees who are denied the right
to conclude collective agreements are only those who work for the non-operational sector of national institutions and of local governments; these public employees (covered by the National Public Service Law) work for ministries or agencies or equivalent institutions, are engaged in policy planning and policy execution undertaken by the State, and are therefore "engaged in the administration of the State". As regards the right to strike of these employees, the Government states that they enjoy appropriate compensatory measures such as the NPA system, a position that the Supreme Court of Japan has endorsed. The Government therefore considers that restrictions on the right to bargain collectively and on the right to strike of public employees do not present any problem of conformity with ILO Conventions.

538. As regards the Committee's recommendation on the establishment of appropriate procedures and institutions to compensate adequately those workers whose right to bargain collectively and to strike may be legitimately restricted or prohibited [329th Report, para. 652(b)(v)] the Government submits that the existing NPA compensatory measures are functioning properly, since it has fully implemented the NPA recommendations since 1986, and most local governments have implemented pay revisions in line with the recommendations of the personnel commissions. Compensatory measures include: a guarantee of status; the determination of working conditions by law; the NPA recommendation system, a procedure for requesting administrative measures on working conditions and filing objections against disadvantageous treatment. As a result, public employees enjoy working conditions similar to, or better than, those of private sector workers. The current reform will maintain restrictions on the fundamental labour rights of public employees and the NPA compensatory system.

539. On the issue of civil and criminal penalties for violations of prohibitions of the right to strike [329th Report, para. 652(b)(vi)] the Government states that such criminal penalties are limited to those who conspire, instigate or incite public employees to strike or attempt to strike; those who simply participate in a strike will never be penalized. Criminal penalties, including imprisonment not exceeding three years or fines not exceeding Y100,000, may be imposed on leaders of illegal acts under the national or the local public service laws. For the past 20 years, there has been no case of imprisonment of public employees by reason of strike. By law, national and local public employees are prohibited from going on strike, and it is a matter of course that disciplinary sanctions are applied to those who contravene such prohibitions.

540. Regarding the establishment of trade unions in independent administrative institutions [329th Report, para. 652(c)], the Government declares that employees of specified IAIs (who keep their status of public employees) are guaranteed the right to organize trade unions under the NELRL. On the other hand, employees of non-specified IAIs (who do not keep their status of public employees) become ordinary workers and are covered by the Trade Union Law. Replying to RENGO's additional allegation (in its communication of 9 January 2003) that there was a violation of the freedom of association of employees forced to reorganize as a result of the shift of operations to IAIs, the Government states that the freedom of association of these employees is guaranteed and that it is up to the organizations to decide their organizational structure after the shift. Moreover, even after restructuring, it will be possible to form a confederation.

541. As regards the Oouda-cho case [329th Report, para. 652(d)], the Government explains that the court has decided that the Equity Committee had erred in deciding that the Deputy Director of the relevant division belonged to managerial personnel, and therefore revoked the cancellation of the registration of the employees' organization concerned; however, the court also decided that the rationale for the rule concerning the separation of rank and file employees and managerial personnel was a valid one, and that it was appropriate to leave this kind of factual determination to a neutral third-party body. The case has been appealed to the high court and the Government will inform the Committee of the final decision.

542. As regards the information requested by the Committee on the procedure of redress for unfair labour practices [329th Report, para. 652(f)], the Government states the following. Public employees in the non-operational sector (not covered by the Trade Union Law) enjoy protection against unfair labour practices under the National Public Service Law and the Local Public Service Law; they can file requests for administrative measures regarding working conditions and/or appeal prejudicial action to the NPA. Public employees in the operational sector are covered by the Trade Union Law and enjoy the same general protection as private sector workers against unfair labour practices, either under the National Enterprises Labour Relations Law (for national public employees) or under the Local Public Enterprises Labour Relations Law (for local public employees).

543. In its communication dated 15 April 2003, the Government points out what it considers as misunderstandings of fact in the additional communications of RENGO (28 March 2003) and ZENROREN (18 March 2003):

- Concerning the communication of RENGO, the Government denies that it wants to shelve or postpone the examination of public workers' fundamental labour rights or that it will submit the bills to the Diet without consultations/negotiations. The meetings of 24 and 25 February, and 31 March 2003, constituted such consultations/negotiations which promoted mutual comprehension. As a result, the Administrative Reform Promotion Bureau started to negotiate and consult with RENGO-PSLC on the Bill amending the National Public Service Law. On 8 April 2003, the negotiations/consultations were under way.

- Concerning the communication of ZENROREN, the Government challenges the complainant's statement that no concrete consultations have taken place although two months have elapsed since the decision of the Committee. The Administrative Reform Promotion Bureau has offered organizations such as KOKKO-ROREN (an affiliate of ZENROREN) to hold concrete negotiations and consultations, an offer which was rejected. The latest consultation took place on 4 April with KOKKOROREN, and the Government intends to hold consultations/negotiations in good faith.

544. As regards the present status of the civil service reform, the Government explains that the Administrative Reform Promotion Bureau has unofficially presented the draft Bill amending the National Public Service Law to workers' organizations on 28 March, at the same time it presented the draft in the same manner to the ministries concerned. This only means that the Government has started consultations on the Bill, and not that it has set a date for a Cabinet decision on the Bill. The Government has told workers' organizations that there would be full consultations with them, including on the schedule for processing the Bill to the Diet.

545. Concerning ZENROREN's comments on the alleged inadequacy of the NPA system, the Government reiterates that this system allows a full hearing of the opinions of workers' organizations concerning changes in working conditions and such opinions are reflected as much as possible in policies and measures. When preparing its recommendation for 2002, the NPA listened to more opinions than before from workers' organizations; the ensuing recommendation reflected comparability with private sector trends, and the Government attempted to provide full explanations to workers' organizations in order to obtain their understanding by holding as many meetings as requested. The salary revision for that period was a fully rational measure, in compliance with the "Principle of Meeting Changing Conditions" prescribed by legislation. The same considerations and principles were taken into account as regards the adjustment measures of salaries of local public employees.

546. Throughout its replies, the Government also stated in respect of various issues: that these are purely domestic matters in which the Committee should not intervene (e.g. the public service reform); that national courts have held that some of these legislative schemes or provisions are valid (e.g. the NPA system); that the Committee of Experts, the Committee on Freedom of Association, or both, have in the past accepted the Government views (e.g. on the issues of firefighters and prison staff); and that over the last 40 years the Government has had dialogue with the ILO and has taken various measures in response to the observations of supervisory bodies.

D. The Committee's conclusions

547. The Committee recalls that this case concerns the current reform of the public service in Japan, as regards both substantive provisions and process. The Committee notes that while it has received from the complainants and the Government most of the supplementary information requested, and additional observations which in many cases repeat those already provided, it has still not received the actual text of the amending bills, although they are about to be submitted to the Diet. The Committee must therefore proceed to the present examination on the basis of available information from the parties, without the benefit of these texts. The Committee requests the Government to provide it with the text of any amending legislation.

548. Before examining the substance of the case, the Committee recalls that the matters dealt with by the ILO in respect of working conditions and promotion of freedom of association cannot be considered to be undue interference in the internal affairs of a sovereign State since such issues fall within the terms of reference that the ILO has received from its Members, who have committed themselves to cooperate with a view to attaining the objectives that they have assigned to it [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 3].

Right to organize of fire-fighters and prison staff

549. When it last examined this case, the Committee recalled its views on this issue, to which it refers [see 329th Report, para. 633, and recommendation 652(b)(i)]. Since then, the Committee of Experts has again endorsed this position in its 2003 report (pages 271-272). The Committee cannot find any new element in the Government's observations and notes with deep regret that, in spite of numerous discussions in various forums, there has not been any progress whatsoever on these issues. Recalling once again that the armed forces and the police are the only exceptions provided for in Convention No. 87, the Committee urges once again the Government to amend its legislation to ensure that fire-fighters and prison staff have the right to organize, and to keep it informed of developments in this respect.

Term of office of full-time union officers

550. The Committee also requested the Government to allow public employees' unions to set themselves the term of office of full-time union officers. The Government replies in substance that the situation is more advantageous in the public sector than in the private sector in this respect, and that the Committee of Experts concluded in its 1994 report that this subject did not fall under Article 1 of the Convention. The Committee emphasizes that: the issue here is not one of comparing provisions between the private and public sectors but whether the existing restriction in the public service is compatible with freedom of association principles; and that the Committee of Experts' observation mentioned by the Government referred to Convention No. 98, not Convention No. 87, whereas the issue here is the principle derived from Convention No. 87 on the right of workers’ organizations to elect their representatives in full freedom. The Committee therefore refers to its previous comments in this respect [see 329th Report, para. 633] and requests once again the Government to amend its legislation to ensure that workers' organizations may set themselves the term of office of full-time union officers.

Scope of exclusion of management personnel

551. The Committee notes both the general comments made in this respect and the information concerning the judicial case at Oouda-cho, from which it appears that the Court revoked the cancellation of the union’s registration in that particular instance. Recalling the principles expressed in this respect in its last examination [see 329th Report, para. 638], the Committee trusts that the final decision issued in the Oouda-cho case, as well as the law and practice generally applicable in such matters, will be in conformity with said principles. The Committee requests the Government to provide it with the final judgement once it is issued.

Employees transferred to independent administrative institutions (IAIs)

552. The Committee points out in this regard that, while it is not mandated to comment upon the rationale of that policy nor on the Government's decision itself to proceed with an administrative reorganization, it is competent to examine whether in so doing the Government violated freedom of association principles, and whether public employees enjoy the rights to organize and to bargain collectively [see also 329th Report, para. 648]. The Committee takes note of the extensive information submitted in this respect by the Government and both complainants. It notes that the complainants are challenging the fact that the administrative reorganization obliged them to reorganize themselves (and will do so in the future) when, for instance, their membership becomes a mixed one after a reorganization; the complainants allege that this constitutes a violation of their right to associate. The Committee notes that, while the administrative reorganization of the civil service will undoubtedly entail a major reorganization of trade unions structures, workers who are now employed in both specified and non-specified IAIs have the right to organize, irrespective of whether they remain public employees (as in specified IAIs) or lose that status and become regular workers covered by the Trade Union Law (as in non-specified IAIs). The Committee however requests the Government and the complainants to indicate what is the impact of this reorganization on the collective bargaining rights of these workers and their trade unions.

Right of public employees to bargain collectively and to conclude collective agreements

553. The Committee recalls the principles that apply in these respects, irrespective of whether public sector employees are still employed in ministries or similar institutions, or have been already transferred to IAIs (specified and non-specified). The right to bargain collectively is a fundamental right of workers that should be recognized in both the private and public sectors, with only a few possible exceptions: armed forces, police and public servants engaged in the administration of the State [see also 329th Report, para. 643]. Those public employees who can be legitimately excluded from these rights should enjoy adequate guarantees, which have the confidence of all parties involved, to safeguard fully the interests of workers thus deprived of an essential means of defending their occupational interests [see 329th Report, para. 648]. The numerous criticisms made by the complainants, both in their initial complaint and their additional information, makes it clear that the current NPA system does not have the confidence of workers’ organizations as an adequate compensatory procedure. The Committee notes that, according to the Government, not all local governments have implemented the pay revisions in line with the recommendations of the personnel commissions. The Committee therefore refers to its previous comments concerning the rights of public employees to bargain collectively, to conclude collective agreements and, for those whose such rights can be legitimately curtailed, the right to benefit from adequate compensatory procedures. The Committee requests the Government to ensure that the amending legislation is in full conformity with these principles.

Right to strike and penalties

554. The Committee recalls that public sector employees, like their private sector counterparts, should enjoy the right to strike, with the following possible exceptions: members of the armed forces and police; public servants exercising authority in the name of the State; workers employed in essential services in the strict sense of the term; or in situations of acute national crisis. Public employees who may be deprived of this right or have it restricted should be afforded appropriate compensatory guarantees. In addition, workers and union officials should not be penalized for carrying out legitimate strikes. The Committee therefore refers to its previous comments in this respect [see 329th Report, para. 641]. While noting the Government's statement that for the past 20 years there has been no case of imprisonment of public employees for reason of strike, the Committee requests the Government to indicate whether other sanctions, such as fines, have been imposed in such cases. The Committee also requests the Government to ensure that the amending legislation is in full conformity with these principles.

Registration of workers' organizations at local level

555. The Committee commented on this issue in its previous examination of the case [see 329th Report, para. 635] by mentioning its previous decision on the subject, which itself referred to the comments of the Fact-Finding and Conciliation Commission. The complainants maintain that the core of the problem lies in the current system of registration, which has the practical effect of subdividing them. The Government reiterates its previous argument that local employees are allowed to organize beyond local government boundaries and that they may join federations and confederations. In these circumstances, the Committee can only recall that an excessive fragmentation of trade unions is likely to weaken them and their action in defence of workers' interests, and recommends that the legislation be amended to allow public employees at local level to establish organizations of their own choosing.

Procedure of redress for unfair labour practices

556. The Committee notes the information provided by the Government and the complainants in this respect. Based on the example that occurred in the town of Ariake-cho (Kagoshima Prefecture) it appears to the Committee that operational employees (blue-collar workers) and non-operational employees (white-collar employees) were subjected to differential treatment in similar circumstances, as they were covered by different legislations. While stating that there are adequate redress procedures in place to cover all situations, the Government did not comment on the particular case of Ariake-cho. The Committee requests the Government to provide its comments in this respect.

The consultation process

557. The Committee notes the information provided by the Government and the complainants on the consultation process and must note, once again, that their positions continue to be completely at odds on this issue. The Committee must therefore refer to its previous extensive comments in this respect [see 329th Report, para. 651] and draw, once again, the Government's attention to the importance of full, frank and meaningful consultations, particularly in such circumstances, which are going to affect large numbers of public employees for years to come. On a related issue, the Committee had also requested the Government to keep it informed about developments on the dialogue with the trade unions concerned concerning the scope of bargaining matters in the public service [see 329th Report, recommendations 652(e) and (g)]. No information has been provided in this respect. The Committee urges once again the parties to make efforts with a view to achieving a consensus which is in conformity with the freedom of association principles embodied in Conventions Nos. 87 and 98, and to keep it informed in this respect.

The Committee's recommendations

558. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee strongly requests once again the Government to reconsider its stated intention to maintain the current restrictions on the fundamental rights of public employees.
(b) The Committee strongly requests once again the parties to make efforts with a view to achieving rapidly a consensus on the reform of the public service and on legislative amendments that are in conformity with the freedom of association principles embodied in Conventions Nos. 87 and 98, ratified by Japan, and to keep it informed in this respect. Consultations should notably address the following issues:
(i) granting the right to organize to fire-fighters and prison staff;
(ii) ensuring that public employees at local level may establish organizations of their own choosing, without being subject to excessive fragmentation as a result of the operation of the registration system;
(iii) allowing public employees' organizations to set themselves the term of office of full-time union officers;
(iv) ensuring that public employees have the rights to bargain collectively and to conclude collective agreements, and that those employees whose such rights can be legitimately curtailed enjoy adequate compensatory procedures, all of which should be in full conformity with freedom of association principles;
(v) ensuring that public employees are given the right to strike, in conformity with freedom of association principles, and that union members and officials who exercise legitimately such right are not subject to heavy civil or criminal penalties;
(c) The Committee requests the Government to engage in meaningful dialogue with the trade unions concerning the scope of bargaining matters in the public service.
(d) The Committee requests the Government to indicate whether public employees who have resorted to strike action in the past have been subjected to sanctions other than prison, e.g. fines.
(e) The Committee requests the Government to provide it with the text of any legislation amending the public service labour relations system.
(f) The Committee requests the Government to provide it with the final judgement in the Oouda-cho case once it is rendered.
(g) The Committee requests the Government to provide its comments on the allegations concerning the differential treatment of unfair labour practices in the case of Ariake-cho.
(h) The Committee requests the Government and the complainants to provide information on the consequences of the reorganization on the collective bargaining rights of workers transferred to independent administrative institutions (IAIs) and their trade unions.
(i) The Committee requests the Government to keep it informed of developments on all the above issues.
(j) The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.

Annex

Competence grade system

1. Gist of competence grade system

- Under the competence grade system introduced in this reform, official positions are to be classified to competence grades according to the kind of duties and by the degrees of complexity and difficulty of duties and responsibilities involved. In addition to this, the public employees are also to be appropriately evaluated in respect of their competence currently being demonstrated in performing their duties. Based on these evaluations, competence grades of public employees are determined so that the competence required by the official positions and demonstrated by the public employees are to be grasped precisely at all times as a system.

- With regard to salary, public employees are paid on the basis of their competence grades, which is determined in accordance with their competence to perform their duties. Payment shall therefore be made not just by the public employees� occupation of their official positions but based on the consideration of their competence demonstrated in performing the duties of their official positions.

2. Purpose of the introduction of competence grade system

(a) Establishment of the new system more suitable for the principle of personnel management under the law for the national public employees

- The purpose of this reform is to describe by law the standard duties for classifying job positions and the competencies to perform those duties as much as possible, which changes the current framework where personnel management is entrusted with the rules and ordinances, not law. Thus this reform aims to realize the national civil service system where civil service is administered more democratically with the reflection of the Diet's intentions.

- Further, following the idea of the Constitution that the personnel management of the public employees shall be made according to the standards provided for under the law, the Government proposes to provide under the law for evaluation of public employees' competence according to the criterion of competence to perform duties with a view to utilizing the evaluation for determining the competence grades of the public employees. Thus a base for the administration of personnel management based upon the law shall be provided.

(b) Realization of the personnel management system which contributes to a more efficient public service by utilizing the competence grade system to appointment

- By classifying the official positions as well as the public employees into the competence grades, the Government precisely grasps at all times not only the competence required by the official positions but also public employees' competence demonstrated in performing the duties. And this system provides the foundation for appointment of the public employees to the official positions most suitable to reflecting their competence to perform the duties. Through the above, the Government aims to base personnel management on competence, and to contribute to a more efficient civil service by putting the right person in the right place in
the whole system.

(c) Others

- In order that the respective administrative institutions flexibly cope with the rapidly changing administrative issues and that the Government realize a proper administration of the civil service as a whole, it is essential to have the competence grade system designed and administered as a system to contribute to a more efficient civil service from the aspect of personnel management. Thus, the Prime Minister, as the Central Personnel Agency responsible for the democratic operation of the system and more efficient civil service, shall administer the competence grade system. The National Personnel Authority, in view of its functions, shall participate properly.

3. Matters to be noted in the transfer to the competence grade system

(a) Establishment of a competence evaluation system to realize the meritocracy

- Introduction of the competence grade system in this reform will set up the institutional foundation necessary for the meritocracy. In addition, it will be necessary that the actual operation should be made precisely suitable to the principle of meritocracy.

- After amending the National Public Service Law, fixing of the details of the criteria to determine the competence grades of the public employees will be determined. At the same time it will become important to establish competence evaluation system, which will support the competence grade system in the actual operation.

- Accordingly, the Government, in order to realize a proper competence evaluation system, will continue to consult with employers' organizations and the relevant institutions, etc. until fiscal year 2006, when the competence grade system will start.

(b) Measures necessary for the smooth introduction

- By repealing the rank system, a base for personnel management under the National Public Service Law, and the provisional system, and by introducing the competence grade system, the appointment system and the basic concept for salary system are altered in this reform. This may cause some impact on the public employees if the new system is constructed without paying due consideration to the continuity of the present system.

- Under the circumstances, it is considered necessary, among other things, to firmly establish the meritocracy based on competence evaluation in the civil service. With regard to the number of the grades which is the framework of classifying the official positions as well as the number of pay steps which forms the base for specific amount of remuneration, it is considered necessary to pay due consideration to the continuity with the present system and not to cause unnecessary confusion at the time of system transfer.