2009 Annual Survey of violations of trade union rights - Japan
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Japan, 11 June 2009, available at: http://www.refworld.org/docid/4c52cae3c.html [accessed 29 November 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 138 – 182
The Civil Service Reform Law was enacted on 13 June 2008, but strong legal restrictions on government employees' trade union rights remained in place, including the ban on public sector strikes.
Trade union rights in law
The Constitution recognises workers' freedom of association and their right to organise, bargain and act collectively. There are limitations, however, particularly for civil service employees and, to a lesser extent, for employees of state-run companies and private companies that are considered to have "higher social responsibility", i.e., those that provide essential services.
There are significant differences in laws governing the trade union rights of private sector workers and public sector employees.
Legislation: There are three major labour laws governing private sector workers, including foreign workers, two of which have a direct bearing on their trade union rights. The Trade Union Law (TUL) guarantees the right to organise and bargain collectively, and the Labour Relations Adjustment Law (LRAL) covers dispute settlements. The third law, the Labour Standards Law (LSL), governs working conditions.
Right to strike: The right to strike is protected in the private sector. However, for private companies operating in sectors designated as providing services that are essential for public daily life, the union must give ten days' advance notice to the authorities. Currently this restriction applies to businesses involving electric power generation and transmission, transportation and railways, telecommunications services and medical care and public health. It has also applied to the postal service since October 2007, when the service was privatised.
Collective bargaining: Collective bargaining is very strong in Japan. Although the TUL provides for regional collective agreements, in practice they are mostly enterprise-based. During the "Spring Struggle", union representatives meet with management to determine working conditions including wages.
Loophole in the law – fixed-term employment contracts: The LSL stipulates that fixed-term contracts can be concluded for up to three years (and in exceptional cases up to five years is allowed for professionals). Employers frequently use this system in order to circumvent the legal provisions protecting workers on permanent contracts from dismissal. There are increasing numbers of workers who are hired on a contractual basis, undermining regular employment and causing greater obstacles to unions seeking to organise workers. Short-term contracts are often renewed rather than converted into permanent contracts. Moreover, the working conditions of fixed-term contract workers are inferior, mainly because there is a lack of legislation prohibiting discriminatory treatment based on different forms of employment. The Revised Part-Time Work Law, which came into force on 1 April 2008, prohibits discriminatory treatment of part-time workers, but the categories of workers protected by the law are very limited, and most part-timers are not included in those categories.
Heavy restrictions: Labour relations in Japan's public service are governed by the National Public Service Law and the Local Public Service Law, dating back to 1948, which both heavily restrict basic trade union rights.
Staff may organise, with the exception of members of the police force, fire fighting services, penal institutions, the Maritime Safety Agency and the Self-Defense Forces. The ILO has continually recommended that the government allow fire-fighters and prison staff to form unions.
The system of trade union registration for local public employees requires separate unions to be created in each municipality, which the ILO has described as "tantamount to prior authorisation" to form unions.
Administrative and clerical workers do not have the right to bargain or conclude collective agreements at the local or national level. Their wages are set by law and/or regulations, partly based on recommendations issued by the NPA (National Personnel Authority) and local personnel commissions.
Strikes banned: All public employees are banned from striking. Trade union leaders who incite strike action in the public sector can be dismissed and fined or imprisoned for up to three years under provisions of the National Public Service Law and the Local Public Service Law.
Government intransigence on trade union rights for public sector workers: Over the years, the Japanese government has repeatedly ignored ILO Committee on Freedom of Association (CFA) recommendations that it amend its legislation to remove the restrictions on public sector workers' rights and bring them into line with international standards.
Enactment of the Civil Service Reform Law: The Civil Service Reform Law was enacted on 13 June 2008 with the provision that "the Government of Japan should show the people the whole picture of the reform, including the benefits and costs of expanding the scope of public employees with the right to conclude collective agreements, and with the understanding of the people, take measures for establishing a transparent and autonomous labour-management relations system." Based on the provisions of the Reform Law, the Headquarters for Promoting Civil Service Reform was established in the Cabinet of the Prime Minister, and the Labour-Employer Relations System Review Committee was created under the Headquarters. The Review Committee was charged with researching and examining measures to be taken by the government to establish an autonomous labour-management relations system for civil service employees. Though it was set the task of studying how to design a concrete system for ensuring that civil service employees are granted fundamental labour rights, the Review Committee has not yet carried out that study.
Fundamental labour rights in Independent Administrative Institutions (IAIs): The government has transformed public agencies into IAIs, which it defines as "organisationally independent from the government". Two types of IAIs have been created: "specified IAIs" and "non-specified IAIs". While the government maintains that all IAI employees have the right to organise and bargain collectively, only workers in non-specified IAIs are guaranteed the right to strike.
Trade union rights in practice and violations in 2008
Changes in the employment relationship causing growing difficulties for union organising and activities: The number of "non-regular workers" including part-timers, indirectly employed workers engaging in temporary work through agencies or in contract work through contracting companies, and individuals who work on a contract basis and are not considered employees under current laws, is growing. The Labour Force Survey conducted by the Ministry of Internal Affairs and Communications found that 34.5 per cent of all employees were non-regular workers in the period between July and September 2008.
Organising non-regular workers is being addressed, but many of these workers remain unorganised, which makes it difficult to exercise the right to bargain collectively. RENGO has stepped up its efforts to organise and support these workers by setting up a department for non-regular workers within the RENGO office, which cooperates with its affiliates and local RENGO offices.
Diversification of types of enterprise: The Supreme Court ruled that an entity can only be considered an employer when "such an entity is in a position to actually determine workers' essential working conditions" through direct involvement. In most cases, holding companies or investment fund companies (which are very common in Japan) are only indirectly involved in influencing the decisions on working conditions of their shareholding companies. Hence, they are not considered as employers in law, and it is difficult for trade unions to conduct collective bargaining with holding companies or investment fund companies.
Abuse of "trainee visa" system for sweatshop labour: Employers also abuse the Industrial Training Programme (ITP) and Technical Internship Programme (TIP), which provide three-year visas for unskilled foreign workers to come to Japan to be trained. Despite promises of being provided training in technological skills, many of the tens of thousands of foreign workers who come to Japan end up in sweatshops, forced to work long hours in dangerous conditions for as little as half the minimum wage. Employers additionally deprive them of their work permits and deny them their right to form a union and bargain collectively. In many cases, employment agencies which provide foreign workers or companies from the sending countries also abuse the system and exploit the workers through inferior employment contracts.
Illegal behaviour of Prince Hotels, Inc.: The Japan Teachers Union (JTU, also known as "Nikkyoso") was forced to give up holding a plenary session of its historical National Conference on Educational Research scheduled to be held in February 2008 with over 3,000 union members, because the Grand Prince Hotel New Takanawa, owned by Prince Hotels Inc., unilaterally cancelled the contract for using its assembly hall, which had been duly signed by both parties. In doing so, the hotel ignored the thrice-repeated rulings by the Tokyo District Court and the Tokyo High Court ordering it to let the JTU use the hall. The behaviour of the hotel constitutes a violation of the freedoms of assembly and association guaranteed by the Constitution of Japan.
21-year struggle by the workers of the former Japan National Railways: The National Railway Workers Union (Kokuro) and the All Japan Construction, Transport and General Workers' Union (Zendoro, currently Kenkoro-Tetsudo Honbu) continued their 21-year struggle against the Japan Railway Construction, Transport and Technology Agency (JRTT), complaining that their members were not hired by the new JR companies at the time of the division and privatisation of Japan National Railways in 1987 simply because they were Kokuro or Zendoro members. As regards the lawsuit brought by Zendoro, on 23 January 2008 the Tokyo District Court recognised the existence of unfair discrimination and ordered JRTT to pay compensation of 5.5 million Japanese yen per complainant. Kokuro and Zendoro regarded the legal decision as unsatisfactory given the long and painful struggle that their members had undergone for 21 years, and declared their intention to continue their struggle until a full settlement of the issue of reinstatement of their 1,047 members was reached. Little progress had been reported by the end of the year.