2007 Annual Survey of violations of trade union rights - Japan
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Japan, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca27c.html [accessed 17 September 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 138 – 182
The Government discussed administrative reform of the public sector with trade unions, but strong legal restrictions on government employee's 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 servants 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 what are considered essential services.
There are significant differences in laws between the trade union rights of private sector workers and public sector employees.
Private sector ... :
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 which 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 will also apply to the postal service as from October 2007, when the service is privatised.
Collective bargaining: Collective bargaining is very strong in Japan. Although the TUL provides for regional collective agreements, in practice it is for the most part enterprise-based. During the "Spring Struggle", union representatives meet with management to determine working conditions including wages; this is known as the "shunto".
Loophole in the law – fixed-term employment contracts: The LSL law 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 to permanent contracts. Moreover, the working conditions of fixed-term contract workers are inferior, mainly because there is no law banning discrimination against workers on different types of contract or securing equal treatment for atypical workers.
Versus public service:
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 at a national level, with the exception of members of the police force, fire fighting services, penal institutions, the Maritime Safety Agency, and the Self-Defence Forces. The ILO has continually recommended that the government permit fire defence personnel and prison staff to form unions.
The system of trade union registration requires separate unions to be created in each municipality, and places restrictions that the ILO has described as "tantamount to prior authorisation" to form unions.
Most staff in senior executive grades cannot be part of the same union. Administrative and clerical workers do not have the right to bargain or conclude collective agreements at local or national level. Their wages are set by law and/or regulations, partly based on recommendations issued by 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 workers' rights and bring them into line with international standards.
Government consults on reform proposals but no progress yet: In January 2006, JTUC-RENGO agreed, as a result of consultations with cabinet ministers, to establish the "Special Examination Committee on Public Work, Civil Service Workers, and Industrial Relations" which was given the objective of examining and making recommendations on what the system of industrial relations (including issues of fundamental worker rights) in public sector should be. The Committee is composed of representatives from trade unions as well as from employers, academia, and the mass media. A series of meetings were held in 2006 but the fundamental issue of basic labour rights of public servants had yet to be concluded.
Transition of government agencies to Independent Administrative Institutions (IAIs) – some continued restrictions on right to strike: The government states that it has been actively transforming public agencies into IAIs, which the government defined 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 collectively bargain, only workers in non-specified IAIs are guaranteed the right to strike.
Trade union rights in practice
Reform of Labour Relations Commission: Legislative reforms introduced in January 2005 were designed to speed up the procedures of the Labour Relations Commission, and make its decisions binding. It had been criticised in the past for the slowness of its procedures and the fact that its decisions could be overturned by a court. The changes are reportedly beginning to help bring speedier justice for victims of unfair dismissal, but some operational problems remain.
New Industrial Tribunals system goes into effect: A new tri-partite system of Industrial Tribunals became operational in April 2006. It was designed to handle individual cases involving dismissals, working conditions, and reassignments. The tribunals will have a massive case load: at least 160,000 disputes were filed with labour bureaus in 2004 alone.
Changes in the employment relationship causing growing difficulties for union organising and activities: Types of employment and work are becoming more and more diversified. Part-time and fixed-term employment contracts are increasingly common for directly employed workers. Indirect forms of employment – temporary work through agencies or contract work through contracting companies – are also on the rise. At the same time, the number of individuals who work on a contract basis and are not considered employees under current laws is growing. Organising atypical workers is proving difficult and the growing number of atypical workers is a major cause of declining union density. Workers who are on short-term contracts or are indirectly employed find it difficult to exercise the right to bargain collectively.
Diversification of types of enterprise: Business grouping through holding companies has continued and the activities of investment fund companies have also accelerated in Japan. The Supreme Court ruled that an entity can only be considered an employer when "such an entity is in a position to be able to actually determine workers' essential working conditions", through direct involvement. In most cases, holding companies or investment fund companies are only indirectly involved in asserting their influence on deciding working conditions of their shareholding companies. Hence they are not considered an employer by 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 Program (ITP) and Technical Internship Program (TIP), which provide three year visas for unskilled 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 end up in sweatshops, forced to work long hours in dangerous conditions for as little as half the living wage, deprived of their passport and working documents by the employer, and denied the right to form a union and collectively bargain. 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.
Concern for rights of part-time, atypical and fixed-term contract workers: RENGO stepped up campaign efforts for the introduction and passage of "equal treatment legislation" for part-time workers and workers with fixed-term contracts. There was increasing concern about employers' use of "non-regular" workers, who remain effectively outside of the labour movement. The top leadership of RENGO pledged to increase its work to organise and support these workers. The 2006 Trade Union Survey conducted by the Ministry of Labour found that 21.5 per cent of all employees are part-time.
Violations in 2006
Background: In September, Japan's Parliament selected a new Prime Minister, Shinzo Abe, from the ruling Liberal Democratic Party.
Final Agreement between Kokuro and East Japan Railway, Inc.: A 17-year struggle by the National Railway Workers Union (Kokuro) to combat unfair labour practices against the union by the many companies created after the privatisation of the national rail company in 1987 ended in November 2006. Kokuro members were unfairly victimised and discriminated against by new private sector Japanese Rail (JR) companies, such as JR Tokai which forced workers to remove union badges and engaged in punitive transfers, and the union filed numerous complaints with the relevant Labour Relations Commissions. Some of the legal cases reached the Supreme Court, and ultimately, a series of compensation agreements, mandated by court decision, for aggrieved Kokuro members were finalised. The agreement settled 61 outstanding court cases against JP East, leaving the last major issue – the reinstatement of the 1,047 Kokuro worker hold-outs continues – to be worked out.
Refusal to bargain with fire fighters' staff association: When ten members of a fire fighters' association, the Tohbi Council of Firefighters, petitioned the Director of Fire Defence Headquarters with a package of proposals the Director refused to discuss or reply to the Council's demands and refused to meet again with the Council. Additional proposals were unilaterally denied by management, which noted that the demands were "not appropriate to be implemented." Council members allege that the Tohbi fire defence authority has discriminated against them in terms of promotions and professional opportunities because of their association with the Council. In September 2005, the Council filed a lawsuit in Okayama District Court against the Tohbi fire defence authority, alleging discriminatory practices against its members.