2008 Annual Survey of violations of trade union rights - Japan
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Japan, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8725.html [accessed 17 March 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 government began discussing administrative reform of the public sector with trade unions, 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 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 essential services.
There are significant differences in laws governing 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 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. In May 2007, the Part-Time Work Law was revised. The prohibition of discriminatory treatment for part-time workers was incorporated in the Revised Law (effective from 1 April 2008), but the categories of workers protected by the law are very limited, and most part-timers are not included in those categories.
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 allow fire-fighters 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.
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 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.
Proposals for a right to conclude collective agreements: In October 2007, the Special Examination Committee of the Promotion of Administrative Reform issued a report on "How fundamental labour rights ought to be in the public service", proposing that the right to conclude collective agreements be granted to certain (white collar) public employees. Although the report did not go further than enumerating both positive and negative views on "the right to organise", "the right to strike" and "the labour-management consultation system", the remarkable thing was that a proposal was made to reform the present framework of fundamental labour rights in the public service in view of the fact that very few reforms have been made over the past 60 years. This report was to be incorporated in the bill on reform of the public service system to be presented by the government to the ordinary session of the Diet in 2008.
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. A plan to streamline and restructure the IAIs was adopted at a Cabinet meeting in December 2007. Under the plan, six institutions are to be abolished or privatised, 16 institutions are to be merged into six and the staff of two institutions are to lose their status as public employees.
Trade union rights in practice and Violations in 2007
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 2007 Labour Force Survey conducted by the Ministry of Internal Affairs and Communications found that 33.5 per cent of all employees are non-regular workers.
At the same time, the practice of "disguised contract labour" has become rampant particularly in the manufacturing sector. "Disguised contract labour" not only violates the Job Stabilization Law and the Worker Dispatch Law, but raises other problems, since employers' responsibilities stipulated in the Industrial Safety and Health Law and the Labour Standards Law (LSL) would become ambiguous. Since the workers with "disguised contracts" are technically employed by contractors, the receiving companies need not take responsibility for the workers' safety, as such responsibility legally rests with the contractors. Agency workers and contract workers generally have inferior working conditions and insecure contracts.
Organising non-regular workers is being addressed, but many of these workers are not union members, which makes it difficult to exercise the right to bargain collectively. RENGO has stepped up its efforts to organise and support these workers and established a centre for non-regular workers in the RENGO office in October 2007.
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 actually determine workers' essential working conditions" through direct involvement. In most cases, holding companies or investment fund companies 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 Program (ITP) and Technical Internship Program (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 living 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.
20-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) have continued a 20-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, ordering JRTT to pay compensation of 5.5 million Japanese yen per complainant. Kokuro and Zendoro declared their intention to continue their struggle until a full settlement of the issue of reinstatement of their 1,047 members is reached.