Interim Report - Report No 101, 1968

Case No 398 (Japan) - Complaint date: 30-APR-64 - Closed

1. 218. The case was first considered by the Committee at its meeting in November 1965, when it decided to request the Government to furnish further information on certain aspects of the case. Subsequently, the case was considered by the Committee at its session in May 1966, on which occasion it submitted its interim conclusions to the Governing Body in paragraphs 42 to 153 of its 92nd Report. The interim conclusions were approved by the Governing Body at its 166th Session (June 1966). Following the receipt of additional information from the Government, in communications dated 10 October 1966, 17 October 1966 and 31 January 1967, the Committee again examined the case in November 1966 and February 1967, when it requested certain further information from the Government.
2. 219. At its meeting in February 1967 the Committee recalled that, when it considered the case in May 1966, it had requested the Government to inform it in due course as to the outcome of proceedings which were pending, either in the Fukuoka District Court or Fukuoka High Court or before the Fukuoka Prefectural Labour Relations Commission or the Central Labour Relations Commission, with respect to the allegations relating to the discharge of ten union officers, to the discharge of 28 active union members, to a number of other cases concerning officials and members of the Miike Coal Miners' Union, to discrimination against union members in respect of recruitment, wages and work assignment and payment of accident compensation, to repudiation of collective bargaining with the Miike Coal Miners' Union and to interference with the Union.
3. 220. In a communication dated 19 May 1967 the Government stated that all of the proceedings on which information had been requested were still pending before the courts and labour relations commissions in question. Subsequently, by a communication dated 2 October 1967, the Government forwarded extracts from the judgments given on 24 April 1967 by the Fukuoka District Court in respect of the 28 persons referred to in paragraphs 53 to 57 and 103 of the Committee's 92nd Report, and also in the cases of Mr. T. Takayama and Mr. M. Kojo, referred to in paragraph 102 of the Committee's 92nd Report.
4. 221. Japan ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), on 20 October 1953, and it came into force for Japan on 20 October 1954. On 14 June 1965 Japan ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which came into force for Japan on 14 June 1966.

A. A. The complainants' allegations

1. 222. The allegations relating to the cases which were the subject of the decision of the Fukuoka District Court dated 24 April 1967 were twofold. Firstly, it was alleged that the way in which the legal proceedings subsequent to the dismissals of the 28 unionists and of Messrs. Takayama and Kojo were dealt with in the courts was evidence of the undue protraction, to the detriment of trade unionists, in legal proceedings arising out of labour disputes. Secondly, it was claimed, the discharge of the 28 trade unionists constituted a violation of trade union rights.
   • Allegations relating to Delay in Legal Proceedings
2. 223. With regard to the allegations that legal proceedings connected with labour disputes were unduly protracted, the Committee notes that, although the cases mentioned in the complaint arise out of dismissals which were effected between 6 April 1959 and 18 January 1962, there are still a large number of cases in respect of which no judgment has yet been given by the Fukuoka District Court. There are also other cases in which appeals are pending before the Fukuoka High Court.
3. 224. The Committee appreciates the considerations invoked by the Government in its communication of 17 December 1964 in respect of protraction of legal proceedings. The main consideration referred to by the Government was that, since the issues involved are complex and the evidence voluminous and requiring very careful consideration, the courts are obliged to follow a formal procedure and conduct oral hearings, which necessarily will take a certain time. Having examined the Government's observations in this connection, the Committee further recognises that these elements are not always operative to the same extent in cases brought by employers arising out of labour disputes, since often, in such instances, the prima facie case to be made out by the employer, on the basis of which relief can be granted by a court, does not involve such difficult proof. For this reason, the Committee does not consider to be well founded the particular allegation, set out in paragraph 104 of its 92nd Report, that treatment by the courts of cases arising out of labour disputes differs according to whether the person seeking redress is employer or employee.
4. 225. These considerations notwithstanding, the Committee wishes to recall one of the conclusions of the Fact-Finding and Conciliation Commission on Freedom of Association in the case concerning persons employed in the public sector in Japan. In paragraphs 2174 to 2179 of its report, the Commission, in connection with grievance machinery, stressed the importance which it attached to expeditious proceedings, in the absence of which an offended employee will feel a growing sense of injustice, with consequent harmful effects on industrial relations.
5. 226. With regard to proceedings in the courts arising out of labour disputes, the Committee wishes to point out that, in addition to the considerations set out in the preceding paragraph, the worker who is applying for his dismissal to be invalidated, as is the case in the instances forming the subject of the complaint, is particularly likely to be prejudiced by delay in a decision being given by the court. Different considerations might, however, apply where the remedy sought is damages alone.
6. 227. In particular, the Committee desires to point out the risk of potential violation of trade union rights inherent in the absence of expeditious court proceedings in cases involving dismissals.
7. 228. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the importance which it attaches to the considerations set forth in paragraphs 225 to 227 above;
   • (b) to request the Government to be good enough to inform it as to the outcome of the proceedings referred to in paragraphs 98 to 107 of its 92nd Report, which have not yet been the subject of decisions by the courts.
     • Allegations relating to the Discharge of 28 Active Union Members
   • 229. The allegations relating to the discharge of 28 active union members were that they were dismissed from their jobs in the Mitsui Mining Company on 11 December 1961 on the purported grounds of acts committed during the dispute in 1960. In reality, it was claimed, the dismissals were anti-union acts, which is proved by the fact that, although certain of the persons were acquitted of having committed criminal acts arising out of the dispute, their dismissals were not cancelled. Since an application to the Fukuoka District Court for a decree maintaining the status of those concerned had not, at the time of the Committee's meeting in May 1966, been the subject of a decision by the Court, the Committee requested the Government to be good enough to inform it of the outcome of the proceedings and, pending the receipt of this information, it decided to adjourn further examination of this aspect of the case.
8. 230. The judgment of the Court, dated 24 April 1967, extracts from which were furnished by the communication from the Government dated 2 October 1967, granted three of the applications made before the Court and dismissed the remaining 25, as well as dismissing the applications by Messrs. Takayama and Kojo.
9. 231. In its judgment the Court held that, except in the cases in which applications were granted, the dismissed persons had, between them, committed acts of violence, infliction of injury, obstruction by force of the employer's business, and trespass, the commission of which, J under the collective agreement in force, justified dismissal. The Court rejected the arguments of the dismissed persons that their dismissal constituted an unfair labour practice. It also held that it was not a violation of the principle of bona fides and that it did not involve an abuse of the right to dismiss.
10. 232. In the three cases in which the applications were granted, the Court, while accepting that the applicants had in fact committed acts of intimidation against members of the rival union, considered that, since the persons in question had not played an important part in the commission of the acts referred to, the sanction of disciplinary dismissal was not justified.
11. 233. The Committee notes from the judgment of the Court that, with the exception of the three cases mentioned in paragraph 232 above, the dismissals were not invalidated by the Court since the dismissed persons in question had committed acts of violence and other offences justifying dismissal.
12. 234. Accordingly, the Committee recommends the Governing Body to take note of the judgment of the Fukuoka District Court of 24 April 1967 in the cases of the 28 trade unionists referred to in paragraphs 53 to 57 of the Committee's 92nd Report.

The Committee's recommendations

1. 235. In these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to delay in legal proceedings:
   • (i) to draw the attention of the Government to the importance which it attaches to the considerations set forth in paragraphs 225 to 227 above;
   • (ii) to request the Government to be good enough to inform it as to the outcome of the proceedings referred to in paragraphs 98 to 107 of the Committee's 92nd Report which have not yet been the subject of decisions by the Courts;
   • (b) with regard to the allegations relating to the discharge of the 28 active union members, to take note of the judgment of the Fukuoka District Court of 24 April 1967.