On November 17, 2000 the Governing Body of the International Labour Organization (ILO) approved a recommendation based on the report by the Committee on the Freedom of Association concerning the allegations related to the fact that, following the decision to privatize the Japanese National Railways (JNR) in 1987, the succeeding corporations known as the Japan Railway Companies (JR companies) did not hire former JNR workers who had belonged to certain labor unions solely on account of their trade union membership. The issue concerning the reemployment of former JNR employees remains controversial and the final outcome is still uncertain over a decade later.
Concerning the hiring of JNR employees by the new JR companies, the Japanese National Railways Reform Law ruled that members of the JR Establishment Committees in each new JR company should establish hiring criteria, and that the JNR should prepare a list of candidates for the new companies based on those criteria. The law left each Establishment Committee to decide who to employ out of the list. In this process, some 7,600 employees belonging to the unions opposing the privatization including Kokuro (National Railway Workers' Union) and Zendoro (All National Railway Locomotive Engineers' Union) were not put on the JNR list, and were refused employment by any of the new JR companies and redeployed to the JNR Settlement Corporation. In 1990, about one thousand of these workers employed by the Corporation (who continued to seek positions in the JR companies) were dismissed. Kokuro and Zendoro claimed that the JR companies did not hire members of the two unions and that this was the result of discrimination which violated the right to organize as stipulated in the ILO Convention No. 98 concerning freedom of association. They brought the case to the ILO Committee on the Freedom of Association for settlement. The recommendation of the ILO's Governing Body was made when it approved the report produced by the Committee which had been studying the issue.
The Committee's report and the recommendation of the Governing Body attached importance to moves which had been taken to settle the matter within Japan. It pointed to the Four Political Party Agreement in May 2000 among the majority parties (the Liberal Democratic Party, the Komei Party and the Conservative Party) and the Social Democratic Party. The agreement called for Kokuro to recognize at its provisional national convention that the JR companies had no legal responsibility in hiring the workers in question. In return, however, it was agreed (i) that the majority parties should request that the JR companies guarantee employment for the Kokuro union members, and (ii) that the parties to the agreement shall consider among themselves the amount and the procedure of the payment of the reconciliation compensation. The ILO Governing Body positively viewed this agreement, commenting that it aimed at encouraging negotiations between the JR companies and the complainants with a view to rapidly reaching a satisfactory solution for the parties and which would ensure that the workers concerned are fairly compensated. The report of the Committee commented on Kokuro's allegation that the JR companies had discriminated against union members. The report concluded that the workers were not hired by the JR companies not because of discrimination against the labor unions but because their members had refused wide-area transfers to other regions.
It is still unclear whether Kokuro, one of the parties involved, will accept this political agreement. Its executive committee is ready to accept it, but one internal group is determinedly opposed to the idea of leaving the legal responsibility of the JR companies unquestioned. The matter has been discussed at three Kokuro conventions since July 2000, and each time there has been heated debate and the discussion has had to be postponed.
This issue has also been examined at labor relations commissions and courts within Japan. These bodies too have been trying to judge whether and where legal responsibility lies. The main points of the difference of opinions between labor relations commissions and courts include whether the JR companies should collectively bear any responsibility for the way in which the JNR drew up the list of workers to be selected for employment by the JR companies. This in turn invites questions as to whether the JNR should be regarded as an employer under the terms of the Trade Union Law. There has also been debate about whether the JNR engaged in unfair labor practices when it selected workers for employment by the new JR companies.
Many local labor relations commissions ordered the JR companies to take responsibility for the JNR's action on the grounds that JNR conducted recruiting activities which belonged to the responsibility of the JR Establishment Committees under the JNR Reform Law on behalf of the committees. According to that interpretation, if JNR engaged in unfair labor practices in making the lists of employees to be selected as candidates for the new positions and excluding members of the particular unions, then the JR Establishment Committees, and hence the JR companies themselves, ought to bear responsibility as employers. Reinvestigating the issue, the Central Labor Relations Commission (CLRC) also concluded that quite a few cases constituted unfair labor practices.
On their side, the JR companies appealed to the courts for cancellation of the series of orders by the CLRC, and in 1998 the Tokyo District Court handed down two decisions that canceled the relief orders issued by the CLRC. In November and December 2000, the Tokyo High Court then rejected further appeals brought to it by Kokuro and by the CLRC. In both cases courts ruled that the rights of the JNR and those of the JR Establishment Committees concerning recruitment for the new JR companies were stipulated independently by the JNR Reform Law, and that the JR Establishment Committees were not qualified practically or specifically to exert influence or to make decisions in respect to the selection and the drawing-up of the list of employees to be selected for the JR companies for reemployment. Accordingly, the court ruled that the JR Establishment Committees did not bear the employer's responsibility as provided by Article 7 of the Trade Union Law.
The issue of not hiring former JNR workers for the newly established JR companies is still controversial. The focus will now shift to the terms of the practical settlement proposed in May 2000 and whether or not Kokuro is prepared to concede that the JR companies are not legally responsible.
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