Why on draft? GABA teachers ’employees’ – not ‘sub-contractors’

Jul 26, 2010

GABA, widely known for their “man-to-man” (private) English lessons, is the only major national chain language school in Japan to falsely claim that most of their 800 foreign teachers are not employees but sub-contractors with no rights under Japanese labour laws. The General Union has been holding consultations with many GABA teachers over the lack of annual paid holidays and health, pension and unemployment insurance. The union asked for collective bargaining with the company to discuss the lack of basic rights under the labour laws. GABA and the union held some negotiations for a time, but in the end refused to meet any of the union’s demands on the grounds that teachers were subcontractors and therefore had no rights to collective bargaining. The General Union was forced to sue GABA at the Osaka Labour Commission for violating article 7 of the Trade Union Law, which stipulates that the company must negotiate with the trade union in good faith. Osaka Labour Commission Case At the Osaka Labour Commission’s hearings, details of class times, classrooms, training, recruitment, remuneration, and so on were all carefully examined in order to answer the basic question; are GABA teachers employees, or not. The instructors were finally ruled to be employees, and contrary to GABA’s claims, the negotiations previously held with the union were recognized as collective bargaining. While technically this meant that the union lost the case (as the Osaka Labour Commission said the company had negotiated in good faith), it was actually a victory for the union. This is because the Labor Commission recognized the employment relationship between the instructors and the company, with all the rights that this entails. This recognition made it clear that GABA’s sub-contracting contracts was actually illegal subcontracting which breached the Dispatch and Employment Security Laws. The Ruling “Even if the actual contract takes the form of a sub-contracting contract, it does not negate the nature of employment. A worker should be defined as someone under the company’s management the same as an employment contract.” “GABA instructors are integrated in the company organization as part of the workforce, who provide work, based on the unilateral terms and conditions determined by the employer, in accordance with the company’s direction and control in performing their duties, and receive remunerations in return. Therefore, they (GABA teachers) are employees in terms of the relationship with the company.” Union starts campaign to deal with GABA’s labour law violations At the same time as GABA’s long-standing claim that teachers are sub-contractors was officially rejected. This leads the union to believe that GABA is therefore also guilty of failing to enroll the teachers in social and unemployment insurance, and in violation of the Labour Standards Law for not providing annual paid holidays. Since the Labour Commission’s judgment, the union has started to report GABA to the appropriate government bodies, including; the Ministry of Health, Welfare and Labour, the Labour Bureau, Unemployment Insurance Department, the Labour Standards Office, the taxation agency, the consumer centres, and the Securities and Exchange Surveillance Commission. The General Union sent a letter of warning to GABA and Daiwa SMBC Capital, the biggest shareholder, stating that “if the situation is left as it is now, there is no safety-net such as health insurance, unemployment insurance, or Replacement Payment Scheme for Unpaid Wages”. Both companies have refused to accept future collective bargaining, and have chosen the path of endangering their companies by appealing to the Central Labour Commission to reverse the decision on the “nature of a worker.” GABA stated clearly the “risk” of legal restrictions with regards to the Labour Standards Law in the event that the teachers were recognized as workers in their Negotiable Securities Reports and Prospectus for the shareholders. But surprisingly the statement has not changed at all, even after the ruling by the Labour Commission! Also in those statutory reports, GABA included the false statement that “there is no trade union at GABA,” when they have been negotiating with the General Union, have been taken to the Labour Commission by the union and even had a ruling establishing their violation of Trade Union Law!