In the mid 80s, the bureaucracy at the Social Insurance Agency, in order to clarify enrollment in shakai hoken as it related to working hours (the law has no working hours qualifications), produced an internal guideline outlining conditions for enrollment. The condition states that a worker must work about three quarters of the hours of a full timer in the the same company to be eligible for enrollment. In short, they unilaterally created a 30 hour barrier with no basis in the law.
One of our union’s main activities is organising language teachers. Many language schools and companies which dispatch language teachers to both the private and public sector get around shakai hoken enrollment (as the employer must also pay 50%) by making 29.5 hour contracts, but in fact many times the employee IS working more than this. But the basic fact that that contract states 29.5 hours is enough to refuse enrollment.
At Interac, a company which dispatches language teachers to public school boards we found many examples of teachers being forced to work a normal eight hour day despite the fact that that they had 29.5 hour contracts (and only paid for 29.5 hours). You might wonder how this is possible.
Basically the employer told teachers that they were paid for teaching time plus pre-set prep time and by putting one of these periods at the beginning and end of the day, and telling teachers that they had to stay on the premises forced teachers to work 35 to 40 hours for 29.5 hours pay with no shakai hoken. Quite the deal for employers.
The Tokai-shi Board of Education is where the union found a perfect example for a court case challenging this three-quarters rule. With the union’s help the member first asked his employer for enrollment and was turned down. We then filed a kakunin seikyu (an application to the government for recognition of eligibility). It was turned down based on working hours. So we were off to court and below you will see what we won.
We felt that we would not lose the case but knew that there would be two possible outcomes.
The best outcome would have been for the judge to rule that this three-quarters rule itself violated the law and that there is no working working hours condition for enrollment. A ruling like this would have opened opened the flood gates for enrollment especially in an economy where almost 40% of workers are on irregular contracts, many without being enrolled on shakai hoken. It also would go along way in helping the country solve its massive pension problem, but right wing governments are not interested in making their big business backers pay for the pension crisis and forced through an increase in the consumption tax instead.
So how did the judge rule in our favour? We think you’re going to like this especially if you are on a 29.5 hour contract.
The judge ruled that the Pension Agency was wrong in turning down the member’s kakunin seikyu because the member was clearly working over 29.5 hours and ordered that the member be enrolled for the period of his work at Tokai-shi. We know that many are concerned that the judge did not tackle the naikan, but the logic in the case clearly talks about why even those on short hour contracts should be
- There is no clear regulation stating whether one can be covered under shakai hoken based on one’s working hours.
- And while the judge used the member’s working hours so not to have to rule on the naikan, the judge made a very good point for many dispatch teachers (and one where money is definitely at stake). The ruling stated that the plaintiff’s working hours under the labour contract in question were basically from Monday through Friday, starting at 8:30AM and finishing at 4:30PM, for a total of eight hours a day, 40 hours per week.
- Furthermore, the working hours of the plaintiff should be determined by the objective hours actually spent in perform the labour based on the labour contract, and not directly affected by the provisions of the contract itself.
We think this ruling will have a profound impact on society and those working on these artificially short contracts.
The union has also heard that the deadline for appeal was 7 April and that the government has not appealed the case. This now leaves the union to decide how best to use this ruling to improve the working lives of our members, for those on artificially low contract hours, and part timers.
More news will definitely follow. In the meantime we strongly urge you to read the full abstract.