However, the Nagoya court had a different view on whether these instructors were actually independent contractors.
Here is a summary of the ruling:
View of the Court
1. Judging from the five factors below, all of the 6 plaintiffs were workers under the Labor Standards Act (this means the six “independent contractors” were in fact EMPLOYEES).
- The independent contractors worked under the direction and supervision of NOVA
- There was no freedom of choice in the acceptance or refusal of requests/commands at work
- Workplace and work hours were restricted.
- Payment was made based on the amount of work (lessons)
- In regards to the exclusivity of the contract, both independent contractors and employees were not forbidden from outside work, so this cannot be a factor in deciding.
2. Therefore, as employees, the legal right of all plaintiffs in acquiring Annual Paid Leave was violated by NOVA and must be compensated.
3. The legal right of 5 plaintiffs with 40 lesson contracts in being enrolled in Health Insurance was violated by NOVA. If one lesson is counted as 40 minutes and 4 minutes of preparation, the weekly hours comes to 29.3 hours, but if it were 5 minutes, it would easily be 30 hours per week and in need of enrolment. Therefore, the damage caused by the failure to enrol needs to be compensated.
(NOTE: this part is also excellent because it may help current employees with 40 lesson contracts to win enrolment in the future.)
In order to try to prevent an appeal to the Superior Court the union reached out to president Inayoshi of Nova through his personnel department, to take this opportunity to stop all independent contractor arrangements and make ALL teachers actual employees with all the benefits of labour and social insurance laws.
The company president failed to meet with the union and has instead started the appeals process.
The union will meet this challenge not only in the courts, but through an organising and education campaign to teachers to let them know about their rights and how they can protect them.
As a union with members at all major language schools and many smaller ones, our concern is with the impact this has on the entire industry – especially as it is used by other companies an excuse not to improve working conditions because of the unfair competition.
One of the major language schools estimates that an independent contractor reduces per teacher costs by as much as 30%.
We now need to step up our campaign to win employment rights at the worst example of independent contractor use: GABA, where all the teachers are independent contractors.
They use the concept of free work scheduling to sell the idea of teachers working anytime they want.
In fact, this free scheduling is getting more and more difficult, and let’s face it; GABA teachers only have the right to schedule their hours, whether they actually get work or not is decided by the company.
When GABA teachers have pushed for employment rights, GABA has always tried to scare people by saying the work scheduling system would go out the window if they were forced to accept their teachers as employees.
At the end of the day, this is JUST a threat as scheduling and employment rights really have nothing to do with one another.
Berlitz teachers have a rather similar system for a segment of their teachers and they are ALL EMPLOYEES.
So, hold on to your hat – it’s time to stomp out the “Uberisation” of work in language schools.
The General Union would like to thank the Show Shell Labour Union Foundation for their help in paying for part of our legal costs, to thank all the unions that have supported us through three years in court, and a big thanks to the two lawyers who worked hard to ensure this victory.
We also thank the six plaintiffs who, with very little to gain personally, stood up for the employment rights of all NOVA teachers.