Gaba’s Penalty Leak Confirmed
An anonymous teacher working at Japan’s 4th most popular English language school, Gaba, recently leaked internal company communications to a labor union about a new policy that fines teachers up to ¥6500 ($43 USD) per lesson for all canceled lessons, says Musashi Sakazaki, 47, President of Tozen Gaba Workers Union.
Louis Carlet, 57, Deputy Finance Officer and Senior Organizer at Tozen Union, founded in 2010 as Japan’s first-ever amalgamated labor union, “received information from an anonymous source,” Sakazaki tells Unseen Japan.
The leaked information is “an accurate reflection of their [Gaba’s] intentions,” Gaba management confirmed to Tozen Union on November 8th during collective bargaining talks, according to Sakazaki and Carlet.
Fact-check: Tape Recordings of Gaba and Nova Management
Carlet played the tape recording of last week’s collective bargaining for Unseen Japan to fact-check Tozen Union’s claims.
The recording verified that Gaba manager Ishii Yasushi, Gaba Vice President Clare Knight, and Lawyer Horino Kenichi approved the anonymous leak to Tozen Union as true. It also showed that Gaba will charge a “handling fee” to teachers who cancel to “cover the costs of finding a substitute teacher.”
Lead negotiator Ishii, who has not responded to Unseen Japan’s request for comment, represents Gaba on behalf of Nova Holdings, which acquired Gaba Corporation from NichiiGakkan Co., Ltd on July 20th, 2022.
Nova has long been a major player in the English conversation school industry; until a one-time bankruptcy in 2007, it was by far the biggest name in the game. It has also been subject to numerous controversies.
Nova: Origin of Penalties
Unseen Japan has received multiple testimonies from union members and a former Gaba “Instructor Support Leader” that Nova had been fining its teachers for canceled lessons long before Gaba internally recently announced its own cancellation policy.
The former Gaba teacher who left the company when it was still under NichiiGakkan’s control told Unseen Japan that “handling fees,” or “fines” as Tozen Union describes, “was not Gaba’s system at the time,” but that it would be “disgusting” if adopted.
Leaflet: Jaw-Dropping Content Goes Viral
Gaba’s new cancellation policy, which will go into effect starting April 1st next year, imposes a penalty so severe that teachers “can receive a NEGATIVE PAYCHECK,” says a leaflet issued by Tozen Union soon after Gaba management validated its content.
The leaflet states that Gaba management will allow “NO EXCEPTIONS” including cases of illness and hospitalization, death of family bereavement and funerals, childbirth, and more circulated online after Tozen Union members uploaded the document to social media, albeit without the union’s contact information, leaving viewers skeptical of its authenticity.
Reddit Thread Fuels Conversation
On November 11th, Reddit user “GABAinfo” took to the platform claiming to be “a current manager at GABA” to “answer any inquiries or to clear up any misconceptions some people may or may not have” about the company.
GABAinfo’s “ASK ME ANYTHING” post on the subreddit forum “Teaching in Japan,” which has 44.3K members, quickly received responses questioning the legality of Gaba fining teachers for canceling lessons.
In response, GABAinfo, now a deleted account, wrote “As private contractors, it is perfectly legal for the instructors to compensate the studio assuming any damage is done to either the students, the staff or the company itself.”
Legal Expert Weighs In
While union members and former Gaba teachers have mixed opinions as to whether GABAinfo is genuinely a Gaba “manager,” Gaba and its representative director Kyoko Kumai have yet to respond to Unseen Japan’s request for comment on GABAinfo’s Reddit activity.
Regardless of GABAinfo’s true identity, what the Reddit user said about Gaba’s practice being “perfectly legal” may be false, according to Professor Ohki Masatoshi, 43, an expert in Japanese labor law who has been teaching at Waseda University’s Faculty of Law for six years.
“The rule imposing a ¥6,500 fine for every canceled class falls under what the Labor Standards Act prohibits as ‘monetary penalty and compensation for damages in advance.’ So, if Gaba teachers were to be recognized as employees under the Labor Standards Act, [Gaba’s cancellation policy] would be illegal.” says Professor Ohki.
Gaba Teachers Fall Through Legal Cracks
However, many Gaba teachers are not employees, but “private contractors” (gyōmu-itaku (業務委託) as GABAinfo wrote.
“Because the pretense here is that they’re gyōmu-itaku, it’s a bogus system of outsourcing. They [Gaba] treat them as independent contractors.” Carlet tells Unseen Japan.
“Because of that, it depends on what the contract says,” not what labor laws state, explains Carlet.
The Labor Standards Act, which prohibits fines like the penalty in Gaba’s new cancellation policy, only protects “employees”–––a term each of Japan’s three major labor laws including the Labor Standards Act defines differently, says Professor Ohki.
Japan’s three major labor laws:
Labor Standards Law, or rōdō-kijun-hō (労働基準法) in Japanese
Labor Contracts Act, or rōdō-keiyaku-hō (労働契約法) in Japanese
Trade Union Law, or rōdō-kumiai-hō (労働組合法) in Japanese
“The Trade Union Law has a wider scope than the Labor Standards Law and Labor Contracts Law for defining who ’employees’ are,” which means that a company will protect workers’ rights to unionize and strike, as The Trade Union Law obliges, but will not comply with the other two labor laws if its workers fall outside of their definitions of ’employees’ explains Professor Ohki.
That is why Gaba’s new cancellation policy has one exception in which the company cannot penalize teachers for canceling classes.
“Tozen Union Members who cancel due to STRIKE will not be charged said handling fees.” reads the leaflet confirmed by Gaba through Tozen Union.
Hence the existence of the Tozen Gaba Workers Union which consists of 38 members, according to Carlet.
Gaba Teachers Could Gain Recognition as Employees
Gyōmu-itaku teachers at Gaba may be working on a fraudulent contract, or gizō-ukeoi (偽装請負) in Japanese, if their actual working conditions qualify for the definition of ’employees,’ says Professor Ohki.
A key factor in defining whether a worker is an ’employee’ protected by labor laws is if their relationship with an employer is based on subordination.
Professor Ohki explains that spatially restricting Gaba teachers to either be present in the classroom or lose money (on top of not getting paid) can be considered subordination.
Despite the reality of Gaba’s gyōmu-itaku teachers working in conditions that are supposedly closer to that of employed laborers, unless they succeed in collective bargaining or filing a report, they will not be recognized or protected as such, says Makoto Iwahashi, 33, a labor activist at the union Posse.
Do Gaba Fines Stem from Labor Shortages?
Iwahashi says that Posse has seen cases similar to Gaba’s cancellation policy outside of English language schools.
“Unfortunately, this is happening everywhere. We’ve gotten emails from college students working for fast-food chains. [One male said] he’s getting penalized for taking a day off because he had the flu or got COVID. This is of course illegal because he is on an employment contract.”
Companies are applying pressure on employees with cancellation fines because of chronic labor shortages, says Iwashi. However, the practice only deters more people from joining its workforce.
Just last month, a handwritten note taped onto the closed door of a Sukiya, a Japanese fast-food chain read “I will close the store at 7 AM. I can’t run it by myself.” and went viral on X. (Formerly known as Twitter).
The note was left by a single Sukiya employee, apparently overwhelmed by running the 12 to 9 AM shift by themselves on October 24th.
The employee would not have been alone had the second employee sharing the shift showed up; in June, Sukiya operation policy changes ended single-staff shifts following the death of a lone female worker who collapsed from a heart attack in January at a Nagoya outlet.
Industrial Grade Problems
The private English-language tutelage industry remains big business in Japan – sitting at $5.1 billion USD. For many teachers, who are usually foreign-born (and whose foreignness is used as a selling point), the companies in this industry serve as a useful tool to get in the door when trying to find a visa to live and work in Japan.
But these companies remain riven with controversy. Wages are low, sometimes unsustainably so. And, via the gyōmu-itaku system, instructors are left out on their own and deprived of many of the rights they would have as registered employees. As long as the system persists, it will be all too easy for teachers to be taken advantage of.