Gaba 'contractor' status under fire from staff, courts

As an 8-year-old in Indiana, William first became curious about Japan when he made friends with a Japanese guy called Hideki who introduced him to Super Mario and the magical world of Japanese video games.

As he grew older, his interest in Japan broadened and he took papers in Japanese language, history and politics at university to supplement his studies in computer science.

After working as a programmer for a few years, he finally decided, at 26, to move to Japan and live in the society he had always been fascinated by.

“I was really excited. It is what I wanted to do with my life for many years,” recalls William, who did not want his surname used in this article. “I was struck by how peaceful, safe and convenient Tokyo is, and how different it is from America.”

Yet after stepping off the tarmac at Narita in August this year, William’s new life in Japan began to turn into something of a nightmare, and the source of the trouble was his new job working for Gaba as an English teacher.

Gaba Corp., which is now one of Japan’s big-name eikaiwa (English conversation) school chains, grew out of humble beginnings in 1995 as a matching service for teachers and students looking for private lessons.

It gradually expanded, moving lessons out of coffee shops into an ever-increasing number of schools, or “learning studios,” the company had acquired around Japan.

In 2004 the company was purchased by a subsidiary of Daiwa Securities and it went public on the stock exchange in 2006.

During this time Gaba became something of a household name in Japan, well known in Tokyo for its elaborate advertising on the Yamanote Line designed to entice young Japanese eager to improve their English to sign up for blocks of lessons for an up-front fee.

According to William, his troubles began back home in the States when he was interviewed for a teaching position at Gaba by webcam.

“They told me I would be legally required to teach 160 lessons per month for visa sponsorship at a rate of ¥1,500 per lesson. But that didn’t happen.”

William says that rather than the 40 lessons he was promised, he averaged only around 25 — 30 on a good week, and sometimes as low as 10. “This was a source of conflict between myself and my management,” he says.

Despite the fact he was teaching what amounted to a part-time schedule, he had to be in the workplace 40 hours a week or more.

“I would be sitting around in a booth — they would call it a booth, but I would call it essentially a prison cell — and you are expected to sit there until something falls off the cart,” he says.

Gaba teachers are only paid for lessons taught, so the additional time William spent at the studio waiting for lessons was unpaid, yet the company, he says, expected him to be there at all times.

“Once I was verbally disciplined for going out to get lunch. I was verbally warned by my supervisor. . . . He said, ‘You need to be preparing your lesson notes and you need to look to the client like you are doing work and not going out and getting lunch. ‘ And I said, ‘OK, but on the other hand, I am a human being and I need to eat, and I am not being paid for this time so you don’t have the right to tell me that.’ “

William believes it was situations like this, where he stood up for his rights, that got him on the wrong side of the school’s management and led to him being “singled out.”

He also got a number of negative evaluations from students in his first few weeks, which again led to the company coming down on him hard.

“They said I was talking too quickly and that I was a little socially awkward and nervous, which is probably true. But that is who I am and they hired me knowing this. I am not saying I am perfect and I was doing my best to learn and I was treated in a very uncivil manner, like I was yelled at on one occasion,” he says.

It was William’s first time teaching in Japan and living in a foreign country, so he had hoped the company would give him some leeway in his first few months, but he says none was given.

Gaba insisted William repeat introductory training, but as it would be unpaid and full-time, it would leave him little time to earn money through lessons.

“(It) would have meant doing a full nine hours training in the day and then going and teaching two or three hours in the evening. Essentially they were asking me to work for 14 hours and get paid for only two or three,” William says. “They told me, ‘You don’t have to go back, but there will be consequences if you don’t.’ “

Gaba is the only large eikaiwa chain in Japan that doesn’t pay travel costs to teachers commuting to training or work, so attending training would not only have cut into William’s teaching hours, it would actually have cost him money.

William refused to do any further training, and this put him at odds with his supervisors at Gaba, a situation that was exacerbated when he took two days off work.

“I had to go to the hospital because I literally couldn’t talk and found out I had a throat infection,” explains William. “They made me meet with the regional manager and told me not to miss any more days. They told me they were going to reduce my schedule as punishment.”

As an overseas recruit, Gaba was also the sponsor of William’s working visa, which made him feel particularly insecure.

“I felt very depressed, anxious, uncertain about what I was going to do. I was afraid I would have to go home. At this time I wasn’t making enough money monthly to pay anything more than pay my rent — I was losing money,” he recalls. “One day I went in for 8½ hours and I actually lost money going to work because none of my lessons booked. I figured out later on that this had something to do with the fact they had deleted my schedule from the client view of the instructors on their website.”

A complaint sometimes leveled by former Gaba instructors is that their learning studio manager or supervisor reduced their teaching schedule, and thus income, in order to discipline or control them.

Twenty-nine-year-old Melody Herve worked at Gaba for nearly five years until she quit in June. After getting married in the summer of 2010, Melody decided to stop working early mornings from 7, and made herself available for lessons from 9:15 a.m. every weekday. According to the work contract all Gaba teachers sign, they are not regular employees but itaku, or independent contractors, and are thus able to decide their own schedule.

In January the following year, to her surprise, Herve received an email from the new manager at the school where she worked.

“One morning I received a very formal email telling me that he was the new guy in charge at the studio and that he was very pleased to meet me, but if I didn’t start working from 7 a.m. or 7:45 a.m. again, I could go work in another studio,” she says.

Although not a threat of dismissal per se, being forced to move to another studio could have drastic consequences for someone working as an independent contractor.

“I was very upset, of course. I had been working at the same studio for five years. I could not see myself work somewhere else, losing all my regular clients and probably my regular income with it,” she says.

Herve joined the General Union and the pressure eased a little, but in March, when yet another new manager arrived at the school, he tried to force her to do the early shift by refusing her other work.

“When I asked to add some lessons on some particular days, he simply refused, saying the lessons would never get booked. I knew they would and had to phone the studio to ask for the other manager to open my lessons on the spot,” Herve explains. “I had never had a manager refusing me work.”

Eventually Herve quit working at Gaba because of what she calls the “constant harassment and the degrading atmosphere in the studio.”

At the heart of Herve’s conflict with Gaba was her status as an itaku instructor.

In the Gaba employment contract that all teachers working in nonmanagerial roles sign, it states that “All instructors at Gaba teach under an Itaku, or entrusted, contract. The terms of this kind of system are different from employment. Entrusted instructors are essentially independent contractors that have been contracted to provide an established service, namely English instruction.”

In addition, many teachers also sign an “Entrusted Contract Awareness” document, which says: “Itaku contractors are not committed to fixed working hours as salaried employees are. We do not assign set work schedules but rely on instructors to inform us when they are available. Although we offer flexible scheduling, our peak times of operation are early weekday mornings, weekday evenings and all days weekends.”

Despite the fact that official company policy states they offer “flexible scheduling,” stories such as Herve’s and William’s suggest that, at least in some cases, pressure is put on instructors to choose shifts that fit the needs of the company alone.

Treasurer of the Gaba branch of the General Union Adrian Ringin, who has worked as an instructor at Gaba for 5 ½ years, says that the notion of “flexibility is central to understanding how Gaba uses the itaku system to its advantage.”

“Because you have flexibility, that is a magical thing which changes everything else,” says Ringin. “You have the flexibility to open the lessons when you want and close them, therefore you are not an employee and you have no rights whatsoever. The constant mantra which the company says is ‘flexibility.’ “

Ringin acknowledges that teachers are free to choose which lesson slots to open, but adds that it is the company that decides what slots exist in the first place and also has the authority to give final approval of when teachers can offer lessons.

“I submit my schedule to them and they can approve it or not approve it, so they are controlling that,” he says.

Gaba teachers have even less freedom, despite their status as itaku contractors, with regards to dress.

“You have to wear a dark suit which is black or very dark grey, and if you don’t wear a suit that is considered dark enough then the manager will tell you to wear a darker suit — so they control what you wear,” he says.

The company also decides where teachers are allowed to hold lessons and also, to a degree, the content they teach.

“You have to conduct the lessons at the Gaba learning studio. You can’t just go, ‘Oh, it’s a nice day today, let’s do it in the park.’ “

Ringin believes that the status of teachers at Gaba as independent contractors, not regular employees, is a “convenient legal fiction which is designed to reduce costs.” Gaba teachers receive no paid sick leave, paid holidays, annual leave or transport allowance; nor does the company pay into any health insurance, accident compensation insurance, unemployment insurance or pension scheme on their behalf.

In fact, they receive none of the benefits regular employees receive, even if they teach the equivalent of a full-time schedule.

Gaba instructors do receive a small bonus depending on how many lessons they teach, but that is usually only a few thousand yen per month.

“People’s jobs are really insecure,” explains Ringin. “There are people who are long-term, there are quite a lot of men and women who are supporting their families with quiet a low level of security.”

Gaba’s determination to continue employing its teachers as itaku is the subject of a drawn-out battle the company has been waging against the General Union in court.

In 2009 the Osaka Labor Commission rejected the union’s claim that Gaba had failed to negotiate in good faith with them, but also determined that the company’s teacher contracting system contained elements of labor and that therefore Gaba teachers had the right to organize as employees.

Labor Commission decisions are largely limited to the realm of trade union law in Japan, so the ruling has resulted in no real change on the ground for Gaba instructors above and beyond reaffirming their right to join a union.

Yet at the theoretical level the ruling implies that Gaba instructors are actual employees and therefore have rights that all regular workers in Japan have.

Gaba appealed to the Central Labor Commission in Tokyo in 2010 to have the original ruling of the Osaka Labor Commission overturned. After losing that appeal, Gaba again called in the lawyers and took their case to the District Court in Tokyo, and then, after that appeal was dismissed, to the Tokyo High Court.

The result of Gaba’s latest appeal is pending.

In addition, Gaba sued the General Union for libel, seeking ¥58 million in damages, including legal costs, relating to information published about the company on the union’s website. The company lost that case last month.

Gaba was recently purchased by Japanese medical services company Nichii Gakkan for ¥10 billion. Earlier this month Canadian Bruce Anderson replaced Kenji Kamiyama as CEO of Gaba.

In a faxed reply to questions put to them by The Japan Times, Nichii Gakkan say they decided to make Gaba a subsidiary company because they see a growing market for language education in the future due to globalization. They plan to expand the number of learning studios and develop new educational courses through merging the Gaba brand with Nichii Gakkan’s existing education assets, such as their e-learning system.

Ringin says he is hopeful that the change of ownership of the company will herald a new area.

“A lot of negative things have happened, but as of this month Gaba’s owners and management have both changed.

“Now we look forward to an improved relationship between the union and the company, and most importantly we look forward to things improving for instructors.”

Nichii Gakkan declined to answer questions about the General Union, the Gaba court cases or the itaku independent contracting system under which Gaba teachers work.

The Japan Times also contacted Gaba on a number of occasions, but the company declined to comment.

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