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Tuesday, Dec. 13, 2011
All employees in Japan are entitled to paid leave, period
By MASAKO SUZUKI
Reader A is employed by an agency and has been dispatched to a food processing company. The agency explained to A that she was not entitled to paid leave. However, other people directly employed by the food processing company enjoy 10 to 15 days paid holiday, and A has recently learned that those dispatched by other agencies to the same company also get paid leave.
In justifying the decision not to grant A paid leave, the agency said that A's work schedule is irregular depending on the company calendar. However, A says she is working the night shift eight hours a day, 40 hours a week at least.
A, I assume that you have been dispatched legally, that is, based on the Act for Securing the Proper Operation of Worker Dispatching Undertakings and Improved Working Conditions for Dispatched Workers. Under this act, "worker dispatching" is defined as "causing a worker(s) employed by one person so as to be engaged in work for another person under the instruction of the latter, while maintaining his/her employment relationship with the former, but excluding cases where the former agrees with the latter that such worker(s) shall be employed by the latter" (Article 2). If this is the case, you have an employment relationship not with the company where you are dispatched (hakensaki) but with the agency that dispatches you (hakenmoto).
Paid leave is a right all employees are entitled to. A worker who has been employed continuously for six months from the day they were hired and has reported for work on at least 80 percent of their assigned workdays must be granted annual paid leave, according to Article 39 of the Labor Standards Act.
Even if annual paid leave is not mentioned or is ruled out in the employment contract or the notice of working conditions, you have the right to take it as long as you fulfill the conditions above.
The number of days of paid leave depends on years of continuous service as follows: after 6 months, 10 days; one year, 11 days; two years, 12 days; three years, 14 days; four years, 16 days; five years, 18 days; six years and more, 20 days. For those who work less than five days a week, the number of days of paid leave is likewise reduced.
As I said earlier, paid leave is one of the rights of an employee, so you are entitled to enjoy it as long as you fulfill the aforementioned requirements, whether you are a dispatched or regular employee. However, since a dispatched worker has an employment relationship with an agency, their paid leave should be granted by the agency, while a regular employee's paid leave is granted by their company.
In your case, if you have worked based on a contract with the agency for over six months and have reported for work on at least 80 percent of your allotted working days, you are entitled to paid leave. Even if the term of the contract is less than three months, you are regarded as having been continuously working as long as you have been employed under extensions of that contract. The fact that your work schedule is irregular has no bearing on your right to paid leave.
If you fulfill the conditions for paid leave, you have a legal right to demand it from your agency. If the agency still refuses, you should report them to the relevant labor standards bureau, who will conduct an investigation and either suggest or request the agency grant you paid leave if a violation is found.
Masako Suzuki is an attorney with the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers address readers' legal concerns on the second Tuesday of the month. Website: www.t-pblo.jp/slaf. Phone: (03) 5979-2880. Send questions to email@example.com