【background】

The subject of the lawsuit is the death of Ms. A (68 years old at the time), who worked as a housekeeper and visiting care helper, who died of an acute myocardial infarction in May 2015. This is the country's decision not to recognize the accident as a work-related accident.

Mr. A was introduced by Company Y Co., Ltd. and was working as a live-in worker at the private home of a bedridden elderly person suffering from dementia (with the highest level of care required, ``5''). Because constant support is required, I worked almost 24 hours a day from the 20th to the 26th of 2015, combining housework and nursing care duties such as cleaning, laundry, meal preparation, and nursing care. I was there.

Only one person was responsible for the diverse, highly specialized, and highly responsible ``care work.''

The "job offer form and notice of working conditions" states that the break time is from 12:00 a.m. to 5:00 a.m., and in the first place, the contract was written in such a way that it was assumed that the employee would only take 5 hours off out of 24 hours. In addition, Mr. A's colleague said, ``The dispatched housekeepers didn't get much sleep, and they had to change diapers every two hours and deal with regular incontinence.In effect, they worked 24 hours a day. "There is no relief from labor," he testified. From there, we can see that Mr. A was forced to work almost 24 hours a day.

Believing that Mr. A's death was caused by his work, the bereaved family filed a work-related accident claim with the Shibuya Labor Standards Inspection Office in May 2017, but in January 2018 it was decided not to provide benefits. Subsequent objection procedures, such as a request for review and a request for reexamination, were also rejected by the government.

The reason for this was that Mr. A falls under the category of "domestic servant" under Article 116, Paragraph 2 of the Labor Standards Act, and is exempt from the application of that law and the Workers' Accident Compensation Insurance Act. In March 2020, the family filed a lawsuit against the government in the Tokyo District Court, arguing that it was unfair for domestic workers to not be recognized as workers' compensation claims, even though the death was caused by overwork. At the press conference, the family complained, ``It is a serious violation of human rights that domestic workers are not protected as workers, and we cannot accept that.''

▲ Press conference at the Health, Labor and Welfare Press Club when the lawsuit was filed

[Where the problem lies]

・The Labor Standards Act does not apply to domestic servants.

Article 116, Paragraph 2 of the Labor Standards Act (enacted in 1947) states that ``This law does not apply to businesses that employ only relatives who live together and to domestic workers.'' Sign a contract directly with a private family, receive instructions and receive compensation, and engage in general housework. If they are, they are considered "domestic servants" and are not covered by the Labor Standards Act or workers' compensation insurance. The reason Mr. A could not receive recognition for workers' compensation was because the government deemed Mr. A to be a "domestic servant."

The plaintiff's surviving family did not receive the survivor's compensation pension, etc. that would have been paid through workers' compensation insurance if the death from overwork was recognized as a work-related accident.

・Judging that the person is a domestic servant without considering the actual situation

Not all domestic workers are legal "domestic servants"; Ministry of Health, Labor and Welfare Circular No. 150 (1988) states that "those who are employed by an intermediary and work under the direction of "They do not fall under the category of domestic servants." If they are not considered "domestic servants," they will be covered by the Labor Standards Act and workers' compensation insurance. On the surface, Mr. A signed a contract with the private home where he worked, but in reality, he was working based on a "work instruction" from the intermediary company that introduced him to the private home. The working environment was such that they could not be considered "domestic servants."

However, the Labor Standards Inspection Office determined that Mr. A was a ``household employee'' based solely on the fact that the contract was concluded between Mr. A and a private residence. This judgment does not take into account the reality.

・Unconstitutionality of Article 116, Paragraph 2 of the Labor Standards Act

In the first place, the exemption provisions of the Labor Standards Act for "domestic servants" are themselves unfair.

One is that it may violate the principle of equality in Article 14 of the Constitution. Domestic work is not inferior to other types of work, and it is strange to discriminate only against domestic workers by bringing in something that is not written in the constitution, which prohibits domestic workers from entering the home.

Furthermore, Article 27, Paragraph 2 of the Constitution states that working conditions such as wages, working hours, and rest should be determined by law. Based on this, the Labor Standards Act and Worker's Accident Accident Insurance Act have been established, but there is no such law for domestic servants. It doesn't matter if there is a rational reason why it cannot be established, but as long as it is not so, it is considered to be a violation of Article 27, Paragraph 2 of the Constitution.

Most domestic workers are women, as is Ms. A. Until now, the government has not fully grasped the actual situation of domestic workers, and there have been few surveys, but according to the 2015 census, there were approximately 11,000 domestic workers in Japan (statistically, 97% of them are women (this figure is expected to be just the tip of the iceberg, as it is not possible to track all individual contracts). Many women who work as domestic workers do so without rights.

・Difference from the provisions of the treaty

Unlike in Japan, domestic workers' rights continue to expand internationally. Since the mid-2000s, women's organizations, trade unions, NGOs, and other organizations have been working together to improve the international treatment of domestic workers. Convention No. 189) has been adopted. This convention stipulates that domestic workers should have the same basic labor rights as other workers, including the ``right to a safe and healthy working environment'' and ``equal working hours as other workers.'' stipulated.

However, Japan has not yet ratified the Convention, and although it has received recommendations from the United Nations Committee on the Elimination of All Forms of Discrimination against Women, there has been no movement toward improvement.

[District court ruling and growing interest]

The judgment was issued at the Tokyo District Court on September 29, 2022. Although the judgment recognized Mr. A's 4 hours and 30 minutes a day and 31 hours and 30 minutes a week as working hours, the time spent caring for Mr. Based solely on the fact that the employee was a domestic employee, the employee's hours were not recognized as working hours, and the claim was unfairly dismissed. The plaintiff appealed to the High Court, and the appeal hearing began on January 24, 2023.

Although the district court's judgment dismissed the plaintiff's claim, the contents of the case were widely reported, and a Change.org petition created in conjunction with the judgment gathered 36,000 signatures, and in response to these responses, Kato The Minister of Health, Labor and Welfare has stated that he will conduct a survey of the actual situation of domestic workers and consider ways to change the system.

[What we want to achieve through litigation]

In addition to realizing Mr. A's work-related compensation certification, many people have turned their attention to the current situation of domestic workers, who are denied even the most basic rights as workers, such as being exempted from the Labor Standards Act and the Worker's Accident Compensation Insurance Act. We want to be able to see discriminatory situations as a problem.

▲On November 9, 2022, we handed over 35,000 online signatures to the Ministry of Health, Labor and Welfare (Photo: provided by change.org )

[Usage of donations]

① Necessary expenses for filing a lawsuit (stamps, postage stamps, etc.)
② Transportation expenses for witnesses, etc. ③ Written opinion expenses ④ Attorney fees ⑤ Other (related to litigation)
⑥ If there is any leftover money, it will be used for activities to protect the rights of domestic workers.

More than four years have already passed since the decision was made not to provide workers' compensation benefits for Mr. A's death from overwork. The plaintiff always says, ``I will fight this lawsuit on behalf of all domestic workers and female workers. I'm sure the deceased Ms. A would be happy about this.''

We appreciate your support in this court battle, which has great social significance.

[Message from the lawyer in charge]

Junpei Akashi Attorney

Behind this incident is discrimination against women that has been ignored and ignored for decades. This time, I would like to put an end to that discrimination.

Shoichi Ibusuki Attorney

``Because I am a domestic servant, I will not be certified as a worker's compensation worker.'' In 21st century Japan, this kind of discrimination is common. No matter how you think about it, it's strange. We will fight to enforce labor laws for disaster victims and restore the rights of all domestic workers.

[Attorney in charge]

Shoichi Ibusuki (Daini Tokyo Bar Association/Akatsuki Law Office)

Junpei Akashi (Saitama Bar Association/Otori Law Office)

[Trial support]

The trial began when the bereaved family consulted with POSSE, an NPO that works on labor and poverty issues. In addition to providing listening support, POSSE is also running an online campaign on Change.org. We are also looking for volunteers .