Illegal Contract Clauses (Part III) - BL Kids International School

When it comes to contract disputes, telling someone that they "shouldn't have signed it" if they "didn't agree with it" is probably one of the most frustrating things that a person can do.

It's up there with unhelpful titbits of divine wisdom like "you should have read it properly!" and "you should have read the fine print!" that don't serve any real purpose other than shifting the blame from the exploiter to the exploited.

Here's the thing about contracts, though: just because you sign a contract, it doesn't mean that you agree to the illegal clauses within it.


There is a common misconception that once a contract is signed, everything in that contract becomes legally binding. If that were the case, there is a lot of insanity that companies would be able to get away with.

Signing a new cellphone carrier contract? Whoops! Your eternal soul now belongs to a telecommunications company (somewhat true?). Signing up for a new credit card? Oops! You just sealed your family into a life of indentured servitude (maybe slightly true?). Leasing an apartment? Darn. Now you've sworn fealty to a self-crowned despot. How unfortunate! Oh, well. You shouldn't have signed it! Too bad.

Facetiousness aside, you shouldn't feel too bad if you happen to sign a contract that has more illegal clauses than you can keep track of. The good news is that the law is on your side, and - with a bit of knowledge under your belt - an illegal clause isn't likely to cause problems if you know how to handle people who say otherwise.

On that note, this article's illegal contract clause is brought to you by Minerva / BL-Kids International School - a company which the General Union has previously taken issue with due to their unfair labor practices. ("Fast-Tracking Unfair Labor Practice Case")

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Article 45 (Work With Competitors Forbidden)
Even after resignation if the company 's permission is not given, employee must not follow or seek employment with rival companies.


Astute readers may recognize this as the infamous "non-compete clause" - an egregious little stipulation that basically seeks to ensure that, should an employee have the audacity to (gasp!) leave the company, they will never be able to work in any English language-related company or position ever again.

This is not an exaggeration, either. Due to the nebulous definition of what a "rival compan[y]" actually is, this clause could, in theory, be applied to every eikaiwa, dispatch company, private school, and board of education, in the entire country - unless the company graciously gives you its blessing.

However, that's not all there is to this clause. You might notice that the language used specifically states that a person may not even "seek employment" with "rival companies".

So, not only can you not WORK for another company, you're not even allowed to look for another job unless the company tells you that its okay to do so.

Well, I suppose you'd better go and delete your LinkedIn and Gaijinpot details, and burn all of your resumes, then.

There is, of course, just one small problem with this clause: it's illegal (surprise!).

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The General Union published a comprehensive article about the many ways that "non-compete clauses" are almost wholly unenforcible (under most circumstances, barring theft of industrial secrets), but - for the sake of convenience - here's a recap:

"Every person shall have the freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare."
- Article 22 of the Constitution of Japan
 
"A juristic act with any purpose which is against public policy is void."
- Article 90 of the Civil Code
 
"Unless permitted by act, no person shall obtain profit by intervening, as a business, in the employment of others."
- Article 6 of the Labor Standards Act


Article 90 of the Civil Code is our main illegal-clause busting law, here. This is the clause that says, hey, don't worry about illegal clauses because, well, they're illegal.

However, Article 22 of the Constitution of Japan is what makes Article 90 apply to this clause. In summary, Article 22 essentially prohibits a company from preventing someone from having the freedom to working for whoever they, personally, want to.

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So, if you don't particularly like your company, and you want to give a rival company a try, providing that you're not planning on stealing all of your current company's lesson plans and training material on your way out, you have absolutely nothing to worry about.

If your company attempts to threaten you with such a clause, you can just ignore them. If they persist, let the General Union know about it (and maybe leave them a number of scathing reviews on various social media sites for good measure, too).

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If your company has a particularly outrageous clause that you'd like the General Union to look at (with the caveat that we reserve the right to not write articles about everything people send us), get in contact with us at:

union(@)generalunion.org


Have you had to suffer through overzealous managers and their scandalous misunderstanding of illegal clauses in the past? Why not share your tale of woe on our official Facebook page at:

http://www.facebook.com/GeneralUnionJapan


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