Employee or contractor? Labour design for opening a fitness or personal-training gym

In short: Even if you call a gym trainer a "contractor," whether they are a worker is decided by the reality of how they work, not by the title of the contract (Labor Standards Act, Article 9; the Labour Standards Act Study Group report of December 19, 1985). Where the company sets the shift, directs the content and method of lessons, and bars work at other gyms, worker status becomes stronger, and overtime pay and social insurance can be sought retroactively. In gyms with long opening hours you can arrange prescribed hours with the monthly (Labor Standards Act, Article 32-2) or yearly (Article 32-4) variable working-hours system, but late-night premium pay (22:00–05:00) still arises separately even under a variable system (Article 37, paragraph 4). From the viewpoint of a shakai hoken roumushi's labour management, this page covers trainer worker status, the variable working-hours system, early-morning and late-night premiums, standby during unmanned hours, and work rules, the 36 Agreement and social insurance at opening — leaving the drafting of the business-contracting agreement to a gyoseishoshi or attorney and individual disputes to an attorney, under separate engagements.

When opening a personal-training gym, a 24-hour gym or a small fitness studio, near-commission trainer pay, opening hours running from early morning to late night, and unmanned self-service hours overlap, so the line between employment and contracting and the design of working hours become problems at the same time. This page is for managers opening a gym.

Where is worker status judged if you make a gym trainer a contractor?

Even with a "business-contracting agreement," if the reality is employment the person is treated as a worker. Whether someone is a "worker" under Article 9 of the Labor Standards Act is judged under the framework shown by the Labour Standards Act Study Group report of December 19, 1985 (On the criteria for judging a "worker" under the Labour Standards Act). The core is subordination in use: ① whether there is freedom to refuse a request for work; ② whether the person is under direction and supervision in performing the work; ③ whether there is constraint as to place and time; ④ whether another person can provide the labour instead (substitutability); and ⑤ whether the pay is calculated on a time basis. Business character (bearing the cost of machinery and tools, the level of pay) and exclusivity are reinforcing factors.

On the gym floor, worker status is stronger where you slot the person into shifts on a timetable, the company directs the way lessons are run and how customers are served, and coaching at other gyms is prohibited. If the reality is found to be employment, premium pay and social insurance premiums can be sought retroactively. The general line between contracting and employment is covered in The line between contracting and employment.

Facts that tend to raise worker status	Facts that tend to lower it
Follows a shift set by the company	Decides times and assignments themselves
Lesson content and method directed by the company	Coaching method at the person's discretion
Coaching at other gyms prohibited	Can take other clients or other gyms' work
Paid a fixed hourly or daily wage	Settled per deliverable

Even when you set it up as contracting, the ordering party bears duties such as stating the terms of the transaction under the Act on Optimising Transactions with Specified Contractors (the "freelance law"; Act No. 25 of 2023, in force from November 1, 2024). Drafting the agreement and checking its lawfulness are the work of a gyoseishoshi or attorney.

How do you design the variable working-hours system in a gym with long hours?

Gym use is skewed to early morning and evening and varies by day of the week, so the variable working-hours system is considered. The monthly variable working-hours system (Labor Standards Act, Article 32-2) sets each day's and week's hours in advance so that average weekly hours over a period of up to one month do not exceed 40. The yearly variable working-hours system (Article 32-4) requires a labour-management agreement, averages 40 hours a week over the target period, and has caps such as 10 hours a day and 52 hours a week and limits on consecutive working days.

In either case, hours worked beyond the prescribed hours set in advance, or beyond the variable framework, are overtime subject to premium pay. Which unit to choose depends on the cycle of busy and slack periods; it is set out in detail in How to choose a variable working-hours system.

	Monthly (Article 32-2)	Yearly (Article 32-4)
Labour-management agreement	Work rules also suffice	Required
Average cap	40 hours/week	40 hours/week
Daily/weekly cap	No individual statutory cap	10 hours/day, 52 hours/week
Suited cycle	Peaks within a month	Seasonal peaks

How does premium pay apply to early-morning and late-night lessons?

There are several kinds of premium pay, and they overlap (Labor Standards Act, Article 37). Late-night work (22:00–05:00) requires a late-night premium of 25% or more separately even under a variable working-hours system (paragraph 4). Overtime beyond statutory hours (8 hours a day, 40 a week) is 25% or more, and the part of overtime exceeding 60 hours in a month is 50% or more (applied to small and medium-sized enterprises too from April 1, 2023). Work on a statutory holiday is 35% or more.

Early-morning lessons do not themselves attract a late-night premium unless they are before 05:00, but they can be subject to an overtime premium if they exceed prescribed hours. Set out in the wage rules which allowance overlaps in which time band.

Category	Premium rate	Basis
Overtime	25% or more	Article 37, paragraph 1
Overtime over 60 hours/month	50% or more	Proviso to paragraph 1
Late-night (22:00–05:00)	25% or more	Paragraph 4
Statutory holiday work	35% or more	Paragraph 1 and order

How do you organise safety consideration and working hours during unmanned, self-service hours?

In 24-hour gyms and self-service operations, staff may be kept on standby during unmanned hours to lock up, deal with trouble, or respond to a call (on call). If this standby can be evaluated as being under the company's direction and command, it is working hours (waiting time) even without actual work. Working hours are the time during which the worker is placed under the employer's direction and command, determined objectively by the reality and not by the work rules or the contract — this is the Supreme Court's position (the Mitsubishi Heavy Industries Nagasaki Shipyard case, Supreme Court, March 9, 2000). Conversely, if the person has no duty to be ready for a call and is freed from labour, that time is not working hours.

How to treat on-call and patrol standby during unmanned hours is a common issue for unmanned, self-service stores, covered in detail in Standby time at unmanned, 24-hour self-service stores. Where a single person works alone during unmanned hours, the facilities and contact arrangements also become a matter of the employer's duty of care for safety (Civil—Labour Contract Act, Article 5). The final line on what counts as working hours is drawn by a qualified professional in light of the actual situation.

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What should you decide first at opening — work rules, the 36 Agreement and social insurance?

Three things leave less to undo if decided at opening. First, work rules. A workplace that regularly uses 10 or more workers must draw up work rules and file them with the Labour Standards Inspection Office (Labor Standards Act, Article 89). You set the variable working-hours system, the basis for calculating premium pay, and breaks and holidays here. Second, the 36 Agreement. To have workers do overtime beyond statutory hours or holiday work, you need a labour-management agreement (the so-called 36 Agreement) concluded and filed (Article 36). Third, social insurance. A corporation is in principle a compulsorily covered workplace for health insurance and employees' pension, and part-time and short-hours trainers join if they meet certain requirements.

Build on the Ministry of Health, Labour and Welfare's model work rules and 36 Agreement form (referenced October 20, 2026), adapted to the gym's operating pattern. Sorting out the line between employment and contracting at opening is what most reduces later retroactive risk.

What can 四葉社会保険労務士事務所 do for you?

四葉社会保険労務士事務所 in Kohinata, Bunkyo Ward, handles, for gym opening labour, organising trainer worker status, designing the variable working-hours system, arranging the basis for premium pay and the wage rules, separating standby and waiting time during unmanned hours, putting the work rules and the 36 Agreement in order, and social-insurance enrolment procedures. The initial consultation is free. We quote according to the content and number of employees; for how fees are thought about, see the fee schedule, and the questions we are asked most often are on the FAQ page.

Drafting the business-contracting agreement and checking its lawfulness, and the contractual side of the ordering party's duties under the freelance law, are the work of a gyoseishoshi or attorney, and individual disputes over trainer worker status are the work of an attorney; we will guide you to contract with each separately, as an independent business entity. This office does not accept referral fees.

Frequently asked questions

Q. If we make all trainers "contractors," do overtime pay and social insurance not apply?
A. It is not decided by the title of the contract. Where the company sets the shift, directs the content and method of coaching, and bars work at other gyms — so that in reality the person is under direction and command — they are judged to be a worker, and premium pay and social insurance premiums can be sought retroactively (Labor Standards Act, Article 9; the Study Group report of December 19, 1985). If you set it up as contracting, drafting the agreement and checking its lawfulness are the work of a gyoseishoshi or attorney.

Q. In a 24-hour gym, does the variable working-hours system remove the late-night allowance for trainers?
A. No. The variable working-hours system (Labor Standards Act, Article 32-2 and 32-4) makes the allocation of prescribed hours flexible; work done at night (22:00–05:00) still needs a late-night premium of 25% or more (Article 37, paragraph 4). Overtime beyond statutory hours or the variable framework also attracts an overtime premium.

Q. If we have staff just "stand by" during unmanned hours, is that time working hours?
A. If they are placed under the company's direction and command with a duty to be ready for calls and trouble, it is working hours as waiting time even without actual work (the thinking of the Mitsubishi Heavy Industries Nagasaki Shipyard case, Supreme Court, March 9, 2000). If they are freed from labour, it is not working hours. It must be separated against the actual situation.

Q. At opening, do we need both work rules and the 36 Agreement?
A. Work rules must be drawn up and filed at a workplace that regularly uses 10 or more workers (Labor Standards Act, Article 89). The 36 Agreement must be concluded and filed, regardless of numbers, if you have anyone do overtime beyond statutory hours or holiday work (Article 36). Social insurance is in principle compulsory for a corporation, and short-hours trainers join if they meet the requirements.

Sources for this article

• Labor Standards Act (労働基準法, Act No. 49 of 1947), Article 9 (definition of worker), Article 32-2 (monthly variable working-hours system), Article 32-4 (yearly variable working-hours system), Article 36 (agreement on overtime and holiday work = the 36 Agreement), Article 37, paragraphs 1 and 4 (premium pay for overtime, holiday and late-night work; 50% or more over 60 hours a month), Article 89 (drawing up and filing work rules) (confirmed against e-Gov on October 20, 2026)
• Labour Standards Act Study Group report, "On the criteria for judging a 'worker' under the Labour Standards Act" (December 19, 1985). Judged by subordination in use (freedom to refuse, direction and supervision, constraint of place and time, substitutability, pay as consideration for labour) and reinforcing factors such as business character and exclusivity (referenced October 20, 2026)
• Act on Optimising Transactions with Specified Contractors (the "freelance law"; Act No. 25 of 2023; promulgated May 12, 2023, in force from November 1, 2024). Imposes duties such as stating transaction terms on the ordering party. Arranging the contractual side is the work of a gyoseishoshi or attorney (referenced October 20, 2026)
• Supreme Court, First Petty Bench, judgment of March 9, 2000 (the Mitsubishi Heavy Industries Nagasaki Shipyard case). Held that working hours are the time during which a worker is placed under the employer's direction and command, determined objectively and not by the work rules or the contract (referenced October 20, 2026)
• The 50%-or-more premium for overtime over 60 hours a month applies to small and medium-sized enterprises from April 1, 2023 (the grace measure abolished) (referenced October 20, 2026)
• Model work rules and the 36 Agreement form (notification of agreement on overtime and holiday work) of the Ministry of Health, Labour and Welfare (referenced October 20, 2026)

This article does not go so far as to decide whom you should consult. Organising trainer worker status, designing the variable working-hours system, arranging the basis for premium pay and the wage rules, work rules and the 36 Agreement, and social-insurance procedures are the work of a shakai hoken roumushi. Drafting the business-contracting agreement and checking its lawfulness and the contractual side of the freelance law are the work of a gyoseishoshi or attorney, and individual disputes over worker status are the work of an attorney; each is carried out by an independent business entity and contracted separately. This office does not accept referral fees. The cost of consulting 四葉社会保険労務士事務所 is set out in the fee schedule, and the questions we are asked most often are on the FAQ page.

This article is general information. Judgments that fit your particular circumstances are made by a qualified professional after a meeting. Written by Joji Uramatsu (Shakai Hoken Roumushi (Certified Social Insurance and Labor Consultant), Gyoseishoshi (Certified Administrative Procedures Legal Specialist), Registered Real Estate Transaction Specialist).