Contributed By Yoon & Yang LLC (Seoul - HQ)
Maximum Working Hours
The Labor Standards Act provisions on working hours were recently amended on 28 February 2018. The maximum working hours per week has been reduced from 68 hours to 52 hours per week. This change has been in effect as of 1 July 2018.
Article 50(1) and (2) of the Labor Standards Act provides that working hours may not exceed eight hours per day and 40 hours per week. However, Article 53(1) allows employers to extend the foregoing working hours, as overtime, by up to 12 hours per week upon obtaining the relevant employees’ consent.
For the purposes of determining the working hours, one week refers to seven days including holidays. Thus, the weekly maximum working hours with the permitted extensions is 52 hours (40 hours per week + up to 12 hours of overtime).
Meanwhile, under limited circumstances where certain criteria are satisfied, the Labor Standards Act recognises the following types of “flexible working systems”:
Flexible Work Hours System (Article 51 of the Labor Standards Act)
In a Flexible Work Hours System, working hours are increased during the weeks where work is concentrated but reduced during other weeks so that, on average, the weekly working hours are within the statutory working hours (ie 40 hours).
Selective Work Hours System (Article 52 of the Labor Standards Act)
In a Selective Work Hours System, an employee may freely choose his or her working hours over a certain period (not exceeding one month), so long as the total working hours do not exceed the statutory working hours for such period. In this system, the employee may decide when he or she will begin and end work, as well as the number of hours to work in a day.
Presumed Work Hours System (Article 58(1) of the Labor Standards Act)
Presumed Work Hours Systems are used in circumstances where it is difficult to calculate the hours of work performed by an employee because such employee provides labour outside the workplace. In a Presumed Work Hours System, employees are presumed to have worked (i) their contractual hours, (ii) hours that are typically needed to perform the relevant work, or (iii) hours that have been agreed in writing with the employees’ representative for a particular work.
Discretionary Work Hours System (Article 58(3) of the Labor Standards Act)
Discretionary Work Hours Systems apply to limited types of work prescribed under the Enforcement Decree of the Labor Standards Act. These types of work consist of those that have been legally recognised, based on the nature of the work, to require employees’ discretion in determining how the work should be performed. In a Discretionary Work Hours System, working hours that have been agreed in writing between the employer and the employees’ representative are recognised as hours worked by the employees.
Employees under part-time employment contracts are also considered as “employees” within the meaning of the Labor Standards Act. Hence, the laws do not require part-time employment contracts to have specific terms that are different from ordinary employment contracts. Further, the format used for part-time employment contracts is identical to that of ordinary employment contracts. However, considering the nature of part-time work, a part-time employment contract must clearly indicate the working hours.
The Fixed-term Workers Act also applies to part-time employees. As such, employers are prohibited under Article 8 of the Fixed-term Workers Act from discriminating between part-time employees and other employees under an indefinite employment contract who engage in the same or similar kinds of work in the same business or workplace.
As described above, statutory working hours under Article 50(1) and (2) of the Labor Standards Act may not exceed eight hours per day and 40 hours per week (excluding break times). However, such statutory working hours may be extended as overtime by up to 12 hours per week in accordance with Article 53(1) of the Labor Standards Act, so long as the employees consent to such overtime.
Article 56 of the Labor Standards Act governs overtime pay. More specifically, at least 50% of the ordinary wage must be additionally paid for (i) overtime worked in excess of the statutory working hours (ie eight hours per day, 40 hours per week), (ii) work performed during holidays, and (iii) work performed during night-time (ie between 10pm and 6am).