LABOR LAW GUIDE

Chapter 4 Working Hours, Recess, Off-Days and Leave

Section 3: Statutory and Contractual Holidays

Ⅰ. Statutory Holidays

Labor Standards Act: Article 55 (Holidays)
① Employers shall allow workers an average of one or more paid holidays per week.
② Employers shall provide paid holidays for holidays declared by Presidential Decree: Provided, that the holidays can be shifted to other working days upon a written agreement with the workers’ representative.

LSA Enforcement Decree: Article 30 (Holidays)
① Paid holidays under Article 55 (1) of the Act shall be granted to a person who has shown perfect attendance for the contractual working days during one week.
② “Holidays prescribed by Presidential Decree" in the main sentence of Article 55 (2) of the Act means the holidays under any subparagraphs (excluding subparagraph 1) of Article 2 of the Regulations on Holidays of Government Offices and the alternative statutory holidays under Article 3 of the same Regulations.

Regulations on Holidays for Government Offices277)
Article 2 (Statutory Holidays) Statutory holidays of government offices shall be as follows: Provided, that statutory holidays of embassies and legations abroad shall be the statutory holidays among the national holidays of Korea and statutory holidays of residing nations:
1. Sundays;
2. The March 1 Independence Movement Day, Independence Day, National Foundation Day of Korea, and Hangul (Korean alphabet) Day;
3. The first day of January;
4. The day preceding Seollal (Korean New Year's Day), Seollal, and the day following Seollal (the last day of December, and the first and second days of January on the lunar calendar);
5. Deleted;
6. Buddha's Birthday (the eighth day of April on the lunar calendar);
7. The fifth day of May (Children's Day);
8. The sixth day of June (Memorial Day);
9. The day preceding Chuseok (Korean Thanksgiving Day), Chuseok, and the day following Chuseok (14th, 15th, and 16th days of August on the lunar calendar);
10. The 25th day of December (Christmas Day);
10-2. Election days for elections on the termination of terms of office referred to in Article 34 of the Act on Election of Public Officials and the Prevention of Election Malpractices;
11. Other days the Government designates from time to time.

Article 3 (Alternative Statutory Holidays)
① Where the statutory holiday in subparagraph 4 or 9 of Article 2 overlaps with another statutory holiday, the first non-statutory holiday following the statutory holiday in subparagraph 4 or 9 of Article 2 shall be a statutory holiday.
② Where the statutory holiday in subparagraph 7 of Article 2 overlaps with a Saturday or another statutory holiday, the first non-statutory holiday following the statutory holiday in subparagraph 7 of Article 2 shall be a statutory holiday.


1. Weekly Holidays

An employer shall grant a weekly holiday with pay at least once a week on average, provided that the employee concerned has worked all of the contractual working days(as determined in the rules of employment, etc.) for the preceding week. It is advisable that weekly holidays, which are not necessarily Sundays, should be stated in the rules of employment or other forms of company rules. Once a weekly holiday is fixed on a specific day(for example, Sunday), it is possible that an employee who was absent from work on a working day might use the weekly holiday without pay. An employee who has worked on a weekly holiday shall be paid an additional 50% of the normal wage for the hours worked(Article 56 of the LSA).
The interval between a weekly off-day and the following weekly off-day shall be ideally within 7 days. However, Article 55 shall not apply to a short-term employee whose weekly average contractual hours for a 4-week period are less than 15.

(1) Inclusion or non-inclusion of paid weekly holiday
If an employer pays employees according to a monthly wage system, the monthly wage shall be considered to include a paid weekly allowance, barring exceptional situations. If the employee receives fixed allowances along with basic hourly wage every month in a monthly wage system, such fixed allowances shall be interpreted to have similar characteristics as wage for paid weekly holiday allowance.

(2) Paid weekly holiday for daily workers
The weekly holiday does not normally apply to daily workers, but if a daily worker works for six consecutive days, a paid weekly holiday shall be provided.
Weekly holiday allowance under the Labor Standards Act shall be given to a worker who fulfills his/her weekly contractual working hours. However, in principle, the weekly holiday shall not be given to daily workers because it is not possible to calculate weekly contractual working hours for daily workers, as they engage in daily employment contracts.
The purpose for providing a weekly holiday is to reduce the accumulated fatigue on workers after one week’s work, thereby helping to protect their health and to provide time to participate in social and cultural activities. If a daily worker works for 6 consecutive days per week without absence, actual working days(and not contractual working days) shall be applied and weekly holiday shall be granted. The employer shall pay weekly holiday allowance separately from wage for daily workers, unless the affected worker agrees to receive the weekly holiday allowance in advance, with their daily wage.

2. Labor Day

Labor Day is officially May 1st by establishment of the Labor Day Act(Mar. 9,1994). This day is counted as a paid holiday according to the Labor Standards Act.

3. Public Holidays

(1) Public holidays, according to Regulations on Holidays for Government Offices include: Sunday
Independence Movement Day, National Liberation Day, National Foundation Day, Hangul Proclamation Day, New Year’s Day(Jan. 1st); Lunar New Year’s Day(Dec. 31~Jan. 2 on the lunar calendar), Thanksgiving Day(Aug. 14~16 on the lunar calendar); Buddha’s Birthday(Apr. 8 on the lunar calendar), Christmas Day(Dec. 25), Children’s Day(May 5), Memorial Day(June 6), and Election Day(designed to elect new officials in accordance with the Act on Election of Public Officials and the Prevention of Election Malpractices), and other particular days specified by the Government.

(2) Alternative statutory holidays
Where the statutory holiday of Lunar New Year’s Day(Dec. 31~Jan. 2 on the lunar calendar) and Thanksgiving Day(Aug. 14~16 on the lunar holiday) overlaps with another statutory holiday, the first non-statutory holiday following the statutory holiday of the Lunar New Year’s Day and Thanksgiving Day shall be a statutory holiday. Where the statutory holiday of Children’s Day overlaps with a saturday or another statutory holiday, the first non-statutory holiday following the statutory holiday of Children’s Day shall be a statutory holiday.

4. Holiday Work


Article 56 (Extended, Night or Holiday Work)
① An employer shall, in addition to the ordinary wage, pay employees at least 50/100 thereof for extended work (referring to the work during the hours extended pursuant to Articles 53 and 59 and to the proviso to Article 69).
② Notwithstanding paragraph (1), an employer shall, in addition to the ordinary wage, pay employees who perform work on a holiday an amount the same as or more than the following amounts:
1. Holiday work for up to eight hours: 50/100 of ordinary wage;
2. Holiday work exceeding eight hours: 100/100 of ordinary wage

(1) Additional allowance
An employer shall, in addition to the ordinary wage, pay employees at least 50/100 of ordinary wage for holiday work for up to eight hours, and at least 100/100 of ordinary wage for holiday work exceeding eight hours.

(2) Prior substitution of holiday
Prior substitution of holiday signifies a system in which the employee works on the designated off-days and instead takes another day off from work, through prior arrangement of the parties concerned in the collective agreement or rules of employment. In this case, the original holiday becomes a regular working day. Consequently, neither a holiday allowance nor an additional paid holiday allowance shall be provided.

(3) MOEL Guidelines and judicial rulings
1) For work on paid holidays, the rate of payment shall be 250 percent: 100 percent for paid holiday, 100 percent for actual work, and 50 percent as an additional allowance.
2) Weekly holiday and monthly and annual paid leave shall be calculated according to the attendance rate for the total number of days after omitting the period of a justified labor strike.
3) Weekly holidays and monthly and annual paid leave are calculated according to the attendance rate of working days excluding the period of justified labor strikes. Those days of no work due to unjustified labor strike shall be treated as absences.
4) The act of substituting leave with allowances promptly after monthly and annual leave was granted is forfeiting the employee from use of leave.
5) Whether the employee maintains perfect attendance or a 80 percent attendance is determined from the first day he/she began working for the company; but the attendance rate can be calculated from January 1st of each year according to collective agreement or rules of employment.
6) When extended work and night work overlap, 50 percent or more of ordinary wage shall be paid for each.

Ⅱ. Contractual Holidays

Unlike statutory holidays, contractual holidays must be stipulated in the rules of employment or collective agreement in order to be legally recognized as paid or unpaid holidays. Statutory holidays shall be granted on particular dates and if work is done on those days, the company shall pay an additional holiday work allowance. Statutory holidays consist of a weekly holiday(Article 55 of the LSA: An employer shall allow a worker on the average one or more paid holidays per week), Labor Day(Act Concerning Establishment of Labor Day: The day of May 1st shall be proclaimed as Labor Day and is a paid holiday as determined by the National Labor Relations Commission) and public holidays as confirmed by the government. However, contractual holidays are determined exclusively by the employer regarding particular dates and whether the holidays are paid or unpaid. If an employee works on a holiday stipulated as paid, the company shall pay an additional overtime allowance.


        

1. Types of Contractual Holidays

Corporate holidays refer to paid off-days, such as Company Foundation Day, labor union Day, etc., that the company has designated in the collective agreement and the rules of employment.

2. Relationship between Labor Law and Contractual Holidays

In cases where contractual holidays are settled as paid off-days, employees are exempted from providing labor. If they have to work on contractual holidays like paid public holidays, they are entitled to paid wage(100%), which are already included in monthly wage, and additional holiday work allowance(150%)(Article 56(Extended, Night or Holiday Work) of the LSA).

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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