1. Introduction

If an employer has received permission from the Minister of Employment and Labor, some rules of the Labor Standards Act concerning working hours, recess, and holidays will not apply to surveillance or intermittent employees, and the employer will not be obligated to pay overtime allowances and holiday work allowances. Supreme Court 96da30751.
This means, when paying fixed monthly wages to surveillance or intermittent employees, the employer does not have to pay additional overtime allowance or holiday work allowance for overtime or holiday work. The employer can even pay lower than minimum wage. Here, “surveillance or intermittent employees” mean those employees whose jobs require a relatively lower intensity of labor and less physical fatigue and mental tension than others. Although some jobs share similar characteristics to surveillance or intermittent work, identical rules to normal employees concerning working hours shall continue to apply to those jobs, if the employer hasn’t applied for approval to have them recognized as exceptions by the Minister of Employment and Labor, or if the employer’s application for exception was rejected. In relation to this matter, I would like to look into the necessity for exceptions to the Labor Standards Act for certain jobs, requirements for approval, and cases that have been approved or have not been approved.

2. Times When Approval for ‘Exceptions to Application’ is Necessary

While reviewing labor cases that deal with surveillance or intermittent work, I have found it very important, and sometimes essential, for employers to receive approval to make exceptions to the Labor Standards Act for surveillance or intermittent employees.

(1) Exclusive driver (chauffeur) for a company executive:
In the morning, a chauffeur employed by Company “A” picks up the executive assigned to him, drives him to the office, and then finishes the day by taking him home in the evening. In cases where the director provides special receptions for corporate clients, the driver has to leave the workplace in the middle of night. In some cases, he may have to drive the executive to golf courses or other places on weekends or holidays. In situations like this, the time involved in picking up the executive before work, time spent waiting in the evening, and time spent waiting during dinners or golf meetings for clients shall be calculated as working hours and paid in overtime allowance for the extra working hours. If the inclusive wage system is applied, the maximum working hours per week (including overtime) are 52 hours, so working hours exceeding 52 hours per week shall be paid an additional overtime allowance. Since inclusive wages only include the legally allowed extended working hours (12 hours per week), the company would have to pay extra overtime wages for hours worked above 52, to cover the extended working hours and holiday work. In order to deal with this situation more appropriately, the employer should submit an application to the Minister of Employment and Labor for exception to be made to the statutory rules regulating working hours, recess and holiday work for surveillance and intermittent employees. Once approval is received, the employer does not have to calculate working hours for surveillance and intermittent employees concerning extended working hours or holiday work.

(2) Employees responsible for maintenance of air-conditioning, heating equipment and electricity:
Company “B” is a manufacturer that runs three shifts in its plant. Employees responsible for maintaining air-conditioning, heating equipment and electricity work 12 hour days in two shifts. Their annual wages at entry level were about ₩30 million or less, but the actual wages they received amounted to not less than ₩50 million after accumulation of overtime and weekly holiday work allowances, etc. Despite having long working hours, the intensity of work is lower than for other employees, and the number of hours they actually have to perform some service is less than half of their total shift hours. In order to maintain an acceptable wage level under such long working hours, the company has to receive permission from the Ministry of Employment and Labor for exception to be made to the statutory rules regulating working hours, recess and holiday work for such employees. If permission is given, the company is free of legal obligations to pay extra allowances for employees on duty beyond the weekly maximum extended working hours, or holiday work.

3. Requirements for ‘Exclusions from Application’ to be Approved

(1) Provision of ‘exceptions to application’ (Labor Standards Act)
Article 63 (Exclusion from Application) The provisions of this Chapter, and Chapter V, as to working hours, recess, and holidays shall not be applicable to workers who are engaged in any work described in the following subparagraphs:
1. cultivation of arable land, reclamation work, seeding and planting, gathering or picking-up or other agricultural and forestry work;
2. livestock breeding, catching of marine animals and plants, cultivation of marine products or other cattle-breeding, sericulture and fishery business;
3. surveillance or intermittent work, for which the employer has obtained the approval of the Minister of Employment and Labor;
4. any other work prescribed by Presidential Decree. (“Work provided for by Presidential Decree” in subparagraph 4 of Article 63 of the Act means managerial and supervisory work and work of handling secret affairs irrespective of types of work.)

(2) Approval procedures (Enforcement Decree of the LSA)
Article 10 (Application of exceptions to working hours, etc. under the LSA)
1. When an employer wants to receive permission to exclude employees from application of the Labor Standards Act regarding working hours, etc. for those engaged in surveillance or intermittent work in accordance with Article 63 (paragraph 3) of the LSA, he shall submit an application for exemption from the statutory rules for surveillance or intermittent employees with the designated form, Attachment #7, to the head of the Regional Labor Office.
2. A surveillance employee, stipulated in Paragraph 1, is an employee who provides surveillance as his main function and has relatively less mental and physical fatigue.
3. An intermittent employee, stipulated in Paragraph 1, is an employee who works intermittently and has more recess hours than actual working hours or has long waiting hours.
4. If the head of the Regional Labor Office approves the application according to Paragraph 1, a certificate permitting exemption for surveillance or intermittent employees, Attachment #8, shall be issued.

(3) Criteria for approval (Working Regulations of Labor Inspectors)
Article 68 (Approval of exceptions for those working in surveillance and intermittent workers)
① Approval of exceptions for “those working in surveillance”, according to Article 63 (paragraph 3) of the Labor Standards Act and Article 10 (paragraph 2) of the Enforcement Decree of the LSA, shall be issued when the following criteria are satisfied:
1. the employee holds a position requiring less mental and physical fatigue, such as a guard, security guard, watchman of products, or keeper of measurement machines, or in exceptional cases, other jobs requiring continuous watch and mental tension;
2. the employee works on a surveillance job as an occupation, but often engages in other temporary jobs; or in exceptional cases, if the employee has to implement other jobs repeatedly or is engaged in other plural duty;
3. the employee works fewer than 12 hours per day under the employer’s supervision, or works a 24-hour shift every other day, and either
a) 8 or more consecutive hours are provided for sleep or recreation, OR
b) there is an agreement between the employer and apartment building security guards and the employer provides the guards with an off-period of 24 hours the following day.
② Approval of exceptions for “those working in intermittent work”, according to Article 63 (paragraph 3) of the Labor Standards Act and Article 10 (paragraph 2) of the Enforcement Decree of the LSA shall be issued when the following criteria are satisfied:
1. the employee is free during ordinary hours, but his/her job entails a lot of waiting to prevent such things as machinery breakdowns or accidents, or for machine maintenance;
2. the employee’s actual working hours are fewer than the waiting hours within an 8-hour period, provided that, if the employee works a 24-hour shift every other day, the employee must be granted a 24-hour off-day on the day following the shift;
3. the employee with waiting hours shall be provided with rest facilities free of charge.
③ Working hours for employees who fit under Paragraph 1 and Paragraph 2 shall be calculated as averages per certain period (one week or one month).

4. Cases Approved and Rejected

(1) Approved cases

1) Those working on weekends or at night to maintain a building and its facilities are considered intermittent employees. MOEL Guideline: Sept. 5, 1987, Gungi 01254-14337.


2) Security guards at apartment buildings and those working in an electrical or boiler room are considered to be engaged in surveillance or intermittent work and LSA rules concerning working hours, recess and holidays shall not be applicable. MOEL Guideline: Feb. 5, 1990, Gungi 01254-1626.


3) A guard supervisor who is in charge of general management of security resources is considered to be engaged in surveillance work. MOEL Guideline: July 27, 1993, Supreme Court 92da46462.


4) A private policeman whose job requires a relatively lower intensity of labor than others in his/her field, is considered to be engaged in surveillance work. Apr. 25, 1997, Supreme Court 95da4056.


(2) Rejected cases

1) A watchman at a railroad crossing (flagman) is not a surveillance or intermittent employee.
A certain watchman at a railroad crossing controls the trains passing 42 to 50 times per day, and also helps prevent accidents with pedestrians or passing cars. In reviewing the frequency of this watchman’s checks and the constant attention needed to prevent accidents, this job cannot easily be classified as surveillance or intermittent work. MOEL Guideline: Nov. 14, 2001, Gungi 68207-3901.


2) Janitors at court are not intermittent employees.
Janitors at court start work early in the morning, and continue according to a certain work schedule, excluding designated recess hours. Some individuals have to work even during recess hours. They are not classified as intermittent employees, because they do not provide work intermittently. July 12, 2003, Seoul District Court 2002 Guhap 19050.

Application for Exception from Application of Working Hours, etc.