Working Hours, Holiday, Leave

Chapter 4 Flexible Working Hours

Ⅰ. Requirement before Introducing Flexible Working Hours: Selection of Employee Representatives

Productivity refers to the amount produced or achieved in a limited time. The term “52-hour week” originated from the introduction of ‘one week’ in Article 2 of the Labor Standards Act, which states that "one week is seven days, including a holiday." The Labor Standards Act for the related article was revised around the concept of one week (Mar. 30, 2018).

For this reason, 40 hours constitute a statutory work week, while the weekly working hours become a maximum 52 hours when maximum overtime (up to 12 hours a week) is allowed. To see greater results while reducing working hours, a flexible working time system that focuses on the characteristics of the work is urgently needed. When I was engaged in wage consultations for a French company responsible for operation of Subway Line 9 in 2006, what the manager told me remains vivid. "Koreans are working 44 hours per week, but are less productive than those who work 32 hours per week." When I thought about it at the time, I figured this was because Koreans are constantly working extended hours and on holidays due to labor market rigidity. Most Korean companies still work from 9 am to 6 pm, Monday through Friday. To be more efficient during these traditional working hours, various flexible working hours urgently need to be introduced into the Labor Standards Act.

The Labor Standards Act includes (i) flexible working hours, (ii) selective working hours, (iii) deemed working hours, and (iv) discretionary working hours, (v) paid time-off leave, etc. Ways to adopt and use these flexible working hours are described in more detail below. Ministry of Employment and Labor (MOEL), “Flexible Working Hour System Guides”, Sept. 2019; MOEL, “Q&As on a Flexible Working Hour System”, Dec. 2017.

1. Purpose

The Labor Standards Act requires written agreement from or consultation with the employee representative for matters such as changes in working hours, etc. “This employee representative refers to the labor union, where there is an organized labor union representing more than half the employees at a business or workplace; or shall refer to a person who represents more than half the employees, where there is no such organized labor union” (Article 24 (3) of the LSA). However, this article does not explain the entire scope of “employee” covered by employee representation, the selected unit or method used in selecting the employee representative, manner of representation, effect of the written agreement, etc. Here, I would like to bring attention to clear administrative guidance and judicial rulings concerning these matters to better understand related laws and operations.

Items Requiring Written Agreement from or Consultation with Employee Representative



2. Scope of “Employee” and Unit Selected for Employee Representation

(1) Scope of “Employee”
The following criterion is used to evaluate whether or not there is an organized labor union representing more than half the employees. The scope of employees participating in voting for the employee representative is calculated as follows:


The term “employer” under the LSA means 1) a business owner, or 2) a person responsible for management of a business or 3) a person who works on behalf of a business owner with respect to matters relating to employees. Here, ‘a person who works on behalf of a business owner with respect to matters relating to employees’ is an employee who has the dual position of employee and employer, and so shall be excluded from employees covered by employee representation. Although he/she is considered an employee to whom agreements apply, he/she acts specifically in the interest of the employer in the course of making written agreements.

(2) Unit Selected for Employee Representation
The employee representative shall be selected from a unit of a business or workplace. Accordingly, in cases where one business is composed of several workplaces, if the company wants to introduce new working hour systems to the business unit, the employee representative shall be selected from that business unit, or if the company wants to introduce items to some designated workplace, the employee representative shall be selected from employees at those workplaces.

3. Choosing the Employee Representative

(1) Where there is an organized labor union representing more than half the employees
Whether the labor union represents more than half the employees shall be estimated in the unit of the business where the employer wants to select an employee representative; and shall be estimated in a unit of the workplace for that unit of the workplace. If the labor union represents more than half the employees, it is taken for granted that the labor union becomes the union representative (e.g. the chairman of the union branch) who has been authorized to represent the labor union.

(2) Where there is no organized labor union representing more than half the employees
Where there is no organized labor union representing more than half the employees, an employee representative shall be selected. In this case, there are no particular restrictions to the method of selection, but in situations where the employees are informed that an employee representative will be authorized to represent them in introduction of a working hour system, it is acceptable to receive employee opinions. Accordingly, direct voting is not always necessary; it is also possible to choose multiple representatives. In cases where a Labor-Management Council has been established by the Act on the Promotion of Workers’ Participation and Cooperation (the Labor-Management Council Act) in a business or workplace to introduce a new working hour system, the employee members can be regarded as employee representatives.
The employee representative for the purpose of consulting with the employer shall be selected by independent and voluntary decision-making by the employees after they are informed of the reason for choosing employee representation. It is also acceptable to choose the employee representative through employees’ general meeting or individual signatures on circulating representative lists. If an employer asks the employees to choose an employee representative, the employees autonomously determine procedures and methods of selection without intervention by the employer, and select someone (even though some employees could not participate) that represents more than half of the employees, the person shall be regarded as the employee representative. MOEL Guides 68207-1472, Nov. 13, 2003.


(3) Invalid employee representatives
Agreement from or consultation with an employee who does not justifiably represent the employees is not legally valid.

1) In cases where a company does not receive written agreement from the employee representative in introducing a three month or less flexible working hour schedule, but instead receives individual written agreements from more than half the employees, this is a violation of related labor laws. MOEL Guides 1167, Apr. 29, 2008.


2) Article 3 of the rules for implementation of the Labor-Management Council Act stipulates that the employee representative shall be selected by direct and secret vote, but this does not include the method of voting. Vote counting is frequently computerized according to laws related to elections, but electronic voting has not yet been stipulated and related technical matters were not yet officially verified, and so it is difficult to accept its official use in reality. MOEL Guides 68107-335, Nov. 12, 1998.


4. Method of Representation by the Employee Representative

(1) In cases where a written agreement is made as a supplement to the collective agreement
In cases where the employer makes a supplementary agreement to the collective agreement with the union chairman or the person commissioned to be the employee representative, the agreement can affect the collective agreement.
(2) In cases where a written agreement is made with an employee representative of the Labor-Management Council
Since a written agreement cannot change the existing collective agreement, if such agreement is incompatible with the current collective agreement, separate procedures to revise the collective agreement shall be taken so as to apply to the employees under the collective agreement. Employees to whom the collective agreement does not apply can be included in the written agreement. This written agreement can be applicable without revising the existing rules of employment. However, revising the existing rules of employment is highly recommended in order to maintain consistency in working conditions.

(3) In cases where a written agreement is made with a new employee representative
The effectiveness is considered to be the same as a written agreement with the employee representative of the Labor-Management Council.



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

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