MOEL Interpretation

Labor Standards Act

Employment Contract


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144 Records
144.A person who worked as a commissioned researcher at the ○○○○ Research Institute under the □□ Ministry, and was subsequently hired as a worker or employee without any break in the service period, and is currently working, should their commissioned researcher period be included in the calculation of continuous service years upon retirement?
143.The total construction period is 16 months, and the supervision service period is 1 year. The supervisor begins work only after receiving approval from the client to start. After signing the employment contract, the worker must separately obtain the client’s approval for on-site work. The company and worker mutually recognize this situation, and the employment contract period is set as “from the day the work order is received until project completion.” Until the client issues a work order, the worker stays at home handling personal matters. The worker visited the site 2–3 times to check the location and to ask acquaintances to be hired by the on-site construction company. Since there were no work orders from either the client or the company, but the worker did visit the site, should the company pay the worker’s salary? Should the waiting period at home be considered leave (suspension) and therefore require payment of leave (suspension) allowance? Or, since there were no work orders from the client or the company as per the contract terms, is the worker not entitled to salary or leave allowance?
142.According to Article 43, Clause 1 of the employment regulations of our apartment complex management office, “Employees shall retire automatically at the end of the month in which they reach the age of 60.” The management notified the employee of retirement 30 days in advance based on this rule. However, the employee objected, stating that “Since the employment contract period has not yet expired, I should work until the contract expiration date and then retire.” We ask whether the retirement rule in the employment regulations or the employment contract takes precedence.
141.Method for calculating continuous service for annual leave entitlement when a contract worker resigns and is subsequently hired as a regular employee. Our hospital employs about 200 contract workers on fixed-term contracts and typically hires from among them when regular staff vacancies occur. Contract workers are clearly designated as fixed-term (1 year) contract employees at recruitment and contract signing, and are evaluated annually; only those who achieve a certain score have their contracts renewed. When a regular vacancy or increase in personnel occurs, regular appointments are made from contract workers in order of contract seniority unless there are special circumstances, and their prior service is fully recognized. Upon appointment as a regular employee, all previous contract employment contracts are terminated (resignation letter submitted, severance pay and annual/monthly leave allowances settled), and a new contract as a regular employee is formed, applying the hospital’s internal regulations (contract employees are governed by the “Contract Employee Management Guidelines”).
140.I work at the Osan-ri ○○ Prayer Center. Regarding the concept that "the mandatory retirement age is 65," in my opinion, I believe the retirement date should be January 20, 2006, when the person completes 65 years of age. However, my workplace says the retirement date is January 20, 2005, the day the person turns 65. Please provide a detailed response based on solid grounds as to which interpretation is correct.
139.An elderly person works as a security guard at a private building. According to the attached employment contract, no severance pay will be provided. The working hours are from 08:00 to 19:00, 11 hours per day. I understand the standard working hours are 8 hours per day and a 5-day workweek in our country. Although contracted as a security guard, the worker also performs cleaning duties. The ○○ Building employs someone else to do cleaning twice a week at 50,000 KRW per day. Can this person receive 100,000 KRW per week for cleaning? Or, since cleaning is not part of their contract, do they not have to perform cleaning duties?
138.I was born on June 30, 1949 (lunar calendar) and have been leading a normal life and working steadily. When I was born, my parents followed the custom of using the lunar calendar, so my birthdate was registered in the family register as per the lunar calendar. When I joined the company on February 15, 1976, my personnel records also listed my birthdate according to the lunar calendar, and I have worked faithfully until now. In September 2003, I applied to the Gwangju District Court (my place of origin) to correct my birthdate to the solar calendar, which was approved, and the family register and resident registration were both updated to July 25 (solar calendar). I submitted the corrected documents to the HR department, but the company has not accepted the court’s correction of the family register. According to the company’s personnel regulations, retirement occurs at the end of June or December. I received a personnel order on July 1, 2005, pursuant to a wage peak system (an agreement between labor and management implemented in July 2004). Since I corrected my birthdate from June 30 to July 25, I believe I fall under the wage peak system starting January 1, 2006. Because the company and I hold conflicting views on this matter, I am inquiring. Since the family register and resident registration were corrected, the retirement date should change accordingly. (Reason) According to a 1992 Supreme Court ruling (Case No. 92Da11824, invalidity of retirement confirmation) and legal advice provided to the company’s legal department (requested by HR), "If there is no evidence that treatment was agreed based solely on the birthdate listed at the time of employment, the retirement date must be set based on the corrected birthdate." Since my change was simply correcting the lunar date to the solar date, citing this ruling is reasonable. The retirement date should be based on the birthdate reported to the company at the time of hire (lunar June 30). (Reason) As seen in The Hankyoreh newspaper (online, March 27, 2005) and Seoul Yonhap News (June 2, 2004, district court ruling), "In the case of Mr. A (age 59), employed by a government-funded company, who requested a change in personnel records only three months before retirement, the court ruled that retirement based on the original record is justified." Therefore, even if the court corrected the lunar birthdate to the solar birthdate, Argument B is valid.
137.I joined a major corporation in 1990 and was transferred in 2000 to an affiliated company specializing in building management. I worked at headquarters until September 2006, and then in October of the same year, I was transferred from headquarters to the building management office, where I am currently working. However, since being transferred to the building management office, the headquarters has made the following unfair demands or actions. I ask whether these are illegal and what remedies are available. Please provide a response. Since my hire in 1990 and until my transfer to the building management office, I received my salary on the 25th of every month. However, from October, when I was transferred to the building management office, the HR team unilaterally notified me that the payday would be changed to the 7th of the following month, and that my employment contract must also be changed accordingly. In addition, year-end performance bonuses have only been paid to regular employees at headquarters each year, but now that I have been transferred to the building management office, they say I will no longer receive such bonuses from this year onward. Unilaterally changing or delaying the payday constitutes a breach of contract and wage arrears. Refusing to pay the year-end bonus, which was given to all regular employees at headquarters, simply because my work location and position changed, is discriminatory treatment and may amount to an unfair labor practice. For your reference, the company currently distinguishes between regular employees at headquarters and contract employees working at the building management office, and there are significant differences in salary and working conditions. I was hired as a regular employee from the beginning.
136.Although the employment regulations state that work is only required for 4 days during both summer and winter vacations, lunch workers worked 10 days and dinner workers worked 9 days during the summer vacation supplementary class period from July 19 to August 13. ‒ Can the food service workers claim additional wages for the extra days worked? ※ Reference Information ※ Lunch food service workers have an annual workday basis of 250 days, and dinner workers 240 days. The school notifies the food service workers of the annual salary amount and annual standard working days at the beginning of the new school year, including the meal service days during vacations (refer to employment regulations and workdays chart). ‒ Lunch: Prescribed workdays 196 days (166 days during semester meal service, 19 days during vacation meal service, 11 days for meal preparation), plus 54 days of Sundays and holidays ‒ Dinner: Prescribed workdays 186 days (161 days during semester meal service, 19 days during vacation meal service, 6 days for meal preparation), plus 54 days of Sundays and holidays Argument A: According to the food service workers’ workdays calculation table, meal service days include both semester and vacation periods. It is reasonable to interpret meal service days as those when students require meals due to classes, so meal service days do not necessarily only mean during the semester. Furthermore, the employment regulations specify that the principal determines the workdays and work methods for accounting staff according to Appendix 2 of the regulations. The principal then sets the workdays based on Appendix 2 and notifies the food service workers of the annual salary amount and standard workdays at the start of the school year (including meal service days during vacations). The food service workers have worked according to that schedule and have received all due wages, so there are no unpaid wages. Therefore, meal service work during supplementary summer vacation classes cannot be considered additional work nor result in unpaid wages. Argument B: The employment regulations and Appendix 2 state that only 4 days each during summer and winter vacations are workdays, and any days worked beyond those 4 are unpaid holidays. Therefore, working beyond 4 days during vacation is overtime work. Also, supplementary classes are not part of the official academic calendar; teachers receive separate allowances for supplementary classes, and the principal and administrative director receive separate management allowances. Therefore, the food service workers should also be recognized as working overtime during vacation supplementary classes.
135.If there is no clause in the rules of a public corporation restricting resignation due to misconduct, when a person involved in misconduct submits a resignation letter, does the resignation automatically take effect after 30 days from submission, even if the corporation does not formally accept the resignation, pursuant to Article 660 of the Civil Act? Also, even though Article 600 of the Civil Act and internal regulations have no restriction clauses, can resignation be restricted if there is a "reasonable cause"?
134.If an employee submits a resignation letter and subsequently submits a request to withdraw the resignation, is it permissible for the company to arbitrarily decide whether to process the resignation or the withdrawal based on internal company policy? If the employee who submitted the resignation letter also submits a withdrawal request, does the company’s processing of the resignation violate relevant laws and regulations? On June 17, 2014, around 10:00 AM, Mr. A submitted resignation letters for himself and nine others to the company all at once. The company contacted eight of those individuals (excluding Mr. A) around 3:00 PM on June 17 to confirm whether they truly intended to submit the resignation letters; they confirmed it was their own decision. Afterwards, the employees submitted requests to withdraw their resignations on June 17, 18, 19, and 20.
133.In the following situation, from when should the individual be considered a newly hired driver of the company? Prospective drivers undergo a route training period of about one month before signing the labor contract to learn the route. During the trainee period, the trainee driver rides along with an experienced driver, directly transporting passengers, and then, based on employment requirements, officially signs the labor contract and receives formal appointment. ∘ The prospective driver voluntarily rides for about 20 days to learn the route, and during about 10 days of the trainee period, directly transports passengers under the company’s supervision. ∘ The existing drivers work about 15 hours per day, while the prospective driver’s actual working hours are about 5 hours per day.
132.If a teacher who worked continuously until 2012 is reselected through a public recruitment process in December 2012 and signs a new labor contract with the city/county/district (from January 1 to December 31, 2013), should the city/county/district recognize this as continuous employment under the obligation of employment succession? The child welfare teacher support project selects teachers to work the following year through a public recruitment process at the end of each year and signs a one-year contract (January 1 to December 31) renewed annually. From July 2007 to December 31, 2012, regional child centers’ city/provincial support groups were entrusted with hiring, dispatching, and payroll management of child welfare teachers, but starting January 1, 2013, the city/county/district took over direct management. The city/provincial support groups have regarded those rehired after working the previous year as continuous workers for calculating annual leave and severance pay.
131.Our company’s retirement age is set at 57 in the employment regulations, but currently many employees are working beyond retirement age (some even in their late 60s). When employees work beyond retirement age, is it sufficient for the company to just keep a standard labor contract and let them work, or must a separate contractual work agreement (contract for contract work) be drawn up and used?
130.Questions regarding the following: Is it possible to set prescribed working hours within a range (e.g., 3 to 6 hours per day)? If there is an agreement that the workdays and working hours follow a schedule set by the employer, can the employer unilaterally set the weekly schedule without prior consultation with the employee?
129.Questions regarding the following: Is it possible to set prescribed working hours as a range (e.g., 3 to 6 hours per day)? If there is an agreement that workdays and working hours follow a schedule set by the employer, can the employer unilaterally set the weekly schedule without prior consultation with the employee?
128.Whether concluding an electronic employment contract through an electronic employment contract system satisfies the requirement of specifying working conditions and providing written documents under Article 17 of the Labor Standards Act. An electronic employment contract system was introduced to improve convenience for preparing employment contracts and receiving resignation letters at workplaces scattered nationwide. The electronic employment contract system installs an internal computer network, where the company inputs the main terms of the employment contract, and employees, after personal authentication, complete the contract by electronically signing on their smartphones. The electronic contract is stored on the company server, and employees can verify and print the electronic contract by authenticating themselves.
127.The relationship between Article 17 of the Labor Standards Act (Specification of Working Conditions) and Article 17 of the Act on the Protection of Fixed-Term and Part-Time Workers (Written Specification of Working Conditions), and whether penalties under each law can be applied.
126.Our company plans to change the existing wage payment method, which paid daily wages multiplied by man-hours, and from now on pay based on the construction volume of rebar multiplied by a unit price (₩165,000 per ton) for new sites. Under this method, a skilled worker constructs about 0.8 tons per day, so if they work 9 hours a day, they receive ₩132,000; a helper may construct about 0.6 tons per day and receive ₩99,000. There is no separate basic salary, overtime pay, holiday work pay, or annual leave; the labor contract would be made solely based on multiplying the construction volume by the unit price. The company and the labor union have differing views on this method: Company’s position According to Article 47 of the Labor Standards Act (Contract Workers), “Employers must guarantee a fixed wage based on working hours for workers hired under contracts or similar systems.” Paying contract wages based on construction volume multiplied by unit price is not illegal, and since the total monthly wage divided by working hours does not fall below the minimum wage, it is not unlawful. Labor union’s position Wages should be calculated separately for 8 hours of basic pay, overtime pay for work beyond 8 hours, and holiday work pay for Saturdays and Sundays, but this legal standard was not followed. Also, contract wages fall under prohibited re-subcontracting under the Framework Act on the Construction Industry, so it is illegal.
125.The city of ○○ entered into labor contracts with part-time workers stating “normal work of 2 hours per day (14 hours per week), plus 2 hours of overtime per day (except Saturdays) (12 hours per week).” In this case, should the 12 hours of overtime per week be included in the prescribed working hours? If included, the prescribed weekly working hours would be 26 hours, so would these workers be entitled to weekly and monthly paid leave under Article 55 (weekly leave) and Article 60 (monthly leave) of the Labor Standards Act? Would they also be eligible for severance pay under Articles 3 and 4 of the Employees’ Retirement Benefit Security Act?
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