MOEL Interpretation

Labor Standards Act

Rules of Employment


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155 Records
155.As part of rationalizing corporate management, the organizational structure and staffing have been expanded and reorganized, and accordingly, some unreasonable staffing numbers in the current structure were reduced and job grades were downgraded. Article 12 of the collective agreement states, “When establishing or revising employment rules or other regulations related to union members, the union’s opinion must be heard, and if the employment rules cause disadvantages to workers, the union’s consent must be obtained.” In Article 2 of the supplementary provisions to the draft revision of the organizational regulations, it is stated as a transitional measure that “only for the reduced personnel and the current employees whose job grades are downgraded due to the enforcement of this regulation, the previous job grades and staffing shall be maintained separately.” For reference, Supreme Court precedent (June 23, 1992, case 91Da19210) holds that “working conditions refer to the terms set between employer and employee regarding wages, working hours, welfare, dismissal, and other treatment of employees. The staffing chart specified in the organizational regulations does not directly regulate the employment relationship but merely sets criteria for allocating employees to each department and rank, and therefore does not constitute working conditions.” Also, there is a precedent that “when a company revises its pay regulations to introduce a new allowance while simultaneously amending the retirement pay regulations to exclude the newly introduced allowance from the base wage calculation for retirement pay, there is no change in the amount of retirement pay before and after the amendment, so it does not deprive existing employees of vested rights or benefits, and therefore cannot be regarded as a disadvantageous revision to employees” (Supreme Court, August 26, 1997, case 96Da1796). (Question 1) Does the above-described change in organizational structure qualify as a working condition? (Question 2) In the case of a transitional measure during organizational changes, when the reduced personnel and downgraded job grades under the revised organizational regulations are compensated by preserving previous job grades and staffing, does this still count as a disadvantageous change to employment rules requiring union consent?
154.○○ Automobile High School (hereinafter “the school”) is established and operated by the ○○ Gospel Foundation (hereinafter “the foundation”) and is subject not to the Private School Act but to the Lifelong Education Act. Therefore, the working conditions of school staff are determined not by the Education Public Officials Act or the Private School Act, but under the Labor Standards Act and the Trade Union and Labor Relations Adjustment Act. The foundation, aiming to operate the school efficiently, unilaterally drafted the “Rules on the Operation of the School” (hereinafter “operation rules”) and presented them to the school staff. The operation rules consist of Chapter 1 General Provisions, Chapter 2 Organization, Chapter 3 Personnel, Chapter 4 Budget and Settlement, Chapter 5 Compensation, Chapter 6 Assignment of Duties, Chapter 7 Attendance, Chapter 8 Rewards, Chapter 9 Discipline, and Supplementary Provisions. As the table of contents shows, it regulates all matters concerning the working conditions of the school staff. The question is whether these operation rules qualify as employment rules. The school staff joined the school under oral labor contracts without a fixed term. However, when the foundation established the operation rules, it required staff to sign short-term one-year contracts. The staff clearly stated that converting their status from regular employees to short-term contract workers would constitute a disadvantageous change in working conditions to which they could not agree. Yet, the foundation claims that since the staff are non-regular teachers who are not subject to the Education Public Officials Act or Private School Act, they are naturally non-regular (short-term contract) employees. The question is whether, as the foundation claims, the staff are naturally non-regular employees because they are not covered by the Private School Act.
153.Since its founding, Company “Gap” has customarily carried out rotation assignments (job rotations) every 2 to 3 years during the year-end regular personnel transfers. To rationalize this practice, the company intends to establish new regulations on rotation assignments. The new regulation states that rotation assignments, which had been carried out every 2 to 3 years as a custom, will now be implemented every 3 years. These rotation assignments mainly occur within the same job category, and in exceptional cases where the job category changes, the company conducts separate interviews with the affected employees considering their ability and aptitude. When enacting the rotation assignment regulations, Company “Gap” plans to hold labor-management consultations and discuss with employee representatives before the end of this year, when the new personnel transfer will be implemented. The questions are: Should the newly drafted “Job Transfer Regulation” be considered part of the employment rules and thus require obtaining consent or at least opinions from the workers under the Labor Standards Act? Or, since this regulation is not a direct working condition but rather documents a personnel transfer practice previously conducted customarily, is it acceptable to proceed without any special procedures? Alternatively, does this matter fall under labor-management consultation according to the Act on the Promotion of Worker Participation and Cooperation, collective agreements, or labor-management council regulations, thus requiring labor-management consultation? For reference, Company “Gap”’s collective agreement states: “The company must agree with the union to establish or amend employment rules and other regulations directly related to the working conditions and treatment of all union members.” Separately, it also states: “The company must consult the union when establishing new personnel standards.” Furthermore, both the collective agreement and labor-management council regulations require consultation with employee representatives on personnel matters.
152.Whether a change in the number of lecture weeks in the academic regulations of a private university constitutes employment rules and whether it constitutes a change in working conditions. Also, whether the one-week gap resulting from reducing the lecture weeks from 16 to 15 requires payment of a suspension allowance under the Labor Standards Act.
151.Background Under the □□ Foundation operate A University and A Computer Institute (hereinafter referred to as “the Institute”). The Institute was licensed by the Seoul Metropolitan Office of Education in February 1979 as a computer technology vocational school, training specialized computer technicians, and is composed of general staff and 12 full-time faculty members (professors). Around March 2009, after a change in the representative, the new director arbitrarily revised and promulgated the “Full-time Faculty Performance Evaluation Regulations,” which are detailed enforcement rules related to Article 8 (Reappointment) of the “Educational Personnel Regulations” that previously applied only to full-time faculty. Since the faculty evaluations under the revised regulations serve as important grounds for personnel decisions related to faculty reappointment, there is concern that in the currently indefinite-term employment relationship, this could lead to termination or other issues, thereby worsening existing working conditions. This inquiry is made to preempt possible future legal disputes. Inquiry Details If the “Full-time Faculty Performance Evaluation Regulations,” which are enforcement rules related to reappointment of full-time faculty at A Computer Institute, are revised as described above, Considering that the new regulations effectively extend working hours, increase workload, and can even determine the continuation of the employment relationship between the Institute and the full-time faculty—thus constituting a downward change in working conditions—whether these regulations can be regarded as employment rules, If so, whether such changes are considered disadvantageous, and whether the revised “Full-time Faculty Performance Evaluation Regulations” are valid.
150.When interpreting the wording and intent of Article 76 (Safety and Health) and Article 93 (Preparation and Reporting of Employment Rules), Item 9 (Matters concerning Safety and Health) of the Labor Standards Act, and Article 20 (Safety and Health Management Regulations) of the Industrial Safety and Health Act: Whether Chapter 10 “Safety and Health” of the Employment Rules of our corporation under Article 93 of the Labor Standards Act can be considered the Safety and Health Management Regulations under Article 20 of the Industrial Safety and Health Act. Whether Chapter 10 “Safety and Health” of our corporation’s Employment Rules under Article 93 of the Labor Standards Act can be considered safety and health provisions within a collective agreement. If Chapter 10 “Safety and Health” of our corporation’s Employment Rules under Article 93 of the Labor Standards Act is considered the Safety and Health Management Regulations under Article 20 of the Industrial Safety and Health Act, whether the creation or revision of the Safety and Health Management Regulations must be regarded as part of the employment rules and reported to the competent local labor office.
149.In the early 1990s, a salary regulation, which is part of the employment rules, was first established and implemented. Article 24 of the salary regulation states that “bonuses are governed by separate guidelines” (which have not been revised since). After establishing the salary regulation, the employer did not create or operate any separate detailed guidelines or rules but increased the bonus payment annually by 100% increments based on the president’s verbal instructions as follows: 200% ⇒ 300% ⇒ 400% ⇒ 500%. On April 25, 1995, through an internal draft, a proposal for the 1995 employee salary and bonus increase was prepared, and the next day it was approved by the CEO/president and implemented immediately. The draft increased the bonus payment rate from last year’s 500% to 600%, changed the payment timing accordingly, and included at the bottom a clause in the bonus payment policy stating: “Notwithstanding the above provisions, payment may increase or decrease according to management performance or order achievements.” (Question 1) Whether the internal draft prepared and implemented on April 25, 1995, falls within the broad meaning of employment rules. (Question 2) Whether the employer must obtain the consent of the majority of employees for the internal draft document (a detailed rule of the salary regulation) to become effective.
148.Company A operates a factory producing and handling DNT using toluene as a raw material. Due to exposure concerns to carcinogenic substances during handling of raw materials and products, the manual stipulates steam washing of work clothes and mandatory bathing for workers who work more than 6 hours. Since 1987, after regular 8-hour shifts, an additional 1-hour bathing time has been allowed, with 1 hour of overtime pay and separate transportation arranged for leaving work. Recently, however, the company claimed that due to technological changes and system improvements, and citing no similar practice at other companies with the same production process, it proposed abolishing the 1-hour bathing overtime pay. On October 22, it issued a work directive to bathe within working hours and stopped providing separate transportation after work. On October 24, workers bathed during working hours, and the company asserted no overtime occurred, offering a fixed allowance instead. Despite having such an internal manual, does the company’s unilateral change violate Article 94 of the Labor Standards Act requiring majority union consent for disadvantageous changes to employment rules? Is it legitimate for the company to unilaterally convert the bathing overtime pay to a fixed allowance without union consent? (Considering the 1-hour overtime pay averaged about 400,000 KRW per month per employee, offering 50,000 KRW as a fixed allowance—is this an unlawful wage reduction?)
147.Change in administrative interpretation regarding the effect of employment rules at workplaces with fewer than 10 employees
146.Under Article 96 of the Labor Standards Act [currently Article 93], employers who regularly employ 10 or more workers are required to prepare and report employment rules. Concerning the reporting of employment rules for daily workers employed within budget limits by government offices: (Question 1) Should the determination of “10 or more regular employees” include public officials exempted from the Labor Standards Act when reporting employment rules? (Question 2) Should the reporting be done separately for each unit of national/public schools under the education office, or can the education office report a single set of employment rules covering the daily and miscellaneous workers of all such schools? (Question 3) If daily or miscellaneous workers change frequently with short-term contracts and do not work continuously over a one-year period, is it still necessary to report employment rules?
145.○ Our corporation operates ○○ High School (a self-governing private high school), and in establishing employment rules for faculty and staff, we face difficulties in determining the scope and priority of application between the Ministry of Education’s relevant laws (such as the Elementary and Secondary Education Act, the Educational Officials Act, the Private School Act) and the Labor Ministry’s Labor Standards Act. ○ Upon receiving a notice from the Labor Ministry to file employment rules, we consulted the Ministry of Education and the relevant education office during preparation, and were advised that while private school faculty are not public officials, the Private School Act, Educational Officials Act, and Elementary and Secondary Education Act may be applied mutatis mutandis. ○ When the same question was posed to a labor law firm, we were told that for all workers except regular teachers (teachers reported to the education office), employment rules based on the Labor Standards Act must be applied. Inquiry details: For workplaces with 10 or more employees as stipulated in the Labor Standards Act, do private schools also have to establish employment rules? If employment rules must be established, when there are differences between the Ministry of Education’s and Labor Ministry’s laws (e.g., 40-hour workweek, leave regulations), which law should form the basis of the rules? What is the scope of employees who can follow the Ministry of Education’s laws (such as the Private School Act), and are there employees who must apply the Labor Standards Act?
144.(Inquiry 1) After Company A acquires a business from Branch B, which employment rules apply to employees newly hired by Company A? Are they: (i) Company A’s employment rules? (ii) Branch B’s employment rules? (iii) Or can the new employees or Company A individually choose? (Inquiry 2) Is it possible for Company A to establish and implement separate employment rules exclusively for newly hired employees?
143.Our labor union is an industrial union composed of workers engaged in film production (film staff). Under the current Labor Standards Act, the obligation to prepare employment rules applies to employers who employ 10 or more workers. In the film production industry, approximately 30 to 50 staff are employed on short-term contracts for 3 to 5 months when producing a film. During periods when no film is being produced, the number of regular employees is mostly fewer than 5. In other words, this industry has project-based characteristics similar to the construction industry. Considering this, there is legal ambiguity about whether film production companies are obligated to prepare employment rules, so we inquire as follows: Inquiry regarding the obligation to prepare employment rules at Workplace A: Employment situation at Workplace A: “From January 1 to December 31, 2006: 5 full-time office staff employed” “From July 1 to October 31, 2006: 30 field staff employed, all with the same contract period” (Inquiry 1) Is it possible to have multiple employment rules? We ask whether the same employment rules apply to full-time office staff and field staff. Office staff mainly perform accounting and PR tasks for the film company, while field staff are engaged in production activities such as filming, lighting, and art. (Inquiry 2) If it is concluded that different employment rules can be applied to office staff and field staff, is Workplace A obligated to prepare employment rules only for the field staff? Our union’s view: For 30 field workers who signed short-term contracts from July 1 to October 31, 2006, the number of regular employees is calculated as 30 × (4 months / 12 months) = “10 employees,” thus the workplace is subject to the obligation to prepare employment rules.
142.The employment rules stipulate that an employee who receives a disciplinary action shall have their promotion withheld once. Separately, for those who receive a major disciplinary action, there is a provision that after a certain period following the disciplinary measure, the withheld promotion shall be restored. However, there is no such provision for minor disciplinary actions, which results in employees with minor disciplinary actions being treated less favorably than those with major disciplinary actions. In this case, can the employment rules be interpreted so that employees with minor disciplinary actions also have their withheld promotion restored at the same time as those with major disciplinary actions?
141.Our corporation was established in 1997 under the Local Public Enterprises Act, and employee (union member) wages are paid based on wage agreements between labor and management as well as the corporation’s wage regulations. However, there is a disagreement between labor and management regarding the interpretation of the corporation’s wage regulations and detailed wage regulation enforcement rules, which serve as the basis for paying family allowances. Specifically, according to the proviso in Article 5, Item 5, Subparagraph (a) of the wage regulation enforcement rules, which states, "However, family members who live separately from the employee due to reasons such as schooling, medical treatment, housing circumstances, or the working conditions of employees," we inquire whether family members who do not share the same household registration (especially parents) with the employee can be eligible for the family allowance as dependents.
140.Article 23 of the employment rules states that "employees may receive paid leave upon approval from their immediate supervisor (branch manager)," in cases of work-related injury or illness. Meanwhile, Article 28 of Chapter 7 (Medical Compensation for Work-Related Injury or Illness) of the same rules, titled "Work-Related Accidents," states that "employees shall receive compensation for work-related death or injury according to the Labor Standards Act and the Industrial Accident Compensation Insurance Act." Given these two overlapping provisions, we believe that in accordance with the principle of applying the more favorable condition to the employee, Article 23 should take precedence. What is your opinion on this?
139.Recently, our union has raised a request regarding voluntary retirees engaged in sewing and construction businesses who hold caregiver qualifications, asking the corporation to rehire them as new employees (fixed-term workers) at the Veterans Nursing Home, a welfare facility operated by the corporation. We ask for clarification on the following key issues: Whether rehiring voluntary retirees as caregivers at the Veterans Nursing Home under a different job category constitutes “reappointment” under Article 44-2 of the corporation’s personnel regulations. Although Article 44-2 stipulates that honorary retirement benefits must be reclaimed upon reappointment after honorary retirement, whether this provision can also be applied to voluntary retirement cases. Whether entering into a collective agreement that lowers working conditions (wages) when rehiring voluntary retirees as caregivers violates labor relations laws or other relevant laws.
138.Our company’s wage system is based on an annual salary system where all employees sign either an annual salary contract or a labor contract. However, the labor contract only specifies general wages and working conditions, and the rest are governed by the employment regulations. Additionally, there are two types of employment rules: the “Employment Regulations” applicable to regular employees, and the “Contract Workforce Management Guidelines.” Notably, the Employment Regulations for regular employees simply state “employees” as the scope of application without special restrictions, whereas the Contract Workforce Management Guidelines apply only to contract workers and do not explicitly extend to permanent contract employees. Therefore, for the eight employees hired as contract workers after 2008 and later converted to permanent contract status, which regulations—Employment Regulations or Contract Workforce Management Guidelines—should apply to their working conditions and welfare benefits? The company currently applies the Contract Workforce Management Guidelines to employees converted to permanent contract status without creating or adjusting any new rules specific to the new job category or expanding applicability. Can permanent contract employees claim welfare benefits stipulated in the general Employment Regulations from the employer?
137.Hospital A conducted industrial and central negotiations to convert non-regular employees into regular employees. Accordingly, non-regular employees who were subject to a mandatory retirement age of 57 under the “Annual Contract Temporary Worker Employment Rules” were converted to regular employees based on the results of negotiations (Central Agreement for Regional Medical Centers). However, after becoming regular employees, they are subject to the regular employee personnel regulations’ “Appointment Standards and Retirement Age Table by Job Category,” which stipulates a retirement age of 55 for regular employees. Among the two employees converted to regular status, one has already passed age 55 and the other has just reached age 55. The question is which retirement age should apply to them. For reference, even if these two employees had not become regular employees, under the collective agreement they could have received equal pay and treatment comparable to regular employees. Despite this, the hospital claims the retirement age applies upon their conversion to regular status without consulting their intention.
136.Article 19, Clause 1 of the company’s employment rules sets the mandatory retirement age at 58. Article 19, Clause 4, revised on February 9, 2004, states that the union chairman (union leader) elected as an officer of the labor union may have their employment extended until the end of their term. According to the employment rules, other union members are terminated from employment at the age of 58 and classified as contract workers, rehired by the company on a one-year contract basis individually. The current union chairman (union leader) is 62 years old and has a remaining term of 3 months and 23 days (total 113 days). The chairman used their influence to run unopposed and was re-elected as union chairman on February 6, 2009. If an individual whose employment has been extended until the end of their term on May 31, 2009, under Article 19, Clause 4, is re-elected as a union officer, can the same clause be applied again to extend employment until the new term’s end on May 31, 2012?
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