[Enforcement Date 16. Jul, 2019.] [Presidential Decree No.29964, 09. Jul, 2019., Partial Amendment]
Ministry of Employment and Labor (Wage and Working Hours Division - Break, Special Types of Business) , 044-202-7972 Ministry of Employment and Labor (Female Employment Policy Division - Women) , 044-202-7475 Ministry of Employment and Labor (Labor Standards Policy Division - Dismissal, Employment Rules, etc.) , 044-202-7534 Ministry of Employment and Labor (Labor Standards Policy Division - Wages) , 044-202-7548 Ministry of Employment and Labor (Labor Standards Policy Division - Juveniles) , 044-202-7535 Ministry of Employment and Labor (Labor Standards Policy Division) , 044-202 -7546 Ministry of Employment and Labor (Wage and Working Hours Division - Article 63 does not apply, public holidays) , 044-202-7545 Ministry of Employment and Labor (Wage and Working Hours Division - Working hours, annual leave) , 044-202-7973 Ministry of Employment and Labor Hours and flexible working hours) , 044-202-7549
Article 1 (Purpose)The purpose of this Decree is to provide for the matters mandated by the Labor Standards Act and those necessary for the enforcement thereof.
Article 2 (Period and Wages Excluded from Calculation of Average Wages)(1) Where a period for the calculation of average wages under Article 2 (1) 6 of the Labor Standards Act (hereinafter referred to as the "Act") includes any of the following periods, such period and wages paid during that period shall be subtracted respectively from the period and the total amount of wage serving as the basis for the calculation of average wages: <Amended by Presidential Decree No. 20803, Jun. 5, 2008; Presidential Decree No. 22687, Mar. 2, 2011; Presidential Decree No. 23946, Jul. 10, 2012; Presidential Decree No. 27619, Nov. 29, 2016; Presidential Decree No. 29964, Jul. 9, 2019>
1. A period not exceeding three months from the date on which an employee on probation starts working as a probationary employee after concluding a labor contract;
2. A period during which the employer's business is closed because of a cause attributable to the employer under Article 46 of the Act;
3. A period of maternity leave under Article 74 of the Act;
4. A period of temporary suspension of medical treatment due to occupational injury or disease under Article 78 of the Act;
5. A period of child-care leave under Article 19 of the Act on the Equal Employment Opportunity and Work-Family Balance Assistance Act;
6. A period of labor disputes under subparagraph 6 of Article 2 of the Trade Union and Labor Relations Adjustment Act;
7. A period of temporary retirement from office or absence from office in order to perform a duty under the Military Service Act, the Reserve Forces Act, or the Framework Act on Civil Defense: Provided, That this shall not apply to a period during which wages have been paid;
8. A period of temporary retirement from office due to a non-occupational injury or disease, or any other cause with the employer's approval.
(2) Wages and allowances paid on a temporary basis and wages paid by any means other than money shall not be included in the total amount of wages under Article 2 (1) 6 of the Act: Provided, That the same shall not apply to those specified by the Minister of Employment and Labor. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 3 (Average Wage of Daily Hire Employee)The average wage of a daily hire employee shall be the amount determined by the Minister of Employment and Labor according to the classification of business and occupation. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 4 (Average Wage in Special Cases)Where it is impossible to calculate an average wage in accordance with Article 2 (1) 6 of the Act and Articles 2 and 3 of this Decree, such an average wage shall be as determined by the Minister of Employment and Labor. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 5 (Adjustment of Average Wage)(1) The average wage applicable to the calculation of compensation, etc. for the employee pursuant to Articles 79, 80, and 82 through 84 of the Act shall, when the average amount of monthly ordinary wage per employee (hereinafter referred to as the "average amount") paid to employees in the same business category in the same business or workplace to which the relevant employee belongs has changed by at least five percent from the average amount paid in the month when an injury or a disease occurs, be such amount increased or decreased at the aforesaid rate of change, but such rate shall apply to the month immediately following the month of occurrence of grounds for change and the months subsequent thereto: Provided,That the second or latter adjustment of average wages shall be calculated based on the average amount of the month in which a cause for immediately preceding change occurred.
(2) Where the business or workplace to which the relevant employee belongs is permanently closed down, the adjustment of average wage under paragraph (1) shall be based on a business or workplace with the same business type and scale as at the time when an occupational injury or disease was inflicted on the employee.
(3) If there is no employee engaged in the same occupational category as the relevant worker, the adjustment of the average wage under paragraph (1) or (2) shall be based on employees engaged in the occupation of similar category.
(4) The average wage applicable to the computation of the retirement benefits under Article 8 of the Act on the Guarantee of Employees' Retirement Benefits, which shall be paid to an employee who suffers from an occupational injury or disease in accordance with Article 78 of the Act, shall be the average wage adjusted in accordance with paragraphs (1) through (3).
Article 6 (Ordinary Wage)(1) For the purposes of the Act and this Decree, "ordinary wage" means hourly wage, daily wage, weekly wage, monthly wage, or contract amount to be paid to an employee for a specifically agreed work or entire work on a regular and flat basis.
(2) Where the ordinary wage under paragraph (1) is calculated on an hourly basis, the following formula shall apply to such calculation: <Amended by Presidential Decree No. 29010, Jun. 29, 2018>
1. The amount agreed upon as an hourly wage, if a wage is paid on an hourly basis;
2. The amount obtained by dividing a daily wage by the contractual working hours per day, if a wage is paid on a daily basis;
3. The amount obtained by dividing a weekly wage by the number of standard hours (referring to the hours calculated by aggregating the contractual working hours per week and the hours counted as paid working hours besides the contractual working hours) for the calculation of the weekly ordinary wage, if a wage is paid on a weekly basis;
4. The amount obtained by dividing a monthly wage by the number of standard hours (referring to the hours obtained by dividing by 12 the number calculated by multiplying the number of standard hours for the calculation of the weekly ordinary wage by the average number of weeks per year) for the calculation of the monthly ordinary wage, if a wage is paid on a monthly basis;
5. The amount obtained by applying subparagraphs 2 through 4 mutatis mutandis, if a wage is paid on a specific time basis other than on a daily, weekly or monthly basis;
6. The amount obtained by dividing a total sum of wages calculated on a contractual basis for the period for the calculation of the wages by total working hours during the same period (referring to the wage settlement period, if there is a date set for the settlement of wages), if a wage is paid on a contractual basis;
7. The amount obtained by adding up the amounts calculated in accordance with subparagraphs 1 through 6, if at least two different types of wages set forth in subparagraphs 1 through 6 are paid.
(3) Where the ordinary wage under paragraph (1) is calculated on a daily basis, such ordinary wage shall be calculated by multiplying an hourly wage under paragraph (2) by the contractual working hours per day.
[Enforcement Date] The amended provisions of Article 6 (2) 3 and 4: Following dates:
(a) Business or workplaces in which at least 300 employees are regularly employed; public institutions under Article 4 of the Act on the Management of Public Institutions; local government-invested public corporations or local public agencies under Article 49 or 76 of the Local Public Enterprises Act; institutions or organizations at least 1/2 of the capital or endowment of which is invested or contributed by the State, local government or government-invested institutions; institutions or organizations at least 1/2 of the capital or endowment of which is invested or contributed by the above-mentioned institutions or organizations; and institutions affiliated to the State or local governments: July 1, 2018 (referring to July 1, 2019 in the case of a business category to which exceptions to the provision on working hours or rest breaks at work are not applicable pursuant to the amended provisions of Article 59 of the Labor Standards Act (Act No. 15513));
(b) Business or workplaces in which at least 50 and less than 300 employees are regularly employed: January 1, 2020;
(c) Business or workplaces in which at least five and less than 50 employees are regularly employed: July 1, 2021.
Article 7 (Scope of Application)The provisions of the Act applicable pursuant to Article 11 (2) of the Act to any business or workplace that regularly employs four or less employees shall be as specified in attached Table 1.
Article 7-2 (Calculation Method of Number of Employees Regularly Employed)(1) "Number of employees regularly employed" in Article 11 (3) of the Act means the number of employees calculated by dividing the total number of employees employed for one month (in cases of less than one month from the commencement of a business, referring to a period after the commencement of such business; hereinafter referred to as the "period of calculation") prior to the date of occurrence of a reason (referring to a reason requiring judgement as to whether the Act or this Decree applies, such as payment of a compensation of suspension of work, application of working hours, etc.; hereafter the same shall apply in this Article) governed by the Act in the relevant business or at the relevant workplace by the number of working days during the same period.
(2) Notwithstanding paragraph (1), according to the following classifications, a business or workplace shall be deemed a business or a workplace that employs five (in the case of judgement as to whether Article 93 of the Act shall apply, referring to 10 employees; hereafter referred to as "criteria for application of the Act" in this Article) or more employees (hereafter referred to as "business or workplace governed by the Act" in this Article), or shall not be deemed a business or a workplace governed by the Act:
1. In cases where it is deemed the business or the workplace governed by the Act: Where the number of days, in which the number of employees of the relevant business or the relevant workplace calculated under paragraph (1) falls short of the criteria for application of the Act, is less than 1/2 of a period for calculation even in cases not falling under the business or the workplace governed by the Act;
2. In cases where it is not deemed the business or workplace governed by the Act: Where the number of days, in which the number of employees of the relevant business or the relevant workplace calculated under paragraph (1) falls short of the criteria for application of the Act, is more than 1/2 of a period for calculation, even in cases falling under the business or workplace governed by the Act.
(3) Where determining whether the provisions of Articles 60 through 62 of the Act (excluding the provisions concerning an annual paid leave under Article 60 (2) of the Act) apply, the business or the workplace that employs five or more employees continuously for one year prior to the date of occurrence of a reason for application of the Act as a result of calculation of the number of employees by month pursuant to paragraphs (1) and (2) shall be deemed the business or the workplace governed by the Act.
(4) The total number of employees in paragraph (1) shall include all of the following employees, excluding temporary agency workers under subparagraph 5 of Article 2 of the Act on the Protection, etc. of Temporary Agency Workers: <Amended by Presidential Decree No. 29010, Jun. 29, 2018>
1. All the employees working for a single business or workplace regardless of the type of employment, such as full-time employees of the relevant business or the relevant workplace and fixed-term employees and part-time employees under subparagraph 1 of Article 2 of the Act on the Protection, etc. of Fixed-Term and Part-Time Employees;
2. A person who works for his or her cohabiting relative’s business or workplace if such business or workplace employs at least one employee falling under subparagraph 1.
[This Article Newly Inserted by Presidential Decree No. 20873, Jun. 25, 2008]
Article 8 (Terms and Conditions of Employment to Be Specified)"Other terms and conditions of employment prescribed by Presidential Decree" in Article 17 (1) 5 of the Act means the following terms and conditions: <Amended by Presidential Decree No. 29010, Jun. 29, 2018>
1. Matters relating to the place of work and the work to be engaged in;
2. Matters prescribed in subparagraphs 1 through 12 of Article 93 of the Act;
3. Matters provided by the dormitory rules, if employees are required to lodge at a dormitory connected to the workplace.
Article 8-2 (Delivery of Documents Requested by Employees)"Where altered due to reasons prescribed by Presidential Decree, such as changes, etc. of collective agreements or rules of employment" under the proviso to Article 17 (2) of the Act means any of the following cases:
1. Where altered by written agreement with the labor representative pursuant to Articles 51 (2), 52, 57, 58 (2) and (3), 59 or 62 of the Act;
2. Where altered by employment rules under Article 93 of the Act;
3. Where altered by collective agreements under Article 31 (1) of the Trade Union and Labor Relations Adjustment Act;
4. Where altered by statutes.
[This Article Newly Inserted by Presidential Decree No. 23155, Sep. 22, 2011]
Article 9 (Standards, etc. of Terms and Conditions of Employment for Part-time Employees)(1) The standard terms and conditions applicable in determining the terms and conditions of employment for part-time employees under Article 18 (2) of the Act and other necessary matters therefor shall be as specified in attached Table 2.
(2) and (3) Deleted. <by Presidential Decree No. 20873, Jun. 25, 2008>
Article 10 (Reporting on Layoff Plan on Grounds of Business Management)(1) An employer who intends to lay off employees in number in accordance with Article 24 (4) of the Act, shall submit a report thereon to the Minister of Employment and Labor at least 30 days before the date on which the intended layoff begins: <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
1. The business or workplace with a regular workforce of not more than 99 employees: 10 persons or more;
2. The business or workplace with a regular workforce of at least 100 employees, but no more than 999 employees: Ten percent or more of the number of the regular workforce;
3. The business or workplace with a regular workforce of at least 1,000 employees: 100 persons or more.
(2) The reporting under paragraph (1) shall contain the following matters:
1. Grounds for layoff;
2. Planned number of employees for layoff;
3. Details of agreement with the representative of employees;
4. Timetable for layoff.
Article 11 (Time Limit for Performance of Order for Remedy)The Labor Relations Commission established under the Labor Relations Commission Act (hereinafter referred to as the "Labor Relations Commission") shall, whenever it issues an order for remedy to an employer pursuant to Article 30 (1) of the Act (hereinafter referred to as "order for remedy"), prescribe the time limit for performance. In this case, the time limit shall not exceed 30 days from the date on which the employer receives written notice of an order for remedy under Article 30 (2) of the Act. <Amended by Presidential Decree No. 29964, Jul. 9, 2019>
Article 12 (Deadline for Payment of Charges for Compelling Performance and Presentation of Opinion, etc.)(1) The Labor Relations Commission shall, when it imposes the charge for compelling performance pursuant to Article 33 (1) of the Act, prescribe the time limit for the payment, which shall not exceed 15 days from the date of receiving a notice of imposition of the charge for compelling performance.
(2) If it is difficult to pay the charge for compelling performance within the payment deadline under paragraph (1) due to a natural disaster or any other unavoidable cause or event, the Labor Relations Commission may require the payment of charge within 15 days from the date such a cause or event ceases to exist.
(3) When a prior notice of the intent to impose and collect the charge for compelling performance is given in writing to an employer pursuant to Article 33 (2) of the Act, the notice shall contain the information that the employer has an opportunity to make a statement on his/her side, orally or in writing (including an electronic document), within a fixed period of at least ten days. In this case, if he/she fails to make a statement by the given deadline, it shall be deemed that the employer has no objection.
(4) The procedures for collecting the charge for compelling performance shall be prescribed by Ordinance of the Ministry of Employment and Labor. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 13 (Guidelines for Imposition of Charges for Compelling Performance)The guidelines for imposition of the charge for compelling performance according to the type and degree of an offense under Article 33 (4) of the Act shall be as provided for in attached Table 3.
Article 14 (Suspension of Imposition of Charges for Compelling Performance)The Labor Relations Commission may, if there is either of the following causes or events, impose the charge for compelling performance, ex officio or at the employer's request, after the cause or event terminates:
1. The employer has objectively made efforts to perform the order for remedy, but it is evidently difficult for the employer to perform the order for remedy because of the employee's unknown whereabout, etc.;
2. If it is difficult to perform the order for remedy owing to a natural disaster or any other unavoidable cause or event.
Article 15 (Refund of Charges for Compelling Performance)(1) If the order for remedy is reversed by a decision on a review by the Central Labor Relations Commission or a final and conclusive judgment by a court, the Labor Relations Commission shall, ex officio or at the employer's request, stop imposing or collecting the charge for compelling performance and refund the charge already collected.
(2) The Labor Relations Commission shall, when it refunds the charge for compelling performance pursuant to paragraph (1), add to the refunded charges an amount calculated by multiplying the charge by the interest rate prescribed by Ordinance of the Ministry of Employment and Labor for the period from the date of payment of the charge to the date of refund. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
(3) Detailed procedures for refunding the charge for compelling performance pursuant to paragraph (1) shall be prescribed by Ordinance of the Ministry of Employment and Labor. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 16 Deleted. <by Presidential Decree No. 29964, Jul. 9, 2019>
Article 17 (Late Payment Interest for Overdue Wage)"Interest rate prescribed by Presidential Decree" in Article 37 (1) of the Act means twenty percent per annum.
Article 18 (Grounds for Exclusion from Application of Late Payment Interest)"Other reasons prescribed by Presidential Decree" in Article 37 (2) of the Act means any of the following causes and events: <Amended by Presidential Decree No. 25630, Sep. 24, 2014>
1. A case falling under any of the subparagraphs of Article 7 (1) of the Wage Claim Guarantee Act;
2. Where it is impracticable to secure the funds for payment of wages and retirement benefits due to statutory restraints under the Debtor Rehabilitation and Bankruptcy Act, the National Finance Act, the Local Autonomy Act, etc.;
3. Where it is deemed appropriate to bring a case to a court or the Labor Relations Commission for a trial on the existence of all or part of any wage or retirement benefit for which the payment has been delayed;
4. Where there exists any other cause or event similar to those under subparagraphs 1 through 3.
Article 19 (Request for Issuance of Certificate of Employment)The persons eligible for requesting the issuance of the certificate of employment in accordance with Article 39 (1) of the Act shall be the employees who have been employed for 30 days or longer continuously, but such a request shall be made within three years after retirement.
Article 20 (Entries in Register of Employees)The register of employees under Article 41 (1) of the Act shall contain each of the following matters as prescribed by Ordinance of the Ministry of Employment and Labor: <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
1. Name;
2. Gender;
3. Date of birth;
4. Address;
5. Personal history;
6. Type of task engaged in;
7. Date, month, year of employment or renewal thereof, employment period, if agreed upon, and other matters related to employment;
8. Date, month, year of dismissal, retirement, or death, and the reason thereof;
9. Other necessary matters.
Article 21 (Exception to Drawing up Register of Employees)With respect to daily hire employees who have been employed for less than 30 days, the register of employees may not be formulated.
Article 22 (Documents, etc. for Preservation)(1) The term "important documents related to an employment contract as prescribed by Presidential Decree" in Article 42 of the Act means the following documents:
1. Employment contracts;
2. Wage ledgers;
3. Documents pertaining to the basis for the determination, payment method, and calculation of wages;
4. Documents pertaining to employment, dismissal, or retirement;
5. Documents pertaining to promotion or demotion;
6. Documents pertaining to leaves of absence;
7. Deleted; <by Presidential Decree No. 25840, Dec. 9, 2014>
8. Documents related to written agreements under Articles 51 (2), 52, 58 (2) and (3), and 59 of the Act;
9. Documents pertaining to certification of a minor under Article 66 of the Act.
(2) The preservation period of important documents on employment contracts under Article 42 of the Act shall be counted from any of the following dates:
1. For the register of employees, the date of dismissal, retirement, or death of an employee;
2. For employment contracts, the date of termination of employment ;
3. For wage ledgers, the date of the last entry;
4. For documents on employment, dismissal, or retirement, the date of dismissal or retirement of an employee;
5. Deleted; <by Presidential Decree No. 29010, Jun. 29, 2018>
6. For documents related to a written agreement under paragraph (1) 8, the date of an agreement concluded in writing;
7. For documents pertaining to certification of a minor, the date on which the minor attains the age of 18 (if the minor is dismissed, retires, or dies before the age of 18, the date of dismissal, retirement, or death);
8. Date of completion for other documents.
Article 23 (Exception to Wages to be Paid at Least Once Monthly)The term "extraordinary wages, allowances, or other similar payments, or the wages prescribed by Presidential Decree" in the proviso to Article 43 (2) of the Act means those falling under the following subparagraphs:
1. Allowance for good attendance payable on the basis of the attendance record for a period exceeding one month;
2. Seniority allowance payable for consecutive service for a fixed period exceeding one month;
3. Incentive, proficiency allowance, or bonus calculated on a ground sustaining for a period exceeding one month;
4. Other various allowances paid on an irregular basis.
Article 23-2 (Cases Not Subject to Disclosure of Name of the Business Owner in Arrear)“Where the disclosure of name is not effective due to death of the business owner in arrear or closure of business or where other reasons prescribed by Presidential Decree exist” under the proviso to Article 43-2 (1) of the Act means any of the following cases:
1. Where the business owner (hereinafter referred to as “business owner in arrear”) who has failed to pay the wages, compensations, allowances and all other money or valuables pursuant to Articles 36, 43, and 56 of the Act (hereinafter referred to as “wages, etc.”) dies or is sentenced to the judicial declaration of disappearance pursuant to Article 27 of the Civil Act (applicable only where the business owner in arrear is a natural person);
2. Where the business owner in arrear pays the full amount of the wages, etc. in arrear before the end of the explanation period under Article 43-2 (2) of the Act;
3. Where the business owner in arrear receives the court decision for initiation of rehabilitation procedure or he/she is sentenced to bankruptcy pursuant to the Debtor Rehabilitation and Bankruptcy Act;
4. Where the business owner in arrear receives the acknowledgment of bankruptcy or other facts pursuant to Article 5 of the Enforcement Decree of the Wage Claim Guarantee Act;
5.
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