[Enforcement Date 12. Jul, 2010.] [Presidential Decree No.22269, 12. Jul, 2010., Amendment by Other Act]
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 delegated 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 wage under Article 2 (1) 6 of the Labor Standards Act (hereinafter referred to as the "Act") includes a period falling under any of the following subparagraphs, the latter period and wages paid for that period shall be subtracted respectively from the period and total amount, which shall serve as the basis for the calculation of average wage respectively: <Amended by Presidential Decree No. 20803, Jun. 5, 2008>
1. A probationary period under subparagraph 5 of Article 35 of the Act;
2. A period during which the employer's business is shut down because of a cause attributable to the employer as provided for in Article 46 of the Act;
3. A period of maternity leave under Article 74 of the Act;
4. A period of temporary suspension for medical treatment due to occupational injury or disease as provided for in 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 dispute as provided for in subparagraph 6 of Article 2 of the Trade Union and Labor Relations Adjustment Act;
7. A period of suspension of service or of absence from service for performing a duty under the Military Service Act, the Establishment of Homeland Reserve Forces Act, or the Framework Act on Civil Defense: Provided, That the period for which wages have been paid shall be excluded herefrom;
8. A period of suspension of service due to a non-occupational injury or disease, or any other cause with the employer's approval.
(2) Wages and allowances paid on an extraordinary 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 Worker)
The average wage of a daily worker shall be the amount determined by the Minister of Employment and Labor according to the classification of businesses and jobs. <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 determined by the Minister of Employment and Labor. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
Article 5 (Adjustment of Average Wage)(1) Where the average amount of monthly ordinary wage per worker (hereinafter referred to as the "average amount") paid to workers in the same business or in the same workplace as the one to which a certain worker belongs has changed by five percent or more than the average wage paid to the worker for a certain month in which an injury or a disease was inflicted upon the worker, the average wage applicable to the calculation of compensation, etc. for the worker under Articles 79, 80, and 82 through 84 of the Act shall be such amount as has increased or decreased at the above-stated rate of change, but the rate shall be applicable to the calendar month immediately following the month in which such a cause of change occurred and the months subsequent thereto: the second or latter adjustment for the increase or decrease of average wage shall be based on the average amount for the calendar month in which a cause for immediately preceding change occurred.
(2) Where the business or workplace to which a worker had belonged was permanently closed down, the adjustment of average wage under paragraph (1) shall be based on the one of a business or workplace in the same business type or with the same size as the one of the business or workplace to which the worker had belonged as of the time when an occupational injury or disease was inflicted on the worker.
(3) If there is no worker who engages in the same job as the one of a certain worker, the adjustment of the average wage for the worker under paragraph (1) or (2) shall be based on a worker who engages in a job similar to the job.
(4) The average wage applicable to the computation of the retirement benefits under Article 8 of the Guarantee of Workers' Retirement Benefits Act, which shall be paid to a worker 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 a worker for a specifically agreed work or entire works on a regular and flat basis.
(2) In case of calculating an ordinary wage under paragraph (1) as an hourly wage rate, the ordinary wage shall be an amount calculated in accordance with any of the following formulas:
1. The amount agreed upon as an hourly wage, if any;
2. The amount obtained by dividing a daily wage rate by the contractual working hours per day, if there is an amount agreed upon as a daily wage rate;
3. The amount obtained by dividing a weekly wage rate by the standard hours for the calculation of the weekly ordinary wage (which mean the hours calculated by adding the paid hours in addition to the contractual working hours per week under Article 2 (1) 7 of the Act to such contractual working hours), if there is an amount agreed upon as a weekly wage rate;
4. The amount obtained by dividing a monthly wage rate by the standard hours for the calculation of the monthly ordinary wage (which means one-twelfth of the number calculated by multiplying the standard hours for the calculation of the weekly ordinary wage by the average number of weeks per year), if there is an amount agreed upon as a monthly wage rate;
5. The amount obtained by applying subparagraphs 2 through 4 mutatis mutandis, if there is an amount agreed upon as the wage rate for any period other than a day, a week, or a month;
6. The amount obtained by dividing total sum of wages calculated on a piece work 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 there is a wage agreed upon as the contract amount;
7. The amount obtained by adding up the amounts calculated in accordance with subparagraphs 1 through 6, if the wage to which a worker is entitled consists of two or more different types of wages set forth in subparagraphs 1 through 6.
(3) When the calculation of the ordinary wage under paragraph (1) is based on a daily wage rate, such ordinary wage shall be calculated by multiplying the hourly wage rate under paragraph (2) by the contractual working hours per day.
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 employs four or more workers shall be as specified in attached Table 1.
Article 7-2 (Calculation Method of Number of Workers Ordinarily Employed)(1) The term "number of workers ordinarily employed" in Article 11 (3) of the Act shall be calculated by dividing the total number of workers employed for one month (in cases where it is less than one month from the realization of a business, referring to a period after the realization 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 on whether the Act or this Decree shall apply, such as application of payment of a compensation of suspension of work, working hours, etc.; hereafter the same shall apply in this Article) governed by the Act in the business concerned or at the place of work concerned by the number of working days during the same period.
(2) Notwithstanding paragraph (1), according to the following classifications, such business or place of business (hereafter referred to as "business or place of business governed by the Act" in this Article) shall be deemed a business or a place of business that employs five or more workers (in case of judgement on whether Article 93 of the Act shall apply, referring to 10 workers; hereafter referred to as "criteria for application of the Act" in this Article) or shall not be deemed a business or a place of business governed by the Act:
1. In cases where it is deemed the business or the place of business governed by the Act: Even in cases of not falling under the business or the place of business governed by the Act as a result of calculation of the number of workers of the business or the place of business concerned pursuant to paragraph (1), in cases where the number of days not meeting the criteria for application of the Act is less than 1/2 when the number of workers by day belonging to a period of calculation has been ascertained;
2. In cases where it is not deemed the business or place of business governed by the Act: Even in cases of falling under the business or place of business governed by the Act as a result of calculation of the number of workers of the business or the place of business concerned pursuant to paragraph (1), in cases where the number of days not meeting the criteria for application of the Act is more than 1/2 when the number of workers by day belonging to a period of calculation has been ascertained.
(3) In cases of judgement on whether the provisions of Articles 60 through 62 of the Act (excluding the part concerning an annual paid leave under Article 60 (2) of the Act) shall apply, the business or the place of business that employs five or more workers continuously for one year prior to the date of occurrence of a reason of application of the Act as a result of calculation of the number of workers by month for the business or the place of the business concerned pursuant to paragraphs (1) and (2) shall be deemed the business or the place of business governed by the Act.
(4) The total number of workers in paragraph (1) shall include all the workers under the following subparagraphs excluding dispatched workers under subparagraph 5 of Article 2 of the Protection, etc. of Dispatched Workers Act:
1. All the workers working in one business or one place of business regardless of type of employment, such as workers ordinarily employed by the business or the place of business concerned, fixed-term workers under subparagraph 1 of Article 2 of the Act on the Protection, etc. of FixedTerm and Part-Time Workers, part-time workers under subparagraph 8 of Article 2 of the Act, etc.;
2. If a business or a place of business employs even one worker falling under subparagraph 1 and relatives living together workers who are relatives living together.
[This Article Newly Inserted by Presidential Decree No. 20873, Jun. 25, 2008]
Article 8 (Mandatory Terms and Conditions of Employment)
The term "other terms and conditions of employment as prescribed by Presidential Decree" in the former part of Article 17 of the Act means the following terms and conditions:
1. Terms and conditions relating to the place of employment and the job assigned:
2. Terms and conditions set forth in subparagraphs 1 through 12 of Article 93 of the Act;
3. Terms and conditions prescribed by the dormitory rules, if workers shall be accommodated in a dormitory attached to the workplace.
Article 9 (Standards, etc. of Terms and Conditions of Employment for Part-time Workers)(1) The standard terms and conditions applicable in determining the terms and conditions of employment for part-time workers 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 Ground of Business Management)(1) An employer who intends to lay off employees 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, if the number of employees who shall be laid off during one month reaches or exceeds any of the following figures: <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
1. If the business or workplace employs 99 regular workers or less: Ten persons or more;
2. If the business or workplace employs 100 regular workers or more, but no more than 999 regular workers: Ten percent or more of regular workers;
3. If the business or workplace employs 1,000 regular workers or more: 100 persons or more.
(2) The report under paragraph (1) shall contain the following matters:
1. Grounds of layoff;
2. Number of employees subject to the intended layoff;
3. Details of agreement with the representative of workers;
4. Timetable for layoff.
Article 11 (Time Period for Performance of Order for Remedy)
The Labor Relations Commission 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 an "order for remedy"), prescribe the time period for performance. In this case, the time period shall not exceed 30 days from the date on which the order for remedy is issued.
Article 12 (Deadline for Payment of Compulsory Performance Money and Presentation of Opinion, etc.)(1) The Labor Relations Commission shall, when it imposes the compulsory performance money pursuant to Article 33 (1) of the Act, prescribe the time limit for the payment, which shall not exceed 15 days from the date on which a notice of imposition of the compulsory performance money is delivered.
(2) If it is difficult to pay the compulsory performance money within the payment deadline under paragraph (1) because of occurrence of a natural disaster or any other unavoidable cause or event, the Labor Relations Commission may require to pay the charge within 15 days from the date on which such a cause or event terminates.
(3) When a notice of the intent to impose and collect the compulsory performance money is given in writing to an employer pursuant to Article 33 (2) of the Act, the notice shall contain the information so that he/she is given an opportunity to make a statement on his/her side, orally or in writing (including an electronic document), within a fixed period of ten or more days. In this case, it shall be deemed that the employer has no objection if he/she fails to make a statement otherwise by the given deadline.
(4) The procedures for collecting the compulsory performance money 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 Compulsory Performance Money)
The guidelines for imposition of the compulsory performance money 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 Compulsory Performance Money)
The Labor Relations Commission may, if there is either of the following causes or events, impose the compulsory performance money, at its discretion or upon the employer’s application, after the cause or event terminates:
1. If it is objectively evident that the employer has made efforts to perform the order for remedy but it is difficult for the employer to perform the order for remedy because of unability to locate the worker’s 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 Compulsory Performance Money)(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, at its discretion or upon the employer’s application, stop imposing or collecting the compulsory performance money and refund the charge already collected.
(2) The Labor Relations Commission shall, when it refunds the compulsory performance money pursuant to paragraph (1), add 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 to the refunded charge. <Amended by Presidential Decree No. 22269, Jul. 12, 2010>
(3) Detailed procedures for refunding the compulsory performance money 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 (Definition of Workers in Probationary Period)
The term "worker in a probationary period" in subparagraph 5 of Article 35 of the Act means a person who has been employed on probation for three months or less.
Article 17 (Late Payment Interest for Overdue Wage)
The term "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)
The term "other reasons prescribed by Presidential Decree" in Article 37 (2) of the Act means any of the following causes and events:
1. When the case falls under any of the subparagraphs of Article 4 of the Enforcement Decree of the Wage Claim Guarantee Act;
2. When it is difficult 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. When it is deemed proper to bring the case to a court or the Labor Relations Commission for trial on whether the wage or retirement benefit for which the payment has been delayed in whole or in part exists in fact;
4. When there is 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 workers who have been employed for 30 days or longer continuously, but such a request shall be made within three years after retirement.
Article 20 (Mandatory Descriptions of Register of Workers)
The register of workers under Article 41 (1) of the Act shall contain the following descriptions 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 job engaged in;
7. Date of employment or renewal thereof, employment period agreed upon, if any, and other matters related to employment;
8. Date of dismissal, retirement, or death, and the reason thereof;
9. Other necessary matters.
Article 21 (Exception to Keeping Register of Workers)
Daily workers who have been employed for less than 30 days may be omitted from the register of workers.
Article 22 (Documents, etc. subject to Mandatory 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. Documents pertaining to approval and authorization under Article 53 (3), subparagraph 3 of Article 63, and the proviso of Article 70 (2) of the Act;
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 the minor under Article 66 of the Act.
(2) The preservation period of important documents pertaining to employment contracts under Article 42 of the Act shall be counted from any of the following dates:
1. Date of dismissal, retirement, or death of a worker for the register of workers;
2. Date of termination of employment for employment contracts;
3. Date of the last entry for wage ledgers;
4. Date of dismissal or retirement of a worker for the documents pertaining to employment, dismissal, or retirement;
5. Date of approval or authorization for the documents pertaining to the approval or authorization under paragraph (1) 7 above;
6. Date of agreement concluded in writing for the documents related to a written agreement under paragraph (1) 8 above;
7. Date on which the minor attains the age of 18 years (or the date of dismissal, retirement, or death, if the minor is dismissed, retires, or dies before attaining the age of 18 years) for the documents pertaining to certification of the minor;
8. Date of completion for other documents.
Article 23 (Exception to Wages which shall be Paid Once or More Each Month)
The term "extraordinary wages, allowances, or other similar payments, or those wages prescribed by Presidential Decree" in the proviso of 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 24 (Causes Attributable to Immediate Upper Tier Contractor)
The causes attributable to an immediate upper tier contractor under Article 44 (2) of the Act shall be as follows:
1. Where he/she fails to pay the contract amount on the due date agreed upon by the relevant contract agreement without a justifiable ground;
2. Where he/she delays in supplying, or fails to supply, the raw materials agreed upon by the relevant contract agreement without a justifiable ground;
3. Where he/she fails to perform any term or condition of the relevant contract agreement without a justifiable ground and, as a result, the subcontractor fails to perform contract work in a normal way.
Article 25 (Payment of Wages before Due Date)
The term "other cases of emergency as prescribed by Presidential Decree" in Article 45 of the Act means the cases where a worker or a person who is supported with the worker’s income falls under any of the following subparagraphs:
1. Giving birth to a child, becoming ill, or being overtaken by a disaster or an accident;
2. Getting married or being dead;
3. Going back home for one week or longer owing to an unavoidable cause or event.
Article 26 (Calculation of Suspension Allowance)
Where a worker has received a part of wages during a period of suspension due to any ground for imputation to the employer, the employer shall, in compliance with the main sentence of Article 46 (1) of the Act, pay him/her an allowance equivalent to 70 percent or more of the difference calculated by subtracting that part of wages already paid to the said worker from the average wages: Provided, That where ordinary wages are paid as suspension allowance in accordance with the proviso of Article 46 (1) of the Act, the difference between the ordinary wages and the part already paid during the period of suspension shall be paid.
Article 27 (Mandatory Descriptions of Wage Ledger)(1) Every employer shall enter the following descriptions of each individual worker into the wage ledger under Article 48 of the Act:
1. Name;
2. Resident registration number;
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