TITLE : AQ on FDI in Korea 2023 (Q151~Q155)
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■ FAQ on FDI in Korea 2023 (Q151~Q155)
Labor
Q151 | Is there extra pay if a worker has worked on Workers' Day? |
The Designation of Workers' Day Act prescribes that "The first day of May each year shall be designated as Workers' Day,which shall be a paid holiday under the Labor Standards Act."
- A "paid holiday" is a day on which there is no obligation to provide laborservice, while receiving a payment that would have been received if thelabor had been accomplished.
- When labor is provided on Workers' Day, a paid holiday, an additional150% of pay for holiday labor shall be made in addition to the wage (100%)that would have been paid out, even if there was no labor service on thatday, as per Article 56 of the Labor Standards Act.
※ “Workers' Day” is a legal holiday, and is prescribed as a special day to commemoratea certain fact, and therefore this holiday cannot be replaced with another day
Q152 | Are "Regulations on Holidays of Government Offices" also applied to holidays of regular business sites? |
Holidays can be divided into legal holidays and contractual holidays according to whether it is legally binding for the employer to grant them or not. Legal holidays include weekends, Labor Day, and public holidays of government offices. Holidays for government offices include national holidays, and are granted to public servants. Consequently, in the case of private companies, company regulations and collective agreements have been used to establish contractual holidays.
- With the amendment of the Labor Standards Act on Mar. 20, 2018,the Act was applied to private companies with five or more full-timeemployees. However, the Act allows that it shall be implemented inphases depending on the size of the company.
Public Holidays | ① National holiday: Independence Movement Day, Liberation Day,National Foundation Day, Korean Alphabet Day ② January 1,③ Lunar New Year, Chuseok Holidays (3 days), ④ Buddha'sBirthday, ⑤ Children's Day, ⑥ Memorial Day, ⑦ Christmas | 15days |
- The election day for each election to be held at the expirationof the term per Article 34 of the Public Official Election Act - Other days designated by the government as needed(temporary public holidays) |
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Substituteholidays | In the following cases, the first non-public holiday after the publicholiday shall be a substitute holiday - Where Independence Movement Day, Liberation Day, NationalFoundation Day, Hangul Proclamation Day and Children’s Day fall on aSaturday or Sunday - Where Seollal and Chuseok holidays (3 days) fall on a Sunda |
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Substituteholidays | - Where Independence Movement Day, Liberation Day, NationalFoundation Day, Hangul Proclamation Day, Children’s Day and Seollaland Chuseok holidays (3 days) fall on another public holiday that isnot a Saturday or Sunday※ Where two substitute holidays fall on the same day, the first nonpublic holiday after the substitute holiday shall be a holiday |
Q153 | Can intra-company email be used instead of written letters to urge employees to take annual paid leave as prescribed by the Labor Standards Act? |
According to Article 61 of the Labor Standards Act, the employer is to inform each employee of unused paid leave, and urge the employee in written form to notify the period for using the leave. The employee that has received such a notice/letter must determine the period for using the leave, and if he/she does not, the employer shall prescribe the period for using the unused paid leave, and notify the employee "in written form".
- The regulation that the employer must urge or notify the employeein "written form" is to ensure that measures to promote the use ofpaid leave are surely implemented, and the intention is to strengthenprotection of workers' rights and prevent conflict between parties dueto unclear measures. Notifying employees with use of intra-companyemail, or posting official notifications on the non-used paid leave of eachemployee on the company bulletin board cannot be recognized as clearmeasures in comparison to urging or notifying "in written form" to eachindividual employee.
- However, there has been a case in which a notification through the companyintranet system was recognized as a written inform. The legality of eachcase can be determined by considering the purpose of the related law, etc.
※ Measures to urge or notify the use of paid leave is not an obligation for theemployer. Therefore, when the employer has not taken measures to urge or notifythe use of paid leave, and the employee does not designate a period for usingpaid leave and does not use the paid leave, annual paid leave allowance must bepaid for the unused leave.
Q154 | When making an advance notification of dismissal, the legal period for advance dismissal notice is 30 days. When five days are lacking among the total of 30 days, does the employer have to pay an allowance for those five days? |
Article 26 of the Labor Standards Act prescribes that when an employer intends to dismiss an employee (includingdismissal for management reasons), he/she shall give the employee a notice of dismissal at least 30 days in advance of such dismissal, and, if the employer fails to give such advance notice, he/she shall pay such employee 30 days' ordinary wage at the least.
- The period for advance notice of dismissal must be calculated basedon calendar days instead of working days, and therefore cannot beextended even when there is a holiday. When calculating, the first day isnot included and calculation shall begin from the following day basedon calendar days. If even one day is lacking during the legal period foradvance notification of dismissal, regular wages pertaining to 30 days -the entire statutory period - or more must be paid.
- If the employer wants to dismiss an employee, the reason and periodfor dismissal must be stated in written form.
- Once the advance notice of dismissal is given, it cannot be withdrawnunless there is the consent of the employee.
- The effect of the termination shall occur when the notification hasbeen delivered to the counterparty.
- During the advance notice period, the employment relationship ismaintained, and if the employer continues to use the employee afterthe advance notification period has been expired, the dismissalprocess must be undertaken again
Q155 | When an employee has submitted a letter of resignation, when is that employee officially no longer part of the company? |
Resignation is the termination of labor services due to the unilateral expression of such an intent by the employee. This can be divided into voluntary retirement, agreed retirement and mandatory retirement due to reaching the retirement age. There are no provisions in the Labor Standards Act in regard to the retirement procedure. When the parties concerned did not stipulate the related regulations in the rules of employment, collective agreement, etc., the provisions of the Civil Act shall apply
- According to the Civil Act, when the employee expresses his intentionto resign (submission of letter of resignation) and the employer accepts(acceptance of letter of resignation), the resignation becomes effectivewhen the employer accepts the letter of resignation.
- If the company does not accept the letter of resignation of the employee,the point at which the resignation becomes effective shall differaccording to the method in which the wages are paid. When the wagesare paid on a term-basis, such as monthly, and if, after the term in whichthe resignation has been submitted (that month, in the case of monthlypayment system), one wage payment term (meaning the next month)has passed, the resignation becomes effective. When wages are not paidon a term-basis, the effect begins when one month has passed after theemployer receives notification from the employee of his/her will to resign.