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Re: Contract Hours, Overtime, Annual leave some basic stuff
« on: March 10, 2020, 05:14:30 pm »
Korean Employment Law is based upon 3 articles of the Korean Constitution and Korea utilizes a modified version of the German Continental Legal system, which makes it very distinct from Common Law in most (all really) English "is the official language"  countries.

German Continental Legal systems are much less adversarial and do not rely upon “motive” but the presentation of Evidence which proves a violation of the Statue, Law, Act, etc.  In Korea the Ministries preside over violations of the Statutes / Acts / Presidential Decrees that their Ministry has the mandate to administer i.e. The Ministry of Education enforces the Education Act (and about 30 others) the Ministry of Employment and Labor (MOEL) over 50 Acts.

The MOEL has two main Enforcement Agencies: the Labor Board (Lower court) and the Labor Commission (High Court) and in the event of an appeal then the legal process can proceed up to the Supreme Court and the decisions made by the Supreme Court the MOEL must follow. The history of Korean Labor Law is very complicated due to the fact that after the Japanese presence in Korea, there was Civil War, and after that a Military Dictatorship. The Korean Constitution has taken into account the history of Korea and that is why there are three Articles of the Korean Constitution to ensure fair and equitable labor practices in the Republic of Korea.

The challenge is data, vs information vs misinformation vs the current practices of the Ministry of Employment and Labor i.e. what are the standard rulings in the past 5 years, past 3 years and past 6 months. The “Law”, what you can download from the MOJ site ([http://www.law.go.kr](http://www.law.go.kr)) is really Raw Data. Each Statue will have an Enforcement Decree (unless it is really new law), Several presidential decrees, and a couple of other items including Supreme Court Rulings which are not in the Raw Data of the body of text.

When items are “copy, cut and pasted”, it can only be a very very small amount of data that is posted and since Hangul is the Official Language of Korea and thing in English that is on the law.go.kr has a very high chance of being out of date. The data in the body of text has valuable information but so does a hammer.

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The Judiciary Bodies (i.e. the Labor Commission of the Ministry of Employment and Labor) make judgments on evidence brought before them (is it proof of a violation of one or more Articles in one or more Statues) in context of previous Supreme Court Rulings, other Statues which are not the Labor Standards Act, other Presidential Decrees etc.

  So, Given the challenging history of Korea....

1. The moment an Employee steps into the place of work it has been determined that they do not have freedom of action and are working under the direct control of the Employer
2. The Employee must be paid for the work they have given to the Employer, please note if the cafe has no customers the cooks are still to be paid...
3. The contractual work hours will not exceed 40 hours per week
4. The Employee can work additional time in excess of 40 hours per week with mutual agreement between the Employer and Employee

**A few key items of note:**

1. Contractual Working hours are what determines the hourly average wage from the Salary stated in the contract, which determines Overtime Allowances, the money to be received for Unused Annual Leave and “vacation pay” among other items.
2. Overtime is to be paid as soon as the total time worked exceeds the contractual working hours.
3. Within the MOEL there is no “teaching time”, “preparation time”, only the time the Employee works.
4. If the Employee’s work time exceeds the contractual working hours they are to be paid overtime regardless if they are sweeping floors, attending mandatory meetings after office hours, “camps”, “prep work” etc,
5. Contractual Working hours determines the minimum recess (rest) periods: 30 minutes after 4 hours or more of work and the rest period is to be 1 hour if the contractual working hours are 8 hours per day.
6. Rest periods mean that the Employee is not under the supervision/direction of the Employer and is FREE TO LEAVE the place of Employment i.e.  to pick up their dry cleaning
7. Rest periods must be continuous, i.e.  “three 10 minutes between class” is not consider to be a rest period by the MOEL or the Supreme Court
8. If rest periods are not provided by the Employer then it may be considered overtime (it usually is overtime but the devil is in the details of the full employment contract) Usually when the self audits are done by people who have completed their contract they are very surprised to find out that their true contractual hours are not “40 hours per week”, and that happens in about 70% of the cases currently.

In Korea they have had a tough 20th century and really the Law of Employment which the Ministry of Employment and Labor administer are very fair to both the Employees and Employers.