Key Labor Law Standards for
Part-Time Workers Employers Should Know

Bongsoo
Jung (labor attorney at KangNam Labor Law Firm)

 

I. Introduction

In 2014, IKEA, a Swedish furniture company, entered Korea
and recruited most of its field workers as part-timers working four hours a
day, which shocked our society. This company was able to maintain better
productivity than was normal in Korea while using part-time workers. It is very
rare for Korean companies to use part-time workers as regular workers, mainly
because they are employed as Alba, temporary or part-time low-wage workers in
small businesses within the service sector. The proportion of part-time workers
in Korea was only 10.8% in 2014, while it was 37.2% in the Netherlands, 27% in
Japan, 24.9% in Britain, and 22.1% in Germany in the same period.[1]
There are no differences in Korean labor laws compared to foreign labor laws
regarding part-time workers: The working hours of part-time workers are shorter
than those of regular workers, while their working conditions are similar to
that of full-time workers.[2]

In
fact, if working conditions for part-time workers are properly maintained,
sharing of work with full-time workers is also possible, which is expected to
result in greater productivity while creating more employment. In particular,
it makes it possible to attract female workers and elderly people whose career quite
often has been cut short in the labor market. In regards to the protection of
short-term workers, I would like to specifically examine (i) the concept of the
part-time worker, (ii) statutory working conditions, and (iii) the prohibition
of discriminatory treatment.

 

II. Concept of the Part-time Worker

The
term “part-time worker” in Article 2 of the Labor Standards Act (LSA) means an
employee whose contractual working hours per week are shorter than those of a
full-time worker engaged in the same kind of job in the same workplace. For example, since a full-time
worker works 40 hours per week, a worker who has worked 8 hours for 4 days in a
week (32 hours per week) is considered a part-time worker.

The concept of part-time worker includes (i) one-week
basis, (ii) contractual working hours, and (iii) the working hours of regular
workers.

(i) The one-week basis shall be
the working hours of the week if the working hours are constant every week, but
the average of 4 weeks shall be calculated for the weekly contractual working hours
when weekly working hours are not constant (Article 18 of the LSA).

(ii) The number of contractual working
hours per day for part-time workers is the number of hours divided by the
number of days for a full-time worker for that period.[3] In other words, the
calculation may vary depending on the total number of days worked by a full-time
worker over a four-week period. Contractual working hours is defined as the working
hours determined between the worker and the employer within the range of legal working
hours, so the contractual working hours should be equal to or less than the
legal working hours (Article 2 of the LSA).[4]

The calculation method for the contractual
working hours per day is as follows: ① 6 hours per day from Monday to
Friday and a 5-day working per week: [(30 hours x 4 weeks)/(5 days x 4 weeks) =
6 hours]. Or ②, if a regular worker works 6 days a week: [(30 hours x 4
weeks)/(6 days x 4 weeks) = 5 hours].

 (iii) The standard for full-time workers is
defined as "full-time workers engaged in the same kind of job in the same
workplace" in Article 2 of the "Act on the Protection etc. of the
Fixed-Term and Part-Time Workers" (FPA). The court explained that whether
or not the work of the employee selected as a comparable worker corresponds to
the work of the same or similar type as the work of a part-time worker is not
based on the work content as specified in the rules of employment or the employment
contract, but on the basis of the work actually performed by full-time workers.
However, even if the tasks they perform are not completely in agreement with
one another and there are some variances in the scope, responsibilities and
authority of the tasks, they are considered to engage in similar tasks unless
there is a substantive difference in the content of the main task.”[5]

 

III. Legal Working Conditions of Part-time Workers

 

Working
conditions for part-time workers shall be determined on the basis of the
relative ratio of their working hours in comparison to those of full-time
workers engaged in the same kind of job in the same workplace (Article 18 of
the LSA).

That is, even part-time workers are
subject to all the provisions of the Labor Standards Act, but for statutory
holidays and leaves, the principle of proportional working hours of ordinary
workers is applied.[6]

 

1. Employment
contracts and Rules of Employment

 (i)
Employment contract: The employment contract of part-time workers must be issued in
writing. In case of violation, a penalty of KRW 5 million is imposed (Articles 17 and 24 of the FPA). The items
that must be included
in the labor contract include: 1) Matters concerning the
contract period; 2) Matters concerning working hours and rest hours; 3) Matters
concerning components, calculation and payment methods of wages; 4) Matters
concerning holidays and leave; 5) Matters concerning the place of work and required
work; 6) Work days and working hours of each work day. The reason forrequiring the employer to make labor contracts in writing is to prevent
disputes for violation of
the Labor Standards Act in advance.

 (ii) Rules
of Employment(ROE): The employer may
create Rules of Employment
that apply to part-time workers
separately from those that apply
to full-time workers. If an employer wants to make or change the rules of
employment, the employer shall seek seek consultation of the majority of the part-time workers
to whom the
ROE will apply. However, if the ROE are to be modified in a manner that is unfavorable
to the part-time workers, the employer must obtain the consent of the majority
of the part-time workers (Article 94 of the LSA). The purpose for this is to prevent the employer from
unilaterally lowering the working conditions of part-time workers.[7]

 

2. Wages

(i) The wage calculation unit for a part-time
worker is based on the hourly wage. If hourly wage is calculated as daily ordinary
wage, the number of hours worked per day is multiplied by the hourly wage.
(ii) The wage shall be paid in full to the worker directly in Korean
currency, and shall
be paid at least once per month on a fixed date(Article 43 of the LSA). (iii) For part-time
workers, the average
wage of 30 days or more for one year of continuous work shall be paid as
severance pay. In this case, if the average wage is less than the ordinary wage, the ordinary
wage must be paid as severance
pay(Article 2 of
the LSA). Also, in establishing a severance pay system for part-time workers, there should
be no difference from that of the severance pay system for full-time workers. (iv) Even if there is no comparable full-time worker, the
minimum wage under the Minimum Wage Act must be paid.

 

3. Working
hours

(i) The
contractual working hours of part-time workers are strictly protected. The
employer must obtain the consent of the part-time worker in cases of having
the part-time worker work
beyond the contractual working hours, and in instances such as this the Act(FPA) also stipulates that the part-time worker shall not work more
than 12 additional hours from the contractual
working time of one week. The employer shall pay part-time workers at least
50/100 of the ordinary wage for overtime work exceeding the contractual working
hours within the legal working
hours (8 hours per day, 40 hours per week). Under the Labor Standards Act, an
additional wage of 50% or more of ordinary wage is paid only for overtime work
exceeding legal working hours, but for part-time workers, payment of additional
wages is prescribed even if the contractual working hours are exceeded within
the legal working hours(Article 6 of the FPA). (ii) Part-time workers are also paid an additional 50%
for holiday work
as specified in
the rules of employment, and 100% for holiday work exceeding 8 hours (Article
56 of the LSA). (iii) If a part-time worker performs night work between 10 pm
and 6 am on the following day, the employer shall pay wages with an additional
allowance equivalent to 50/100(Article 56 of the LSA).

 

4. Holidays and annual paid leave

 
Holidays and annual paid leave for part-time workers are applied equally in
accordance with the principle of proportional working hours for full-time
workers.

(i) Holidays:
An average of one paid holiday per week worked shall be guaranteed, for whichthe
contractual working hours of one day must be paid. When calculating wages according to hourly wage,
the employer shall pay an
additional weekly holiday allowance. However, in the case of a part-time worker
who has been employed for weekend or holiday work, the weekly holiday should be
given as a paid holiday on a non-weekend day.

①Calculating 6 hours per day from Monday to
Friday, 5 days’ work per week for full-time workers and payment of
KRW 10,000 per
hour: [(30 hours x 4 weeks)/(5 days x 4 weeks) = 6 hours], results in [6 hours x KRW 10,000 = KRW 60,000]. ② However, if full-time workers are
working for 6 days a week: [(30 hours x 4 weeks)/(6 days x 4 weeks) = 5 hours],
the result is [5 hours x KRW 10,000 = KRW 50,000].

(ii) Annual paid leave: The employer shall grantpart-time
workers a number of days of annual paid
leave equal to that of full-time workers. Annual paid leave is calculated in
hours, with less than
one hour counting as one hour.
Also, in case of monthly paid leave for those working less than one year, the contractual
working hours of one day per each month should be given as monthly paid leave. The
criteria for granting annual paid leave for part-time workers are as follows:

Number of annual leave days  for full-time workers	×	Number of hours worked for part-time workers	×  8 hours
		Number of hours worked for full-time workers

If a part-time worker works 20
hours a week, this works out to [15 days x (20 hours/40 hours) x 8 hours = 60
hours]. In other words, each four hours is guaranteed as an annual paid leave
day.

(iii) Maternity Leave: The
employer shall give 90 days of pre-and post-natal maternity leave for pregnant part-time
female workers, with the first 60 days of maternity leave being paid. ①Thematernity leave allowance is the
amount calculated as the hourly wage of a part-time worker multiplied by the contractual
working hours of one day and multiplied by 60 days. ②The remaining 30 days can be paid as maternity leave
benefits as stipulated by the Employment Insurance Act (Article 74 of the LSA).
Assuming that a part-time worker is paid KRW 10,000 per hour, and the contractual
working hours is 5 hours per day. ① The maternity leave allowance is KRW
10,000 x 5 hours x 60 days = KRW 3,000,000. ② The maternity leave benefit is KRW
10,000 x 5 hours x 30 days = KRW 1,500,000.

 

IV. Prohibition of Discriminatory
Treatment and the Exception of Applications

1. Prohibition of discriminatory
treatment

 An employer shall not give discriminatory treatment to any
part-time employee on the grounds of his/her employment status compared to full-time
workers engaged in the same or similar kinds of work in the business or
workplace concerned. It
is necessary to pay various allowances etc. in accordance with the Rules of Employment
and employment contracts, and not discriminate against ordinary workers. The
subjects of discriminatory treatment are ① Wages[8]; ②Regular
bonuses, holiday bonuses, etc. and bonuses paid regularly; ③ Incentives according to business
performance; ④
Other matters concerning working conditions and benefits, etc. (Article 2 of
the FPA) If a part-time employee has received discriminatory treatment, he/she
may file a request for correction with the Labor Relations Commission; this
shall not apply if six months have passed since such discriminatory treatment
occurred (or since such treatment ended in cases of continuous discriminatory
treatment). The procedures for this are the same as those for remedy
application of an unfair dismissal case (Articles 8, 10 to 15 of the FPA). The employer shall not discriminate
against the part-time worker for the reason that he has applied for correction
of discrimination (Article 16 of the FPA). If the employer fails to perform the
correctional order of the Labor Relations Commission without just cause, he
shall be subject to a fine of up to KRW 100 million (Article 24 of the FPA)

 

2. Exceptions of applications for
part-time workers

With
respect to workers whose contractual working hours is an average of less than
15 hours per week over a four-week period (or the employment period, if they have
been employed for less than four weeks), ①weekly holiday allowance
(Article 55), ②annual paid leave (Article 60), ③monthly
paid leave (Article 60), and ④severance pay (Article
34) shall not apply. In addition, social security insurances such as employment
insurance, national pension and national health insurance except for industrial
accident compensation insurance are excluded.  

If the employer sets the contractual working hours of one
week to 14 hours, and concludes the employment contract by adding an additional
2 hours of fixed overtime work every day (for 5 days), the Ministry of Labor has
decided that the total working hours, including fixed extended working hours,
are defined as working hours actually taken, as long as there is no reason to
believe otherwise. In such case, part-time workers are subject to severance
pay. However, it is possible to exclude from fixed working hours if it is not
fixed overtime work but extension work due to an agreement with the company at
that time.[9]

 

V. Conclusion

 

The reason part-time workers have been subjected to relatively
poor working conditions is that it is difficult to find the same kind of
workers working in the same workplace, to be able to compare for discriminatory
treatment. To protect against discriminatory treatment of part-time workers, it
is necessary to expand the scope of full-time workers for comparison.[10] In addition, in the case of workplaces
with fewer than 5 employees, legal correction for discriminatory treatment is not
possible, as these workers are excluded from the protection of the labor laws, which
is a blind spot in the labor law because it does not apply to overtime, night
work or holiday work. Therefore, for the active use of part-time workers, it is
necessary to gradually expand the scope of full-time workers to be compared and
to apply the Labor Standards Act to workplaces with fewer than 5 workers, to reduce
discriminatory treatment.