[KS] Special Leave

[Kent A. Davy]

	1.  Unless the documents you report on were collective
bargaining agreements between companies and their organized workers, or
company "Rules of Employment" approved in the collective bargaining
process, it's not really accurate to call them "contracts", because they
do not represent a negotiated agreement between the parties involved --
although as noted below they still confer legally enforceable rights on
employees.  [And except for very senior executives and board members,
mostly expat, its almost unheard of for individual employees to have
employment contracts in Korea.] 

	2.  I suspect that the documents to which you refer are "Rules
of Employment" that every Korean company with 5 or more employees is
required to adopt pursuant to Article 96 of the Labor Standards Act
[current version enacted in 1997 and subsequently amended in various
ways, including in this connection:  Article 96 originally applied to
companies with 10 or more employees.  Many companies with fewer than 5
employees also voluntarily have adopted rules of employment.  In either
event, per Article 99 of the LSA, such Rules must comply with the
minimum standards governing working conditions provided in the law,
and/or any collective bargaining agreement in effect, and, once adopted,
are legally enforceable and, if any proposed change is disadvantageous
to the workers, may only be amended with the consent of a majority of
the work force (or if not disadvantageous after consultation with such
majority (or the union if one exists).  Even in the absence of such
Rules, the minimum statutory standards (and/or the provisions of any
collective bargaining agreement) apply and are legally enforceable.

	3.  Such Rules of Employment are required to describe various
specified categories of working conditions, the minimum standards for
some of which are specified elsewhere in the statute (and sometimes
further clarified in the Presidential Enforcement Decree promulgated by
the Office of the President on the advice of the Ministry of Labor or
subordinate administrative rules promulgated by the MOL itself, in each
case under authority granted in the law itself.

	4.  The minimum statutory standards for holidays/leave specified
in the LSA (which hence must be reflected in Rules of Employment) are as
follows:

		A. Weekly Holiday Time.  LSA Article 54; PED Article 25:
each employee is entitled to more than one paid day off per week.
Although (like many things in Korea) less than transparent, what this
means is that a worker is entitled to a day and a half off each week.
Ostensibly, perfect attendance is required in exchange for the benefit,
but in practice this is ignored.  The "paid" part is particularly
misleading, since in effect the pay that is given for the 5 and a half
days of work includes that to which the worker is entitled for the time
off.  The standard work week is 44 hours 8 M/F and 4/Sat.  The 44 hour
week is scheduled to be reduced to 40 this year.

		B.  Monthly Leave.  LSA Art. 57; PED Art. 27:  each
employee is entitled to one paid day off per month of perfect
attendance.  Again the perfection requirement is rarely enforced in
practice.

		C.  Annual Leave.  LSA Art. 59 grants each employee ten
days of paid leave to employees with perfect attendance records for the
year and 8 days to those with 90% attendance regards.  In practice the
distinction is not observed.  After the first two years of employment,
moreover, an employee is entitled to an additional day's leave for each
year of continuous employment, provided that if the total number of
annual leave days to which an employee is entitled is more than 20, the
employer has the option of paying the employee additional daily wages in
lieu of each such additional day of leave.  Unlike the weekly holiday
time, annual paid leave really is paid.

		D.  Menstruation Leave.  LSA Art. 71 grants women
employees one paid day of menstruation leave per month.

		E.  Maternity Leave.  LSA Art 72(1) entitles women to 60
days of paid maternity leave, more than 30 days of which may be taken
after delivery.  This has been proposed to be increased to ninety days
and to be extended to fathers, and I believe (but haven't been able to
confirm yet) that the enlargement to 90 days has been enacted with
effect from some time this year.

		f.  Nursing Time.  LSA Art.73 entitles mothers of
children under 12 months to more than 30 minutes nursing time twice a
day.

		g.  Childcare Leave.  Article 11 of the Equal Employment
Act additionally entitles both and women to one year's leave for
childcare during the first year of their child's life without penalty or
other discriminatory effect vis-à-vis their job status with the
employer.  The time off is not deducted from their accrued employment
tenure for, e.g., the purpose of determining leave or severance pay
entitlements.

	5.  Congratulatory and Compassionate Leave.  Although not
prescribed by law, it was customary and still is common for employers to
provide employees with time off (and/or -- and sometimes, increasingly
just "or" -- monetary gratuities) in case of marriage, birth of a child
(in the case of fathers), and death of a parent, grandparent, spouse or
child.  Sometimes these forms of leave are conventionally referred to as
special leave, but that is just a term of art/convenience not law as
such.  The periods specified are arbitrary, but the periods you specify
are not unusual.  I've seen similar and lesser periods.  Based on my
(limited) actual experience over the past rising 8 years here, the trend
is towards lesser periods, particularly with respect to funeral leaves. 

K.A. Davy
J.D.  The Harvard Law School
Senior Adviser, Hwang Mok Park & Jin, Seoul 

> -----Original Message-----
> From: Koreanstudies-admin at koreaweb.ws 
> [mailto:Koreanstudies-admin at koreaweb.ws] On Behalf Of D.K. Prendergast
> Sent: Tuesday, January 08, 2002 11:50 PM
> To: Korean Studies List
> Subject: [KS] Special Leave
> 
> 
> 
> Dear members,
> 
> I am currently writing a chapter on modern Korean funerals 
> and have a little question I am hoping some of you might be 
> able to help me with. In the small number of modern 
> employment contracts I have seen in Korea, there is usually 
> some kind of special leave for workers who are getting 
> married or who lose a family member through death. Here is an 
> example of a contract I saw in 2000.
> 
> Article 16 (Special leave) (1) Employee may take a Special 
> Leave for a number of days as set forth below for each of the 
> following events: 1. Seven (7) calendar days for Employee's 
> marriage. 2. Seven (7) calendar days for the death of 
> Employee's parent or spouse; five (5) calendar days for the 
> death of Employee's child. 3. In case of a female Employee, 
> sixty (60) calendar days for a maternity leave.
> 
> (2) Special Leaves specified in items (1) 1 and 2 are 
> available with pay. However, maternity leave shall be 
> available without pay.
> 
> 
> I am wondering whether this provision is made for most 
> employment contracts nowadays in Korea, and whether it 
> remains common for an employee to get seven days of leave for 
> the death of a parent / spouse in comparison to five days for 
> a child? Perhaps those of you who have had contracts could 
> let me know if it applied to yours? Indeed I was wondering if 
> some version of this is now a requirement under Korean labor 
> law? I remember reading something about this in the past but 
> it escapes me. I looked through the VERY outdated Korean law 
> books I have at hand, and found nothing.
> 
> If it was introduced, I would be most interested in finding 
> out when and the discussion that went on behind it.
> 
> All the best,
> 
> David Prendergast.
> 
> ----------------------------
> David Prendergast
> Ph.D Candidate
> Dept. of Social Anthropology
> University of Cambridge
> Free School Lane
> Cambridge CB2 3RF
> U.K.
> Tel: ++44 (0)1353 727175
> 
> 
> 
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