In order to strike a balance between work and life through efficient distribution of work hours, a growing number of businesses are implementing flexible work hours system. Accordingly, the possibility of having various types of legal disputes in the process of introducing and implementing flexible work hours system is increasing. In particular, when introducing flexible work hours system, how to determine employees’ “work hours for each working day” can raise an issue. Regarding such matter, attention must be required as the Labor Standards Act stipulates differently in the case of a flexible work hours system that lasts over three months and the case of flexible work hours system that is less than three months.

First, in the case of flexible work hours system that lasts over three months and less than six months, the Act requires that an employer shall conclude a written agreement with his/her employee to determine the "work hours by week during the unit period" and shall notify the employee of the "work hours of each working day of the relevant week" by not later than two weeks before the beginning of the working days of each week (Article 51-2(1)3. and (3) of the Act). In the Explanatory Material for the Revised Labor Standards Act (dated January 26, 2021), the Ministry of Employment and Labor explains that the work hours for each week in the unit period must be determined through a written agreement with the representative of employees but such period shall refer to the entire term of the unit period determined in the written agreement and the work hours of any working day to be notified to the employees by two weeks in advance must be the work hours of working days for the relevant week as a whole, and other than total amount of hours the employees actually have to work on any particular day (the daily work hours), it would be desirable to define the beginning and ending hours of each working day.

But the Labor Standards Act doesn’t particularly stipulate what would happen if an employer fails to notify the work hours for each working day of a certain week by two weeks in advance, or if the employer did notify the work hours for each working days of a certain week but failed to determine and notify the beginning and ending hours of the work for each working day, and this could raise a dispute on interpretation thereof.

On the other hand, in the case of a flexible work hours system that lasts less than three months, the Labor Standards Act requires an employer to determine the "working days in the unit period and work hours for each working day" through a written agreement with an employee (Article 51(2)3. of the Act). Meanwhile, the Guideline on Flexible Work Hours System (dated August 2019) published by the Ministry of Employment and Labor explains that working days and work hours for each working day shall be clearly defined in a written agreement so that workers can anticipate the schedule of their own work in advance.

Also, the guideline states that when introducing a 3-month period flexible work hours system at workplace, an employer must determine in advance the unit period and work hours of each day/week, and he/she cannot arbitrarily change such determined working hours according to the circumstances of the business. In the process of operating flexible working hour system, if an employer needs to change the working days for the remaining period and the work hours for each remaining working day due to a particular reason such as change in the workload, etc., a written agreement must be reached with the representative of employees. In other words, this is understood that in the case of a flexible work hours system that lasts less than three months, work hours of each working day must be predetermined in a written agreement.

The reason why the Labor Standards Act requires an employer to determine only weekly work hours of the unit period in advance and notify specific work hours for each working day by not less than two weeks before the beginning of such week in the case of a flexible work hours system that lasts over three months but less than six months is because the Act considered an aspect that it is hard to confirm in advance the work hours of each working day. But despite the fact that there could be a case where the work hours for each working day would be hard to be determined in advance even when implementing a flexible work hours system for less than three months, the Labor Standards Act doesn't have any specific provision thereon, leaving a room for dispute.

On above matters, the Ministry of Employment and Labor answered that (A) according to the Work Standards for the Crew of Power Vehicles (this appears to be an annex to a collective agreement), (i) it imposes an obligation to notify the crew in advance of the crew schedule, and requires the company to obtain the consent of individual workers when changing the crew schedule according to the company's needs; (ii) it allows individual workers to change rotations between each other; and (iii) an authority to prepare the crew schedule that determines work hours for each working day is held by the company’s deliberation committee consisting of the office head, senior guidance team head and related team heads designated by the director. In light of the above, it is deemed that the company has specific standards for determining the working days in the unit period and the employees’ work hours for each working day. Thus, considering the fact that this prevents any disadvantage to the employees due to a totally unexpected work since a specific worker can anticipate his/her working days and work hours sufficiently in advance, the company can be regarded as having reached a written agreement with the employees on ‘working days in the unit period and working hours for each working day’ as specified for in Article 51(2)3. of the same Act (Labor Standards Division-2621, dated July 23, 2009).

In addition, considering practical aspects of the case, the Ministry answered that (B) if the working day and work hours have changed due to a change in the type work so an employee happened to provide work that was not expected in advance, this can be seen as a violation of the written agreement on ‘working days and work hours for each working day’ but if certain measures have taken so that such employee could anticipate his/her working days and work hours in advance even if the type of work has changed, then this cannot be seen as a violation of the written agreement on ‘working days and work hours for each working day’ (Labor Standards Division-199 dated July 20, 2010).

In the case of a flexible work hours system that lasts less than three months, if employers are required to set in a written agreement the working days for a unit period and the work hours for each working day like required by the current Labor Standards Act, then the businesses which are hard to determine the work hours for each working day in advance will make irregular notification of work hours for each working day, making the employees become hard to anticipate when to work and for how long. Therefore, it is necessary to review measures to revise the Labor Standards Act in the way that in the case of a flexible work hours system that lasts less than three months, too, employers and employees may set the work hours per week in a unit period by written agreement and employers shall notify his/her employees of specific working days and work hours for each working day by not later than a certain period of time once such matters have determined.

Under the current Labor Standards Act, if a flexible work hours system which lasts less than three months has been introduced but it is difficult to predetermine the working days in the unit period and the work hours for each working day due to the nature of the work, any possible legal risks need to be resolved by coming up with measures to better ensure workers' predictability on their work hours such as: (i) clearly determining the methods and procedures for determining the working days in a unit period and the work hours for each working day; (ii) requiring the employer notify the employees of such determined working days and work hours for each working day in advance by not later than a certain period of time; (iii) causing the employer to obtain the consent of the employees when changing any working hours previously notified; and (iv) specifying all of above details in the written agreement.

Above was an article originally contributed by Yo-Sub Shim to Hankyung CHO Insight. You can check the same content (only available in Korean language) in this link.