CMNT_TITLE

Forty-Hour Week Convention, 1935 (No. 47) - Republic of Korea (RATIFICATION: 2011)

Article 1 of the Convention. Forty-hour week – Averaging of hours of work – Overtime. The Committee notes the information provided by the Government in its first report, and the comments of the Federation of Korean Trade Unions (FKTU). The Committee notes, in particular, that the principle of a 40-hour week is applied by section 50 of Labour Standards Act No. 5309 of 13 March 1997 as amended on 1 February 2012. It also notes that section 51(1) of this Act allows for the averaging of hours of work over a period of two weeks in accordance with rules of employment and the average of working hours should not exceed 40 hours per week, but the maximum weekly working time should not exceed 48 hours. However, there is no maximum daily working limit. It further notes that section 51(2) provides that averaging of working hours is allowed under certain circumstances over a maximum period of three months, and in this case daily working hours may not exceed 12 hours. In this respect, the Committee refers to Paragraph 12 of the Reduction of Hours of Work Recommendation, 1962 (No. 116) – adopted with a view to facilitating the application of the Convention – which provides that “the calculation of normal hours of work as an average over a period longer than one week should be permitted when special conditions in certain branches of activity or technical needs justify it”. Averaging arrangements should, therefore, be restricted to exceptional cases where the nature of the work, technical reasons or seasonal variations and periodic pressure of work make it necessary.

In addition, the Committee notes that section 53 of the Labour Standards Act permits overtime up to 12 hours per week if the parties concerned so agree. In this respect, the Committee refers to Paragraph 14 of Recommendation No. 116, under which the competent national authorities should determine the circumstances and limits in which exceptions to the normal hours of work may be permitted permanently, temporarily or periodically. The Committee refers, in this respect, to paragraph 79 of its General Survey of 1984 on working time in which it emphasized that “undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours”. The Committee requests the Government to provide additional information on any measures taken or envisaged with a view to limiting the circumstances under which the averaging of working hours, or the performance of overtime hours, are authorized so as to facilitate the application of the principle of the 40-hour week.

Moreover, the Committee notes the comments of the FKTU which were appended to the Government’s report. The FKTU indicates that that 40-hour week system is inapplicable not only to workers at workplaces with less than five employees but also to domestic workers. It further indicates that under section 59 of the Labour Standards Act, an employer who has reached agreement in writing with the workers’ representatives may be exempted from the application of the 40-hour week scheme. It further indicates that, due to the excessively broad scope of businesses that are subject to special provisions under section 59 of the Labour Standards Act, as many as 37 per cent of all Korean workers are not covered by the 40-hour work principle. In its reply, the Government states that applying the Labour Standards Act to domestic workers could cause confusion in enforcing the Act due to the vague concept of domestic workers, the risk of infringement upon individuals’ privacy and the question of whether a household can be considered to be a workplace. The Government further states that it will establish guidelines to ensure that the working conditions of domestic workers are protected voluntarily by their employers. Finally, the Government acknowledges that industries that are subject to special conditions are not bound by any limit on overtime work and this has given rise to problems of excessively long work hours. It intends, therefore, to introduce the necessary amendments to reduce the scope of such industries and set a limit on overtime work. The Committee accordingly requests the Government to keep the Office informed of further developments and to transmit a copy of any new text as soon as it has been adopted.