workingtimesCompanies sometimes need to ask employees to work on holidays due to a sudden increase in work or unexpected vacancies. This is known as a holiday substitution system in South Korea, it is possible to operate it according to a set legal procedure, instead of working on a set holiday and paying holiday wages, but on another working day (weekday).
Employers must guarantee workers paid holidays prescribed by Presidential Decree. However, if agreed in writing with the worker’s representative, it may be replaced by a specific working day.
Article 55 (2) of the Labor Standards Act <New establishment on March 20, 2018>
What about holiday pay for holiday substitutions?
Does this mean that you can just ask workers to work on a holiday whenever you want and switch the day, without paying them holiday pay?
The answer is no.
What is the legal process for making a holiday substitution?
There are a few things you need to do to make holiday substitution legal, including
- Have a provision in your collective bargaining agreement, employment rules, etc. that identifies the holiday as a work day and allows you to substitute the holiday for a normal work day.
- Alternatively, if there is no such provision, the individual employee must be given 24 hours’ notice of the holiday to be substituted, with their consent (preferably in writing, including a completed and signed timesheet for clarity).
- The total number of hours worked in a workweek that is increased through holiday substitution must not exceed 52 hours.
- In addition, since the holiday is granted on a different day than the other working days, it cannot be paid as annual leave.
Instead of working on a scheduled holiday and receiving holiday pay, employees are required to work on a different working day, which is called “holiday substitution.” In this case, it is considered legal if the collective bargaining agreement provides for such a provision, or even if it does not, the employee agrees to it and gives 24 hours’ notice to the employee of the holiday to be substituted.
Wage Working Hours Policy Team-1815, July 21, 2006
Unlike overtime work, holiday work and weekday work can be replaced by weekdays and 1:1 if you notify 24 hours in advance
Legal Affairs 811-18759, 1978.4.8
If a collective agreement specifies a holiday as a working day and makes a provision that a normal working day can be replaced by a holiday instead, or if there is no such provision, and the employee’s consent is obtained and the employee is notified in advance of the holiday to be replaced, it is recognized as a legitimate substitute for the holiday unless there are other special circumstances. Therefore, the original holiday becomes a normal working day and the work on that day becomes normal work, not holiday work, and the employer is not obligated to pay holiday pay.
Supreme Court sentenced on November 13, 2008 2007Da590
If you follow the above and make holiday substitutions, you are not required to pay holiday pay.
(= if you do not make a legal holiday substitution and the employee works on a public or alternative holiday, you must pay holiday pay)
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