The concept of fixed-term and part-time employees
Who is a fixed-term employee?
- A "fixed-term employee" means an employee who has signed an employment contract whose period is fixed (Article 2, subparagraph 1 of the Act on the Protection of Fixed-Term and Part-Time Employees).
Who is a part-time employee?
- A “part-time employee” is an employee whose contractual work hours in a week (meaning seven days, including holidays) are short compared to those of full-time employees who engage in the same type of work at the workplace (Article 2, subparagraph 2 of the Act on the Protection of Fixed-Term and Part-Time Employees; Article 2(1), subparagraphs 7 and 9 of the Labor Standards Act).
※ What are contractual work hours?
-“Contractual work hours” are the work hours agreed upon by the employee and business owner that meet the following criteria (Article 2(1), subparagraph 8, Article 50, main body of Article 69 of the Labor Standards Act; Article 139(1) of the Occupational Safety and Health Act).
·Work hours shall not exceed 40 hours in a week (excluding hours of recess)
·Work hours shall not exceed eight hours in a day (excluding hours of recess)
·The work hours of persons from 15 to under 18 years of age shall not exceed seven hours in a day and 35 hours in a week (this may, however, be extended by the parties’ agreement up to an hour in a day and five hours in a week)
·The work hours for harmful or dangerous work, such as caisson or diving work, etc., done in high pressure conditions shall not exceed six hours in a day and 34 hours in a week
The scope of the application of the Act on the Protection of Fixed-Term and Part-Time Employees
Scope of application
- The Act on the Protection of Fixed-Term and Part-Time Employees applies to all businesses and workplaces that regularly employ at least five employees. However, it does not apply to businesses and workplaces that only employ relatives who live together or domestic employees (Article 3(1) of the Act on the Protection of Fixed-Term and Part-Time Employees).
- The Act on the Protection of Fixed-Term and Part-Time Employees applies to the State and local government agencies regardless of the number of regular employees (Article 3(3) of the Act on the Protection of Fixed-Term and Part-Time Employees).
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※ Businesses and workplaces that regularly employ four or fewer fixed-term and part-time employees The following subset of provisions applies to businesses and workplaces that regularly employ four or fewer fixed-term and part-time employees (see Article 3(2) of the Act on the Protection of Fixed-Term and Part-Time Employees; Article 2 and Attached Table 1 of the Enforcement Decree of the Act on the Protection of Fixed-Term and Part-Time Employees).
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Organization
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Applicable Provisions
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Chapter 1 General Provisions
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• Article 1 (Purpose) • Article 2 (Definitions)
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Chapter 2 Fixed-Term Employees
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• Article 5 (Conversion to Employees on Non-Fixed Term Contract)
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Chapter 3 Part-Time Employees
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• Article 7 (Conversion to Full-Time Employees)
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Chapter 4 Supplementary Provisions
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• Subparagraph 4 of Article 16 (Prohibition of Unfavorable Treatment) • The provisions of subparagraphs 1 to 5 of Article 17 (Written Statement of Working Conditions: Subparagraphs 1 and 2 limited to hours of recess; subparagraphs 3 and 4 limited to holidays) • Article 18 (Notification to Regulatory Authorities) • Article 19 (Delegation of Authority) • Article 20 (Efforts by State to Promote Employment)
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Chapter 5 Penalty Provisions
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• Article 21 (Penalty Provisions) • Article 23 (Joint Penalty Provisions) • Article 24(2)2 (Administrative Fines) • The provisions of Article 24(3) to (6) (Administrative Fines)
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Standards and methods for calculating the number of regular employees
- Standards for calculating the number of regular employees
· The standard unit for calculating the number of regular employees is “the employing business owner’s business or workplace,” and “business or workplace,” in this case, refers to a subject of rights and obligations that is a single unit for management purposes, managed organically, and independent as a whole (Ministry of Employment and Labor, Fixed-Term Legal Practice Manual (2019), p. 23).
· Though multiple workplaces and business departments within a corporation may have certain discretionary powers delegated for personnel and labor management, they are parts of corporations being generally restricted by corporate-level policies and aims, etc., and are, in principle, recognized as businesses (Fixed-Term Legal Practice Manual, p. 23).
· If a single corporation is dispersed in space by being divided into a head office, branches, chains, stores, etc., recognition as a business/workplace depends on their independence, including whether each workplace has the authority to determine working conditions, whether personnel, labor, finances, and accounting are clearly separated, whether different collective agreements and employment rules apply, etc. (Fixed-Term Legal Practice Manual, p. 24)
- Methods for calculating the number of regular employees
· The number of regular employees includes all directly employed workers, but temporary agency workers will be excluded from the calculation (Fixed-Term Legal Practice Manual, p. 26).
※ Temporary agency worker
-A “temporary agency worker” refers to a worker employed by a temporary work agency and subject to temporary work placement (subparagraph 5 of Article 2 of the Act on the Protection of Temporary Agency Workers).
-A temporary agency worker is eligible for protection under the Act on the Protection of Temporary Agency Workers.