Worker

Home > Service and Information > Q&A > Worker

[Q] Article 11

Hi Sir,

In reference to Article 11(3), the term "number of workers ordinarily employed" is calculated using the below definition:

The term "number of workers ordinarily employed" in Article 11 (3) of the Act shall be calculated by dividing the total number of workers employed for one month (in cases where it is less than one month from the realization of a business, referring to a period after the realization of such business; hereinafter referred to as the "period of calculation") prior to the date of occurrence of a reason (referring to a reason requiring judgment on whether the Act or this Decree shall apply, such as application of payment of a compensation of suspension of work, working hours, etc.; hereafter the same shall apply in this Article) governed by the Act in the business concerned or at the place of work concerned by the number of working days during the same period.

In my situation, "Company A" has a total of 5 workers. The 5th worker was then transferred to another related "Company B" on 1 February 2020.

In the month of Feb'2020 itself, how to calculate the number of workers ordinarily employed? How long would the period under Article 11(1) apply to Company A from 1 Feb 2020 onwards?

By Ryan | 2020-01-21

[A]


1. Hello, this is Ministry of Employment and Labor Counseling Center.


 


2. It is assumed that you have enquired in regard to ‘how to calculate the number of employees regularly employed under the Labor Standards Act’, please refer to the following reply.


 


A. According to Article 11 (Scope of Application) of the Labor Standards Act, the number of employees regularly employed shall be applied by business or workplace. In case of two or more businesses or workplaces managed by the same employer, if the location is separated, it shall be deemed a separate business or workplace. In cases where branch office, business office etc. are operated under the same structure and business system without independence, it shall be deemed one business or workplace.


 


- Also, our ministry’s administrative interpretation (Labor Standards 01254-13555 on


 September 26, 1990), in regard to whether an each business is independent or not, is


where it is not the same industry (high classification level) under Korean Standard


Industrial Classification; where they have different employment types or rules of


employment at each store (branch office); management of labor or accounting is


independent and separately operated.


 


B. Unfortunately, it is difficult to judge with your inquiry only, but if the employer manages two or


more workplace with company A and B, it shall be reviewed with :whether their location is


separated; whether the industry under Korean Standard Industrial Classification is different or


not; whether they apply to another collective agreement, rules of employment; whether each


workplace is independently operated by personnel management such as recruiting and


management of labor or accounting etc.


 


- If, the right of personnel management such as recruiting, transfer, dismissal of employees are


exercised by business, and personnel management is separately carried out, such as the application


of separate collective agreement, rules of employment for each business, the establishment


and operation of labor-management council for each business site, and the independence of


financial and accounting is recognized by each business site, it is judged that the number of


employees shall be calculated by each business, otherwise, it shall be calculated as one business.


 


- Please be noted Article 11 (3) of the Labor Standards Act defines how to calculate the


number of employees regularly employed, not for the application period.


 


3. If you have any question regarding labor relations law, please call Ministry of Employment and Labor Counseling Center on 1350 (press 4 and 1 for English). Thank you.


By e-mail to yo221@korea.kr | 052-702-5170
Back to top