|Title||Case 2 Annual Paid Leave and Allowances for Unused Leave|
|Date||2009-06-04||Category ||category||Phone ||031-345-5116|
|Case : 2》Annual Paid Leave and Allowances for Unused Leave|
This is the National Labor Consultation Center.
We would like to answer to your question, Annual Leave and Allowances for Unused Leave
1. Annual paid leave is granted to a worker working at a workplace employing five workers or
more and satisfying a certain rate of attendance at work for one year, and requirements for
eligibility and the number of days of annual paid leave vary depending on the time of
implementation of 40-hour work per week system at the relevant workplace.
※ Time of implementation of 40-hour work per week system:
① A business or workplace employing 50 or more but fewer than 100 workers:
July 1, 2007
② A business or workplace employing 20 or more but fewer than 50 workers:
July 1, 2008
③ A business or workplace employing fewer than 20 workers: A date (yet outstanding)
to be prescribed by Presidential Decree within a period not passing 2011
※ How to calculate annual paid leave
① Workplaces with 40-hour work week system:
- 15 days of paid leave is granted to a worker who has attended at work by the rate
of at least 80 percent in one year.
- An additional 1 paid day per every 2 years of consecutive work(up to 25 days)
- 1 paid day per month of full attendance, for workers who work shorter than 1 year
- Promotion for use of leave(inserted)
② Workplaces with 44-hour work per week system:
- 10 days of paid leave is granted to a worker who has fully attended at work in one
year, while 8 days of paid leave is for a worker who has attended at work by the rate
of at least 90 percent in one year(Available to employees who have worked for 1 year
- An additional 1 day per year of consecutive work.
- Monetary compensation in lieu is allowed when 20 days or longer are accumulated.
2. You are eligible to ( ) days of annual paid leave. The employer is required to grant
the leave for a period requested by a worker unless business is seriously impeded if the
leave is granted for such period. As the employer is required to pay an ordinary wage or
average wage to the worker for the period concerned as prescribed by the rules of
employment, etc., if no wages are paid for the days used by the worker for annual paid
leave, the employer shall not be deemed to have granted the leave complying with laws.
3. Annual leave is in principle calculated based on the date of joining the company
by the worker, but for the convenience of labor management, a period subject to the
calculation of annual leave may be uniformly applied for all workers based on the fiscal
year, etc. of the company. In such cases, workers shall not be unfavorably treated.
- Annual leave arisen under the former provisions before the enforcement of the amended
Act is valid and may be used without being affected by the amended Act and the employer is
required to pay allowance for unused leave for annual leave which has not been used.
When the time arrives for the calculation of annual leave after the enforcement of the amended
Act and even when a period preceded before the enforcement of the amended Act is included
in a period subject to the calculation of annual leave, such period shall not be calculated
proportionately by counting the relevant days of the period but annual leave shall be calculated
complying with the amended Act. In cases when requirements for eligibility for annual leave
have already been met before the enforcement of the amended Act, annual leave is calculated
under the former provisions as the period of work subject to the calculation of annual leave is
a period subject to the former Act.
4. The employer of a workplace adopting 44-hour work per week system has been required
to pay allowances corresponding to unused leave if labor was actually rendered regardless
of any explicit intention of the employer regarding acceptance of labor, however, the amended
Act releases the employer from such requirement if he/she has urged their workers to use
leave complying with the relevant procedures provided for in the amended act and if the worker
has failed to use leave.
- Measures of urging workers to use leave will function toward the direction of reducing
actual working hours of workers and of lessening the burden of payment of wages by the
enterprise. Taking account of cases abusing the relevant power by the employer, Article 61
of the Labor Standards Act provides that (1) the employer is required to inform the number
of days of leave of each worker within 10 days based on three months before the termination
of the period of use of leave urging them in writing to determine the time of use of such
leave and to notify the employer thereof, (2) if any worker so urged fails to determine the time
of use for the whole or part of leave unused and to notify the employer thereof within 10
days from the time such has been urged and when the employer determines the time of
use of unused leave and makes written notice to the worker no later than two months
before the termination of the period of use of leave, the employer shall be exempted from an
obligation to compensate with money.
- Any request to determine a time of use of leave and any designation of a time of use
of leave shall be made in writing without fail. Notification via the internal internet e-mailing
system or a bulletin board in the company shall not be deemed written notice. Meantime
annual leave arising during the period of service of less than one year is not subject to
an urge for use of leave under Article 60 (2) of the Labor Standards Act.
5. An obligation to make payment for unused annual paid leave is not provided for
in any legal provisions but has been established by judicial precedents and administrative
interpretations. A right to claim allowances for unused annual paid leave is a right of a
worker who has rendered labor without using his/her annual paid leave to request to
his/her employer an allowance for unused annual paid leave corresponding to the number
of days of the unused leave. Such right to claim allowances for unused annual paid leave is
in principle considered to arise on the day following the day on which a right to request
annual paid leave is extinguished.
- The employer may include allowances for unused annual paid leave on the
assumption that labor corresponding to such annual paid leave will be offered and pay
such allowances to the relevant worker by including the allowances for unused annual
paid leave in monthly wages in a form of comprehensive wage payment system (reference
to a precedent of the Supreme Court No. 96da24699 of March 24, 1998). However,
when a labor contract with provisions for advance payment of compensation money for
unused annual or monthly paid leave by including such allowances in monthly wages is
to be made, such provisions will be legitimate only when the worker still holds a right to
use his/her annual or monthly leave even after allowances for unused annual or monthly
paid leave are paid, and jf the worker is denied from using his/her leave, such denial wil
l be construed to have limited the right to request and use annual or monthly leave
vested to the worker by the Labor Standards Act and will not be allowed.
- In cases when a right to request leave is extinguished, and when the employer seeks to
pay allowances instead with respect to the number of days of unused leave, such
allowances can be calculated and payed based on the wage on the wage payment day
of the month to which a right to finally request leave belongs to.
○ Meantime provisions for annual paid leave does not apply to workplaces employing
less than five workers and to workers working less than 15 hours a week when the working
hours of four weeks are averaged.
☞ Are you satisfied with the above answer ? If you don''t think our answers meet
your questions , please call us. Then, we''ll give you an additional answer. Thank you.
○ Annual paid leave is granted to a worker who has continuously worked for one year.
It aims to offer a physical and mental recess to such worker and to help re-generation of
labor and to secure a cultural life.
① Any workplace employing fewer than five workers;
② Any worker working less than 15 hours a week when his/her working hours
during four weeks are averaged;
③Any worker whose continuous working period is less than one year
- Any worker for whom one year has not passed from the date he was first employed
is eligible to one day of paid leave when such worker has fully attended his/her job for
one month, and for his/her labor for the first one year a total of 15 days of paid leave
is granted including leave arising from his/her full attendance at his/her job in each month.
○ Contractual working days&rate of attendance
The term ''contractual working days'' means days for labor determined in laws and
regulations, collateral agreements, rules of employment or such.
The term ''rate of attendance'' is determined with respect to a total number of contractual
working days of one year.
■ < legal holidays or contractual holidays excluded in calculating the number of contractual
○ As the term ''contractual working days'' means days which are determined to work by
a worker and an employer within the scope of laws and regulations, the following days
are excluded when calculating the number of contractual working days as such days
may not designated as days to work under laws and regulations or are determined as
days of no work by a contract between the worker and the employer:
① Weekly holidays under the Labor Standards Act;
② Labor Day under the Designation of Workers'' Day Act;
③ Contractual holidays under the rules of employment or collateral agreements, etc.;
④ Days or periods which may be construed to be equivalent to the days of (1) to (3)
○ Cases where obligation to offer labor is suspended due to reasons which were
unpredictable for the worker or the employer although the rules of employment or collateral
agreements, etc. prescribe as days for labor shall be excluded in calculating the number
of contractual working days. Such cases are:
① Any period of business suspension caused by reasons attributable to the employer;
② Any period of legitimate industrial action;
③ Any childcare period under the Act on the Equal Employment and Support for
④ Any day or period which may be construed as a day or period equivalent to days
or periods of Items (1) to (3).
■ in calculating the number of contractual working days>
① a period of suspension of work due to occupational injury, a period of maternity leave
under Article 74 of the Labor Standards Act
② a period of training under the Establishment of Homeland Reserve Forces Act
③ a period of training or of non-working owing to the performance of duties under the
Framework Act on Civil Defense.
④ day off to excercise civil rights
⑤ annual·monthly paid leave, Menstruation Leave
⑥ Any day or period which may be construed as a day or period equivalent to days
or periods of Items (1) to (3).
- However, in the view of characteristics of weekly holidy·monthly leave or annual
leave, if a worker has not worked for a full week·a full month or a full year,
an employer may not allow it.
ex) in case of a worker who joined the company on Jan .1.2008 and has worked
until July.7.2009 with full attendance, 15days shall be granted as annual paid leave,
- 08.1.1-08.12.31 for a full year, attendance rate is higher than 80%→ 15 days
- 09.1.1-09.7.1 no annual paid leave, because the period does not meet the condition, 1 year