Question 52: Pursuant to labour law, the normal working hours of Employees must not exceed 48 hours/week. As such, if in the beginning Employers require Employees to work only 40 hours a week under LCs but then, due to the business demands, wish to increase the number of working hours to 44 per week, can Employers make a unilateral decision on this issue or must they obtain the consent of each Employee?

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An LC is an agreement between Employees and Employers on paid jobs, working conditions, rights and obligations of each party in the employment relationship, including the provisions on working hours and break time. In this case, Employers and Employees have agreed on 40 working hours per week and recorded this in LCs, and this provision is not against labour law, so in principle, the parties are obliged to fulfil their respective obligations in LCs. If Employers wish to increase the number of working hours due to business demands to 44hrs/week, they must obtain the Employees’ consent in accordance with law. Depending on each circumstance, Employers should do the following:

  • If Employers only need to increase the number of working hours for a short time to meet the business demands, they must reach an agreement with the Employees in this case. When Employees agree with the Employers’ request to increase the working hours, Employers are obliged to pay for their overtime work pursuant to Article 97 of the Labor Code based on the number of hours exceeding the normal working time specified in LCs. Also be noted that Employers must ensure the total number of working hours will not exceed 12hrs/day, the total number of overtime hours not over 30hrs/month, and the total not over 200hrs/year (except for some cases where the Government allows the number of overtime hours up to 300hrs/year). After each period of overtime work for a maximum of 7 consecutive days in a month, Employers will arrange for Employees to take some time off in compensation for the time they did not rest; and
  • If working hours must be changed on a long-term basis, Employers and Employees must amend LCs by appendices, and this amendment must be notified to Employees at least 3 working days in advance.

From the analysis above, if Employers wish to increase the number of working hours from 40hrs/week as specified in LCs to 44hrs/week due to business demands in any circumstance, they must obtain the Employees’ consent before application.