What Is the Lawful Management Strategy for a Flexible Work Hours System That Prevents Wage-Arrears Disputes?

-Legal column by Attorney Heo Sung-guk, Daeryun LLC (Law Firm)

Shift-work sites such as hospitals, manufacturing, and facility management, where 24-hour operation is essential, mostly adopt the flexible working hours system to operate work hours flexibly. The flexible working hours system stipulated in the Labor Standards Act is a system that extends work hours in a particular week or day while shortening work hours in another week or day, so that the average work hours within a certain unit period are kept within the statutory standard of 40 hours per week. It can be called an essential labor mechanism that the law guarantees to reduce the burden of overtime pay and to operate manpower efficiently at sites where workloads are concentrated or shift schedules are complex.

To operate a flexible work system lawfully, the requirements set by law must be strictly observed. Article 51 of the Labor Standards Act sets different adoption requirements according to the unit period: a unit period of up to 2 weeks can be adopted through the rules of employment, while a unit period of up to 3 months requires that the scope of covered workers, the unit period, and the working hours for each working day be set through a written agreement with the workers' representative. However, nowhere in the law is there a restriction requiring that this unit period must be set identical to the work rotation cycle actually running in the field.

In fact, the author recently conducted a wage lawsuit related to this on behalf of an employer. In this case, the worker argued for the invalidity of the system on the grounds that, despite the existence of a lawful 2-week unit standard, the actual work in the field was operated on a 3-week rotation, and won at the first instance. However, the appellate court accepted the author's argument that there is no legal basis requiring the statutory unit period and the field rotation cycle to coincide, and rejected the worker's arbitrary claim of the system's invalidity.

The core labor risk that shift-work sites face in the field arises precisely from the gap between legal standards and the actual schedule. Situations where the originally set work schedule or rotation cycle inevitably changes due to personnel gaps or the nature of the work are bound to occur. If, at this point, an employer neglects the difference between the standard on paper and the field schedule without legal review, it provides workers a pretext to arbitrarily cut out a particular point in time and claim a hypothetical work pattern favorable to themselves. This is a fatal risk factor that can lead to the effectiveness of the flexible work system itself being denied and escalate into an overtime-pay-arrears dispute for the entire work period.

To defend against this risk and operate a lawful flexible work system, a meticulous management strategy must be in place. Above all, perfectly equipping the rules of employment or written agreement procedures—which form the backbone of the system—in accordance with the requirements of the Labor Standards Act is the top priority. The scope of covered workers and the working hours for each working day must be clearly defined in accordance with the adopted unit period (within 2 weeks or within 3 months). Furthermore, even if the field rotation cycle fluctuates flexibly, a monitoring system must be established to carefully control the total actual work volume so that the average weekly work hours do not exceed the statutory standard within the predetermined unit period. If such a dispute is raised, a systematic approach is needed that logically proves, based on objective attendance data and legal assistance, the fact of lawful adoption of the system and compliance with the work-hour limit within the unit period.

Reporter Lee Dong-o (canon35@mt.co.kr)

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