Answer:
A LC is an agreement between the Employer and the Employee on paid jobs, working conditions, rights and obligations of each party in the employment relationship, including the provisions on working hours and rest breaks. In this case, the Employer and the Employee have agreed on 40 working hours per week and recorded this in the LC, and this provision is not against labour law, so in principle, the parties are obliged to fulfil their respective obligations in the LC. If the Employer wishes to increase the number of working hours due to business demands to 44 hours/week, they must obtain the Employee’s consent in accordance with the law. Depending on each circumstance, the Employer should do the following:
- If the Employer only needs to increase the number of working hours for a short time to meet the business demands, they must reach an agreement with the Employee in this case. When the Employee agrees with the Employer’s request to increase the working hours, the Employer is obliged to pay for his or her overtime according to Article 98 of the Labour Code based on the number of hours exceeding the normal working time specified in the LC. It will also be noted that the Employer must ensure the total number of working hours will not exceed 12 hours/day, the total number of overtime hours not over 40 hours/month, and the total not over 200 hours/year (except for some cases where the Government allows the number of overtime hours up to 300 hours/year); and
- If working hours must be changed on a long-term basis, the Employer and the Employee must amend the LC by appendixes, and this amendment proposal must be notified to the Employee at least 3 working days in advance.
From the analysis above, if the Employer wishes to increase the number of working hours from 40 hours/week as specified in the LC to 44 hours/week due to business demands in any circumstance, they must obtain the Employee’s consent before application.
