The Ministry of Labor issued the Lao-Dong-Tiao-3-106130987 Circular of May 3, 2017 (hereinafter, the “Circular”) to communicate that the work hours of workers whose consent to work on rest days is obtained by the employer should basically be included in extended work hours and their cap. However, if the workers do not show up to work or fail to provide the agreed-upon hours of service on such days for personal reasons, the overtime hours may be calculated based on the actual hours of service.
According to the Circular, Article 36, Paragraph 1 of the Labor Standards Act provides that there shall be one rest day for workers every seven days. On rest days, workers basically will rest, and an employer asking them to work on rest days is required to obtain their consent. If workers who have given their consent cannot provide services for personal reasons, they should inform their employer. For the time periods when the workers never show up to work or fail to work for agreed-upon hours on such rest days, the workers may take leave of absence based on their reasons and facts pursuant to laws and regulations such as the Regulations on the Leave-taking of Workers unless both the employer and the workers both agree to cancel the above-mentioned work obligation.
It was further pointed out in the Circular that except for acts of god, accidents and emergencies, the work hours of workers asked to work on rest days by their employer should basically be included in the cap on the total extended work hours under Article 24, Paragraph 3 and Article 36, Paragraph 3 of the Labor Standards Act. For example, if a worker only agrees to work for two hours on a rest day and actually works for two hours, the extended work hours shall be four, which should be included in the 46-hour cap on the monthly extended work hours. However, if workers have agreed with their employer to work on rest days, but they never show up to work or fail to provide the agreed-upon hours of service for personal reasons, the extended work hours may be calculated based on the actual work hours. For example, if a worker who has agreed to work for eight hours on a rest day actually only works for five hours due to personal leave or sick leave, the five hours may be included in the total extended work hours.
Finally, this Circular pointed out that if workers have agreed to work on rest days but fail to provide services for personal reasons, the handling manners such as the notification and leave-taking procedures should preferably be agreed between the employer and the employee for the sake of compliance.