[Plaintiffs, Appellees] Plaintiff 1 and 36 others (Attorney-in-charge of Busan Jonghap Law Offices, Attorney Kwon Hyeok-geun, as Litigation Representative)
[Defendant, Appellant] ○○ Co., Ltd. (Attorney-in-charge of Barun Law Offices, Attorney Jeong Gwi-ho, as Litigation Representative)
[Judgment Below] Busan High Court Decision 2000Na11034 Decided September 5, 2001
[Order]
The part of the judgment below against which the Defendant lost is reversed, and that part of the case is remanded to the Busan High Court.
[Reasoning]
1. We examine the grounds of appeal.
A. The Judgment Below
Based on the evidence it adopted, the court below found as follows: Article 43 of the collective agreement dated August 16, 1996 of the Defendant (whose trade name before the change was △△△ Co., Ltd.) provided that "bonuses shall be paid at the rate of 100% each at the end of February, April, June, August, October, November, and December, totaling 700% per year, and 500,000 won each shall be paid at Lunar New Year and Chuseok, and 300,000 won shall be paid as summer vacation pay," with the term of validity running from April 1, 1996 (retroactively applied) to March 31, 1998. As the non-party company, the Defendant's major shareholder, and its affiliated companies were designated on July 15, 1997 as companies subject to the Agreement on Deferral of Default (부도유예협약), and as self-rescue efforts to save the companies were undertaken, the labor unions of the respective affiliated companies also joined in these efforts through mutual contact and consultation. The labor union organized by a majority of the Defendant's production workers (hereinafter referred to simply as the "Defendant's Union") received an official document from the Defendant on July 24, 1997 requesting cooperation with respect to the self-rescue plan submitted by the Group's management innovation planning team, stating that the creditor bank consortium had requested a labor-management agreement on the freezing of 1997 wages, the return of 10% of wages and bonuses until the company's normalization, the return of summer vacation pay and monthly leave allowance, and the suspension of implementation of the welfare provisions of the collective agreement. On July 25, 1997, the Union convened an emergency delegates' assembly and resolved to freeze 1997 wages, to return the 1997 bonus until normalization (reducing it to 450% if it continued through the end of the year), and to suspend implementation of the welfare provisions based on the collective agreement, provided that the resolution was made on the premise that it would become void if the Defendant were sold or acquired by a third party; and the Union notified the Defendant's representative director of this through a written notice on the return of bonuses and vacation pay and the labor union's self-rescue measures (it may be found that, in response to the Defendant's request for cooperation in accordance with the contents of the self-rescue plan being pursued by the Defendant, the Defendant's Union's notification of the above resolution resulted in a meeting of the minds between labor and management regarding the return of bonuses). Thereafter, the officials responsible for the labor-management council held a meeting and confirmed this. On July 29, 1997, the Defendant and the Defendant's Union adopted a joint labor-management resolution, which included content such as taking the lead in creating a dispute-free workplace for at least three years until the company's management was normalized, re-establishing the collective agreement in the direction of labor-management harmony and discipline in order to face management normalization with painstaking effort, and actively cooperating with personnel adjustments for the rational operation of manpower, while confirming the contents of the above notification regarding the return of bonuses, etc. (hereinafter, this joint labor-management resolution confirming the meeting of the minds as described above is referred to as the "Agreement in this case"). At the same time, they specified that third-party acquisition or merger could absolutely not be tolerated, and that in the event of third-party acquisition or merger, the agreement would be entirely void. Meanwhile, on August 4, 1997, the chairman of the Defendant's Union again prepared, in his own name, a written consent to the self-rescue plan for the reconstruction of the company, and delivered it to the creditor bank consortium through the Defendant; its contents included the return of bonuses, vacation pay and vacation, the freezing of wages, and the suspension of execution of welfare-related expenses, but specified that it would become void in the event of a third-party acquisition or a change in the current top management. The Plaintiffs are workers who joined the Defendant on the dates of employment indicated in the "Dates of Employment" column of the attached statement of unpaid wages and benefits in the judgment below, and worked for the Defendant until they retired on the dates of resignation indicated in the "Dates of Resignation" column between September 1, 1997 and December 31, 1998; during the period from August 1, 1997 to December 31, 1998, they did not receive the bonuses, vacation pay, etc. indicated in the "Total Unreceived Amount" column of the attached statement of unpaid wages and benefits in the judgment below. On January 8, 1999, the Defendant and the Defendant's Union amended the collective agreement, maintaining Article 43 of the collective agreement of August 16, 1996 regarding bonuses as it was, but providing that only 300% (including 500,000 won paid in or around July 1998 to employees then in service as a living subsidy in the form of a wage advance) would be paid for the 1998 bonus, and only for the period after April 1, 1998, with the term of validity set from April 1, 1998 to March 31, 2000; accordingly, the Defendant also applied the collective agreement of January 8, 1999 to those among the Plaintiffs who retired after April 1, 1998, and paid them 300% of the bonus calculated on a pro rata basis according to the number of working days up to the date of retirement.
Having found the above facts, the court below held as follows regarding the Plaintiffs' claim that they had not properly received the bonuses, vacation pay, etc. prescribed in the collective agreement of August 16, 1996 for the period from August 1, 1997 until their respective resignations, and their argument that the Agreement in this case could not be binding on general staff employees who were not union members, and that even if the Agreement were valid, the scope of the return would be limited to the 1997 bonus, etc., such that Plaintiffs who retired by March 31, 1998 sought the full amount of the bonuses, etc., and Plaintiffs who retired after April 1, 1998 sought the remaining bonuses, etc. after deducting the amount paid under the collective agreement of January 8, 1999; and the Defendant's argument that it had no obligation to pay the bonuses, vacation pay, etc. claimed by the Plaintiffs because they had been waived pursuant to the Agreement in this case: the court below, premising that the bonus payment provisions of the collective agreement had been lawfully amended in accordance with the contents of the Agreement in this case based on the facts found above, held as follows. Since Article 35 of the Act on the Organization and Operation of Trade Unions and Labor Relations Adjustment (노동조합및노동관계조정법, "Trade Union Act") provides that where more than half of the same kind of workers ordinarily employed in one business or workplace come to be subject to one collective agreement, the collective agreement shall also apply to other workers of the same kind employed in the business or workplace, even if the Defendant's general staff employees were not members of the Defendant's Union, if they fall under the same kind of workers as the members of the Defendant's Union, which was organized by a majority of the Defendant's employees, the Agreement in this case would also apply to the general staff employees; and workers of the same kind as provided under the above Act refers to those for whom application of the relevant collective agreement is anticipated under the provisions of the collective agreement. However, in light of the purport of Articles 1, 2, 3, and 5 of the collective agreement of August 16, 1996 and the fact that the Defendant's personnel regulations provide separate wage payment provisions applicable to general staff employees, Plaintiffs Nos. 23 to 37 (Nos. 36 to 50 in the judgment below), who were the Defendant's general staff employees, were not eligible to join the Defendant's Union under the Defendant's collective agreement, and thus could not be considered workers of the same kind subject to the Defendant's collective agreement or the Agreement in this case, which amended it. Furthermore, there is no evidence to find that the Defendant amended the rules applicable to general staff employees by changing the matters to be stated under Article 96 of the Labor Standards Act (근로기준법) in accordance with the Agreement in this case, and since general staff employees were not subject to the Agreement in this case from the outset, the Defendant's argument that the bonuses were waived has no merit with respect to Plaintiffs Nos. 23 to 37 (Nos. 36 to 50 in the judgment below), who are the Defendant's general staff employees. The court below therefore held that the Defendant was obligated to pay these Plaintiffs the 1997 bonus and the 1998 bonus regardless of the Agreement in this case.
On the other hand, as noted above, since the Defendant's Union, upon receiving the Defendant's official document requesting cooperation on the labor-management agreement, convened an emergency delegates' assembly and resolved to freeze 1997 wages and to return the 1997 bonus until normalization (reducing it to 450% if it continued through the end of the year), and notified the Defendant thereof, the Agreement in this case was effective, as between the Defendant and Plaintiffs Nos. 1 to 22 (Nos. 14 to 35 in the judgment below), who are production workers, only with respect to the 1997 bonus, and therefore the Defendant was obligated to pay these Plaintiffs the 1998 bonus.
B. Determination on the First Ground of Appeal
(1) Whether the General Binding Force of the Collective Agreement Is Recognized
Article 35 of the Trade Union Act provides that where more than half of the same kind of workers ordinarily employed in one business or workplace come to be subject to one collective agreement, the collective agreement shall also apply to other workers of the same kind employed in the business or workplace. Accordingly, workers of the same kind who become subject to the collective agreement refer to those for whom application of the relevant collective agreement is anticipated under the provisions of the collective agreement, and a person who is not eligible for union membership under the provisions of the collective agreement, etc. cannot be said to be anticipated to be subject to the collective agreement, and thus cannot be considered a worker of the same kind to whom the general binding force of the collective agreement extends (see Supreme Court Decision 96Da13415 delivered on October 28, 1997; Supreme Court Decision 2002Da23611 delivered on June 27, 2003, etc.).
According to the reasoning of the judgment below and the record, as of July 1997, the Defendant company had 1,532 union members and 863 non-union members, and thus a labor union organized by a majority of the workers existed. However, it can be found that, at the time of the above joint labor-management resolution, Article 5, Paragraph 1 of the collective agreement between the Defendant company and the Defendant's Union provided that general staff employees were excluded from the scope of union membership, and Articles 7 and 9 of the Defendant's Union's bylaws likewise provided that persons falling under Article 5 of the above collective agreement were excluded from union membership. In light of this, Plaintiffs Nos. 23 to 37, who are general staff employees, were not eligible for union membership under the Defendant company's collective agreement, and thus cannot be considered workers of the same kind to whom the general binding force of the Defendant company's collective agreement extends; this conclusion is not altered merely because the Defendant company's collective agreement includes some provisions that appear to apply to all employees.
Accordingly, the judgment below's determination on this point, reaching the same conclusion, is justified, and there is no error of law regarding the general binding force of a collective agreement as alleged in the grounds of appeal. The Supreme Court Decision 92Nu13189 delivered on December 22, 1992, cited in the grounds of appeal, concerns a case with different facts from the present case and is thus not appropriate to invoke in this case.
(2) Whether There Was an Effective Amendment of the Rules of Employment
Regarding the Defendant's argument that the rules of employment of the Defendant providing for the payment of bonuses to Plaintiffs Nos. 23 to 37, who are general staff employees, were also amended as a result of the joint labor-management resolution of July 29, 1997 and a series of related measures, the court below rejected the Defendant's argument on the ground that, since rules of employment refer to norms unilaterally drawn up by the employer in order to deal collectively and uniformly with the service discipline and working conditions of workers within the workplace, in order for there to be an amendment of the Defendant company's rules of employment, the Defendant company, as the employer, must have amended the matters to be stated under Article 96 of the Labor Standards Act in accordance with the Agreement in this case, and there was no evidence to establish this.
However, the judgment below's determination that the Defendant company's rules of employment cannot be considered to have been amended by the Agreement in this case cannot be upheld.
The rules of employment under Article 96 of the Labor Standards Act refer to rules prescribed by the employer as standards concerning service discipline and working conditions, such as wages, that are to apply to all workers of the relevant business, regardless of their title (see Supreme Court Decision 93Da30181 delivered on May 10, 1994; Supreme Court Decision 97Da23877 delivered on November 28, 1997; Supreme Court Decision 97Da24511 delivered on November 28, 1997; Supreme Court Decision 2001Da77970 delivered on June 28, 2002, etc.).
Meanwhile, Article 96 of the Labor Standards Act establishes the duty to report to the administrative agency regarding the preparation and amendment of rules of employment, the main text of Article 97 of the same Act establishes the duty to hear the opinion of the labor union or the representative of the workers, and Article 13, Paragraph 1 of the same Act establishes the duty to inform workers by posting or keeping the rules of employment available; however, these provisions are merely regulatory in nature and cannot be considered provisions determining validity, and therefore, even if the employer fails to comply with these provisions, this does not immediately render the preparation or amendment of the rules of employment invalid. However, since the rules of employment are norms within the enterprise established by the employer, even if the employer establishes provisions for the creation or amendment of rules of employment, this does not immediately give rise to their effect; although it is not necessarily required that the method prescribed in Article 13, Paragraph 1 of the Labor Standards Act be followed in order for newly created or amended rules of employment to take effect, at least a procedure equivalent to the promulgation of statutes, i.e., a procedure for widely informing the general body of employees that it constitutes a new norm within the enterprise—that is, adequate notification by whatever appropriate method—is required.
According to the record, as the Defendant company's management situation worsened, the Defendant company's general staff employees resolved to return performance-based pay on February 17, 1997 and resolved to freeze 1997 wages on April 14, 1997, thus joining in the self-rescue efforts even earlier than the Defendant's Union; however, with respect to the matter of the return of bonuses and vacation pay for purposes of the joint labor-management resolution of July 29, 1997, since the labor union, composed of a majority of the workers, had already resolved on the return on July 25, 1997, the general staff employees did not make a separate resolution to return such amounts. It can be found that the Defendant's Union, in response to the Defendant company's request for cooperation as noted above, convened an emergency delegates' assembly on July 25, 1997 and resolved to return bonuses, vacation pay, etc., and thereafter notified the Defendant company of the labor union's self-rescue plan including such content; that the □□ Group, to which the Defendant company belonged, prepared on July 28, 1997 a self-rescue plan that included restructuring its 28 affiliated companies into 5, freezing the wages of executives and employees, and reducing expenses by cutting bonuses, vacation pay, etc.; that on the 29th of the same month, the Defendant company and the Defendant's Union prepared and announced a joint labor-management resolution, and on the same day, several other affiliated companies under the □□ Group also announced joint labor-management resolutions with identical content regarding the return of bonuses and vacation pay; that the creditor bank consortium of the □□ Group, in order to secure the implementation of the above self-rescue plan, again demanded the submission of a written consent from the labor union, and on August 4, 1997, the Defendant's Union submitted to the representative director of the Defendant company a written consent stating its agreement to the Defendant company's self-rescue plan; that the fact that the Defendant company had established a self-rescue plan to reduce expenses by cutting the bonuses and vacation pay of its employees, and that the Defendant's Union had agreed thereto, was sufficiently made known at the time to the executives and employees of the companies belonging to the □□ Group through the media and the internal public relations media of the □□ Group and the Defendant company; and that, in this case, a substantial number of the above Plaintiffs who are general staff employees held managerial positions, and among them, Plaintiff ○○○ was then the head of the Human Resources Support Department and Plaintiff ○○○ was the manager of the Labor-Management Cooperation Division of the Human Resources Support Department, and they participated, representing the interests of the Defendant company, in the process of leading the Defendant's Union to join in the self-rescue efforts, including the return of bonuses and vacation pay, during the course of labor-management consultations.
Given these circumstances, as the Defendant company, at the level of the □□ Group, prepared a self-rescue plan that set forth, in writing, a policy of reducing the bonuses and summer vacation pay of the executives and employees of the companies belonging to the □□ Group until the □□ Group was normalized, the above self-rescue plan, being aimed at changing the working conditions of employees, constitutes rules of employment regardless of its title. The fact that the Defendant company had set a policy of reducing the bonuses and summer vacation pay of its executives and employees until the Defendant company was normalized was widely known through the media, and furthermore, the Defendant company presented to the Defendant's Union a self-rescue plan containing such content, and it was sufficiently made known to all employees through the Defendant company's internal public relations media, and the Defendant's Union, in which a majority of the Defendant company's workers were enrolled, agreed to such an amendment of the rules of employment; therefore, the amendment of the rules of employment in question applies also to the above Plaintiffs, who were not members of the Defendant's Union. The fact that the Defendant company did not go through the amendment procedure for the pre-existing rules of employment, or did not fulfill the duty to report, post, or keep available the amended rules of employment, does not mean that the amended rules of employment are without effect.
Nevertheless, the court below's determination that the Defendant company's rules of employment could not be considered to have been amended, and its consequent rejection of the Defendant's argument on this point, constitutes an error of law in misapprehending the legal principles regarding the effect of an amendment of rules of employment, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.
C. Determination on the Second Ground of Appeal
The judgment below's determination that the effect of the collective agreement as amended by the Agreement in this case was limited to the 1997 bonus, etc. cannot be upheld.
The point that the notice sent by Defendant Union to Defendant Company on July 25, 1997 stated "return of 1997 bonus until normalization (if carried over to this year → 450%)" is as the court below found; however, according to the record, the following facts can be acknowledged: the request letter concerning the self-rescue plan sent by the creditor bank consortium of the □□ Group to the said Group, and the self-rescue plan document prepared on July 28, 1997 by the □□ Group, which includes Defendant Company, both stated that bonuses, etc. would be returned until the company's normalization, without specifying any time limit; the request for labor-management agreement cooperation concerning the self-rescue plan sent by Defendant Company to Defendant Union on July 24, 1997, and the agenda of the extraordinary delegates' meeting held by Defendant Union on the 25th of the same month pursuant thereto, as well as the letter of consent to the self-rescue plan sent by the chairman of Defendant Union on August 4, 1997 through the representative director of Defendant Company to the creditor banks, all stated merely "return of bonus and vacation allowance" without limiting it to the 1997 bonus; at the time, due to the business condition of the □□ Group and the deterioration of domestic and foreign economic conditions, no one could have expected that the □□ Group, including Defendant Company, would achieve normalization of management within 1997; after October 1997, Defendant Union asserted the invalidity of the bonus-return resolution and demanded payment of the bonus, but the ground it raised was that the condition subsequent attached to the resolution had been fulfilled, and it never argued that the resolution was limited to the 1997 portion; and on January 8, 1998, when the collective agreement was amended, it was stipulated that the 1998 bonus of 300% would be paid only for the period from and after April 1, 1998. In light of these various circumstances, it must be found that on July 29, 1997, the date of the agreement in this case, a collective agreement was concluded between Defendant Company and Defendant Union to the effect that bonuses, vacation allowances, etc. would all be returned until a new collective agreement was concluded thereafter.
Accordingly, the measure of the court below, which, contrary to this, determined that the content of the collective agreement as modified by the agreement in this case was limited to the return of only the 1997 bonus, contains an illegality that affected the judgment by erring in the interpretation of the parties' intent regarding the scope of bonus return under the collective agreement that was concluded. The argument in the grounds of appeal pointing this out is well-founded.
2. Conclusion
Therefore, without the need to determine the remaining grounds of appeal as to Plaintiffs Nos. 23 through 37 among the Plaintiffs, the part of the judgment below against Defendant is reversed, and that part of the case is remanded to the court below for further hearing and determination, and it is so decided as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Cho Mu-je (Presiding Justice), Lee Yong-woo, Lee Gyu-hong (Justice in charge), Park Jae-yun